No.

JB66655 COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

ELIZABETH TARDY, Appellant v. PEOPLE OF THE STATE OF CALIFORNIA, Respondent

BRIEF OF APPELLANT APPEAL FROM JUDGMENT OF JUDGE JOHNATHAN JUSTICE COUNTY OF LOS ANGELES, SUPERIOR COURT

Attorney for the Appellant

TABLE OF CONTENTS Table of Authorities............iii Question Presented For Review.........iv Statement of Appealability and Standard of Review........ v Introduction.............6 Statement of the Facts.................7 Argument: I. THE COURT SHOULD REVERSE THE JUDGMENT OF THE TRIAL COURT ON THE GROUNDS THAT THERE IS INSUFFICIENT EVIDENCE TO UPHOLD APPELLANTS CONVICTION FOR ROBBERY BECAUSE APPELLANT DID NOT POSSESS THE INTENT TO STEAL AND APPELLANT DID NOT USE FORCE OR FEAR TO TAKE THE PROPERTY9 A. Appellant did not have the requisite intent for robbery because she had a good faith claim-of-right to the shawl. 9 B. Appellant did not use force or fear to take the property from the OFGs table because she only used the force required to remove the item and she did not instill fear in the victim. .12 1. Appellant did not employ force against victim nor did she use any force to take the property from the OFGs table beyond the force required to remove it from the table. ...13 2. Appellant did not use fear to take victims property because there was no evidence that victim was afraid and there was no confrontation. ..15 C. Appellant did not take the shawl from victims possession because he did not own it, actually possess it, or constructively possess it. .16 D. Appellant did not take the shawl against victims will because it was not taken within his immediate presence. ..18 1. Appellant did not take the shawl against victims will because the nature of common property at the protest led her to believe that she had the owners consent. ..18 2. Appellant did not take the shawl from the victims immediate presence because it was not sufficiently within his presence that he could exercise physical control over it. .19 Conclusion.....20

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TABLE OF AUTHORITIES Cases People v. Bauer, 241 Cal.App.2d 632 (5th Dist. 1966). .19 People v. Estes, 147 Cal.App.3d 23 (1st Dist. 1983). .17 People v. Fenderson, 188 Cal.App.4th 625 (1st Dist. 2010). ...11 People v. Galoia, 31 Cal. App.4th 595 (4th Dist. 1994). 16 People v. Gomez, 43 Cal.4th 249 (2008). ....13 People v. Louis, 42 Cal.3d 969, 985 (1986). ...iv People v. Morales, 49 Cal.App.3d 134 (4th Dist. 1975). ..14 People v. Mungia, 234 Cal.App.3d 1703 (4th Dist. 1991). .15 People v. Sheasbey, 82 Cal.App. 459 (1st Dist. 1927). .10 People v. Smith, 177 Cal. App.4th 1478 (1st Dist. 2009). 12 People v. Torres, 33 Cal. App.4th 37 (2d Dist. 1995). ..18 People v. Tufunga, 21 Cal.4th 935 (1999). ..10

Statutes Cal. Penal Code Ann. 211 (West 2012). ..9 Cal. Penal Code Ann. 213(a)(2) (West 2012). .13 Cal. Penal Code Ann. 490 (West 2012). ..13 Cal. Penal Code Ann. 1237(a) (West 2012). ..iv

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QUESTION PRESENTED FOR REVIEW

Should defendants robbery conviction be upheld for grabbing a shawl, which was not in victims possession, without the use of force or fear and with the good faith belief that she had a right to do so?

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STANDARD OF REVIEW

This appeal is taken from a final judgment against defendant, being found guilty by jury trial of one count of robbery. (R.A. p. 3). Defendant now appeals the judgment on the grounds that there is insufficient evidence to support her conviction for robbery. (R.A. p. 3). Questions of fact are reviewed under the deferential, clearly erroneous standard. People v. Louis, 42 Cal.3d 969, 985 (1986). Under the California Penal Code Section 1237, an appeal may be taken by the defendant from a final judgment of conviction. Cal. Penal Code Ann. 1237(a) (West 2012).

INTRODUCTION Robbery under the law of California is a crime that consists of five distinct elements, all of which must be individually satisfied in order for a defendant to be properly convicted of robbery. This appeal seeks to reverse the lower courts decision to convict Ms. Elizabeth Tardy of the count of robbery as charged. For reasons presented herein, it is clear that there is insufficient evidence to find that all five elements of robbery are satisfied, and the judgment of the lower court is therefore clearly erroneous. Intent is a vital element of any theft crime. Under California law, the standard of intent for a robbery conviction is a felonious intent, one that involves the intent to permanently deprive the owner of the use or enjoyment of the property involved. Ms. Tardy is a teenager who had a mistaken belief that she had a right to use a nearby shawl in an instant where she was both ill and desperate. She is simply not the kind of criminal that the law wants to target in preventing robbery. While desperation is not an excuse for felonious intent, it illustrates here that she did not formulate the malevolent intent to deprive the owner of the property. Moreover, she grabbed the shawl in broad daylight, indicating that she had nothing to hide and that her belief was made in good faith. Because she took an item that she believed was not wrong to take, her mental state was not malicious. This good faith belief, even if a mistake and thereby an incorrect belief, defeats the requisite intent element of a robbery conviction through the claim-of-right defense. Further, robbery is a crime involving violence, used against a person in the taking of that property, where force is exerted against the victim or where fear is instilled within
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the victim. The legislative intent in defining robbery by the use of force or fear was presumably to distinguish the violent crime of theft from the lesser crime of larceny and set apart those instances where violence against the victim accompanies the taking of property. Countless cases would lead to robbery convictions were that violence requirement to be ignored. This in turn would fill prisons with convicts who have been sentenced to spend years of their life there, condemned for what is essentially a crime of violence, without any distinction between vicious thieves and peaceable thieves. Ms. Tardy is not a vicious thief. Her taking of property that turned out to be property she did not have a right to, despite her good faith belief in her right to it, did not involve violence. She is evidently no such criminal deserving of the imprisonment California reserves for such vicious criminals as bank robbers, carjackers, or muggers. Her honest mistake that the shawl she took was common property available to her by way of an interdependent community atmosphere does not make her a criminal, and it would be against public policy and social justice for the law of California to treat her as one. STATEMENT OF THE FACTS Ms. Tardy is a 19 year-old aspiring actress from South Dakota who had been attending the Occupy LA rallies and protests for about a month or so before the events that led to her arrest. (R. p. 12). The first time that she attended one of the protests she was hoping for help in her search for a full-time job and a chance to realize her dream of becoming a famous movie star (R. p. 12). Before attending the rally, she had spent the

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previous seven months searching for a part-time job after leaving home and moving to LA alone. Soon after, she ended up growing attached to the Occupy LA protest for its own sake, finding what seemed like a little community, where everyone supported one another and helped each other out. (R. p. 12). This comforted her because she had originally come from a small town with a similar feel, and [she] felt like [she] was home. (R. p. 12). On the day of her arrest, Ms. Tardy was not feeling well but nonetheless managed to do a favour for her friend. (R. p. 12). Upon arrival at the protest, she came upon an opportunity to meet a famous actor and his agent, an opportunity that held great potential for her career aspirations. (R. ps. 12-13). Eager to make a good impression, Ms. Tardy realized that she could not approach these men with the way that she looked. (R. p. 13). She decided to quickly grab a shawl to wear from a nearby table and introduce herself to the famous actor and his agent. (R. p. 13). She did not think twice about taking the shawl and believed that she had a right to it because [m]ost things at the protests are common property, hats, shirts, and shoes. (R. p. 14). Though Mr. Cardiff attempted to get her attention, she did not hear anyone call after her or yell at her to stop as she grabbed the shawl. (R. ps. 9, 14). The area where the table was located served as a prime meeting place for the protestors and a place for people to socialize and according to Ms. Tardy, [t]hat place is so loud and busy its practically impossible to see or hear anyone. (R. ps. 10, 14).

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After pursuing the two men, she then struck up a conversation with the famous actor and proceeded to discuss her future career and the agents interest in signing her. (R. p. 13). Following months of vocational struggle, Ms. Tardy ended up being signed on the spot and was given the potential to realize her dream. (R. p. 13). However, on her way out of the protests, she was stopped by the police and then subsequently arrested. (R. p. 13). ARGUMENT II. THE COURT SHOULD REVERSE THE JUDGMENT OF THE TRIAL COURT ON THE GROUNDS THAT THERE IS INSUFFICIENT EVIDENCE TO UPHOLD DEFENDANTS CONVICTION FOR ROBBERY BECAUSE DEFENDANT DID NOT POSSESS THE INTENT TO STEAL AND DEFENDANT DID NOT USE FORCE OR FEAR TO TAKE THE PROPERTY. Appellant Elizabeth Tardys conviction should be reversed because there is insufficient evidence to uphold the trial courts judgment. In the state of California, a conviction of robbery requires the satisfaction of five elements under California Penal Code Section 211: Robbery is the 1) felonious taking of personal property 2) in the possession of another, 3) from his person or immediate presence, 4) and against his will, 5) accomplished by means of force or fear. Cal. Penal Code Ann. 211 (West 2012). Because these elements are not satisfied by Ms. Tardys conduct, there is insufficient evidence to uphold the trial courts conviction. A. Appellant did not have the requisite intent for robbery because she had a good faith claim-of-right to the shawl.

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In instances where someone takes property belonging to another, the defendant may have a claim-of-right defense when charged with a theft crime, including robbery. The claim-of-right defense provides that a defendant's good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery. People v. Tufunga, 21 Cal.4th 935, 938 (1999). Here, Ms. Tardy has a claim-of-right defense because of her good faith belief in her right to claim the OFG shawl. Even in situations where property is acquired by force, the victim cannot establish a robbery when the defendant has a genuine belief in his or her right to take the property. In People v. Tufunga, defendant had given the victim $200 to help her pay their bill. 21 Cal.4th 935, 941 (1999). When defendant and victim got into an argument, defendant believed that victim was instead going to take the money for herself. Id. After defendant demanded that the victim return the money to him, she refused, and he then reclaimed the money from the victim himself. Id. The defense requested instruction on a claim-of-right defense to the charge of robbery, which was granted. Id. at 938. The force used to take back the money was deemed immaterial because of defendants bona fide, good faith belief in his right to take the money. Id. at 942. On these grounds, the Supreme Court of California reversed the Court of Appeals judgment affirming defendants conviction of robbery. Similarly, in People v. Sheasbey, defendant and victim had entered into a contract wherein they agreed that the seller might retake the property involved in the transaction should the buyer fail to comply with any covenant or condition of the contract. 82 Cal.
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App. 459, 462 (1927). Upon victims failure to comply with the terms of contract, defendant went to victims home and proceeded to carry out his recapture operations. In order to avoid a physical altercation with victim, defendant tied him up while reclaiming his property. On appeal, the court reversed the judgment convicting defendant of robbery because the evidence was insufficient to constitute robbery given that the defendant did not take the property with intent to steal but under a claim of right of possession. Id. at 462-63. Further, in People v. Fenderson, the defendant was a caregiver for the victim, an elderly woman in failing health who then passed away. 188 Cal.App.4th 625, 628 (2010). Following her death, Fenderson removed money from her bank account, claiming that victim had given her the accounts. Id. On appeal, Fenderson contended that her convictions were not supported by substantial evidence, and the court explained, [a] lack of concealment is evidence that a defendant has a good faith belief in his or her right to the property at issue. Id. at 644. The court determined that her claim-of-right was thereby valid. As in Tufunga, Ms. Tardy had a bona fide belief in her right to take the property. She found a sense of community at the Occupy LA protests and expressed that everyone supported one another and helped each other out. (R. p. 12). When asked why she would take a shawl that did not belong to her, she explained that [m]ost things at the protests are common property, hats, shirts, and shoes. (R. p. 14). Similar to hats, shirts, and shoes, a shawl is an item of clothing that one wears. Because most items at the protests

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were common property, and the shawl fit into that category of kinds of items understood to be common property, Ms. Tardys belief that the OFG shawl was also common property was made in good faith. In Sheasbey, the defendant took the extreme measure of binding the victim while taking the property in question, and therein the court nonetheless found that this did not constitute a robbery because he did not have the intent to steal. Ms. Tardy did not employ any such forceful measures as binding Mr. Cardiff and also did not possess the intent to steal. If Sheasbey was able to employ force to bind his victim and yet avoid a robbery charge because of his claim of right to the property, Ms. Tardys conduct and claim of right to the shawl should certainly produce the same outcome. Lastly, the lack of concealment in Ms. Tardys conduct evidences her good faith belief in a right to the shawl. As in Fenderson, she was not discrete in the manner in which she took the shawl and there is nothing that suggests she was trying to acquire the property in a hidden manner. It is not good law to infer that she intended to commit a crime when she took the shawl so openly. Therefore, the intent element of robbery is not satisfied because she did not act with the specific intent to permanently deprive the owner of the property, and [t]he taking of the property of another is not theft absent this intent. People v. Smith, 177 Cal. App. 4th 1478, 1490 (2009). B. Appellant did not use force or fear to take the property from the OFGs table because she only used the force required to remove the item and she did not instill fear in the victim.

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In People v. Gomez, the court explained that [r]obbery violates the social interest in the safety and security of the person as well as the social interest in the protection of property rights. 43 Cal. 4th 249, 264 (2008). Further, robbery is classified in the California Penal Code as a crime against the person, and according to the notes of decisions in Section 211, [t]he central element of the crime of robbery is the force or fear applied to the individual victim in order to deprive him of his property. As a crime against the person, robbery requires either some measure of violence employed against the victim or inducement of fear in the victim. For Ms. Tardys conviction to be upheld would mean that there is no distinction between robbery and larceny under California law, a poor policy decision given the variance in punishment and consequence between these two crimes. Ms. Tardys robbery sentence would be as follows: [r]obbery of the second degree is punishable by imprisonment in the state prison for two, three, or five years. Cal. Penal Code Ann. 213(a)(2) (West 2012). Conversely, [p]etty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both. Cal. Penal Code Ann. 490 (West 2012). This is a significant difference in punitive outcome, and without evidence of force or fear applied to the victim, not simply to the property, appellants robbery conviction should be reversed. 3. Appellant did not employ force against victim nor did she use any force to take the property from the OFGs table beyond the force required to remove it from the table. In order for the force element of a robbery charge to be satisfied, defendant

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must have used force against the victim and this force must be greater than that amount required to take the property. Ms. Tardy did not use force against Mr. Cardiff and she did not use any magnitude of force beyond simply taking the shawl from the table. Where a defendant is convicted of robbery, it must be shown that there was a violent force employed against the victim beyond simply the muscle used to take the property. In People v. Morales, Mrs. Garnet Libby and her mother were walking home from the store down a residential street when the defendant, walking in the opposite direction, passed them. 49 Cal.App.3d 134, 137 (Ct. App. 1975). He then turned and approached them from behind, grabbing Mrs. Libbys mothers purse and fleeing down the street. Id. A witness who was standing across the street testified that defendant pushed Mrs. Smith as he seized the purse. Id. The court therein explained that [they had] not discovered any-California case which purports to define precisely how much force is required to elevate a taking from the person to the status of a robbery. However, it is established that something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property. Id. at 139. The force involved in the robbery herein was not the mere snatching of the purse but included defendant pushing the victim. Whereas in Morales defendant used force against victim in taking her property, Ms. Tardy did not exert any force whatsoever against Mr. Cardiff. Eyewitness Lara Mulligan did not see a fight take place between [Mr. Cardiff] and [Ms. Tardy]. (R. p. 11). He was seated while she ran by and grabbed the
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shawl and there was no physical altercation between them. (R. p. 7). Further, the force used in removing the shawl was nothing more than merely the measure of force necessary to accomplish its taking. No violence was used in taking the shawl. Therefore, the force requirement of robbery is lacking here. 4. Appellant did not use fear to take victims property because there was no evidence that victim was afraid and there was no confrontation. Fear is employed against a robbery victim where the defendant uses fear in order to accomplish the taking of the victims property. Victim must have been afraid or it must be reasonably inferable that the victim was afraid and that this was related to the act of theft in question. Here, there is no indication whatsoever that Mr. Cardiff was afraid and Ms. Tardy did nothing at all to instill fear in him. In People v. Mungia, victim was leaving a store walking towards her parked car when defendant came up behind [her] and shoved [her] enough to get her purse off [her] shoulder. 234 Cal.App.3d 1703, 1706. Force was found herein, but as regards fear, the court explained that [although] the victim need not explicitly testify that he or she was afraid in order to show the use of fear to facilitate the taking there must be evidence from which it can be inferred that the victim was in fact afraid, and that such fear allowed the crime to be accomplished. Id. at 1709. The court in Mungia delineates two requirements for a showing of fear: 1) evidence sufficient to infer that the victim was afraid and 2) if the victim was afraid, this fear must have allowed the robbery to be accomplished. Whereas a victim who was afraid may retreat or flee, Mr. Cardiff attempted to stop Ms. Tardy and yelled at her, aggressively screaming at her to stop (R. p. 9).
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This suggests that he was not afraid of her but instead, was eager to retrieve the shawl. Furthermore, Ms. Tardy ran away from the table immediately after taking the shawl and did not engage with Mr. Cardiff whatsoever. (R. p. 9). Were she attempting to use fear to accomplish the taking of the shawl, she likely would have made a point to make her presence known to him. There was not, however, any confrontation between the two of them. Therefore, there is insufficient evidence to infer that Mr. Cardiff was in fact afraid of her and that his being afraid allowed the taking to be accomplished. C. Appellant did not take the shawl from victims possession because victim did not own it, actually possess it, or constructively possess it. Case law indicates that possession can be established in three primary ways: 1) ownership of the property, 2) actual possession through exerting physical control over the property, or 3) constructive possession of the property. This element of robbery is not satisfied because Mr. Cardiff did not have possession of the shawl when it was taken from the table. If the victim does not own the property, the victim must have some other form of possession that creates proper victim status. In People v. Galoia, defendant stole some goods from a convenience store. 31 Cal. App. 4th 595, 596-97 (1994). A bystander attempted to stop the defendant outside of the store but was hit from behind by defendants companion. He was not deemed to be a proper robbery victim because the property was not taken from his person, he did not own it, and it was not in his possession. The court explained that the victim need not own the property in order to

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possess it, so long as he or she exercises actual control over it. Id. at 597. Exerting actual physical control over the property would have allowed the bystander to be deemed a robbery victim. Alternately, in People v. Estes, a department store employee was deemed a robbery victim in that, as a person directly responsible for the security of the items taken, he was in constructive possession of the merchandise. 147 Cal.App.3d 23 (1983). He was employed as a security guard to prevent thefts of merchandise specifically. Id. at 27. As in Galoia, it was not necessary that the victim also own the goods in question. Id. at 26. The court determined that a robbery could take place against someone who has constructive possession of the goods for the sake of satisfying the possession of another requirement. Id. In Galoia, the robbery victim was a bystander and did not own the property in question, but the court focused on the need for the victim to actually exercise control over the property. In Estes, the victim was not exercising control over the property but instead gained constructive possession over the property because of the nature of his employment. Herein, however, Mr. Cardiff was not exercising direct physical control over the property and it was not taken from his person. He was also not at his workplace because the Organic Farm Group works out of a warehouse downtown as their headquarters and official office space. Moreover, he is an office administrator and the scope of his employment centered on answer[ing] phones, letters and help[ing] to organize events for the group. Unlike the victim in Estes, it was not his job to maintain the security of the
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shawl and the property taken was not the substance of the owners business (they were not in the business of shawls). Therefore, because he did not own the shawl, exercise actual control over the shawl, or constructively possess the shawl, Ms. Tardy did not take it from the possession of Mr. Cardiff. D. Appelant did not take the shawl against victims will because it was not taken within his immediate presence. Where property is not taken from within the immediate presence of the victim and the defendant believes she has the owners consent to use the property, it may not be taken against the victims will. 3. Appellant did not take the shawl against victims will because the nature of common property at the protest led her to believe that she had the owners consent. In People v. Torres, defendant attempted to obtain money at gunpoint from the victim, a passerby on his way to his car. 33 Cal. App. 4th 37, 42-43 (1995). He was then charged with attempted robbery. Id. at 43. When the victim stated he had no money, defendant patted victims pockets while continuing to train his gun on the victim. The court elaborated that defendant thereby demonstrated an intent to take the victims money through force and against his will rather than with his consent induced by fear. The use of force herein was crucial in separating defendants conduct from being merely extortive. Unlike in Torres, Ms. Tardy did not have any exchange with Mr. Cardiff before removing the property from the table that would indicate any intention to take the shawl through force and against his will. Conversely, she had no

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indication that there was no consent because Mr. Cardiffs vocal attempt to stop her took place in the middle of the most crowded part of a protest in the second largest city in the nation, where numerous people had gathered to socialize. (R. p. 11). The place where the shawl was taken was both loud and busy, and consequently, Ms. Tardy did not hear Mr. Cardiff call after her. (R. p. 14). In believing that she had a right to use the shawl, Ms. Tardy implicitly believed that the owner had consented to her using the shawl. Since Ms. Tardy lacked the felonious intent necessary for a conviction of robbery, she could not have then believed that she was taking something without consent, and her conduct therefore does not satisfy the requirement that property be taken against the will of another. 4. Appellant did not take the shawl from the victims immediate presence because it was not sufficiently within his presence that he could exercise physical control over it. A robbery victim must be within an area where he could exercise physical control over the property in order for the robbery to take place within his immediate presence. Ms. Tardy did not remove the shawl from within his immediate presence because he was not exercising physical control over the shawl. Physical control over the property in question is important in assessing the victims immediate presence. In People v. Bauer, defendant murdered victim and then took possession of her car. 241 Cal.App.2d 632 (1966). Defendant was charged with robbery and, regarding the immediate presence requirement, the court explained that it must mean at least an area within which the victim could
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[] be expected to exercise some physical control over [her] property. 241 Cal.App.2d at 642. Applying the standard set forth in Bauer, the shawl could not have been taken from Mr. Cardiffs immediate presence because the shawl was not in an area within which he was exercising physical control over the property. This was evidenced by the fact that Ms. Tardy removed the shawl from the table without any physical repercussions to Mr. Cardiff. When asked if he was actually holding the shawl at the time it was taken, Mr. Cardiff indicated that his hand was on the same table on which the shawl was located. (R. p. 9-10). He did not say, however, that he was touching the shawl or that it was pinned down underneath his hand. (R. p. 10). Consequently, Mr. Cardiff was not in a position, or was not sufficiently and immediately present, such that he could exercise physical control over the shawl. Had he been able to do so, he could have easily prevented her from removing it. Therefore, the immediate presence element is not satisfied. CONCLUSION For the reasons stated above, Ms. Elizabeth Tardy respectfully requests that the court reverses Judge Justices judgment convicting Ms. Elizabeth Tardy of the count of robbery as charged. Respectfully Submitted By: / s / Smith & Smith Attorneys for Appellant

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