Nature of the Case
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Facts
Higareda went into the public restroom to change into his swimming trunks. He went into one of the restroom’s enclosed stalls and hung his pants, which contained his wallet (with more than $200 in cash), cellular telephone and keys, on a hook inside the stall door. As Higareda was changing, D walked into the restroom and entered the stall directly across from Higareda’s. There was no one else in the restroom at the time. Higareda walked out of the restroom, inadvertently leaving his pants hanging inside the stall. Higareda immediately realized his mistake and went back into the restroom. He checked the stall, and the pants were missing. He began looking under the doors of the other stalls and heard the sound of someone opening Velcro coming from the stall directly across from the one where he had left his pants. He entered a stall adjacent to D and looked over the top into D’s stall. D appeared to be shielding something from view, inquired what Higareda was doing. Higareda responded that someone had taken his belongings and D told him to report the situation to a lifeguard. Higareda waited outside D’s stall for 15 to 20 minutes. D repeatedly asked other persons who entered the restroom for toilet paper but did not leave the stall. Higareda’s friend, O’Brien, entered the restroom and O’Brien knocked on the door of D’s stall, demanding that D “give … the stuff back.” D told O’Brien to leave him “the ‘f’ alone.” O’Brien announced that he was going to get a lifeguard, but did not leave the restroom. Five to 10 seconds later, D came out of his stall and attempted to leave the restroom, saying, “let me out of here.” Higareda and O’Brien blocked D from leaving and yelled for someone to get a lifeguard. D tried to push and shove his way out of the restroom. After a great deal of scuffling, O’Brien placed D in a headlock and Higareda demanded to see what Miller had in his pockets. D was arrested with $241 in cash in his wallet, which did not fasten with Velcro, and 2.43 grams of methamphetamine in his shorts pocket. O’Brien told the officers that he found Higareda’s pants and empty wallet underneath a tremendous mound of toilet paper in the stall d had occupied. D was charged with one count each of robbery and possession of a controlled substance. D filed a section 995 motion to dismiss the robbery charge as the evidence did not establish that he took property from Higareda’s person or immediate presence. The trial court refused: D’s resistance to Higareda’s attempt to regain the property was sufficient to establish the immediate presence requirement. D filed a writ of prohibition, challenging the denial order.
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