People v. Cardenas
| Decision Date | 23 May 2011 |
| Docket Number | H034519 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. ROBERTO ARRIOLA CARDENAS, et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC894340)
Following a jury trial, defendants Robert Arriola Cardenas and Timoteo Cabrera Plancarte were convicted of first degree robbery in concert of Baldimir Maraz in an inhabited place (Pen. Code,1 § 213, subd. (a)(1)(A)) (count one), first degree robbery of Erendira Jiminez in an inhabited building (§§ 211-212.5, subd. (a)) (count two), and false imprisonment (§§ 236, 237, subd. (a)) (lesser included offense to count three, kidnapping to commit robbery).2 The jury found the allegations that defendant Cardenas hadpersonally used a firearm in committing the offenses (§ 12022.53, subd. (b)) to be not true. The court sentenced each defendant to 11 years in state prison. They both appeal.3
At the time of the crimes on January 30, 2008, Bladimir Maraz ("Maraz") lived at 398 El Cajon Drive in San Jose. He lived in a three bedroom house, which he rented, with his wife and three children. The converted garage was a separate unit, which was rented to another family. Erendira Jiminez lived with her husband, Elisandro Beceril, and two children in the converted garage at 398 El Cajon Drive.
On the night of the robberies, Jiminez was awakened by voices outside the garage and then she heard the sound of a window breaking. Her husband was not at home; she was home with only her two children. She looked out her bathroom window and saw a broken kitchen window in the main house.
In the early morning hours of January 30, 2008, Maraz was awakened by "a very, very loud noise." He called 9-1-1. This call came in at 2:28 in the morning.
Maraz's son B., who was 11 years old at the time of trial, was also awakened by a noise. He got up to go to the bathroom and saw that the kitchen window was broken. B. saw legs coming into the house. Then a man leaped in. The man was wearing a ski mask and had a gun in one hand, which he aimed at B. B. screamed "mom, dad." The man opened the front door to the house and admitted a number of others, B. thought perhaps as many as five. B. was scared.
Maraz's wife, Martha Camacho, awoke in bed to the sound of breaking glass and then heard her son B. screaming "mom" and "dad." Their daughter G., who was 14 years old at time of trial, awoke to the sound of glass breaking. G. and her little sister, who was eight years old at the time of trial, were in their bedroom. G. then heard her brother B. screaming for their mom and dad; he sounded "really afraid."
B. saw the intruders, who were generally wearing dark clothing, searching for something. One man was wearing a bandana over his face and had a knife; the others were wearing ski masks and had guns. Two or three of them were wearing gloves. The family's dog was barking. The intruders were searching the house.
When Maraz heard his son yelling, he threw down the phone without speaking to the 9-1-1 operator. Maraz ran to his bedroom door and opened it and encountered a man with a gun pointed at him. The man asked Maraz where the money was. He ordered Maraz to get on the floor. Maraz threw himself to the ground because they said they were going to kill him. He was instructed to not look at them or he would be killed.
Camacho, who had already gotten out of bed, saw five or six intruders in her home; two came into her bedroom. They were yelling and telling Camacho to put her head down in English, which Camacho did not understand, and her son, who was "very, very scared," told her in Spanish to drop to the floor. She was told in English not to look and her son translated because he did not know what was going to happen if she did not listen. She was lying face down on the bedroom floor facing the hallway. In addition to the two individuals in her bedroom, she saw the shoes of approximately three other strangers as they walked in hallway.
The intruders repeatedly demanded money. In response, Maraz offered his wallet. Maraz was told, " " From the floor, Maraz pointed to the location of his wallet. Camacho understood some English and she heard the men asking her husband where the money was and she heard her husbandask what money and offer his wallet. Maraz's hands were tied behind his back with gray duct tape while he lay face down on the floor. Maraz felt a gun on his neck; the assailant was speaking both Spanish and English but his English was not very good. Maraz's savings, Camacho thought about $200 to $300 dollars, were in his black jacket. At trial, Camacho identified the jacket in a photo taken after the incident, which showed their bedroom with things out of place.
The family's dog was barking a lot. One of the intruders, who was wearing a mask and armed with a round-tipped gun, told B. to control the dog or the dog would be shot.
A man, carrying a gun and holding the dog, came into G.'s room. She could see his face because his bandana was down on his neck; he had short dark curly hair and was wearing a baby blue shirt and latex-type gloves. That man was not defendant Cardenas or defendant Plancarte. The man said to take the dog and keep it quiet. B. passed the dog to G. Through her open bedroom door, she saw another man wearing a black shirt and a ski mask go into her mother's room. G. heard people repeatedly shouting in her parents' room "give me the money" and cussing in English.
B. saw and heard the initial intruder who had entered through the window cussing at his dad in English. B. saw someone go into a drawer in his parents' bedroom. He then saw and heard another intruder talking in Spanish on a cell phone. B. heard him say that he had a wallet but he did not get the money.
A man wearing a camouflage shirt and a ski mask entered G.'s room. He took something from her room and then put it in his pocket and then he asked her what was in the garage. At first, G. answered that she did not know because she thought that the intruders were going to kill her family and she was trying to protect the family who was living in the garage. She was really scared. The man, who had a weapon, told her not to lie to him and pointed it at her. She then told him that a family was in the garage. Their conversation was in English even though G. speaks Spanish. The man then calledsomeone on a cell phone and spoke in English. G. saw B. being forced to leave the house with one of the intruders wearing a mask. Things got quiet and she inferred that the intruders were leaving.
Two of the men told B. to take them to the garage. One was wearing an ordinary ski mask and holding a gun to B.'s head. The other man was wearing a bandana and had a knife. Camacho saw her son B. being taken away and "started screaming and telling them not to do anything to him." They told her to stop yelling and to not look at them.
B. and the two men walked out of the sliding glass back door and into the dark backyard. B. was scared and panicking because he thought that the intruders were going to shoot his parents. The shortest distance between the sliding glass door and the garage door was 16 feet.
When they reached the garage, the men instructed B., at whom a gun was still pointed, to knock on the door. He knocked on the door. When Jiminez looked out, she saw a man with a mask with B. B. asked her to open the door but she did not immediately comply. B., who was crying, asked her to open the door again. When she did not open the door, the man with the gun threatened to knock down the door and shoot B. B. thought he was about to die.
Jiminez opened the door and a man, wearing a mask, dark pants and dark gloves and carrying a knife, came inside and grabbed her. B. saw him push Jiminez. Despite the mask, Jiminez could see a one to one and half inch scar on the side of the man's face. Another man with a pistol was in the doorway.
B. said he wanted to go back to house but he was told to stay put. B. told the man that one of the other men told him to come back to the house to translate. B. saw someone run out of the back door of his house and jump over the fence. The man with the gun asked, " 'What's going on?' " B. said, "I don't know," and ran back to the house and went to his parents' bedroom. He thought they might be dead.
The man inside Jiminez's home looked throughout the kitchen, the main room, and bathroom. He asked who else lived there and where her husband was. He spoke like a Chicano, that is in Spanish with an American accent. The man took her cell phone, which had picture of her husband and her son on it, and a pair of hoop earrings and then he left. Jiminez closed and locked her door, checked on her kids. When she looked out the front window, she saw police already on El Cajon Drive.
When B. returned to his parents' bedroom, he told his mother that the men had left. B. heard a voice coming from the phone and picked it up and began to tell the 9-1-1 operator what had happened. B. told the 9-1-1 operator that about five people with weapons had come into their house. B. was interrupted when one of the intruders, the same man who earlier had been talking in Spanish on his cell phone about the wallet, returned. B. stopped talking and ended the call.
The man was trying to hide a gray gun behind his back and B. saw the tip of the gun. The man asked what was going on. B. responded that he did not know. The man's mask was "messed up" and "funny" because its cutout was frayed and curling. B. saw the man's face clearly; he remembered the man's...
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