Filed 7/24/15 P. v. Hernandez-Betancourt CA1/3
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                            A141070
v.
EDGAR L. HERNANDEZ-BETANCOURT,                                              (Marin County
                                                                            Super. Ct. No. SC184337A)
         Defendant and Appellant.


         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 the
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
intent 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 failure of the court to respond to the jury’s question with an instruction on
involuntary intoxication was not prejudicial.




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                               Evidence Presented at Trial
The Prosecution’s Case
       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, around 6:00 p.m., a man ran
into the store and approached her as she sat at a computer behind the counter. Mazariegos
said the 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 his demands. She pulled 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 empty 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 store
to a long desk or low counter at the rear of the store, leans across the counter, and makes
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. This exchange lasts
for about one minute. The man then puts one foot on a chair, steps up, and places a knee
on the counter. The 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 a


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minute — the man waves his right hand with a raking motion and the cashier gestures
with open hands then produces 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, Arruda drove his car
onto 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 back. 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 also testified that several
men were in the area when he was detaining defendant, including a homeowner who
called the police and a Latino bicyclist. 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 Arruda 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.




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The Defense
       Defendant claimed 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 into 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 to meet his mother, buy a birthday cake, and see his
son. 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 them.
       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 and Rodas took 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
dressed 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 went into the store while


                                              4
Horatio and Rodas waited outside. Defendant testified that he has “almost no recollection
of anything” after entering 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, defendant could not say why Horatio
was on a bicycle. On cross-examination, defendant said Horatio brought the bicycle with
him when he and Horatio left the apartment to go to the food store.
       Two character 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 defendant was convicted for battery in 2011 but the fact did not change her opinion.
Romina Dagnino, 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 robbery if he acted under duress. The
defendant acted under duress if, 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 someone 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 the 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 People have not met this burden, you must find the defendant not guilty of
Robbery.” (CALCRIM No. 3402.)


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       Defendant contends that the People’s burden of proof was not met because the
prosecutor did not present “actual evidence” contradicting defendant’s testimony 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 upon an 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, permitting an inference that defendant did not act
under duress. In closing argument, the 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 store 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 because


                                              6
“he knows that money is for him. That’s why he wants 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 duress.
2. The court’s failure to respond to the deliberating jury’s question about drug use with
an instruction on involuntary intoxication was not prejudicial.
       Defendant claims the court did not adequately respond to a question submitted by
the deliberating 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 under 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 defendant 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
intoxication 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
intent 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
reasonable, 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.”


                                             7
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 defendant did not request a jury instruction on involuntary
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 there
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 store “to commit robbery.” On
direct examination, defendant 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 planning 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 intoxicated 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 the duress of someone else, for
whatever purpose, without any fault on the part of the intoxicated person.” (CALCRIM
No. 3427.)


                                              8
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, correct? 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 supported 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, provided 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 involuntarily 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 never argued 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.) Failure 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, the judgment 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 the


                                              9
existing judgment is so relatively 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 also consider the instructions 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 intoxication. 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 has 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 rejected the testimony that he was forced to rob the store and yet have
accepted 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 instructions 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.




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                                 _________________________
                                 Pollak, Acting P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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