People v. Blackwell (202 Cal. App. 4th 144, 2011)

Opinion

NEEDHAM, J.

Bradley Blackwell appeals from a judgment sentencing him to prison for life without the possibility of parole (LWOP) after a jury convicted him of first degree murder with felony-murder special circumstances, burglary of an inhabited dwelling, and attempted robbery of an inhabited dwelling. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A) & (G), 211, 459, 664.) Although appellant 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).

Appellant argues that we must reverse his LWOP sentence because (1) it exceeds the punishment allowable absent a jury determination of age and violates his Sixth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi); (2) it amounts to cruel and unusual punishment under the Eighth Amendment as construed in Graham v. Florida (2010) 560 U.S. _ [176 L.Ed.2d 825, 130 S.Ct. 2011] (Graham); and (3) its imposition was an abuse of discretion. We affirm.

I. FACTS AND PROCEDURAL HISTORY

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 then 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 that they had all been 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 had been 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 had been discharged inside the room during the incident leading to Carreno’s death.

Jeffrey Gray, a convicted felon, had seen appellant with a nine-millimeter Beretta during the first part of 2007. Appellant had loaded it with different colored bullets and had told Gray that some of them were solid points and some were hollow points. Appellant had referred to the hollow point bullets as Black Talons.

On the afternoon that Carreno was shot, appellant had 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 appellant, 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 appellant or Kellum told her to go the other way and directed her to a residential neighborhood near the comer of Novak and Joan Drive (the street on which Carreno lived).

After Powell parked the car, appellant 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 to car and were very quiet during the ride back. It appeared to Powell that appellant was “tearing up” and Kellum was consoling him.

Jeffrey Gray received a call from appellant that same afternoon and arranged to meet him at a trailer park where Gray was visiting a friend. Appellant, Kellum and appellant’s brother Colby Blackwell arrived in Colby’s track, and Gray got into the track with them. Appellant 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. Appellant appeared upset and explained that he had shot a “guy” they were trying to rob.

The group drove back to appellant’s house, where appellant told Gray what had happened in greater detail. Appellant said that he and Kellum had gone to Petaluma to rob a guy of some money and dope (crystal methamphetamine) and that Kellum had kicked in the door of the garage. Appellant 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, appellant 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 appellant and Kellum stripped to their boxer shorts. Appellant took her into the bathroom and told her in a “frantic” manner that he had got a ride to Petaluma with some girl he did not know and had shot someone dead. Appellant told Pollard that he and Kellum had gone to a house, touched a doorknob, and kicked another door down, and he was afraid there would be fingerprints and a footprint on two separate doors. He claimed that when they entered the room the person inside had fired a shot between his head and Kellum’s, so appellant fired a few shots into his chest. Appellant admitted to Pollard that he had used his own gun, a semiautomatic that Pollard had seen before. He told Pollard that he and Kellum were going to bum 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 appellant’s bedroom, and appellant said he was going to bury it.

Sometime later, appellant told Pollard that he was concerned that 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 she thought 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, appellant was carrying a dirty bandana that contained a semiautomatic handgun, bullets, and a lot of mud. The bullets were of different colors and some had hollow tips.

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

In May 2007, appellant’s brother, Colby Blackwell, 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 bore the imprint of a gun and had rust stains consistent with a Beretta nine-millimeter handgun.

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

Based on the foregoing evidence, appellant was tried before a jury and convicted 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 that appellant had personally used and/or intentionally discharged a firearm in the commission of these offenses, causing death or great bodily injury. (Pen. Code, §§ 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).) Keith Kellum had originally been charged as a codefendant, but he pled guilty to second degree murder before the jury was sworn.

After the jury returned its verdict, appellant’s trial counsel filed a sentencing memorandum arguing that under Apprendi, supra, 530 U.S. 466, the court could not impose an “adult” sentence without a jury finding regarding appellant’s age at the time of the offenses. The court rejected this argument and imposed an LWOP term on the murder count. It acknowledged that it had the discretion to impose a lesser term of 25 years to life because appellant was under 18 when he committed the murder (see Pen. Code, § 190.5), but it declined to exercise that discretion in light of appellant’s long juvenile court history and the “heinous” nature of the current offenses.

H. DISCUSSION

A. Jury Finding of Appellant’s Age Under Apprendi

Appellant argues that his LWOP sentence is unauthorized because the jury did not make a finding regarding his age at the time of the offenses. We disagree.

The probation report indicates that appellant was bom on August 9, 1989, making him 17 years old when the offenses were committed in February of 2007. Although minors who commit crimes are generally subject to the jurisdiction of the juvenile court, the law provides for a number of exceptions. (See §§ 602, subd. (b), 707, subds. (a)-(d); People v. Cardona (2009) 177 Cal.App.4th 516, 523-526 [99 Cal.Rptr.3d 313] (Cardona))

Under section 602, subdivision (b), a minor who is 14 years of age or older must be prosecuted as an adult if he or she is alleged to have personally killed the victim during a special circumstance murder or to have committed enumerated forcible sex offenses. Section 707, subdivision (d) allows the prosecution to directly file specified charges against certain minors in adult court, without a judicial determination that the minor is unfit for treatment under the juvenile law. Section 707, subdivisions (b) and (c) provide that a minor 14 years of age or older may be prosecuted as an adult for enumerated offenses if found unfit for treatment under the juvenile law, there being a presumption of unfitness. And section 707, subdivision (a)(1) provides that minors accused of other crimes will be treated as juveniles unless they are 16 years of age or older and are demonstrated to be unfit for treatment under the juvenile law. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548-551 [117 Cal.Rptr.2d 168, 41 P.3d 3] (Manduley))

Here, the prosecution directly filed charges against appellant in adult court. It relied on section 707, subdivision (d)(2)(A), which provides, “[T]he district attorney or other appropriate prosecuting officer may file an accusatory pleading against a minor 14 years of age or older in a court of criminal jurisdiction in any case in which any one or more of the following circumstances apply: [f] . . . The minor is alleged to have committed an offense that if committed by an adult would be punishable by death or imprisonment in the state prison for life.” The criminal complaint and the information both alleged that appellant “was a minor who was at least 14 years of age at the time of the commission of the above offenses.”

Appellant does not dispute the prosecution’s authority to directly file a murder charge in adult court when the minor is 14 years of age or older and charged with murder. (See Manduley, supra, 27 Cal.4th at pp. 562, 567, 573, 581 [rejecting various constitutional challenges to direct-filing provision of § 707, subd. (d)].) Nor does he argue that his case should have been handled in juvenile court. Rather, he claims that the imposition of an “adult sentence” violated his Sixth Amendment right to a jury trial because the jury in his case was never asked to determine whether he was “at least 14 years of age” when he committed the offenses. Appellant relies on the rule set forth in Apprendi, in which the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.)

Appellant’s argument appears to go as follows; Had he been treated as a juvenile and found to have committed the charged offenses, he would have been made a ward of the juvenile court and committed to the Division of Juvenile Facilities for a period lasting up until his 25th birthday. (See § 607, subd. (b); Cardona, supra, 177 Cal.App.4th at p. 530.) A juvenile commitment until the age of 25 was, therefore, the statutory maximum commitment under Apprendi unless the prosecution proved under section 707, subdivision (d)(2)(A) that (1) he committed an offense which would be punishable by life imprisonment if committed by an adult, and (2) he was 14 years of age or older—circumstances that would in turn allow the prosecution to directly file the case in adult court and, consequently, secure adult court punishment. Appellant argues that because the jury was never asked to determine his age, it never made a finding on the second “element” allowing for greater punishment as an adult. We disagree.

Apprendi and its progeny (e.g., Ring v. Arizona (2002) 536 U.S. 584, 609 [153 L.Ed.2d 556, 122 S.Ct. 2428]; Blakely v. Washington (2004) 542 U.S. 296, 303-304 [159 L.Ed.2d 403, 124 S.Ct. 2531]; United States v. Booker (2005) 543 U.S. 220, 233, 243 [160 L.Ed.2d 621, 125 S.Ct. 738]; Cunningham v. California (2007) 549 U.S. 270, 274-275 [166 L.Ed.2d 856, 127 S.Ct. 856]) “are rooted in the historic jury function—determining whether the prosecution has proved each element of an offense beyond a reasonable doubt.” (Oregon v. Ice (2009) 555 U.S. 160, 163 [172 L.Ed.2d 517, 129 S.Ct. 711] [decision to impose consecutive sentences not subject to Apprendi].) The Supreme Court “has not extended the Apprendi . . . line of decisions beyond the offense-specific context that supplied the historic grounding for the decisions.” (555 U.S. at p. 163.) It is “important to recognize that, under the [Apprendi] line of high court decisions . . . , the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ [citation], that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone [citation].” (People v. Black (2007) 41 Cal.4th 799, 812 [62 Cal.Rptr.3d 569, 161 P.3d 1130].)

Appellant was charged with and convicted of special circumstance murder, residential burglary, and attempted residential robbery. Age was not an element of any of these offenses, rather, “the resolution of appellant’s age merely determine[d] which branch of the superior court [would] decide his guilt or innocence.” (People v. Nguyen (1990) 222 Cal.App.3d 1612, 1621 [272 Cal.Rptr. 523] (Nguyen); see also People v. Marquez (1992) 1 Cal.4th 553, 580 [3 Cal.Rptr.2d 710, 822 P.2d 418] [age is not an element of murder under Pen. Code, § 190.5 and is not material to guilt].) In light of the murder charge, the district attorney was authorized to directly file this case in adult court without a finding that appellant was unfit to be treated as a juvenile, so long as he was 14 years of age or older at the time of the offenses. (§ 707, subd. (d).) If appellant had believed the case was not properly before the adult court due to his actual age, it was his duty to object to that forum and to prove by a preponderance of the evidence that he did not meet the age criterion for direct filing. (See In re Harris (1993) 5 Cal.4th 813, 837-838 [21 Cal.Rptr.2d 373, 855 P.2d 391] (Harris); People v. Level (2002) 97 Cal.App.4th 1208, 1211-1213 [119 Cal.Rptr.2d 551]; Nguyen, at p. 1619.)

Appellant did not object to being prosecuted in adult court and is now precluded from arguing that the case should have been handled by the juvenile court. (Harris, supra, 5 Cal.4th at pp. 837-838.) Because his case was heard in adult court, the “maximum penalty” for Apprendi purposes was determined when the jury returned its guilty verdict on the charge of first degree murder with special circumstances. No additional fact finding by the judge was required to impose an “adult” sentence.

Our conclusion that Apprendi did not require a jury finding on appellant’s age is consistent with the holding in Cardona, supra, 177 Cal.App.4th 516, in which the court considered a similar issue regarding the right to a jury determination of the facts rendering a juvenile eligible for prosecution as an adult. In Cardona, the defendant was charged with committing a number of felony sexual offenses while he was between the ages of 16 and 18 that rendered him at least presumptively unfit to be dealt with under juvenile court law. (Id. at pp. 521-526.) The trial court concluded the defendant was unfit for treatment as a juvenile after considering the statutory criteria for fitness under section 707, subdivision (c), which include: “(1) The degree of criminal sophistication exhibited by the minor. [