P. v. Johnson

Filed 7/19/06 P. v. Johnson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Stephone Johnson was convicted of robbery. He contends the court erred because it did not sua sponte instruct the jury on receiving stolen property as a lesser included offense within robbery. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Two men accosted 15-year-old Francisco Q. and demanded his wallet, as he rode to work on a city bus at about 12:30 a.m. The victim identified defendant as one of his assailants; the other was subsequently identified as Jaime L.

Jaime struck defendant in the face. Defendant stood behind the victim, grabbed or shoved the victim, and told him to give his money to Jaime. The victim gave Jaime his wallet because he was afraid Jaime had a knife. Defendant and Jaime went through the victim's pockets. They removed approximately $30 from the victim's wallet and gave it back to him. Defendant and Jaime divided the victim's money and went to the back of the bus. There they were apprehended by police, who were called by the bus driver.

When he was arrested defendant had $7 in currency in his pocket, and two of the bills were marked by blood stains.^[1] The bus driver also showed the police some money that was shoved in the crease of the bus seat where defendant was sitting. The victim told the police that defendant hit him. Defendant denied participating in the robbery, and claimed it was Jaime who hit the victim and took his money. Defendant told police he boarded the bus alone, at a different stop than Jaime.

Another passenger testified he saw defendant strike the victim in the face with his fist, and saw Jaime go through the victim's pockets and remove his wallet. Jaime and defendant took the wallet to the back of the bus and split up the money. The bus driver testified defendant and Jaime boarded the bus at the same time and sat near each other.^[2] After the victim boarded the bus, defendant and Jaime assaulted and robbed him. Jaime took the victim's wallet, removed the money, and gave some of it to defendant.

Jaime, who pled guilty to assault, testified that he was solely responsible for the robbery, but that he gave defendant some of the money. A psychologist who conducted a jailhouse interview of defendant testified that he demonstrated borderline intellectual functioning, but was not mentally retarded. It was difficult for defendant to make a plan and follow through with it, but he could distinguish between right and wrong. Defendant admitted to the psychologist that he â€