Reported / Citable
Background
Benjamin Veliz grabbed a bicycle leaning outside a liquor store and moved it slightly while its owner was inside. When the owner confronted him, Veliz dropped the bicycle but remained beside it, declared that it was now his, threatened the owner, and displayed a knife in each hand. The owner testified that he was not afraid, although he stayed back because he did not want to be stabbed.
A Los Angeles County jury convicted Veliz of attempted second degree robbery and battery, and the court imposed a two-year, six-month prison sentence. On appeal, Veliz argued that the robbery attempt lacked force or fear because he had already abandoned the bicycle before displaying the knives and the owner denied being frightened. He also argued that jurors should have received an instruction on attempted theft as a lesser included offense.
The Court’s Holding
The Second District affirmed. Completed robbery requires taking property from another by force or fear, but attempted robbery requires an intent to commit robbery plus a direct but ineffective step toward that crime. The prosecution therefore did not have to prove that Veliz actually used force or caused fear before the attempt ended.
The evidence supported an inference that Veliz intended to persist if the owner detected the taking. He grabbed and moved the bicycle, stood his ground after confrontation, claimed ownership, and threatened the owner while displaying knives. Those actions went beyond preparation and allowed the jury to find a robbery purpose even though the encounter did not culminate in a completed forcible taking.
The trial court also had no duty to instruct on attempted theft. Such an instruction is required only when substantial evidence would permit a reasonable jury to find the lesser crime but not the greater. Nothing suggested that Veliz intended only a covert theft and would retreat if discovered; his response to the owner instead showed a plan to retain the bicycle through confrontation if necessary.
Key Takeaways
- Actual force or actual fear is not an element of attempted robbery.
- The offense is complete when a defendant intends robbery and takes a direct step beyond mere preparation.
- A victim’s testimony that the victim was not afraid does not defeat an attempted-robbery charge.
- Conduct after discovery can prove that an initially quiet taking was backed by an intent to use confrontation to keep the property.
- An attempted-theft instruction is unnecessary without evidence supporting theft-only intent.
Why It Matters
The published opinion clarifies a common source of confusion created by importing the elements of completed robbery into an attempt prosecution. Defense and prosecution counsel should focus on the accused’s purpose and direct acts, not solely on whether force or fear actually occurred.
The lesser-offense analysis is equally practical for California practitioners. A defendant does not receive an attempted-theft instruction merely because the property was not successfully taken by force. There must be affirmative evidence from which jurors could reasonably find an intent limited to theft rather than robbery.
For charging and plea evaluation, the full sequence of conduct remains highly significant even though actual fear is unnecessary. Statements, persistence after confrontation, weapon display, and proximity to the property can collectively establish robbery intent. Defense counsel should identify contrary evidence of withdrawal or a theft-only plan if seeking the lesser instruction.