People v. Blackwell

• Decision Date: 07 September 2016
• Docket Number: A144424
• Citation: 3 Cal.App.5th 166,207 Cal.Rptr.3d 444
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Bradley BLACKWELL, Defendant and Appellant.

3 Cal.App.5th 166

207 Cal.Rptr.3d 444

The PEOPLE, Plaintiff and Respondent,

v.Bradley BLACKWELL, Defendant and Appellant.

A144424

Court of Appeal, First District, Division 5, California.

Filed September 7, 2016

As Modified on Denial of Rehearing September 29, 2016

L. Richard Braucher, Richmond, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Joshua A. Klein, Deputy Solicitor General, Laurence K. Sullivan and Seth K. Schalit, Deputy Attorneys General, for Plaintiff and Respondent.

BRUINIERS, J.

In 2007, Bradley Blackwell, then 17 years old, committed a burglary and attempted robbery with an accomplice. Uriel Carreno was shot and killed in the course of the offenses. Although Blackwell was a minor at the time he committed these offenses, the district attorney elected to directly file the case in adult court under the provisions of Welfare and Institutions Code section 707, subdivision (d). Blackwell was convicted in 2009 of first degree murder with a robbery-murder special circumstance (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(17)(A) ) and sentenced to life without the possibility of parole (LWOP).¹

In a prior appeal (People v. Blackwell (June 20, 2013, A128197) 2013 WL 3087270 [nonpub. opn.] ), we reversed Blackwell's sentence and remanded for resentencing pursuant to the constitutional standards announced in Miller v. Alabama (2012) 567 U.S. ––––, ––––, 132 S.Ct. 2455, 2464, 2468–2469, 183 L.Ed.2d 407 (Miller ) [mandatory LWOP sentences for homicide amount to cruel and unusual punishment under the Eighth Amendment when imposed on defendant who was a juvenile at time of offense].² On remand, the trial court considered the factors outlined in Miller , and again imposed an LWOP sentence. Blackwell again appeals, arguing that the sentence amounts to cruel and unusual punishment, violates the Sixth Amendment, and constitutes an abuse of discretion. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND ³

Uriel Carreno was living in the converted garage of his aunt and uncle's home on Joan Drive in Petaluma. On February 7, 2007, he ate lunch with his aunt and returned to his garage apartment. A friend of Carreno's came by later that afternoon and found him lying on the floor, not moving. Carreno had been shot four times in his side and once in his back and had died of his wounds. A piece of the wood doorjamb was found across the room and a muddy shoeprint was on the door adjacent to the doorknob.

The police found five nine-millimeter shell casings of two different colors within three to five feet of Carreno's body. Forensic testing and the position of the casings revealed they were all fired from the same weapon while the shooter was inside the room. The coroner recovered five spent bullets from Carreno's body, all of which were fired from the same weapon. Two of the bullets had silver jackets (Silvertips) and the other three were of the Black Talon variety. There was no evidence that another firearm was discharged inside the room during the incident leading to Carreno's death.

Jeffrey Gray, a convicted felon, saw Blackwell with a nine-millimeter Beretta during early 2007. Gray saw Blackwell load it with different colored bullets, and Blackwell told Gray that some of them were solid points and some were hollow points. Blackwell referred to the hollow point bullets as Black Talons.

On the afternoon Carreno was shot, Blackwell called Christopher Ortele and asked for a ride to Petaluma near the Kmart so he could pay his cell phone bill. Ortele was in the process of installing a car stereo for his friend Amber Powell, who agreed to drive. Powell and Ortele picked up Blackwell, who was with Keith Kellum, and they all drove from Rohnert Park to the Petaluma Kmart, but when Powell was about to turn into the parking lot, either Blackwell or Kellum told her to go the other way and directed her to a residential neighborhood near the corner of Novak and Joan Drive (the street on which Carreno lived).

After Powell parked the car, Blackwell and Kellum got out and walked in the direction of Joan Drive, telling Powell to wait for them. When they returned five to 15 minutes later, their demeanor had changed. They got into the car and were very quiet during the ride back. It appeared to Powell that Blackwell was “tearing up” and Kellum was consoling him.

Gray received a call from Blackwell that same afternoon and arranged to meet him at a trailer park where Gray was visiting a friend. Blackwell, Kellum, and Blackwell's brother, Colby, arrived in Colby's truck, and Gray got into the truck with them. Blackwell handed Gray some solvent and a rag and told him he wanted him to go inside a house or garage and wipe down any fingerprints that might be on the door. They pulled up to a house on Joan Drive, but saw fire trucks, police cars, and an ambulance outside. Blackwell appeared upset and explained he shot a “guy” they were trying to rob.

The group drove back to Blackwell's house, where Blackwell told Gray what happened in greater detail. Blackwell said he and Kellum went to Petaluma to rob a guy of some money and dope (crystal methamphetamine) and Kellum kicked in the door of the garage. Blackwell claimed that when he went into the garage, the guy inside took a shot at him, so he shot back several times.

Also on the day of the shooting, Blackwell called his girlfriend, Jacqueline Pollard, and asked her to come to his house. He sounded very anxious on the phone. When Pollard arrived she found Blackwell and Kellum stripped to their boxer shorts. Blackwell took her into the bathroom and told her in a “frantic” manner he had got a ride to Petaluma with some girl he did not know and had shot someone dead. Blackwell told Pollard he and Kellum had gone to a house, touched a doorknob, and kicked another door down, and he was afraid fingerprints and a footprint would be on two separate doors. He claimed that when they entered the room the person inside had been laying in bed and fired a shot between his head and Kellum's, so Blackwell fired a few shots into his chest. After the victim fell to the ground, Blackwell shot him a few more times. Blackwell admitted to Pollard he used his own gun, a semiautomatic Pollard had seen before. He told Pollard he and Kellum were going to burn their clothes, and mentioned a pair of shoes and a jacket that would be placed in a backpack along with the gun and some extra bullets. Pollard saw a backpack containing loose bullets and shoes in Blackwell's bedroom. Blackwell wiped off a gun, wrapped it in a T-shirt, and placed it in the backpack, which Blackwell said he was going to bury.

Sometime later, Blackwell told Pollard he was concerned too many people knew the gun was in the bag and where it was buried. He drove her into the Santa Rosa hills and asked her whether he should move it. She told him it might not be a good idea because they had been stopped by the police a number of times in the car they were driving.

On a visit to Bryan Fishtrom's house in March or April 2007, Blackwell was carrying a dirty bandana that contained a rusty semiautomatic handgun, bullets, and a lot of mud. The bullets were different colors and some had hollow tips.

In March 2007, Gray was picked up on a parole violation and told the police what he knew about Blackwell's involvement in Carreno's murder. In April 2007, after he was released, Gray saw Blackwell and his brother, Gary, at Fishtrom's house. Blackwell and his brother asked Gray how he had gotten out of jail, and Blackwell suggested that they go for a ride together. Gray declined.

In May 2007, Blackwell's brother, Colby, directed police officers to a 50–gallon drum in a rural area. Colby moved the drum, revealing a hole in the ground that contained wet clothing, shoes, pieces of a rifle-cleaning kit, five rounds of nine-millimeter ammunition, and rifle grease. A T-shirt had rust stains and bore the imprint of a gun consistent with a Beretta nine-millimeter handgun.

Blackwell was interviewed by the police and initially denied knowing anything about Carreno's murder. Later, he said he and Kellum went to a house to “burn a guy for drugs,” and Kellum kicked open the door and shot the person inside several times. Blackwell told officers he knew Kellum had a handgun before they went, his brother Colby buried some of the evidence, and he (Blackwell) sold the gun Kellum used in Santa Rosa.

Blackwell and Kellum were charged with first degree murder with felony-murder special circumstances (murder in the commission of an attempted robbery and a burglary or attempted burglary), burglary of an inhabited dwelling house, and attempted robbery in an inhabited dwelling house.⁴ The information further alleged Blackwell personally used and intentionally discharged a firearm. (§§ 187, subd. (a), 190.2, subd. (a)(17)(A) & (G), 211, 459, 664, 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b) -(d).) Although Blackwell was 17 years old at the time of the killing, the district attorney elected to directly file the case in adult court pursuant to Welfare and Institutions Code section 707, subdivision (d).

Based on the foregoing evidence, a jury convicted Blackwell of first degree murder with felony-murder special circumstances (murder in the commission of an attempted robbery and a burglary or attempted burglary), burglary of an inhabited dwelling house, and attempted robbery of an inhabited dwelling house. The jury rejected allegations Blackwell had personally used and/or intentionally discharged a firearm in the commission of these offenses, causing death or great bodily injury.

After the jury returned its verdict, Blackwell's trial counsel filed a sentencing memorandum arguing that, under Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi ), the court could not impose an “adult” sentence without a jury...