Los Angeles District Attorney 4848 East Civic Center Way Los Angeles, California 90022 Telephone No.

(818) 222-3434 Facsimile No. (818) 222-3535 ATTORNEY FOR PLAINTIFF PEOPLE OF THE STATE OF CALIFORNIA SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

PEOPLE OF THE STATE OF CALIFORNIA, ) ) ) Plaintiff, ) ) v. ) ) ) ELIZABETH TARDY, ) ) ) ) Defendant. ) ) ______________________________________ )

CASE NO. JB66655 OPPOSITION TO MOTION TO DISMISS THE COUNT

(PEN. CODE SEC. 995) DATE: March 9, 2012 TIME: 8:00 a.m. COURTROOM: Dept. 2

INTRODUCTION

Plaintiff, the People of the State of California, submits this memorandum in opposition to Defendant Elizabeth Tardys Motion to Dismiss the Count. Ms. Tardy has committed a robbery under the California Penal Code because she intentionally and forcefully removed property in the possession of the victim, Dave Cardiff, from his immediate presence and against his will.

STATEMENT OF FACTS The victim in this case, Dave Cardiff, worked for the Organic Farm Group (OFG), a nonprofit organization dedicated to the cause of social justice that promotes organic farming. (R. ps. 6, 8). Marion Levy, the organizations dedicated founder, had donated an antique bejeweled shawl to the group that became their official logo because it represented who they are. (R. p. 7). It was very special to the organization, their most prized possession because it became the symbol of [their] organization and all that [they] stood for.(R. p. 9). Other observers confirmed that it was the symbol for the OFG and their movement. (R. p. 11) Mr. Cardiff was staffing the OFGs table at an Occupy L.A. protest when the antique bejeweled shawl was removed from the groups table. (R. p. 9). While Mr. Cardiff was talking to a group of women seeking out information about OFG and what they did, defendant Elizabeth Tardy suddenly ran by the table and, with several abrupt movements, knocked into the women standing there. (R. p. 9) She then proceeded to tear the shawl from the table and hurriedly ran off with it. (R. ps. 9, 11). The shawl had been attached to the table, pinned down on the table with Mr. Cardiffs hand on top of the table. (R. ps. 7, 10, 14). According to Ms. Tardy, it was difficult to get loose. (R. p. 14). Mr. Cardiff yelled at Ms. Tardy to stop, but she continued to run off with the shawl (R. p. 7). Though Ms. Tardy failed to hear Mr. Cardiff yelling, Lara Mulligan, one of the founders of the Occupy L.A. movement, was aware that that Mr. Cardiff was yelling despite standing even farther away. (R. p. 11). The OFG then reported the cherished shawl stolen to a police officer. (R. p. 8). After grabbing the shawl, which she believed to be common property, Ms. Tardy carelessly failed to keep track of where it ended up, losing it in the midst of leaving the protests. (R. p. 13, 14). When later recovered, despite Ms. Tardys carelessness, the bejeweled shawl was without some of its jewels. (R. p. 8). When Ms. Levy later mended the shawl, it ceased to look the same as it had before Ms.

Levy ripped it away from the OFGs table. (R. p. 8). The organizations emblematic bejeweled shawl, renowned for its appearance, no longer maintained this same look. ARGUMENT I. THE COURT SHOULD DENY DEFENDANTS ATTEMPT TO HAVE THE COUNT OF ROBBERY DISMISSED BECAUSE DEFENDANTS CONDUCT SATISFIES THE REQUIREMENTS FOR ROBBERY IN CALIFORNIA. Defendant Elizabeth Tardy should be held to answer a count for robbery because there is reasonable cause to believe that she committed a robbery. 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 each of these elements is satisfied by defendants conduct, there is sufficient evidence to hold her to answer to this robbery charge. A. Ms. Elizabeth Tardys removed the shawl from the possession of another because Dave Cardiff, as an employee of the OFG, had constructive possession of the shawl when it was taken. The California robbery requirement that property be taken from the possession of another includes either actual or constructive possession. A person does not have to actually hold,

touch, or own something in order to posses it. (calcrim 1600). It is enough if the person has control over it or the right to control it. A business employee who is on duty has possession of the business owners property. (calcrim 1600). In People v. Estes, a department store employee was deemed a robbery victim in that, as an agent of the owner and a person directly responsible for the items taken, he was in constructive possession of the merchandise. 147 Cal.App.3d 23 (1983). It is not necessary that the victim also own the goods in question. Id. A robbery can take place against someone who has constructive possession of the goods for the sake of satisfying the possession of another requirement. Id. In People v. Neely, an 18-year-old who worked in a cellular phone store was an employee of the store and thus was in constructive possession of the property in the store concerning the requirement for being a robbery victim. 176 Cal.App.4th 787 (2009). The employee was not an official or formal employee, did not have regular hours, and was not paid on an hourly or weekly basis. Id. As in Estes, Dave Cardiff was an employee of the organization to whom the property belonged. According to Marion Levy, she donated [the shawl] officially to the [Organic Farm Group] (R. p. 7). Though the group works out of a warehouse downtown, it is primarily used only for storage; the group is mostly out and about at protests, [rallies] and other places. . . . The Occupy L.A. protest was essentially the equivalent of one of the organizations stores or business locations. The court in Neely noted that [s]ome appellate courts have held that all employees have constructive possession of business property based solely on the employment relationship while other courts limited constructive possession to employees whose duties gave them express or implied authority over the property. 176 Cal.App.4th 787, 794. In either

situation, Mr. Cardiff had constructive possession of the shawl because he was left in charge of the table, implying authority over the property, as it was an integral part of the organization and their set-up at the Occupy L.A. protest. In Neely, the robbery victim was less than a technical employee, earning intermittent payment and working irregular hours. Id. Nonetheless, he was considered to have had constructive possession of the property in question. Id. Conversely, Dave Cardiff works most days, holds an administrative position with the organization, and is a salaried employee. Therefore, when the shawl was taken from the OFGs table, Dave Cardiff was acting in his capacity as an employee of the group and was overseeing the organizations workplace. Similar to the employees in Estes and Neely, he was in constructive possession of the shawl. B. Ms. Tardy took the shawl from the immediate presence of Dave Cardiff as it was sufficiently within his physical control that he could have retained possession if not prevented by her force. According to the California jury instructions regarding robbery, [p]roperty is within a persons immediate presence if it is sufficiently within his or her physical control that he or she could keep possession of it if not prevented by force or fear. (calcrim 1600). Alternately, constructive presence can also suffice to meet this requirement. In People v. Lavender, a hotel clerk was restrained in a room of the hotel while showing it to the defendant. 137 Cal.App. 582 (1934). The defendant then proceeded to take money from the hotel office. Id. Though the clerk was not present in the hotel office during the commission of the robbery, the court determined that presence and immediate presence are used relatively. Id. at 589. The robbery need not involve robbery of the victims person. Further, actual physical presence at the scene of the crime is unnecessary and constructive presence may suffice, when victim is able to see, hear, or smell things that indicate the commission of a robbery. Id. at 590.

Herein, Mr. Cardiff was working the table when the shawl was taken. He had his hand on the table with the shawl pinned down and was therefore exercising physical control over the shawl. (R. p. 10). Moreover, because it was secured to the table, it may be inferred that he could have kept possession of the shawl but for its forceful removal. Though the shawl was not attached to his person, nor was he actually holding it in his hands, the shawl was within his constructive presence as concerns the immediate presence requirement under Section 211 of the California Penal Code.

C. The property was taken against Mr. Cardiffs will because he did not consent to the act and it was taken by means of force and fear. According to California law, [a]n act is done against a persons will if that person does not consent to the act. In order to consent, a person must act freely and voluntarily and know the nature of the act. (calcrim 1600). Alternately, where force or fear is shown, this lack of consent may be inferred. People v. Johnson, 57 Cal.App. 271 (1922). In People v. Davis, defendant entered a store, grabbed merchandise, and attempted to return it, to no avail. 19 Cal.4th 301, 303 (1998). The court explained that taking property from another is trespass except when the owner consents freely and unconditionally. Davis, 19 Cal.4th 301. Here, Mr. Cardiff did not consent to Ms. Tardy taking the shawl. His consent would have required that he act freely and voluntarily and also know the nature of the act. (calcrim 1600). There is no indication herein that Mr. Cardiff freely and voluntarily allowed Ms. Tardy to take it. Rather, he attempted to stop her. If Mr. Cardiff knew the nature of what Ms. Tardy was doingtaking the organizations most prized possession

he would not have consented. Because she did not have his consent, the shawl was removed against his will. D. Ms. Tardy had the requisite intent to steal the shawl because its removal deprived the OFG of a major portion of its value and enjoyment. If the defendant intends to remove property from the owners possession for so extended a period of time that the owner would be deprived of a major portion of its value or enjoyment, this satisfies the requirement that property must be taken feloniously. In People v. Davis, the court explained that the intent to steal could also be satisfied when the defendant takes property with intent to use it temporarily and then to abandon it in circumstances making it unlikely the owner will recover it. 19 Cal.4th 301, 307 n. 4 (1998). In People v. Avery, the defendant was convicted of arson but was found to have endured a prior serious felony conviction. 27 Cal.4th 49 (2002). The defendant argued that the intent requirement for theft under Texas law did not satisfy California law, namely that the defendant must intend to permanently deprive the owner of possession of his property. Id. The court determined that intent to take property temporarily but for an unreasonable time so as to deprive the person of a major portion of its value or enjoyment satisfied the intent requirement of theft under California law. Id. at 55. An intent to steal when the nature of the property is such that even a temporary taking will deprive the owner of its primary economic value can serve to establish this element of Section 211 of the California Penal Code. Id. at 56. In People v. Deleon, defendants stopped the victim in an intersection and proceeded to take his car from his possession. 138 Cal.App.3d 602. The car was eventually abandoned and later recovered. Id. The court decided that the robbery count for the car may be

sustained because [t]he fact that the car was subsequently abandoned does not compel conclusion that appellants intended to deprive the owner of the car only temporarily. Id. at 606. The defendants intent was to be inferred from circumstances. . . . and it was decided that they had the necessary intent to be charged with robbery of the vehicle. Id. Here, Ms. Tardy removed the shawl from the table for an indeterminate amount of time. When she removed it, there was no guarantee that she was going to return it and there was no timeframe for how long it would remain in her unlawful possession. Though she thought that the shawl was common property, this belief was unreasonable because of the manner in which the shawl was both secured to the table and plainly in Mr. Cardiffs immediate possession. Ms. Tardy also abandoned the shawl in circumstances where it was unlikely that the owner would recover it: amidst large crowds at a protest event in a very large city. Taking an antique and losing it carelessly indicates intent to permanently deprive the OFG of the shawl because she made it very likely that this outcome would result. Also, the nature of the shawl (symbolizing the OFG) meant that its removal from the table for even a short time would deprive the organization of its use and enjoyment. After it was recovered, the shawl was missing some of its jewels and required mending (R. p. 8). However, after Ms. Levy attempted to repair the shawl, it was not the same (R. p. 8). Originally, the value of the shawl was in its appearance (R. p. 7), and so significant damage to its appearance equates to significant damage to its value. Therefore, though Ms. Tardy did not necessarily intend to deprive the OFG of the shawl permanently, it was removed for so long a time as to deprive the organization of its primary value and enjoyment. This establishes the intent requirement under California law. E. Defendant used force and fear to take the property from the OFGs table by forcibly snatching it away after knocking into several bystanders.

1. Force The court has not explicitly defined force because its definition in the context of robbery is commonly understood, and so it constitutes a question of fact for a jury. People v. Mungia, 234 Cal.App.3d 1703, 1709 (1991). Typically, force in robbery has involved some physical struggle, ranging from a violent altercation between victim and defendant to a controlling removal of the victims property. In People v. Mungia, the victim had her purse removed from her possession by defendant with the use of just enough force to accomplish this taking. 234 Cal.App.3d at 1708. According to the court, the force required for robbery was not necessarily synonymous with a physical corporeal assault. Id. In People v. Jefferson, another purse robbery, the victim had her purse snatched from her possession by defendant and the court determined that taking for the purposes of robbery includes forcible snatching. 31 Cal.App.2d 562 (1939). Here, although Ms. Tardys force was intended to facilitate the removal of the shawl from the table, it was excessively rough and went beyond the amount of forced required to simply carry it away. Had the shawl been resting on top of the table loosely without being pinned down, its removal may not have been adequately forceful. However, her actual taking of the shawl was accomplished by way of forcible snatching. Also, where a purse that is not on the victims person but is instead being held, the indirect contact required to remove the property from the victims possession suffices to meet the force or fear requirement for robbery. Similarly, force here was not used against Ms. Tardys victim directly in order to acquire the shawl but, as in Mungia, the amount of

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force used was that amount required to remove the personal property from the victims possession. Indirectly, force was applied to Mr. Cardiff when the pinned down shawl was pulled forcibly away from the table upon which he had his hand. (R. p. 10). Ultimately, force was used both to remove and detach the shawl from the OFGs table and to carry it away, and so the force or fear requirement is satisfied. 2. Fear Regarding fear as an element of robbery, it is defined as either: (1) the fear of an unlawful injury to the person or property of the person robbed [. . .] or (2) the fear of immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery. Cal. Penal Code Ann. 212 (West 2012). Here, Mr. Cardiff did not appear to fear being injured because there was no violent altercation with Ms. Tardy. However, because of how she roughly tore the shawl from the OFG table, he likely feared injury to the property. Additionally, he may have feared an immediate and unlawful injury to the person of those in his company, namely the women gathered around the OFG table that Ms. Tardy knocked into before yanking the shawl from the table. (R. p. 9). Suddenly coming out of nowhere, Ms. Tardy had already made offensive contact with these women and was vicious in her attempt to remove the shawl. Mr. Cardiff had no way of knowing that Ms. Tardy was not predisposed to injure these women, and he might have feared that outcome. Therefore, Mr. Cardiff was likely fearful of unlawful injury to the property and/or the women in his company.

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CONCLUSION For the reasons stated above, the State of California respectfully requests that Ms. Tardy be required to answer the count for robbery. Dated March 9, 2012