P. v. Hernandez















Filed 6/21/12 P.
v. Hernandez CA2/8

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.



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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND APPELLATE DISTRICT



DIVISION EIGHT






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THE PEOPLE, Plaintiff and Respondent, v. FIDENCIO HERNANDEZ, Defendant and Appellant.

B234888 (Los Angeles County Super. Ct. No. BA367243)

APPEAL from the judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Carol H.
Rehm, Jr., Judge. Affirmed.



Murray A. Rosenberg, under
appointment by the Court of Appeal, for
Defendant and Appellant.



Kamala D. Harris, Attorney General, Dane
R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Stephanie D. Miyoshi and Nima Razfar, Deputy Attorneys
General, for Plaintiff and Respondent.



* * * * * * * * * *

>SUMMARY

Defendant Fidencio
Hernandez was convicted of possession of
cocaine base in case No. BA353604.
He was placed on Proposition 36 probation,href="#_ftn1" name="_ftnref1" title="">^[1] requiring him to
obey all laws, among other conditions.
On January 8, 2010,
defendant’s probation was revoked and reinstated after he admitted a violation,
and his Proposition 36 program was terminated.
On February 23, 2010, defendant was charged by information with the crime at issue in this
appeal, second degree robbery (Pen. Code, § 211), with gang allegations (§ 186.22,
subd. (b)(1)(C)). Defendant’s probation
was again revoked, and the matter was set for a probation violation hearing to
follow this case, with the evidence from this case to be considered for the
probation violation. The jury found
defendant guilty of robbery, and deadlocked on the gang allegations. The gang allegations were dismissed under
section 1385 after the trial court declared a mistrial. Defendant was sentenced to the upper term of
five years, and found to be in violation of his probation. His probation was revoked, reinstated, and
terminated.

On appeal, defendant contends that href="http://www.mcmillanlaw.com/">insufficient evidence supports his
robbery conviction and resulting probation violation, reasoning the testimony
of the two key witnesses was “inherently improbable” due to the inconsistencies
between their testimony at trial and their previous statements to police. We find no merit in defendant’s contentions,
and therefore affirm.

>FACTS

On the afternoon of January 22, 2010, Los Angeles Police Officer Paul Rodriguez was on patrol
when he and his partner were flagged down by G.F., who worked at a 98-cent
store on the corner of First and Clarence Streets in Los Angeles. G.F. told the
officers that at approximately 10:00 a.m.
that day, defendant attempted to leave the store without paying for some
items. G.F. told defendant he had to
pay, and defendant responded, “You are not the boss of me, I run these streets,
I can take whatever I want,” and took the goods without paying. G.F. did not want to file a police report but
requested additional patrols in the area.


Officer Rodriguez later told Officer
Rodolfo Pardo, a member of the Community Law Enforcement and Recovery unit (a
subdivision of the gang unit), about the incident so that he could “check it
out and do extra patrol[s] over there.”
At approximately 5:45 p.m.,
Officer Pardo and his partner, Officer Lazaro Ortega, went to the 98-cent store
to investigate further. Officer Pardo
interviewed G.F., who told Officer Pardo that he recognized defendant, who had
come in the store before and taken things without paying for them. That morning, defendant came in the store
with three other males, and started “stuffing his pockets with
merchandise.” When G.F. told defendant
that he had to pay for the items, defendant responded that he could take what
he wanted, punched G.F. in the left eye, and left the store without
paying. Officer Pardo saw a bruise under
G.F.’s left eye.

Officer Pardo also interviewed
G.F.’s coworker, L.G. She saw G.F. ask
defendant to pay for some merchandise.
She could not overhear what was then said, but defendant appeared “very
angry.” She saw defendant punch G.F. in
the eye and leave the store without paying.
L.G. identified defendant in a field show-up that same evening.

When defendant was arrested, he
admitted he had been in the store, telling officers, “I didn’t take anything, I
took some socks but he told me to put them back, so I did.”

G.F.’s and L.G.’s trial testimony
differed from their earlier statements to police. G.F. testified that defendant did not punch
him, but only pushed him after G.F. confronted him about paying for some
merchandise. The bruise near G.F.’s eye
happened the day before at a party. G.F.
denied flagging down the police, telling police defendant hit him, or that he
requested additional patrols of the area.
G.F. did not call the police because he was afraid of getting beaten up
by gang members, believing defendant was a member of a local gang.

L.G. testified that she had seen
defendant take items from the store without paying about 10 times before. She denied being at work during the January
22 incident, claiming she did not come to work until later that day. However, approximately two days before the January
22 incident, L.G. saw G.F. confront defendant about paying for some items. The two argued, and defendant took a swing at
G.F., but did not hit him. During her
police interview, L.G. was describing the incident that occurred two days
earlier. She “didn’t want to come to
court and . . . didn’t want to get into trouble.” The store is in a bad neighborhood, where
“things can happen to you,” and after the robbery, two unknown women came to
the store looking for her.

Gang expert, Officer Sergio Salas,
testified that gang members enhance their reputation by creating fear and
intimidation in the community, and that people are therefore hesitant to report
crimes to police. Victims who do report
crimes are often initially truthful, but later change their stories out of fear
of retaliation. Defendant was a
self-admitted member of The Mob Crew gang, whose territory includes the
neighborhood where the 98-cent store is located.

>DISCUSSION

Defendant contends that inconsistencies between the
testimony and out-of-court statements of G.F. and L.G. render the evidence
“untrustworthy” and “inherently implausible,” and therefore insufficient to
support his robbery conviction and
probation violation. “In assessing the sufficiency
of the evidence, we review the entire record in the light most favorable to the
judgment to determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
“The test is whether substantial evidence supports the decision, not
whether the evidence proves guilt beyond a reasonable doubt.” (People
v. Mincey (1992) 2 Cal.4th 408, 432.)
Therefore, the reviewing court’s “opinion that the evidence could
reasonably be reconciled with a finding of innocence or a lesser degree of
crime does not warrant a reversal of the judgment.” (People
v. Hill (1998) 17 Cal.4th 800, 849.)
Reversal is only warranted when it clearly appears “‘that upon no
hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People
v. Bolin, supra, at p. 331.) >

We defer to the trier of fact’s evaluation of credibility. (People
v. Snow (2003) 30 Cal.4th 43, 66.)
Neither conflicts in the evidence nor suspicious testimony justify the
reversal of a judgment, because it is the exclusive province of the trier of
fact to determine the credibility of witnesses and the truth or falsity of the
facts testified to. (>People v. Huston (1943) 21 Cal.2d 690,
693, overruled on other grounds in People
v. Burton (1961) 55 Cal.2d 328, 352.)
An exception to this rule is when the witness’s statements are
inherently improbable. To be inherently
improbable, the falsity of the statements “‘“‘must be apparent without
resorting to inferences or deductions.
[Citations.]’”’ [Citation.]” (People
v. Sassounian (1986) 182 Cal.App.3d 361, 409.)

Defendant
contends there was no credible evidence he “was a perpetrator of any
robbery.” It is undisputed that either of G.F.’s versions of events (that he was
pushed or hit when he confronted defendant about paying for goods), as well as
the testimony of the officers as to what G.F. and L.G. reported on the day of
the incident, satisfied the essential elements of defendant’s robbery
conviction. (See Pen. Code,
§ 211 [“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”]; >People v. Gomez (2008) 43 Cal.4th 249, 254.) There is also little doubt that defendant was
the perpetrator. L.G. identified
defendant in a field show-up, and both G.F. and L.G. identified him in court as
the person who either hit or pushed G.F., and took items from the store without
paying. Instead, defendant asks this
court to disregard this testimony,
because of various inconsistencies, including L.G.’s recantation of her
statement to police that she was present during the January 22 incident. However, we may not reweigh the evidence or
substitute our own assessment of the witnesses’ credibility for the
determination made by the jury. (>People v. Snow, supra, 30 Cal.4th at p. 66; People
v. Huston, supra, 21 Cal.2d at p.
693.) We may reverse the conviction only
if we were to find the testimony was impossible or inherently improbable. (People
v. Richardson (2008) 43 Cal.4th 959, 1030.)


Although there may have been conflicts in the evidence,
they were insufficient to render the evidence inherently improbable. The jury was able to observe G.F., L.G., and
Officers Pardo, Rodriguez, and Ortega, assess their demeanor and determine if
their testimony was credible. Moreover,
there was evidence explaining the inconsistencies in the testimony. Officer Salas testified that witnesses often
change their stories out of fear of gang retaliation. Both L.G. and G.F. admitted they were reluctant
to testify, and that they did not want any trouble. There was evidence that the 98-cent store was
in gang territory, and that defendant was a gang member. In rendering its verdict, the jury determined
that any inconsistencies in G.F.’s and L.G.’s testimony and statements to
police were trivial, or were explained by their fear of gang retaliation.

Because the evidence was sufficient to sustain the
conviction, it was plainly adequate to support the probation violation of the
condition that defendant obey all laws, which has a lower standard of
proof. (People v. Rodriguez (1990) 51 Cal.3d 437, 441 [A probation
violation must be proven by a preponderance of the evidence].)

>DISPOSITION

The judgment is affirmed.

>NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS



GRIMES, J.





WE
CONCUR:







BIGELOW, P. J.







FLIER, J.