People v. Cardenas

• Decision Date: 07 August 2020
• Docket Number: E070624
• Citation: 53 Cal.App.5th 102,266 Cal.Rptr.3d 788
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pedro Jorge CARDENAS, Defendant and Appellant.

53 Cal.App.5th 102

266 Cal.Rptr.3d 788

The PEOPLE, Plaintiff and Respondent,

v.Pedro Jorge CARDENAS, Defendant and Appellant.

E070624

Court of Appeal, Fourth District, Division 2, California.

Filed August 7, 2020

OPINION

MENETREZ, J.

This appeal involves a brief encounter between two groups of strangers in a restaurant parking lot at closing time, in which quickly escalating tensions resulted in a shooting. One man was killed, and three others were injured.

Pedro Jorge Cardenas was one of the shooters. He was convicted by jury trial on one count of murder, two counts of attempted murder, and one count of assault with a firearm, and he pled guilty to one count of being a felon in possession of a firearm.

The trial court instructed the jury on the kill zone theory as to the attempted murder counts. We conclude that the evidence was insufficient to justify instructing on the kill zone theory under People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ), and the error was prejudicial. We therefore vacate the attempted murder convictions.

On the felon in possession count, Cardenas argues that his rights under People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal.Rptr. 778, 587 P.2d 220 ( Arbuckle ) were violated because he was sentenced by a different judge from the one who took his guilty plea. Cardenas did not object on that basis at sentencing, but he cites People v. Bueno (2019) 32 Cal.App.5th 342, 243 Cal.Rptr.3d 740 ( Bueno ) for the proposition that he did not thereby forfeit the issue. We disagree with Bueno and hold that Cardenas forfeited the Arbuckle issue by failing to raise it at sentencing.

Apart from correcting certain clerical errors in the abstract of judgment, we otherwise affirm.

BACKGROUND¹

In two separate trials (one following an initial mistrial on the murder count), juries convicted Cardenas of one count of second degree murder of victim Armando H. ( Pen. Code,² § 187, subd. (a) ; count 1), two counts of premeditated attempted murder of victims Christopher (Chris) H. and Juan R. ( §§ 187, subd. (a), 664 ; counts 2 & 3), and one count of assault with a semiautomatic firearm (§ 245, subd. (b); count 4).³ Before the first trial, Cardenas pled guilty to being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 5). In addition, firearm enhancement allegations for the murder count and one of the attempted murder counts (count 3) were found true, as was a personal infliction of great bodily injury enhancement for the assault count. (§§ 12022.53, subd. (d), 12022.7, subd. (a).) Cardenas received a total sentence of 12 years eight months plus 79 years to life.

A. Prosecution's Case

On the evening of February 27, 2016, Armando, four of his nephews (including Chris and Jesse H.), Armando's father-in-law (Juan), and several others were drinking beer and listening to live music at a restaurant and bar.

The group stayed until closing time and left minutes before 2:00 a.m. the following morning. Everyone exited together and headed into the parking lot. Armando, Chris, and Jesse were among the first to exit the restaurant; Juan was the last to leave.

Video recordings from two different locations in the parking lot captured what happened there. Those recordings were introduced and played for the jury. Our description of how the incident transpired is based primarily on our viewing of those recordings. Cardenas identified himself and Luis in the recordings.

In the parking lot, Chris and Jesse both noticed two men, later identified as Cardenas and Luis, whom they did not know or recognize, walking toward them in an aggressive manner.⁴ When the two groups encountered one another, a verbal altercation ensued. Luis was the initiator and said something like " ‘what's up’ " in an argumentative and aggressive manner. Jesse and Armando both responded in kind. Armando said in Spanish, "Que onda, pendejo," which Jesse explained roughly translates as "what's up, asshole."

At that point, the parties were in the following relative positions, from Cardenas's perspective: In front of Cardenas and Luis were three empty parking spots, bounded by an SUV parked in a spot to Cardenas's right and a sedan parked in a spot to Cardenas's left. To the right of the SUV was another empty spot and then a third parked car. Armando and his companions were in the empty spots between the SUV and the sedan, with Armando standing directly in front of Cardenas and Luis. Chris and Jesse were close to Armando but slightly behind him and to Cardenas's right. The other members of Armando's group were standing loosely behind Armando, Chris, and Jesse, close to the SUV. Armando was standing roughly 15 feet away from Luis, who was slightly closer than Cardenas.

Armando, Chris, and Jesse advanced toward Luis and Cardenas. Armando raised his arms outward and held his palms open.

Chris described this stance as Armando being in "fighting form" but not "like he was going to punch somebody," because his palms remained open. Cardenas, whose nickname is Spanky, responded, " ‘What's up? This is Spanky.’ " No one in Armando's group was armed with any kind of weapon.

Luis was holding a gun at his side, pointing it toward the ground.⁵ Cardenas pulled a gun out from his waistband. As soon as Chris noticed Cardenas's gun (he had not noticed Luis's), Chris started to back away toward the SUV to take cover. Jesse also backed away from Cardenas and Luis toward the SUV, which is where everyone else headed except Armando and Juan. Armando did not move. Juan had exited the restaurant only moments earlier (six seconds before the shooting began) and was coming around the far end of the sedan (i.e., the end of the sedan further from Cardenas).

Just seconds after pulling out his gun, Cardenas began shooting without warning. Cardenas aimed directly at Armando. After Cardenas fired the first shot, Armando doubled over but remained standing. Armando turned to the side and started to move toward the nearby SUV. As Armando turned, Cardenas fired a second shot, and Luis fired a shot too, also appearing to aim at Armando. One second transpired between the first and third shots.

At that one second mark, Juan turned to take cover behind the sedan. He appears to have been hit immediately by a bullet on his left leg or foot. Juan picked up that foot and started hopping and limping toward the sedan, which he ducked behind.

When Armando turned toward the SUV immediately after the first shot was fired, Luis and Cardenas simultaneously began retreating. At first both men were walking backward and continued to shoot in Armando's direction. The second shot from Cardenas and the first shot from Luis were taken during their initial steps backward.

After Cardenas fired the third shot, as Armando and his companions retreated toward the far end of the SUV, Cardenas turned and started running to his right, putting the SUV, the fourth empty spot, and the third car between himself and Armando's group. Luis turned and ran too, following Cardenas around the SUV, the fourth empty spot, and the third car. Both men fired several additional shots while running away, with the SUV and the third car separating them from Armando and his group.

After rounding the near end of the third car, Cardenas and Luis turned left and fled. The path of their flight took them past the far end of the third car and then past the corner of the restaurant building, out of view of the video cameras. For at most one or two seconds, when Cardenas and Luis had passed the far end of the third car but had not yet passed the corner of the building, there were no obstructions separating them from most of the members of Armando's group, who were huddled behind the SUV. But the videos show that by then Cardenas and Luis were no longer firing.

The entire incident—from the initial encounter to Cardenas's and Luis's flight from the scene—lasted 30 seconds. Less than 10 seconds transpired between the first shot and Luis's departure from the parking lot.

Armando was shot six times—once in the right chest, once in the abdomen, and four times in the left leg. He died later that morning. Juan was shot in the foot. Chris was shot on the back side of his right ankle above the Achilles tendon. He was not sure when he was shot. A glass window in the restaurant was shattered, and a man inside was struck in the back by at least one bullet.

Detectives collected 15 shell casings from the scene—seven from a nine-millimeter semiautomatic handgun and eight from a .38 Super semiautomatic handgun. One casing was found approximately 40 feet from the site of the initial encounter; the remainder were closer.

B. Cardenas's Testimony

Cardenas testified on his own behalf. He and Luis had been waiting in their car for a companion to return from the restaurant, and they eventually decided to approach the restaurant on foot in order to find her. Cardenas had a loaded nine-millimeter handgun stored in the trunk of the car, and he put it in his waistband before heading toward the restaurant. He brought the gun with him "just in case" because he and Luis had been involved in a shooting in the same parking lot two weeks earlier. Cardenas knew that Luis also was carrying a loaded gun, a ".38 Super."

Some of the people in Armando's group responded by "going off" after Luis pulled out his gun and said that they did not care that Luis had a gun. Cardenas pulled his gun out from his waistband because being surrounded by so many people caused him to fear for his life. Chris was standing closest to Cardenas. Cardenas heard "someone clock [sic ] their gun" but did not see a gun. Some of the other men, including Armando, may have been armed or had unspecified objects in their hands, which could have been weapons, but Cardenas was not certain.

Cardenas fired the first shot at Armando because he thought Armando was going to kill him. Cardenas thought Armando might have had a concealed weapon. Cardenas aimed directly at Armando when he fired the first two...