This recent case discusses People v. Dozie (Cal. App. 1964

McEwen, Paul C., Jr.

English

University of San Diego

SAN DIEGO LAW REVIEW2CRIMINAL LAW-ROBBERY-ONE WHO USES BAREFISTS IN THE COMMISSION OF A ROBBERY IS NOTARMED WITH A DANGEROUS OR DEADLY WEAPONWITHIN THE MEANING OF CALIFORNIA PENALCODE SECTION 211a; FIRST DEGREE ROBBERY CON-VICTION REDUCED TO SECOND DEGREE. People v.Dozie (Cal. App. 1964).The defendants McClinton and Dozie met the victim and drankwith him in several bars. They later drove him to a rural area, beathim into unconsciousness with bare fists, robbed him, and stole hiscar. The defendants were convicted of car theft and first degree rob-bery, the trial court holding that fists were dangerous or deadlyweapons within the meaning of California Penal Code § 211a.' Onappeal the judgment was modified by reducing the conviction of firstdegree robbery to robbery of the second degree.2 The use of nakedhands or fists does not make the crime robbery with a "dangerous ordeadly weapon" within the meaning of § 211a. People v. Dozie, 224Cal. App. 2d 474, 36 Cal. Rptr. 728 (1964).There was no question that the defendants had committed rob-bery. The significant question on appeal was whether the use of barefists during the commission of a robbery placed the defendant withinthe statutory classification of persons perpetrating a robbery whilearmed with a dangerous or deadly weapon. The answer to this ques-tion is determinative of the degree of the crime under Penal Code§ 211a. The distinction between first and second degree robbery inCalifornia is important because of the difference in minimum sen-tences.3In Dozie it was declared that the distinction between first andsecond degree robbery hinges upon the character of the instrumen-tality with which the offender was armed. A two-step test was ap-plied, viz. was the defendant armed at the time of the commissionof the robbery, and if so, was the character of the instrument withwhich he was armed such that it was of a dangerous or deadlynature?4 Under this viewpoint a determination of the defendant'sI "All robbery which is perpetrated by torture or by a person being armed with adangerous or deadly weapon,... is robbery in the first degree. All other kinds ofrobbery are of the second degree." CAL. PEN. CODE § 211a, as amended.2 CAL. PEN. CODE § 1260 provides that the court may reduce the degree of theoffense or the punishment imposed as an incident to modification of the judgment.3 CAL. PEN. CODE § 213 prescribes a minimum sentence of imprisonment for oneyear for persons convicted of second degree robbery while the minimum sentenceprescribed for first degree robbery is imprisonment for five years. Probation maybe granted where there has been a conviction of first degree robbery if the defend-ant was armed with only a dangerous but not a deadly weapon. CAL. PEN. CODE§§ 211a, 1203, People v. Raner, 86 Cal. App. 2d 107, 194 P.2d 37 (1948).4 224 Cal. App. 2d at 476, 36 Cal. Rptr. at 730.(Vol. 2RECENT CASESuse of or intent to use the weapon is immaterial. In applying thistest the court said that an offender is armed when "he equips him-self with some object, device or instrumentality extrinsic to his ownbody .... . (Emphasis added.), and since the defendants were notarmed within the scope of this definition it was unnecessary todecide whether fists are of a dangerous or deadly nature.It is difficult to rationally dispute the wisdom of the decisionreached in this case because the legislative intent in dividing thecrime of robbery into two degrees seems to have been to deterwould-be felons from carrying any instrument which might causegreat bodily harm to their intended robbery victims.' However, inlight of several earlier California cases it appears that the Doziecourt took too narrow a view of the purpose of the robbery statutes.In People v. Wood' the defendant knocked his robbery victimdown and kicked him. The defendant was charged with first degreerobbery and convicted. In rejecting the defendant's contention thatthere was no evidence that he was armed with a dangerous or deadlyweapon the court held that: "A shod foot is not a weapon in thestrict sense. But it is capable of being so used."8 (Emphasis added.)The court had no doubt that a shod foot, used as the defendant in-tended to and in fact did use it, is a dangerous and might well bea lethal weapon.'In Wood the court applied the test set out in People v. Raleigh"gwhich specifies that in situations where the instrumentality is not aweapon in the strict sense of the word, but may be used as such,there is a question of fact to be determined in fixing the degree ofrobbery. The character of the instrumentality is established by anexamination of the intent of the defendant and the capability of theinstrumentality for dangerous or deadly use. A finding that the in-strumentality is capable of dangerous or deadly use, that the de-fendant intended to use the instrumentality in a dangerous or deadlymanner, and that the defendant had the present ability is tantamountto a finding that the defendant was armed with a dangerous ordeadly weapon.z;Ibid.0 The Legislature in amending CAL. PEN. CODE § 460 made the use of weapons afactor in dividing burglary into offenses of the first and second degree at thesame time that § 211a dividing robbery into two degrees was enacted.7 192 Cal. App. 2d 393, 13 Cal. Rptr. 339 (1961).8 Id. at 396, 13 Cal. Rptr. at 341.9 There was evidence that the defendant might have used a broken wine bottle inperpetrating the robbery.10 128 Cal. App. 105, 16 P.2d 752 (1932).1965]SAN DIEGO LAW REVIEW[In People v. Bennett,1 where the victim was kicked unconsciousand robbed, another test was applied. The court considered thenature of the object or instrument, the manner of its use, the loca-tion on the body of the injuries inflicted, and the extent of suchinjuries in determining whether an instrument which was not inher-ently deadly or dangerous had assumed such characteristics. Apply-ing these criteria the defendant's use of a shod foot to injure hisrobbery victim was held to constitute robbery of the first degree.Comparing the test used in Dozie with the tests applied in theRaleigh and Bennett cases it is difficult to see a distinguishable dif-ference between the utilization of a fist or an ordinary shoe in per-petrating a robbery. It is hard to conceive that a court or jury wouldfind that a defendant was 'armed' merely because he committed thecrime while wearing shoes, even though a shoe is technically ex-trinsic to the body.Under the Dozie viewpoint the trained karate expert who spendsyears fashioning his hand into a weapon, and the trained prizefighter would, apparently, not be armed with a dangerous or adeadly weapon were they to use their bare hands in perpetrating trobbery.Does the element of attempted use, which was not a factor in theDozie decision, necessarily affect the determination of whether adefendant is guilty of first or second degree robbery? Californiacourts have answered this question affirmatively in at least two in-stances. In People v. O'Neal3 it was said that a dangerous or deadlyweapon or instrument is characterized by the manner with which itis used or attempted to be used if it is likely to produce death orcause great bodily harm. The question is one of fact for the jury.O'Neal was cited with approval in 1959 in People v. Liner.4It is curious that the courts have discussed cases involving thecrime of assault with a deadly weapon 5 when dealing with casesarising under the robbery statutes,1" especially since the court said asearly as 1925 in People v. Seawright" that first degree robbery doesnot require an assault, but requires only that the accused be armedwith a dangerous or deadly weapon.1 208 Cal. App. 2d 317, 25 Cal. Rptr. 257 (1962).12 See People v. Russell, 59 Cal. App. 2d 660, 139 P.2d 661 (1943). This case in-volved an assault with a deadly weapon (CAL. PEN. CODE § 245) and is there-fore doubtful authority in robbery cases.13 2 Cal. 2d 551, 38 P.2d 430 (1934).14 168 Cal. App. 2d 411, 335 P.2d 964 (1959).25 CAL. PEN. CODE § 245.16 CAL. PEN. CODE §§ 211, 211a.17 72 Cal. App. 414, 237 Pac. 796 (1925).[Vol. 2RECENT CASESIt is apparent that a uniform test should be promulgated by theCalifornia Supreme Court so that there will be consistency in thedecisions of the California District Courts of Appeal when theydeal with the California robbery statutes. It is submitted that a rea-sonable test could be phrased in the following terms:First: A robbery is of the first degree if during the commission ofthe robbery the defendant was armed with an inherently dangerousweapon, or a deadly weapon such as a loaded firearm, a knife witha blade exceeding a specified length (e.g., 5 inches), or an instru-mentality mentioned in Penal Code § 12020.18Second: The robbery is also of the first degree if during the com-mission of the robbery the defendant possessed the means to inflictgreat bodily injury and intended to inflict, or threatened to inflict,or actually did inflict great bodily injury.Third: Robbery perpetrated in any other manner is of the seconddegree.Paul C. McEwen, Jr.18 CAL. PEN. CODE § 12020. "Any person . . . who ... possesses any instrumentor weapon of the kind commonly known as a blackjack, slung shot, billy, sand-club, sandbag, or metal knuckles, or who carries concealed upon his person anyexplosive substance, other than fixed ammunition, or... any dirk or dagger, isguilty of a felony, .... "19651

Criminal Law - Robbery - One Who Uses Bare Fists in the Commission of a Robbery Is Not Armed with a Dangerous or Deadly Weapon Within the Meaning of California Penal Code Section 211a; First Degree Robbery Conviction Reduced to Second Degree. People v. Dozie (Cal. App. 1964)

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Criminal Law - Robbery - One Who Uses Bare Fists in the Commission of a Robbery Is Not Armed with a Dangerous or Deadly Weapon Within the Meaning of California Penal Code Section 211a; First Degree Robbery Conviction Reduced to Second Degree. People v. Dozie (Cal. App. 1964)

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