People v. Johnson CA2/8

Filed 6/26/15 P. v. Johnson CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B257756

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA085768) v.

DAYQUON DEANDRE JOHNSON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Affirmed with modifications.

George W. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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We modify defendant Dayquon Deandre Johnson’s custody credits and affirm his conviction for robbery. We reject his contention that the court erred in refusing to instruct jurors on the lesser included offense of theft because no evidence supported the theory that he committed only a theft. FACTS AND PROCEDURE 1. Defendant Was Convicted of One Count of Robbery During the night of November 15, 2013, 19-year old defendant was with three companions—Tre McGhee (also known as Lionel Hunt), Aaron C., and K.H. The four demanded money from several pedestrians. K.H. brandished a gun, which appeared real but was actually a toy. Defendant and all of the victims believed it was real when K.H. brandished it. Defendant learned the gun was not real only after he was arrested. At trial, defendant admitted that he was present while his companions tried to rob several people. Defendant admitted that prior to accompanying them, he heard the others talk about committing robberies and knew someone had a gun. He testified he went along with the others to “make sure they were okay, that they wouldn’t hurt anybody.” He testified he tried to discourage the others from committing the robberies. Hans Kohansion, one of the victims, was walking with his wife in Beverly Hills about 9:30 p.m. on November 15, 2013. A group of people including defendant surrounded them. K.H. pointed his gun at Kohansion while demanding that Kohansion “empty [his] pockets.” K.H.—whose face was covered—stood about two feet from Kohansion as he brandished the gun. When he heard the demand, Kohansion believed he did not have his wallet because he generally did not carry it on Friday nights in observance of the Sabbath. When defendant pointed out that there was a bulge in his pocket, Kohansion realized he had his wallet and threw the wallet into nearby grass. Defendant retrieved it. After defendant picked up Kohansion’s wallet, he and his three companions left together. With respect to the robbery of Hans Kohansion, defendant initially testified he did not say anything to aid the robbery. But, during cross-examination defendant admitted that he pointed to Kohansion’s wallet as K.H. was holding a gun. Defendant also