Timing of Force or Threats

Timing of Force or Threats

The sections on presence and on force or intimidation describe where the taking happens and how the defendant overcomes the victim. A third requirement concerns when the force or threat is used. At common law, the defendant must use the force or threats either to obtain possession of the property or to retain possession immediately after obtaining it, for instance by using force to prevent the victim's immediate pursuit or to prevent the prompt recovery of the property.¹ Force that satisfies the earlier standards therefore still falls short unless it is tied to the taking in this way.

The two halves of the rule serve different purposes. The first half covers the paradigm case, in which violence or fear is the means of getting the property. The second half exists because a thief can take quietly and meet the victim's attempt to recover the property a moment later with force. If the law demanded that violence come before the property moved, the order in which the thief chose to act would decide the grade of the offense, even though the victim faces the same confrontation over the same property. The word "immediately" does the opposite work and keeps the theft and the violence together as one event. Force used for some unrelated reason, or long after the taking is complete, is not aimed at taking or keeping the property, so it adds nothing to the theft and falls to other offenses such as assault or battery.

The next three sections take the rule in order. The first covers force or threats used to obtain possession, including why the force must be purposive, meaning aimed at taking or keeping the property. The second covers force or threats used to retain possession immediately after a peaceful taking. The third sets the timing rule apart from the escape rule, an idea that some doctrines, felony murder among them, use to treat a felony as continuing through flight to a place of temporary safety. That idea answers a different question from the one robbery's timing element asks. The analysis begins with the baseline use of force to obtain possession.

Force to Obtain Possession

The first half of the timing rule describes the paradigm robbery, in which the defendant uses force or a threat to obtain possession of the property.³ In that case the violence or fear is the instrument of the taking: the victim hands the property over because of the threat, or the defendant takes it over resistance that the force defeats. The earlier sections described what the force or intimidation must look like. The timing element adds a question about the job the force did, which is whether it was what moved the property from the victim to the defendant.

The requirement follows from what the offense punishes. Robbery is a theft graded higher because the defendant turned to violence to accomplish it, and that combination exists only when the violence serves the taking. When the two are linked, the victim faces a single confrontation in which the property and the victim's safety are bound together, and the defendant's force or threat is aimed at controlling the victim's choice to yield or resist. When the violence has some other aim, the defendant has committed two separate wrongs, an assault or battery and a theft, and the law already has an ordinary offense for each. Calling the pair a robbery would raise the grade for a danger that was never used to take anything.

For that reason the force must be purposive, meaning aimed at taking or keeping the property. Violence that merely happens to come before a taking does not satisfy a rule that requires the force to be used to obtain possession.⁴ The test asks what the violence was for, whatever the interval between the attack and the theft. A defendant who strikes someone in a quarrel and afterward notices a wallet has not used force to get it, because the attack had run its course, with the property playing no part in it, before the idea of taking arose.

The fact that moved the answer in that pair is the purpose of the force, since the blow, the victim, and the property were identical. Students lose this element when they treat any violence that happens near a theft as enough, because proximity in time says nothing about what the violence was meant to accomplish. Closer cases arise when the plan to take the property forms in the middle of a struggle that began for another reason, and jurisdictions may resolve those edge cases differently. A problem that turns on one calls for the governing law, and the facts that matter are those showing when the defendant first meant to take the property and what the violence was meant to achieve. Force used immediately after a quiet taking, to keep the property or to stop pursuit, falls under the second half of the rule, which the next section takes up and which carries the same requirement that the force be aimed at the property.

Force to Retain Possession

The second half of the timing rule picks up where force to obtain possession leaves off. At common law, force or threats used to retain possession immediately after obtaining it, for instance to prevent the victim's immediate pursuit or the prompt recovery of the property, satisfy the timing element just as force used to obtain possession does.⁶ A theft that began without any violence therefore becomes a robbery if the thief turns to force at that point. The rule follows from the way courts describe the taking itself, which has two parts: gaining possession of the victim's property and carrying it away.⁷ A thief who holds the property but has not yet gotten clear has completed only the first part, so force used to finish the second part belongs to the same offense as the grab that preceded it.

The rule has a functional reason and an incentive reason. Functionally, a thief who uses force to hold on to the loot puts the victim in the same danger as one who uses force to get it, because the victim's immediate resistance is exactly what the force is meant to defeat, and the confrontation over the property is a single event whichever side of the handover the violence falls on. The incentive reason is subtler. If robbery required violence to come before the property moved, a thief could control the grade of the offense by controlling the order of events: start quietly, wait to see whether the victim objects, and use force only when challenged, answering for larceny and an assault where a thief who threatened first would answer for robbery. Treating the escape with the property as part of the taking removes that advantage, since a peaceful start no longer buys anything.

The paradigm illustrations come from two decisions that the California Court of Appeal discussed in Miller v. Superior Court.⁸ In People v. Anderson, the defendant entered a pawnshop as a supposed buyer and examined a rifle and ammunition, and while the clerk totaled the price he loaded the rifle and pointed it at the clerk to facilitate his escape.⁹ He needed no force to get the rifle into his hands, since the clerk had let him handle it, so the threat was aimed at the second part of the taking, getting away with the property. In People v. Phillips, the defendant had a gas station attendant fill his tank, then confronted the attendant with a rifle and refused to pay.¹⁰ The fuel had likewise been acquired without force, and the weapon appeared at the moment the attendant would otherwise have collected payment.

What distinguishes the two cases is the moment in the transaction at which the force did its work. In Anderson the force served escape: the defendant already had the property in hand and used the rifle so that he could leave with it, which is the prevention of immediate pursuit or prompt recovery that the rule names.¹¹ In Phillips the force served resistance on the spot, because the weapon blocked the attendant's immediate attempt to get the fuel or its price back, so what it prevented was recovery in the victim's presence rather than flight. The function is the same in both, since in each the force kept the property from the person entitled to it, and that function places both within the retention half of the rule.

A familiar bank-robbery illustration shows the same timing in a setting with a third party. A robber points a gun at a bank customer and orders the customer to put the tellers' cash in a bag, and after the customer hands the bag over, the robber strikes the bank guard on the head with the gun to immobilize him.¹² The handover there was already compelled by a threat of death, so the blow does not change the grade of the offense, and the guard's later death raises homicide questions that lie outside this section. The blow is useful as a picture of force used to retain: it comes right after the property reaches the robber, and its purpose is to remove the one person positioned to stop the escape with the money, which is the kind of prevention of pursuit the rule describes.¹³

Other jurisdictions reach the same result. As People v. Gomez notes, courts elsewhere adopt a continuous-offense view of robbery, under which force that enables a thief to retain property against the victim's immediate resistance makes the taking a robbery even though possession was gained without force.¹⁴ The idea behind that view is that the thief's possession remains contested until the victim's immediate chance to resist or recover has passed, and force used during that period is force used to take.

The word "immediately" limits the rule, and the limit matters as much as the rule itself.¹⁵ Once the thief has gotten clear and the victim's chance to resist or recover on the spot has passed, force no longer serves to keep the property. It becomes a separate wrong that the ordinary assault and battery offenses already cover, and calling it robbery would let the offense absorb any later violence by someone who happens to have stolen from the victim. The requirement from the preceding section also applies here: the force must be aimed at the property, so prompt violence with some other aim, such as retaliating for an insult, does not convert the theft.

Students lose this element in two directions. Some conclude that a peaceful start ends the inquiry, which overlooks the retention half of the rule, and others treat any later violence by a thief as robbery, which overlooks the word that ties the force to the confrontation over the property. The facts that decide a problem are how soon the force followed the taking, whether the victim's chance to resist or pursue was still alive, and what the force was meant to accomplish. The rule as stated sets no fixed interval, so the analysis follows the connection between the force and the taking. The next section separates this timing rule from the escape rule, which answers a different question.

The Escape Rule Distinguished

The timing rule asks whether force or threats were used to obtain the property or to retain it immediately afterward. A second doctrine that also speaks of flight is easy to confuse with it. Under the escape rule, a robbery is treated as continuing through the robber's escape to a place of temporary safety, whether or not the carrying away of the loot coincides with the escape.¹⁷ Courts use that rule to attach consequences to a robbery that has already occurred, and felony-murder liability is the standard example: a death during the getaway is treated as happening during the robbery, even though the defendant already holds the property.¹⁸ The reason is functional. Flight with the loot is part of the danger the robbery creates, and the rule keeps a robber from escaping responsibility for violence in the getaway merely because the property has already changed hands.

The rule also has limits, which show that it does not redefine the offense. In People v. Cooper, which People v. Gomez describes in a footnote, the California Supreme Court declined to extend the escape rule to decide who is an aider and abettor of the robbery.¹⁹ The court reasoned that, for that question, the focus must stay on the acts that make up the robbery itself.²⁰ A person whose only involvement begins during the escape took no part in those acts. If flight stretched the robbery for every purpose, that person would be swept in as a participant in the robbery merely because the flight was still under way. The same court's statement of the elements points the same way. Robbery consists of larceny plus two aggravating circumstances, a taking from the person or presence of another and a taking accomplished by force or by putting the victim in fear, and escape appears nowhere on that list.²¹

The two doctrines therefore answer different questions. The timing element decides whether a theft is a robbery at all, by asking what the force or threat was used to do and how soon after the taking it came. The escape rule starts after that question has been answered in the prosecution's favor and decides how far certain consequences of an existing robbery reach. Students lose points here when they treat escape as an element or when they use flight to a place of temporary safety to stretch the window for force used to retain possession. The retention analysis from the preceding section stays where it was, and the escape rule belongs in the answer only when the facts raise a consequence such as a death during the getaway.