Filed 6/26/15 P. v. Johnson CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              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


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admitted taking Kohansion’s wallet. He testified that he did not know why he picked up
the wallet. Defendant dropped the wallet after he heard someone scream. When he heard
the scream “it kind of woke me up . . . it made me realize that I was taking something that
wasn’t mine, and that I wouldn’t want anybody to take anything from me.”
       Defendant testified that shortly before the robbery, he had smoked marijuana and
taken Xanax, causing him to feel “different.” A defense expert testified that Xanax can
disrupt normal brain function and impair memory. 1
       Defendant was convicted of one count of second degree robbery and sentenced to
the low term of two years.
2. Defendant Was Acquitted of Other Crimes
       Defendant was charged with several other crimes, arising out of conduct that also
occurred on November 15, 2013. Defendant argues the incidents occurred in the
following order: conversation with girls in which one person pointed a gun at one of the
girls; attempt to obtain money from Charles Wiesel, attempt to obtain money from Joseph
Van Arsdale and Rachel Strickland, and then the robbery of Kohansion, which was
described above.
       Defendant testified that he was not with his friends for the first incident when they
approached the girls.
       Defendant was with K.H., McGhee, and Aaron when the four young men stopped
Rachel Strickland and Joseph Van Arsdale to demand money. Strickland and Van
Arsdale were walking about 9:00 or 9:30 p.m. on November 15, 2013. According to
defendant, the confrontation started when Van Arsdale used a racial slur, but both
Strickland and Van Arsdale denied Van Arsdale said anything to defendant other than
that he had startled them. K.H. pointed a gun at Van Arsdale and demanded his money.
Van Arsdale did not have any money and said that. He also pointed the gun at Strickland



1
      Several character witnesses testified that defendant’s conduct on November 13,
2015, was out of character. He was a good student, graduated from high school, and
overcame several familial challenges. He had no prior arrests or convictions.


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and demanded her money or wallet. Van Arsdale begged for his life, and eventually the
four companions left together without harming Van Arsdale or Strickland.
       Defendant also was with his companions when they tried to rob Charles Wiesel
about 9:30 the same night. Wiesel was with his then 12-year-old son. Wiesel testified
four people approached him and his son, put a gun to his head, and demanded his money.
Wiesel responded that he was not allowed to carry money on a Friday night. One of the
people demanded Wiesel empty his pockets, and Wiesel did. Wiesel was afraid.
       Defendant was acquitted of all of the charges stemming from the incidents prior to
the robbery of Kohansian.
                                       DISCUSSION
1. Alleged Instructional Error
       Defendant argues the trial court should have instructed jurors on theft. He argues
that there was evidence that he did not form the intent to steal until after force or fear was
used in taking Kohansion’s property.
       “ ‘ “The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.” [Citations.] “That obligation encompasses instructions on lesser included
offenses if there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser.” [Citations.]’ [Citations.]
‘Nevertheless, “the existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense . . . .” [Citation.] Such instructions are required
only where there is “substantial evidence” from which a rational jury could conclude that
the defendant committed the lesser offense, and that he is not guilty of the greater
offense.’ ” (People v. Whalen (2013) 56 Cal.4th 1, 68.)
       “Robbery is ‘the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by
means of force or fear.’ ([Pen. Code,] § 211.) In general, theft is the felonious taking,
carrying, stealing, leading, or driving away of the personal property of another, or the
appropriation of property, labor or money by fraudulent means. ([Pen. Code,] § 484.)


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‘The greater offense of robbery includes all of the elements of theft, with the additional
element of a taking by force or fear. [Citation.] If the defendant does not harbor the
intent to take property from the possessor at the time he applies force or fear, the taking is
only a theft, not a robbery.’ ” (People v. Whalen, supra, 56 Cal.4th at p. 69.)
       No evidence supported a theft instruction and the trial court properly refused to
give that instruction. Defendant took Kohansion’s wallet that he obtained when K.H.
pointed a gun at Kohansion. Both K.H. and defendant demanded Kohansion empty his
pockets. The use of the gun to obtain the wallet supported only the conclusion that the
wallet was obtained through force or fear, the element distinguishing robbery and theft.
Because defendant obtained the wallet through force or fear the crime was a robbery.
The only reasonable inference is that Kohansion threw his wallet because he was
threatened at gunpoint by defendant’s companion. Defendant took the wallet and the four
boys left together. Defendant’s testimony that he took Xanax and smoked marijuana and
that he went along with his companions to make sure no one was hurt does not support
the inference that he committed only a theft because it does not contradict the evidence
that a gun was used to force Kohansion to give up his wallet.
       Defendant cites People v. Turner in which our Supreme Court reiterated the
following rule: “[W]hen the intent to steal arose only after force was used, the offense is
theft, not robbery.” (People v. Turner (1990) 50 Cal.3d 668, 688.) In Turner, the
defendant unsuccessfully argued that he did not form the intent to take the victim’s
property until after he killed the victim. (Ibid.) Turner does not assist defendant. Here
the only force used was to take Kohansion’s property. Kohansion gave up his wallet
because he was threatened at gunpoint by K.H. and surrounded by K.H.’s companions
including defendant. The force was used to obtain the wallet, not for any other purpose.
2. Custody Credits
       The trial court awarded defendant 278 days of custody credit and he argues the
court should have awarded him 279 days. It appears defendant is correct and respondent
does not argue otherwise.



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       Defendant was arrested on November 15, 2013, and sentenced on July 15, 2014.
He was entitled to 243 days of actual custody credits. (People v. Denman (2013) 218
Cal.App.4th 800, 814 [“Calculation of custody credit begins on the day of arrest and
continues through the day of sentencing.”].) He should have received 15 percent
presentence conduct credits under Penal Code section 2933.1, which limits presentence
conduct credit for persons convicted of felony offenses listed in Penal Code section 667.5
to 15 percent. (§ 2933.1, subd. (a).) Robbery is listed in section 667.5, subdivision
(c)(9). As the parties agree, defendant should have been awarded 36 days of conduct
credit, for a total of 279 days.
                                      DISPOSITION
       The superior court is directed to modify the abstract of judgment to reflect that
defendant is entitled to 279 days of custody credit. The superior court shall then forward
the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.




                                                   FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       RUBIN, J.




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