52 Cal.4th 769, S076582, People v. Blacksher

Docket Nº:S076582.
Citation:52 Cal.4th 769, 259 P.3d 370, 130 Cal.Rptr.3d 191
Opinion Judge:CORRIGAN, J.
Party Name:The PEOPLE, Plaintiff and Respondent, v. Erven R. BLACKSHER, Defendant and Appellant.
Attorney:[130 Cal.Rptr.3d 210] Kathy Moreno, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant. Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, Gerald A. Engler and Dane R. ...
Case Date:August 25, 2011
Court:Supreme Court of California

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52 Cal.4th 769

259 P.3d 370, 130 Cal.Rptr.3d 191

The PEOPLE, Plaintiff and Respondent,


Erven R. BLACKSHER, Defendant and Appellant.

No. S076582.

Supreme Court of California

August 25, 2011

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[130 Cal.Rptr.3d 210] Kathy Moreno, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Manuel M. Medeiros, State Solicitor General, Gerald A. Engler and Dane R. Gillette, Assistant Attorneys General, and Michele J. Swanson, Deputy Attorney General, for Plaintiff and Respondent.


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[259 P.3d 386] A jury found defendant Erven R. Blacksher guilty of the first degree murder of his [259 P.3d 387] nephew, the second degree murder of his sister, and being a felon in possession of a firearm.1 It also found [130 Cal.Rptr.3d 211] true the firearm-use allegations and the special circumstance of multiple murder.2

This appeal is automatic. We affirm.

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A. Guilt Phase

1. Prosecution's case

In 1989, after the death of his father, defendant moved in with his mother, Eva Blacksher, at her home in Berkeley. Defendant was Eva's youngest and favorite child.3 She provided for him. He did no work and paid no rent. Defendant was very controlling with his mother. He demanded that his siblings not visit the home, insisting he could take care of everything on his own.

In 1990, however, as Eva grew ill, defendant's sister, Versenia Lee, began caring for her. Versenia moved into the home with her ex-husband, Sammie, and their son, Torey. To make room for them, defendant moved into a small cottage behind the house. Defendant became jealous as Eva's attention shifted away from him and towards Torey.

By May 1995, the relationship between the 40-year-old defendant and 21-year-old Torey became increasingly hostile. Early on the morning of May 7, 1995, defendant visited his brother, Elijah Blacksher. Defendant was angry, saying that Torey was " fucking with" him. Torey and his friends had threatened defendant and thrown rocks at his car. Torey was dishonoring Eva by selling cocaine at her home. Defendant asked Elijah to get him a gun so he could kill Torey. Elijah refused and tried to reason with defendant, explaining that Torey was part of the family. Elijah asked defendant not to return home but to spend the rest of the night at his residence. Defendant refused and left.

Later that same day, defendant called and revisited Elijah. On the telephone and in person he repeated his threats against Torey and said he was trying to find a gun. When Elijah could not calm defendant, Elijah drove defendant to the home of their eldest brother, James, hoping James would have better success.

There, defendant remained very angry. In front of Elijah, James, and James's wife, Frances, he paced the floor and kept repeating that he was going to kill " that punk" Torey and would also kill his sister Versenia if she got in the way. At various points, defendant threatened to " knock" Torey's " brains out" with a baseball bat and to get a gun and " shoot the place up."

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James urged defendant to calm down, leave Torey alone, and get some rest. When defendant refused to listen, James told him to leave. Defendant did so, saying he was going to buy a gun on the street.

The next evening, defendant and Torey argued in the driveway outside Eva's home. Versenia eventually broke up the argument and convinced Torey to come inside.

Hearing of the argument, Elijah visited defendant in the cottage. Elijah told defendant to stay away from Torey, but defendant again said he was going to get a gun and shoot Torey. Defendant said, " Man, I done thought about it and thought about it and thought about it, I'm going to kill him."

[130 Cal.Rptr.3d 212] About 11:00 p.m. that evening, Versenia reported the threats to police. She told the responding officer, Officer Luis Mesones, that defendant was schizophrenic, had stopped taking his medication, and would sometimes become angry at people for no apparent reason. Because defendant was not at home at the time, Officer Mesones had Versenia sign a citizen's arrest form.

Between 1:00 and 2:00 a.m., a noise awakened Versenia. She found defendant sitting in the darkened living room with a baseball bat. He said he was waiting for Torey to [259 P.3d 388] come home so he could kill him. Versenia again called the police, and Officer Mesones returned. When Officer Mesones asked defendant if he had threatened Torey, defendant said Torey had " disrespected my mother by bringing his friends in the house." According to the officer, defendant was somewhat incoherent and stared ahead not looking at him. Officer Mesones arrested defendant.

About 3:00 a.m., defendant called his sister, Ruth Cole, and asked her to bail him out. He repeatedly told her he wanted to kill Torey because Torey was being disrespectful towards Eva.

On the morning of May 9, 1995, Eva and Versenia went to court and obtained a temporary restraining order against defendant. After defendant was released from jail, he went to Eva's home and discovered his keys no longer worked. He confronted Eva and demanded she give him the keys. He told her to make Versenia and her family leave the house. Eva relented and gave defendant the keys. Versenia made arrangements to move by the first of the month.

Later that day, defendant visited his sister Ruth, told her he knew about the restraining order, and repeatedly said he was going to kill Torey. Ruth did not take defendant seriously, but reminded defendant that he was Torey's uncle. Ruth's husband Willie arrived, and defendant told him he was going to kill

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Torey. Asked why, defendant showed him a dent on his car and said that Torey had hit it with a brick. Defendant also claimed Torey and his friends had been threatening him. As defendant left Ruth's home, however, he said he was not going to kill Torey and that he did not want to " get his hands dirty."

The next day, on May 10, 1995, defendant went see to Elijah. He restated his decision to kill Torey, and said he had found someone who was willing to sell him a .357 Magnum. He did not care about the cost and had already withdrawn money from the bank for the purchase. Elijah asked defendant to give him the money, but defendant refused, saying he would get the gun and hurt Torey.

Elijah called defendant the next morning, May 11, 1995, at 6:30 a.m. When defendant admitted he had a gun, Elijah begged him to stay in his cottage until he got there. Defendant hung up.

About 7:00 a.m., Eva's next-door neighbor, John Adams, saw defendant back his car down to the end of the driveway. Adams and defendant acknowledged each other and exchanged hellos. Defendant went to his mother's bedroom, where Eva was still in bed. He spoke briefly to her, and left her room. Eva heard Versenia exclaim that she had heard a gunshot and that she was going to check the house. Eva then heard a single gunshot. Eva got out of bed and saw Versenia fall to the ground, bleeding. Eva then ran outside.4

[130 Cal.Rptr.3d 213] Adams heard the gunshots and called 911. Three other neighbors heard the gunshots as well. One neighbor saw defendant leave Eva's house " as if he was in a hurry," just after she heard the gunshots.

Torey died of a gunshot wound to the back of his head. A second bullet had missed Torey's head and passed through a nearby pillow.5 Versenia died of a

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gunshot wound to the right side of her head. Apparently, the bullet initially passed through her right index finger. The bullets were fired by the same [259 P.3d 389] gun, either a .357 Magnum or a .38 Special revolver.

About 7:40 a.m., defendant called James's home and spoke with his wife Frances. Defendant nervously told her that he had heard gunshots at his mother's house and said someone should check on Eva. Frances suggested he should do so, but defendant said he did not want to be a witness to whatever happened. About 7:45 a.m., defendant called his sister Ruth and told her he had heard gunshots and screaming at his mother's house. He claimed he saw two masked men on the front porch, and asked Ruth to call the police. She asked why he did not do so. Defendant said he was afraid they would question him. He claimed he was calling from a friend's house but would not identify the friend.

Later in the day, defendant went to a travel agency, bought a bus ticket to Reno, and booked a room at a hotel casino. He made the reservations using Ruth's address. The bus left at 12:55 p.m. that afternoon.

Nearly 38 hours later, about 2:30 a.m. on May 13, 1995, defendant surrendered to Officer Martin Heist as he was sitting in his patrol car outside the Berkeley police station. Defendant was carrying toiletries and wore a T-shirt that read, " Reno, Nevada."

2. Defense case

The defense played the recording of Adams's 911 call. During that call Adams said he believed defendant suffered from mental illness.

The defense also presented evidence that, during the 1980's, the Social Security Administration found defendant eligible for benefits based on paranoid schizophrenia.

A clinical psychologist, Gerald Davenport, examined defendant to determine...

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