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Filed 7/24/15 P. v. Hernandez

- Betancourt CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DI VISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. EDGAR L

. HERNANDEZ

- BETANCOURT, Defendant and Appellant. A141070
(Marin County Super. Ct. No. SC184337A)

A jury convicted defendant Edgar L

. Hernandez

- Betancourt of second degree robbery of a check

- cashing store
, and the court sentenced him to three years in prison. (Pen. Code, § 211.) Defendant testified he was coerced into using drugs and robbing the

store and claims on appeal that the jury was required to accept his duress defense in t he absence of countervailing evidence

. Defendant also claims the court did not adequately respond to the deliberating jury ’s question concerning coerced drug use and that a proper response would have included an instruction that involuntary intoxication may negate inte nt to commit robbery. We shall affirm the judgment upon concluding that the jury was free to reject defendant’s testimony as not credible and to draw inferences from the evidence presented by the prosecution to find defendant acted freely, not under duress,
and that f ailure of the court to respond to the jury’s question with an instruction on involuntary intoxication was not prejudicial

.2 Evidence Presented at Trial
The P rosecution’s C

ase On April 6, 2013, Areli Mazariegos was working in Novato as a cashier at Luna Travel, a store that offers check cashing, money orders, airplane tickets and related
services. She testified that she was alone in the store when, a round 6 :00 p.m., a man ran into the store and approached her as she sat at a computer behind the counter. Mazariegos
said t he man, later identified as defendant, “had his face covered” and wore gloves

. Mazariegos testified that defendant repeatedly yelled at her to give him money, coming closer to her and yelling louder with each demand. He then climbed on top of the counter, stood over Mazariegos, reached into his pocket
, and threatened to kill her if she did not give him the money. Mazariegos feared defendant was reaching for a gun and would kill her if she did not comply with h is demands. She pull ed money from a cash box
and handed the money to defendant , who grabbed it from her

. Mazariegos testified: “I gave him all the money I had,” which was over $1,000. Defendant “wouldn’t go.” He demanded more money and again threatened to kill Mazariegos. She showed defendant the empt y cash box and defendant ran from the store. Mazariegos was upset and came outside the store yelling that she had been robbed. A video from the store’s surveillance cameras was admitted in evidence

. The
video has a split four

- part screen depicting locations inside and outside the store. The
video has no audio . It shows a man wearing a thick hooded jacket , gloves and a dark
cloth over the lower part of his face. The man, with his head lowered, runs into the stor e
to a long desk or low counter at the rear of the store, lean s across the counter
, and mak es rough jerking motions with his right hand while using his left hand to hold down his hood. The cashier reacts with outstretched empty hands , palms up

. Th is exchan ge lasts
for about one minute. The man then puts one foot on a chair, steps up, and places a knee
on the counter. T he cashier takes money from under the counter and the man reaches out and grabs it from her. The man gestures for more, waving his right hand and reaching further over the counter. The cashier hands another wad of cash to the man, then she gestures again with open hands. This happens at least six times over the course of a3

minute

— the man wav es his right hand with a raking motion and the cashier gestur es with open hands then produc es another wad of money. The man grabs each packet of money produced and stuffs it into his jacket pockets. Finally, the cashier shows an empty
cash box to the man and he leaves the store.
Wender Arruda was a customer of Luna Travel and testified that he was approaching the store as defendant ran out wearing a hooded sweatshirt or jacket

. Defendant pulled his hood over his head and lowered his head so that Arruda could not

see defendant’s face. Defendant ran down the street. Hearing Mazariegos ’s call for help, Arruda got into his car and followed defendant. Arruda kept defendant in sight and, when defendant turned a corner and slowed his pace from a run to a walk, Arrud a drove his car

on to the sidewalk in front of defendant. Defendant started running again and Arruda
followed him on foot. Arruda caught defendant, punched him in the head, brought him to the ground, and sat on top of him while holding his arms behind his b ack. Arruda held defendant on the ground until a police officer arrived. Arruda testified that defendant seemed “pretty drunk or intoxicated from drugs” because “[h]e was kind of off balance”
when he ran and did not run “fixed in one direction.” Arruda als o testified that several

men were in the area when he was detaining defendant, including a homeowner who called the police and a Latino bicycl ist

. Defense counsel asked Arruda if the bicyclist appeared to be on drugs and Arruda said no. Asked if the bicyclist was “definitely watching what was going on,” Arruda answered “[c]ould be that, or curiosity.” A police officer arrived on the scene to find A rruda holding defendant on the ground, surrounded by “a large group” of onlookers. Money was falling from defendant’s jacket pockets

. A total of $1,169 in cash was recovered from his person. A black glove and scarf were found near defendant in the parking lot. The police brought Mazariegos to the site of defendant’s detention , about a block from the store, and she identified him as the robber based on his clothing. She also recognized defendant as a prior customer of the

store.4

The D efense
Defendant claime d he acted under duress and robbed the store because a man named “Horatio” threatened to kill him or his son if he did not do as demanded

. Defendant testified that he met Horatio a couple weeks before the robbery. The day before the robbery, Horatio came i nto defendant’s home and stole birthday gifts defendant intended to give his son, who lived with defendant’s estranged girlfriend. His son’s birthday was the day of the robbery. On the morning of that day, defendant was walking down the street with plans t o meet his mother, buy a birthday cake, and see his

so n. Defendant saw Horatio standing in front of the apartment building where Horatio
lived. Defendant told Horatio he would “ give him $50 for him to return [to] me the toys
for the child.” Horatio said he had the toys upstairs in his apartment and defendant went with him to get the m

. Defendant entered the apartment, which “belong[ed]” to an “American” man. Once inside the apartment, Horatio took a knife from his pocket, pointed it at defendant and, with a pipe in his other hand, ordered defendant to smoke crack cocaine. Horatio told defendant “if I didn’t smoke that he was going to kill me.” Defendant testified he did not want to smoke but, under threat of death, did so. Defendant said he , Horatio and the
American sat in the apartment smoking crack for seven hours, from 10 :00 a.m. to 5 :00 p.m. At 5 :00 p.m., Horatio said he wanted to go to a store for food. Horatio and defendant were walking to the store when they met another man, Francisco Rodas.
Horatio a nd Rodas to ok defendant into a parking lot where they gave him more drugs
, punched him in the stomach, took off his pants and underwear, threw him to the ground,
and sodomized him. The assault lasted for about 30 minutes. After the assault, defendant
dress ed and the three men proceeded toward the food store.
Across from the food store is Luna Travel. When the men came near Luna Travel, they told defendant “if I didn’t step into the store and rob it that I was no longer going to be seeing my family again.” They threatened to “kill me or my child.” Defendant
believed the threats “because these are bad people.” Defendant wen t into the store while5

Horatio and Rodas waited outside. Defendant testified that he has “almost no recollection of anything” after enteri ng the store and only remembers being held by Arruda and surrounded by police. He said that, while on the ground being detained by Arruda, he saw Horatio nearby on a bicycle. On direct examination, d efendant could not say why Horatio was on a bicycle. On c ross

- examination, defendant said Horatio brought the bicycle with him when he and Horatio left the apartment to go to the food store.
Two c haracter witnesses testified for the defense. Yadira Virgil, a psychotherapist
, testified that defendant did occasional gardening for her and was always honest, respectful and on time. In her opinion, defendant is “a peaceful person.” Virgil was told
that d efendant was convicted for battery in 2011 but the fact did not change her opinion.
Romina Da gnino, the godmother of defendant’s son, testified that defendant is an honest and peaceful person. She did not change her opinion after learning of defendant’s battery
conviction.
Discussion
1. Substantial evidence supports the verdict
Defendant did not deny taking money from the store’s cashier by threat of
violence but claimed he did so under duress. At defense counsel’s request, the jury was
instructed: “ The defendant is not guilty of r obbery if he acted under duress. The
defendant acted under duress i f, because of threat or menace, he believed that his or someone else’s life would be in immediate danger if he refused a demand or request to commit the crime. The demand or request may have been express or implied. [¶] The defendant’s belief that his or s omeone else’s life was in immediate danger must have been reasonable. When deciding whether the defendant’s belief was reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in t he same position as the defendant would have believed. [¶] A threat of future harm is not sufficient; the danger to life must have been immediate. [¶] The People must prove beyond a reasonable doubt that the defendant did not act under duress. If the Peopl e have not met this burden, you must find the defendant not guilty of Robbery. ” (CALCRIM No. 3402.)6

Defendant contends that the People’s burden of proof was not met because the prosecut or did not present “actual evidence ” contradicting defendant’s tes timo ny that he robbed the store under duress but “merely argued in closing that [defendant’s] story was
unbelievable.” The prosecutor argued to the jury that defendant “lied” and fabricated a story that was “outlandish
, ” “preposterous
, ” “completely ludicrous
, ” and incongruous. The prosecutor asked the jury to consider why Horatio
, if he exists, “would want to spend money on narcotics to give someone that they’ve only known two weeks, let alone make them smoke it at knifepoint,” why Horatio would take defendant from the seclusion of an apartment to a public parking lot to commit a sexual assault
, and how the claimed 30

- minute assault on a Saturday afternoon in downtown Novato would be unseen. The prosecutor was entitled to challenge defendant’s credibility and the jury was
entitled to disbelieve his testimony

. The jurors, as they were rightly instructed, “must judge the credibility or believability of the witnesses” and “may believe all, part, or none of any witness’s testimony.” (CALCRIM No. 226.) “ In passing on the credibility of witnesses and the weight to be given their testimony, the trier of fact is entitled to
consider [the witnesses’] interest in the result of the case, their motives, the manner in which they testify, and the contradictions appearing in the evidence .” ( Huth v. Katz (1947) 30 Cal.2d 605, 609 .) A jury may disbelieve a defendant’s testimony even in the absence of countervailing evidence. ( People v. Wiest (1962) 205 Cal.App.2d 43, 46.)
Moreover , the prosecution’s case did not rest entirely u pon a n attack on defendant’s credibility. The store’s surveillance camera video and testimony of Mazariegos and Arruda constitutes substantial evidence of the robbery and of the manner in which the robbery was committed
, permit t ing an inference that defend ant did not act
under duress. In closing argument, t he prosecutor discussed the evidence presented and inferences to be drawn from it. The prosecutor argued that defendant could not have been acting under a threat made just minutes before entering the stor e because he was dressed for the robbery, with a hooded jacket, scarf and gloves inappropriate to the weather on an April day in Marin County. Also, the prosecutor argued , defendant did not take the first packet of money handed to him and leave but repeatedly demanded more money because7

“he knows that money is for him. That’s why he want s every last bit that’s in that drawer.” The prosecutor argued, “if you’re under duress

. . . why do you care so much how much money you come out with? You don’t. And the only reason you’re doing that and you’re getting all that money is because it’s for you.” The jury was free to reject defendant’s testimony and to rely upon the evidence presented by the prosecution to conclude that defendant acted freely , not under d uress. 2. The court’s failure to respond to the deliberating jury’s question about drug use with an instruct ion on involuntary intoxication was not prejudicial

. Defendant claims the court did not adequately respond to a question submitted by
the deliberat ing jury and that a proper response would have included an instruction that involuntary intoxication may negate intent to commit robbery. An hour after the start of jury deliberations, the jury submitted the following question: “Want to know if you were u nder duress to take mind altering drugs are you responsible for subsequent actions?” The jury also asked to watch the store’s surveillance camera video again. The court provided the video to the jury and, while jury deliberations continued, assembled defen dant and the attorneys to discuss the question about drugs and
duress. The court said it did not think further instruction was required and the prosecution agreed

. Defense counsel asked that the duress instruction be modified to add involuntary
intoxicatio n as a factor. 1 The prosecutor objected to the proposed instruction as confusing two separate defenses: duress and involuntary intoxication. The prosecutor argued that
defendant never claimed his involuntary intoxication prevented him from forming the
inte nt to permanently deprive Luna Travel of its money ; he claimed only that he acted in

1 Defense counsel suggested the following modification to the standard instruction on duress: “The defendant’s belief that his or someone else’s life was in immediate danger must have been reasonable. When deciding whether the defendant’s belief was

reasona ble, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in the same position as the defendant would have believed. Involuntary intoxication is one of the factors you should consider when considering all of the circumstances as they were known to and appear to the defendant and considering what a responsible person in the same position as the defendant would have believed. ”8

response to the threat of harm to him or his child if he did not enter and rob the store

. The prosecutor also noted that d efendant did not request a jury instruction on in voluntary
intoxication when the case was submitted . Defense counsel argued that the jury’s question showed involuntary intoxication to be “relevant to their inquiry” as they asked about intoxication’s “impact on criminal liability. ” She asked for either a modified
instruction on duress or a standard instruction on involuntary intoxication

. 2 The court refused the requests and referred the jury to the standard instruction on duress. The jury returned a verdict within one hour of receiving the court’s response to its inquiry. Defendant contends an instruction on involuntary intoxication should have been given because there was substantial evidence to support it and defense counsel requested it, albeit only after the jury’s inquiry on the subject. The Attorney General concedes t here was substantial evidence of intoxication under duress but argues there was no substantial
evidence that intoxication negated defendant’s intent to steal. “Told to steal, [defendant] entered Luna Travel for that purpose
, ” the Attorney General maintains . “In this case, the only evidence was [defendant’s] testimony that he entered the agency to commit robbery.” The evidence concerning defendant’s intent is not as clear as the Attorney General
contends. The defendant did not testify that he entered the st ore “to commit robbery.” On direct examination, d efendant testified that Horatio and Rodas told him “if I did not go
into the store that

— that they were going to kill me or my child.” “Q. So what did you
do? A. Well, I had to go in. Q. What were you plann ing to do when you went inside? A. Once I stepped in I have almost no recollection of anything else. Q. Can you explain? A. I just remember stepping in. Q. Is that all? A. I hardly remember anything else. Q. But what is the next thing you remember? A. What I remember is that

— I just remember that

2 “ Consider any evidence that the defendant was involuntarily into xicated in deciding whether the defendant had the required intent or mental state when he acted. [¶] A person is involuntarily intoxicated if he unknowingly ingested some intoxicating liquor, drug, or other substance, or if his intoxication is caused by th e duress of someone else, for whatever pur pose , without any fault on the part of the intoxicated person

. ” (CALCRIM No. 3427.)9

I saw a bunch of cops all around me.” On cross

- examination, the prosecutor did not ask defendant about his intent, only his actions. “Q. And then one of these individuals told you to go in and rob Luna Travel, cor rect? A. Yes. Q. And you ran in and you’re the one on the video that we’ve been watching, isn’t that true? A. Well, yes. Q. And you’re the one who had a significant amount of currency in his pocket when he was arrested and had stolen from Luna Travel, true ? A. I don’t remember that.” Intoxication bears on the question of whether the defendant had the requisite
mental state to commit the charged crime . ( People v. Saille (1991) 54 Cal.3d 1103, 1119.) An instruction on intoxication should be given where suppo rted by the evidence and requested by the defense. ( Ibid. ) Here, defendant’s testimony about being coerced at knifepoint to smoke cocaine, and Arruda’s testimony that defendant appeared “pretty drunk or intoxicated from drugs” when he apprehended him, prov ided a factual basis for an instruction on the significance of involuntary intoxication. Had such an instruction been timely requested, under CALCRIM No. 3427, the jury should have been instructed to “[c] onsider any evidence that the defendant was involunt arily intoxicated in deciding whether the defendant had the required intent or mental state when he acted .”
We need not decide whether it was error not to have added such an instruction in response to the jury’s question, when the defense had n ever argu ed that defendant was acting under the influence of drugs when he entered the store , because in all events the failure to give the requested instruction was not prejudicial. The instruction requested was a “pinpoint instruction” relating particular facts to a legal issue in the case. ( People v. Saille, supra, 54 Cal.3d at p. 1119.) F ailure to give a pinpoint instruction is reviewed for prejudice under the harmless error standard . ( People v. Larsen (2012) 205 Cal.App.4th 810, 829

- 831.) Even if erroneous, t he j udgment is subject to reversal only if “ it is reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error. ” ( People v. Watson (1956) 46 Cal.2d 818, 836 .) Our evaluation “ focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the10

existing judgment is so relativel y strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result .” ( People v. Breverman (1998) 19 Cal.4th 142, 177.) “ We a lso consider the in structions as a whole, the jury’ s findings, and the closing arguments of counsel. ” ( Larsen, supra, at p. 831.) There is no reasonable probability that defendant would have been acquitted had the jury been instructed on involuntary intox ication. Defendant’s testimony was highly implausible and at odds with the video, which shows a man with the foresight to wear clothes to conceal his identity and sufficiently conscious to climb onto a counter and repeatedly demand money until certain he h as received everything from the cash box. A claim of involuntary intoxication, like the claim of duress, would have rested on defendant’s testimony that a man named Horatio coerced him into smoking crack cocaine and robbing the store. The jury rejected his claim of duress and, in doing so, necessarily found defendant’s testimony not credible. It is not reasonable to suppose that the jury
would have reject ed the testimony that he was forced to rob the store and yet have accept ed the testimony that he was forced to smoke crack and, under its influence, did not intend to rob the store. Moreover, the jury understood that it could not convict defendant unless he had the capacity to form intent, and formed intent, because it was instructed that robbery requires the union of act and wrongful intent, and that intent must be the specific intent “to deprive the owner of [property] permanently.” (CALCRIM Nos. 251, 1600.) On the facts and instruction s given, it is not “ reasonably probable that a result more favorable to the appealing party would have been reached ” had the instruction been given. ( People v. Watson , supra, 46 Cal.2d at p. 836 .) Disposition The judgment is affirmed.11 _________________________ Pollak, Acting P.J.

We concur:

_________________________ Siggins, J.

_________________________ Jenkins, J.