Editor’s note: Out of respect for the privacy of one of the people depicted in this story, we have changed that person’s name.
It was 1983 in the men’s department of a Sears when Curtis Estes committed a crime that would eventually redefine an entire category of theft in California.
Estes was unaware that a security guard was watching him when he surreptitiously slipped on a down vest, and then a corduroy jacket, from the rack. Price tags concealed, Estes strolled out the door with the unpurchased merchandise on his back. It wasn’t until he reached the parking lot that the security guard caught up to him, demanding that Estes return the stolen items. Estes refused and pulled out a knife. As he swung the blade Estes threatened to kill the security guard if he came closer. Eventually Estes was restrained by the security guard and his supervisor and was taken into custody by police.
There were several elements to the crime: petty theft, brandishing a weapon, and a criminal threat, but prosecutors chose to charge Estes with a robbery, a felony that could not be reduced to a misdemeanor. The charge was an outlier at the time because robbery was conventionally prosecuted in situations when the victim was the owner of the goods. The security guard in Estes’ cases simply had dominion over the items at the time they were stolen. A court ultimately convicted Curtis Estes of robbery and an appellate court later upheld the ruling. The case opened the door for petty theft offenders to be charged with the felony of robbery if they were intercepted by security or store employees and used force or fear to get away.
The Estes case is the reason that shoplifters in California who push past a security guard can find themselves serving prison sentences. Their records may be marred by a “violent” strike and their lives burdened by a felony conviction even after release.
There are certainly instances of Estes robberies that logically fall into the category of violent felonies. One can imagine situations in which the defendant pulls a firearm on a security guard after shoplifting, issues a threat on an employee’s life, or beats a loss prevention agent with a length of pipe.
However many of the Estes robberies that I’ve seen paraded through court tell a different story: one about homelessness, mental illness, addiction, and hunger.
Last week Emmory Johnson slouched at the counsel’s table in a blue jumpsuit. His grey hair hung past his shoulders in matted clumps and he stared at the ceiling, seemingly in conversation with the fluorescent bulb above him. “I see you,” he croaked, his voice hoarse and brittle.
Johnson’s court appearance was for an alleged crime that occurred several months ago at a 7/11 in West Hollywood. At 4:30am Johnson stumbled into the gas station mini-market. He drifted around the chip aisles and the coffee station, halted before the hot-dog oven and shuffled to the Slurpee machine. Store employees recounted that Johnson was mumbling indiscernible, incoherent sentences as he ambled aimlessly. When the cashier asked him to leave, Johnson bobbed his head and trudged out of the convenience store, only to return minutes later. This time Johnson went straight for the back of the store where he lifted a pack of Budweiser then turned his attention to the counter where he snatched three packs of cigarettes. When the cashier attempted to stop Johnson from leaving, Johnson flailed his left arm, making contact with the employee three times.
After exiting the 7/11, Johnson walked a few feet to the curb. He deposited himself on the cold asphalt and cracked open a beer. When the police arrived in response to a call from the 7/11 employee, Johnson was still there, chattering to himself and sipping on the suds.
According to the police report written by the arresting officer, Johnson’s eyes were “dilated with a gazing stare,” he was “sweating profusely,” and he appeared to be “delusional.”
Later that morning Johnson was admitted to a hospital for a drug overdose.
Now in court, Johnson faced the charges of assault (by means likely to produce great bodily injury) and robbery. Ultimately, the judge dismissed the assault charge but Johnson still faced the felony charge of robbery (a judge cannot reduce a robbery charge to a misdemeanor). If convicted, Johnson faces up to 5 years in prison and a potential strike on his record for a violent felony.
Had Johnson stolen the beer and cigarettes but managed to get away without physically hitting the employee then he would have been charged with petty theft, which can be either an infraction or a misdemeanor. The maximum sentence for petty theft is six months in jail.
Drug addicted, possibly mentally unstable, and homeless, Johnson is just the type of individual that progressive prosecutors say they want diverted from the system. The rationale is that such people will benefit far more from counseling and rehabilitation than from incarceration. But now saddled with a violent felony charge, it’s far less likely that Johnson will receive treatment and far more likely that he will serve time in what has become our de-facto alternative housing: state prison.
Unfortunately, Johnson’s situation is not unique. During the last eight months I’ve recorded several similar cases. One homeless defendant was charged with an Estes Robbery after stealing a pack of headphones from a T-Mobile store and incoherently ranting to the security guard that he was going to “bust him up” if he tried to restrain him. An elderly man confined to a wheelchair was charged with an Estes Robbery when he stole a package of sliced ham from a deli and pulled a knife after being confronted by security on the street. In October I wrote about Mario Morataya, an impoverished defendant who stole half a rotisserie chicken from a Super A Foods because his wife and child were hungry. When Morataya was confronted by a loss prevention agent in the parking lot Morataya kicked the employee and was wrestled to the ground. Morataya was charged with an Estes Robbery and his incarceration drained the struggling family of their already depleted resources.
These anecdotes are only a small sample of Estes cases and are certainly not representative of the entire statistical picture. While the DA’s office currently provides public data on robberies, the number of Estes Robberies and the demographics they affect are currently inaccessible or nonexistent.
Thirty-seven years since the eponymous case, Estes Robbery charges sometimes resemble a time capsule of the tough-on-crime era. At a moment when progressives are challenging the punitive model of criminal justice, these cases deserve public scrutiny. The Estes ruling made note that a robbery does not end with a robber’s possession of the property; it includes the thief’s escape. We must assess the consequences of the Estes ruling and ask ourselves: is this type of charge robbing vulnerable citizens and escaping with their rights?