Conviction stands for robber who coughed at clerks

A federal appeals court has upheld the robbery conviction of a woman who took items from a Walgreens store in San Francisco, then coughed at the clerks, said she had COVID and walked out without paying.

Robbery is defined by law as taking someone else’s property by using force, the threat of force or “fear of injury.” And Carmelita Barela’s “threat to expose Walgreens employees to COVID-19 could have easily put the store clerks in ‘fear of injury,’ ” the Ninth U.S. Circuit Court of Appeals said in Thursday’s ruling.

Barela and another woman, Rosetta Shabazz, entered the Walgreens near Civic Center in April 2020, during the period that both Gov. Gavin Newsom and San Francisco officials had told all residents to stay at home because of the coronavirus unless they had essential needs to go elsewhere. Neither woman was wearing a mask. Prosecutors said both women took things from the shelves, then started coughing. When confronted by the store manager, both said, “I have COVID,” and left. There was no evidence that either woman had COVID.

A jury convicted Barela in July 2021. Federal sentencing guidelines recommended a term of 33 to 41 months in prison for the crime, but U.S. District Judge Charles Breyer sentenced her to the five months she had already spent in jail awaiting trial and said, according to court filings, that he was not sure she should have been prosecuted federally, in light of her personal characteristics. Lawyers from the federal public defender’s office said Barela was homeless, illiterate and mentally ill.

The lawyers said Barela had taken only a few bottles of body wash from the store and argued that her crime was nothing more than shoplifting. They quoted Breyer as saying at the sentencing hearing that it was “essentially a shoplifting case with a twist.” And they argued in a court filing that “even if this was an implicit threat to infect another person with COVID-19, it was not a knowing or intentional use of violent force against another person.”

But the appeals court said the jury “necessarily found that Barela threatened to expose the Walgreens employees to COVID-19, which fulfills the required intent” for robbery. The panel consisted of Judges Richard Clifton, Carlos Bea and Jacqueline Nguyen.

Shabazz, the other defendant, was referred to a program that treats users of drugs or alcohol, and the charges against her were dropped this October after she completed treatment.

Assistant Federal Defender Robin Packel declined to comment on the ruling.