Person or Immediate Presence

Person or Immediate Presence

The first aggravator that lifts a theft into robbery concerns location: the property must be taken from the victim's person or from the victim's immediate presence.¹ Taking from the person covers what the victim is wearing or holding, such as a wallet in a coat pocket or a purse on a shoulder. Taking from the immediate presence reaches property that is off the victim's body but still close enough for the victim to control. The location matters because of what robbery punishes. When property sits within the victim's reach or control, the defendant cannot get it without dealing with the person guarding it, and that forced dealing between thief and victim is the danger the offense exists to address. Property placed where the victim has no practical way to protect it can be taken without any such encounter, and the ordinary theft rules already cover that conduct.

Courts give immediate presence a spatial definition. A thing is in a person's immediate presence when it lies so within the person's reach, observation, or control that, absent violence or fear, the person could have retained possession of it.² The inquiry therefore asks whether the property was in an area where the victim could have expected to take effective steps to keep it. Because the test describes space, it measures the area from which the property is taken, not how far the property is carried or how long the taking lasts.³ The reason is that the confrontation robbery punishes occurs at the moment the defendant gains control. If presence turned on the length of the getaway, the label would depend on events that happened after the victim's chance to resist had already ended. That is also why presence attaches to the gaining-possession half of the taking and has no connection to the carrying-away half.⁴ Students misapply this element when they measure how far the loot travels, because a purse yanked from a shoulder and carried a mile came from the victim's person all the same.

In Miller v. Superior Court a defendant had a gas station attendant pump gasoline into the defendant's car, then confronted the attendant with a rifle and drove off without paying, and the gasoline counted as taken from the attendant's immediate presence.⁵ The gasoline lay within the attendant's reach and control while it was being dispensed, which is the spatial question the test asks. The drive down the road carried the gasoline away, but carrying away is the other half of the taking and added nothing to presence. The facts also show the test reaching property that was never on the victim's body, which is why the category of immediate presence exists alongside the category of the person.

The standard extension of the test is that property in other rooms of the same house where the victim is present counts as taken from the victim's presence.⁶ The rule asks for a place reasonably close to the victim, and an occupant controls the house as a whole, so an occupant held in one room could, if free, walk to another room and protect what is there. A confrontation in one room therefore reaches everything the occupant could otherwise have defended in that house.

Presence is also a requirement of its own, distinct from force or intimidation. In People v. Gomez, a case about cash taken from an ATM, the court described common law robbery as larceny plus two aggravating circumstances, one concerning where the property was taken from and one concerning force or fear.⁷ Because the two are separate circumstances, either can fail while the other is satisfied. The separation has a functional basis: a thief can use force while the property is somewhere else, and a thief can take property from the victim's presence without any force at all. Problems sometimes isolate presence as a stand-alone question, such as whether a demand that a person leave a wallet at the defendant's front door the following day is a taking directly from the person.⁸ An answer to that kind of question has to say where the property was when the defendant gained control of it and whether that place was within the victim's reach or control.

The two examples fail for different reasons, and an exam answer should keep them apart: the first fails the requirement about where the property was, and the second fails the requirement about how it was taken. The first example is offered only to show that the elements are separate, and nothing here depends on how a particular jurisdiction treats every threat made at a distance. A satisfied element cannot supply the one that is missing.