## Facts

- Alfonso Gomez broke into an Anaheim restaurant around 5:00 a.m., disabled surveillance cameras, and took cash from an ATM in the lobby.
- After searching the upstairs office for more money, Gomez heard the manager, Ramon Baltazar, entering and moved toward the kitchen with a handgun in his waistband.
- Baltazar discovered the alarm had been deactivated and the ATM damaged, left the building, got into his truck, and called 911.
- Baltazar saw Gomez exit a side door and followed him from roughly 100–150 feet away to help police locate him, not to apprehend him.
- While Baltazar followed, Gomez fired two shots toward him to scare him and continue his escape; Baltazar drove away.
- Police arrested Gomez shortly thereafter with the ATM cash in his backpack.

## Issues

1. Whether robbery under California Penal Code § 211 requires the victim to be present at the initial taking, or whether the “immediate presence” and force/fear elements may be satisfied during asportation while the defendant is still carrying away the property.
2. Whether force used during escape to retain property initially taken in the victim’s absence is sufficient to elevate theft to robbery.

## Decision

- The California Supreme Court affirmed the robbery conviction.
- The court held that robbery is a continuing offense encompassing caption and asportation, and force or fear may occur during either phase.
- The court concluded that if the victim’s presence and the use of force or fear occur during asportation—before the defendant reaches a place of temporary safety—the requirements of § 211 can be satisfied even if the victim was absent at the initial taking.
- Gomez’s shots at Baltazar while Gomez was still carrying away the stolen cash supported robbery because the force was used to retain the property and facilitate escape in the victim’s immediate presence.

## Legal Principles

- Robbery under Penal Code § 211 is a continuing offense that lasts from the taking until the perpetrator reaches a place of temporary safety.
- The “taking” element includes both gaining possession (caption) and carrying away (asportation); force or fear need only be applied during one of these phases.
- A theft becomes robbery when the defendant, having obtained property, uses force or fear during asportation to prevent recovery and retain the property in the victim’s immediate presence (the Estes rule).
- The “from the person or immediate presence” requirement may be satisfied during asportation; it is not limited to the precise moment of initial acquisition.

## Conclusion

Because Gomez used force by firing at the manager while still carrying away the stolen money and before reaching temporary safety, the elements of victim presence and force or fear were satisfied during the continuous robbery transaction, supporting a robbery conviction under Penal Code § 211.


People v. Gomez, 43 Cal. 4th 249, 179 P.3d 917 (Cal. 2008)