Trial court: Sonoma County Superior Court Trial judge: Hon. Rene A. Chouteau Super. Ct. No. SCR511523)
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
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 in 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).*fn1
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 (Apprendi); (2) it amounts to cruel and unusual punishment under the Eighth Amendment as construed in Graham v. Florida (2010) ___ U.S. ___ [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 corner 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 truck, and Gray got into the truck 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 didn't 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 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 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 semi-automatic 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 ...