STATEMENT OF FACTS
On December 23, 2021, Laura Barkin was at the Riverside Galleria and visited Forever
21, a store that sells clothing and other miscellaneous beauty items. RT 3. Ms. Barkin was seen
inside the store by Juliet Robinson, an off-duty employee of Forever 21, walking around and
looking at the merchandise. RT 3-4. Approximately thirty minutes prior to Ms. Barkin’s arrival
at the store, Ms. Robinson was in the employee breakroom having just clocked out of her shift
and was changing her clothes in preparation to do some holiday shopping. RT 3. As Ms.
Robinson was about to leave the store for the day, she observed Ms. Barkin place unpaid
merchandise in her bag and walk directly out into the mall. RT 5. Ms. Robinson then pursued
Ms. Barkin into the mall, following almost directly behind her, and got shoved in the process.
RT 5. At this point, Ms. Robinson summoned, Rahul Agarwal, a security guard employed at a
neighboring store, to assist in capturing Ms. Barkin for suspected shoplifting. RT 5. The police
were called and responded to a “theft in progress.” RT 14. While Ms. Barkin was never
interviewed by the responding officers, she was placed under arrest and charged with two felony
counts of second-degree robbery, in violation of Penal Code Section 211. RT16, RT19.
Juliet Robinson
After clocking out of her shift, Ms. Robinson spent about thirty minutes in the employee
back office using her phone and changing her clothes. RT 3. Ms. Robinson finally left work to
start her holiday shopping when she observed Ms. Barkin place miscellaneous items inside of her
backpack. RT 3. As Ms. Barkin exited the store, she walked right past Ms. Robinson and exited
the store without incident. (RT5.) It was not until Ms. Barkin “walked directly out” that Ms.
Robinson decided to take any action. RT 5. Instead of alerting an on-duty employee such as her
manager, calling 911, or calling mall security, Ms. Robinson took the matter into her own hands.
RT 5. Ms. Robinson then changed her plans to go holiday shopping and instead decided to
pursue Ms. Barkin on foot. RT 5. Ms. Robinson follows Ms. Barkin at into the mall at a distance
within an arm’s reach. RT 5. While in pursuit of Ms. Barkin, Ms. Robinson fell after Ms. Barkin
reached out and shoved Ms. Robinson, a person unknown to her at this time, who is within her
personal space. RT 5. Shortly after Ms. Robinson fell, she alerted Rahul Agarwal, an employee
security guard from the store next door. RT 5. Mr. Agrawal took over the pursuit of Ms. Barkin
while Ms. Robinson went back to Forever 21 to finally inform her manager of what had
happened. RT5.
Rahul Agarwal
Rahul Agarwal is employed as a security guard for the Old Navy store in the Riverside
Galleria shopping center. RT 9. As an Old Navy employee his job duties include being at his post
in the store or by the store’s entrance. RT 12. He has no obligation to serve as a security guard
for Forever 21 or for the Riverside Galleria. RT 12. Mr. Agarwal is an acquaintance of witness
Juliet Robinson, an employee at Forever 21, located just next door to Old Navy. RT 5. Mr.
Agarwal became involved in the pursuit and apprehension of Ms. Barkin after Ms. Robinson lost
track of Ms. Barkin and ran up to Mr. Agarwal to ask for his assistance. RT 5.
As Mr. Agarwal continued pursuit of Ms. Barkin which led them to a stairwell where he
was able to physically stop her by grabbing her arm. RT10. After some resistance, Ms. Barkin
was eventually apprehended by Mr. Agarwal. RT 10. Minutes later, two Riverside police
officers, Officer Timothy Chen and Officer Klein, arrived and Ms. Barkin was then handcuffed,
detained, and eventually questioned by the two officers. (T14.) (Only Officer Chen testified at
the preliminary hearing.)
Officer Timothy Chen
Officer Timothy Chen and his partner Officer Klein responded to a call that there was
“theft in progress” at the Riverside Galleria. RT 14. Since the officers were close by and the
Riverside Galleria is within their beat, they responded accordingly. RT 14. As the officers
arrived at the Riverside Galleria, they could see Mr. Agarwal “in the process of apprehending or
controlling [Ms. Barkin]” and they ran over to assist in handcuffing her. RT 14. After Ms. Barkin
was detained, the officers brought her to the shopping center security office but never actually
interviewed her. RT 15. Although Officer Chen was familiar with Mr. Agarwal as a security
guard for Old Navy having interacted in past dealings involving other thefts at the mall, he more
often deals with the shopping center security guards. RT 18. As part of the officers’
investigation, they spoke with Mr. Agarwal, Ms. Robinson, and Mr. Lange the store manager of
Forever 21. RT 15. Officer Chen searched Ms. Barkin’s person and found no weapons or drugs
and retrieved the stolen merchandise. RT 16 – 17. The property retrieved from Ms. Barkin’s bag
had a total property value of $310 and has all been returned to Forever 21. (RT15.)
ARGUMENT
I. THERE WAS NO PROBABLE CAUSE TO BELIEVE DEFENDANT LAURA
BARKIN COMMITTED PC § 211 – SECOND DEGREE ROBBERY AGAINST
RAHUL ARGAWAL AND JULIET ROBINSON BECAUSE (1) MR. ARGAWAL
LACKED SUFFICIENT INTEREST IN THE PROPERTY TAKEN AND (2)
BOTH LACKED CONSTRUCTIVE POSSESSION OF THE PROPERTY.
A defendant may bring a motion to dismiss pursuant to CA Penal Code section 995 when
they allege that they have been indicted without reasonable or probable cause or where the
indictment is not found, endorsed, and presented as prescribed by. The purpose of a motion to set
aside the accusatory pleading under section 995 of the California Penal Code is to review the
sufficiency of the indictment or information on the basis of the record made during the
preliminary hearing. The pending charges of robbery in the second degree are not supported by
the evidence introduced at the preliminary hearing.
The evidence at the preliminary hearing provided no probable cause to believe that
defendant, Laura Barkin, committed second degree robbery. There was no evidence that showed
Rahul Argawal, a non-employee bystander, or that Juliet Robinson, an off-duty store employee
had constructive possession of the alleged stolen property. There was also no evidence that
Rahul Argawal had a sufficient interest in the property to be a robbery victim.
In order to be charged with robbery, the evidence must establish probable cause to
demonstrate the “taking of personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means of force or fear” CA Pen.
Code, § 211. In addition, there must be constructive possession and a special relationship with
the owner of the property that is taken for it to constitute robbery. Absent this evidence that a
robbery occurred a defendant cannot be held to answer on the information and the case must be
dismissed.
A. Rahul Argawal Did Not Have Possession of the Property or Have a Special Relationship
With the Owner of the Property and Therefore Could Not be a Victim of Robbery
Absent the Authority or Responsibility to Protect the Stolen Property of Behalf of the
Owner.
Rahul Argawal did not have possession of the property. He neither had any special
relationship with the owner of the property nor any authority to protect the property on behalf of
the owner.
The Court in Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484 held that there must be
a special relationship with the owner of the property, for construction possession to be
determined. The Court also stated expressly that constructive possession does not depend on
someone who intends to recover possession of alleged stolen property from a thief or a robber.
It follows; a non-employee cannot have constructive possession of stolen property. A servant
or agent of a business is the only person who has the right, and duty, to preserve and defend his
possession of the property that the owner has. Courts have found various servants to have
constructive possession including janitors, personnel managers, sales associates, pantry clerks,
and inventory control clerks. (See People v. Frazer (2003) 106 Cal.App.4th 1105, 1119-1120
[131 Cal.Rptr.2d 319], where an employee who was servicing customers was found to have
constructive possession) Accordingly, the security officer of a neighboring business does not
have constructive possession because he was not an employee of the owner, never actually
possessed the property, and had no special obligation to protect the stolen property on behalf of
the owner. (See Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484).
In Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 484), the Defendant burglarized a
music store and made away with a saxophone. A security guard of a neighboring business gave
chase and attempted to take the saxophone from the Defendant. Ultimately, the Defendant was
apprehended and charged for robbery of the property from the security guard. In his defense, the
Defendant argued that he did not rob the security guard since he did not take the saxophone from
the security guard’s actual or constructive possession. The prosecution argued that when
Defendant dropped the saxophone, construction possession passed to the security guard. The
Court held that constructive possession depends upon a special relationship with the owner of the
property, not upon the motives of a person seeking to recover possession from a thief or burglar.
Accordingly, whether defendant committed the crime of robbery against alleged
victim, Mr. Argawal, the court would have to consider the relationship of the alleged victim
to the circumstances. The evidence was clear that Mr. Argawal was not an employee of the
store where the property was taken from and that at no instance during the alleged robbery
did he have constructive (or actual) possession of the property and therefore had no
responsibility to protect the property. The evidence from the preliminary hearing established
that he “had no contractual obligation” to the protect that property and that he pursued the
defendant out of “his own sense of responsibility
The evidence shows that Mr. Argawal had no relationship with Forever 21, the store
where the property was taken from, but instead was summoned by Ms. Robinson to help
pursue the defendant in passing. As in Sykes, Mr. Argawal’s relationship to Forever 21 “was
that of a neighbor and good citizen seeking to catch a criminal” (Id. at 480).
Further, in another case involving a “Good Samaritan” in pursuit of a robber, the court
found that “[g]ood motives alone cannot substitute for the special relationship needed to
create a possessory interest in the goods (People v. Galoia, 31 Cal. App. 4 th 595, 599 (1994).
The evidence will show that Mr. Argawal knew it was not within his “specific duties” to
watch out for other stores and ultimately acted on his on accord to pursue the defendant.
The prosecution may argue that Mr. Argawal was a security guard employed at the
same mall but an important factor the court should consider is whether there is a special
obligation of the security guard to protect the property of the store. In Sykes, “The security
guard employed by a neighboring business could not be a victim of robbery, because he was
not an employee of the owner, never actually possessed the [property], and had no special
obligation to protect the stolen property on behalf of the owner. Rather, the security guard’s
relationship to the music store owner “was that of a neighbor and good citizen seeking to
catch a criminal” (People v. Scott, 45 Cal. 4 th 743, 749 (2009).
Therefore, given the evidence and the lack of establishing a special relationship and
the lack or constructive possession between Mr. Argawal and the owner of the property the
defendant should not be held to answer on the information as to count two.
B. Ms. Barkin Did Not Commit a Second-Degree Robbery Against, Ms. Robinson,
an Off-duty Employee, Since the Victim Lacked Constructive Possession of The
Property.
Ms. Robinson did not have either express or implied authority to establish constructive
possession because she was off duty. The good motives of Ms. Robinson do not establish her
constructive possession of the property. Without any evidence of constructive possession, the
Defendant is not guilty for robbery against Ms. Robinson.
The Supreme Court of California in People v. Scott, 45 Cal.4th 743 (2009) held that “all
employees on duty during a robbery have constructive possession of their employer’s property”
(Emphasis added). The Court also held that for constructive possession to be established there is
no need to look at the duties of the employee but whether the employer had authority to control
the property during the robbery. Lastly, the Court held that it is the intent of the legislature that
only on-duty employees have constructive possession of the employer’s property during a
robbery. Further, in People v. Galoia (1994) 31 Cal.App.4th 595, 599, the Court held that good
motives alone cannot substitute for the special relationship needed to create a possessory interest
in the stolen property.
Not every employee has the authority to exercise control over their employer’s property
during everyday operations of the business. An employee only has, by virtue of the employment,
while on duty, to act on behalf of the employer to protect the employer’s property from being
stolen. This means that an off duty employee does not have constructive possession of the
employer’s property. People v. Scott, 45 Cal.4th 743 (2009). Also, it does not matter whether the
victim had good motive to attempt pursuing the robber or to take the stolen property from the
robber. People v. Galoia (1994) 31 Cal.App.4th 595, 599.
At the Preliminary Hearing, the prosecution argued that they had established the elements
of robbery. Section 211 defines robbery as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will, accomplished
by means of force of fear” CA Pen. Code § 211. Most robberies involve the use of force or fear
at the time property is acquired. However, in this case, the focus is on an essential element of the
crime of robbery in that the property was taken from the constructive possession of the victim.
The theory of constructive possession has been used to expand the concept of possession to
include employees and others as robbery victims.
In Scott, the court analyzed the victim’s status as an employee and whether possession
was established. In Scott the Defendants were charged with robbery against three victims who
were employees at McDonald’s. Only one of the employees who was on duty was solely
responsible for the safe, which the Defendants allegedly stole money from. At the trial, the
Defendants argued that the other two Defendants did not have constructive possession of the safe
and its contents since only one employee was in charge of the safe. The court found that
“employee status does not alone as a matter of law establish constructive possession. Rather, the
record must show indicia of express or implied authority under the particular circumstances of
the case”. Also, the Court held that it is the intent of the legislature that only on-duty employees
have constructive possession of the employer’s property during a robbery. (People v. Scott, 45
Ca.4 th 743, 751-52 (2009) (citing People v. Galoia (1994) 31 Cal.App.4th 595, 599.)
Further, as already stated above, in Galoia, good motives alone cannot substitute for the
special relationship needed to create a possessory interest in the stolen property. In Galoia, the
Defendant entered a convenient store, took certain items, and made off without paying for them.
The victim, who owned and operated video games in the store, and had come to collect money
from the sales, tried to prevent Defendant from making away with the stolen items. Defendant
was later charged with robbery. The Defendant argued that the victim was a “good Samaritan”
who did not have any interest in the stolen property. The prosecution on the other hand held that
the victim was an agent of the store since he had derivative stake in the goods. The Court held
that the victim only had good motives, which were not sufficient to create a constructive
possession.
In determining whether Ms. Robinson has constructive possession the court would have
to take into account more than her status as an employee of Forever 21 and take into
consideration the evidence that she was off-duty when the alleged robbery occurred. The Court
also has to recognize that Ms. Robinson’s good intentions did not establish constructive
possession. Even when the alleged robbery occurred while she was on the premises, she was no
longer “on the clock” and was relieved of her responsibilities as an employee to protect Forever
21’s property. It has been established that an employee has “some implied authority, when on
duty, to act on the employer’s behalf to protect the employer’s property when it is threatened
during a robbery” People v. Scott, 45 Cal.4 th 743, 745 (2009).
The evidence at the preliminary hearing showed that Ms. Robinson was off-duty and had
no longer had a duty or responsibility to protect her employer’s property even though she
witnessed the taking of property. Further, her good intentions do not establish constructive
possession.
CONCLUSION
For the reasons stated herein, Ms. Barkin respectfully request that this Court decline to
hold them to answer on any of the charged offenses.
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