I. RISA GALANT'S COMPLAINT CHARGING HER WITH SECOND DEGREE ROBBERY SHOULD BE SET ASIDE BECAUSE THERE IS INSUFFICIENT EVIDENCE TO PROVE THE POSSESSION ELEMENT OF ROBBERY, NAMELY CONSTRUCTIVE POSSESSION.
Penal Code §995 states that an information shall be set aside where the defendant has been committed without reasonable or probable cause. Pen. Code §995(a)(2)(B). The terms "reasonable or probable cause" mean such that the facts of the case would lead a person of ordinary prudence to believe and conscientiously entertain a strong suspicion, that that person is guilty of the crime charged. In re McCarty, 140 Cal. App. 473, 474 (1934). Since all valid inferences drawn by the magistrate must be in favor of the information, there must be some …show more content…
The elements of felonious taking of personal property, against a persons' will, and the use of force or fear are not issues this case. The main issue in this case is regarding the possession element. Robbery victims must have actual or constructive possession of the taken property. People v. Nguyen, 24 Cal. App. 4th 756, 764 (2000). To be in constructive possession of a property, the alleged victim must have a special relationship with the owner of the property. People v. Scott, 45 Cal. 4th 743, 750 (2009). For the purposes of being a robbery victim, a person has special relationship with the owner such that he or she has authority or responsibility to protect the property on behalf of the owner. Id. Here, Ms. Merkel and Mr. Patel did not have a special relationship with the Marshalls store to be considered as having constructive possession over the store's property. Therefore, Ms. Galant requests that the court set aside the information on the grounds that she had been committed without reasonable or probable cause because the element of possession is not satisfied to bring a charge of …show more content…
Ms. Merkel did not have constructive possession over the Marshall store's property because as an off-duty employee, she does not have a special relationship with the Marshalls store.

An employee who is on duty, by virtue of his or her employment relationship with the employer, is deemed to be in constructive possession of the employer's property. Id. at 751. Furthermore, a visitor is not considered to be in actual or constructive possession of a property taken from a business. Nguyen, 24 Cal. App. 4th at 764.

In Scott, a robbery occurred in a restaurant which had three employees working on duty at the time. Scott, 45 Cal. 4th at 747. Relying on the fact that two of the employees, the cook and the cashier, did not have access to the cash that was taken from the safe, the defense argued that they did not have constructive possession of the employer's property. Id. The court disproved a prior holding from People v. Frazer, 106 Cal. App 4th 1105 (2003), which required the jury to examine the circumstance of the employment of the employee to determine whether the employee had sufficient capacity to have implied authority over the owner's property. Instead the court held that the prosecution may meet its burden of proving the element of possession by establishing that the victim was, "was an employee of the property owner and was on duty when the robbery took place." Scott, 45 Cal. 4th at