Penal Code Section 211 - 2nd Degree Robbery 

Frequently asked questions

To prove me guilty of 2nd degree robbery, what does the prosecution need to show?


The DA has to prove you: 1. took property that wasn't yours; 2. the property was in possession of another person; 3. the property was taken from the other person or his/her immediate presence; 4. the property was taken against that person's will; 5. you used force or fear to take the property or prevent the person from resisting; and 6. when you used force or fear, you intended the deprive the owner permanently of the property or to remove the property for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.




What's the worst-case punishment if convicted of 2nd degree robbery?


Assuming this is a stand-alone offense and you have no other prior offenses, the judge could sentence you to 2, 3, or 5 years in state prison.




As a felony "strike" offense, would I go to state prison if convicted?


Yes, it's certainly possible. But, if the judge grants you probation, and you stay out of trouble during the period of your probation, you can avoid state prison.




What's the best defense?


That depends on the facts of your case. Often, the best defense pertains to whether you specifically intended to permanently deprive a person of his or her property before or at the time of the incident. Say, for example, you came upon someone's property during an altercation unintentionally and, then, walked away with the property. By definition, that would not be a robbery. It may be a basic theft offense, but not a robbery. Another effective defense is if you had an honest belief the property belonged to you. This is known as the "claim of right" defense. Your mistaken belief that the property is yours could be completely unreasonable, but that doesn't matter. So long as you honestly believed the item was yours, it's a defense to robbery.




Can I get probation?


The answer depends on the circumstances of your robbery offense and your criminal record. There are a number of circumstances (described fully in Penal Code section 1203) that determine eligibility for probation. If, for example, you used a deadly weapon during the commission of your robbery, statutorily you'd be ineligible for probation. However, a judge could find, in the interests of justice, that "unusual circumstances" existed in your case to justify granting probation and overcome the presumption that you be sentenced to state prison. The judge would have to explain those unusual circumstances on the record at your sentencing. In most cases, the prosecution will object to the granting of probation, but that doesn't mean the judge will agree with them.




What's the difference between 1st degree and 2nd degree robbery?


In short, the difference depends on who you robbed and where. The Penal Code lays out specific scenarios for a robbery to be considered a first degree robbery. For example, if you robbed someone at an ATM machine or in his or her home, that's a first degree robbery. All other robberies outside the specific, aggravated scenarios described in the Penal Code (in sections 212.5 and 213) are second degree robberies.




What if the property taken was worthless?


That's not a valid defense in court. The item taken could be a stick of gum yet you could still be found guilty of robbery. The crux of the crime is not that you took something valuable, but that through violence or striking fear in another person, you took his or her personal property.




Is a robbery a felony or misdemeanor?


A felony. In fact, it's considered a "serious" felony and, thus, a "strike."





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