People v. Blacknell

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH BLACKNELL, Defendant and Appellant.

A135721

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

October 20, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. 51108166)

Defendant Joseph Blacknell appeals from his conviction on 20 counts of criminal conduct arising from his association with a Richmond street gang. He challenges the sufficiency of the evidence and the admissibility of eyewitness, toolmark, and gang expert testimony. He asserts the trial court should have severed three of the counts related to a March 2009 killing from those related to a September 2009 crime spree. Defendant also asserts his sentence to life without parole plus an additional 199 years eight months to life was cruel and unusual, especially given he was 18 years old at the time of the offenses. Except as to his conviction on count 22, receipt of stolen property, and counts 3, 14, and 21, street terrorism, we affirm.

BACKGROUND

In a single information, the Contra Costa County District Attorney charged defendant with 22 crimes arising from the March 10, 2009, killing of Marcus Russell and a spree of mayhem, theft, and violence six months later, on September 13, 2009.

In connection with the murder charge (count 1, Pen. Code, § 187),¹ the district attorney alleged enhancements based on defendant intentionally discharging a firearm (§ 12022.53) and committing the crime for the benefit of a street gang, the Easter Hill Boys (§ 186.22, subd. (b)(1)). The district attorney also alleged the special circumstances that the murder was done from a motor vehicle (§ 190.2, subd. (a)(21)) and for the benefit of the Easter Hill Boys Gang (§ 190.2, subd. (a)(22)). In the two other counts related to the murder, defendant was charged with shooting at an occupied motor vehicle (count 2, § 246), and street terrorism (count 3, § 186.22, subd. (a)). Count 2 incorporated the same firearm and gang enhancements as the murder count.

As for the September 13 crime spree, defendant was charged with an overarching conspiracy of murder, carjacking and assault (count 4, § 182, subd. (a)(1)). In addition, he was charged with unlawfully driving or taking two automobiles, a Honda Odyssey and a Maxima (counts 5 & 18, Veh. Code, § 10851, subd. (a)); attempted murder of Elliot Lawson, Devonte Bernstine, J'nya Buckley, and Fred Buckley (counts 6-9, Pen. Code, §§ 187, 664); shooting at an occupied motor vehicle (count 10, § 246); two carjackings (counts 11 & 15, § 215, subd. (a)); attempted premeditated murder of Lowell Thomas and Sharroy Moore (counts 12-13, §§ 187, 664); street terrorism (counts 14 & 21, § 186.22, subd. (a)); second degree robbery of two individuals (counts 16-17, § 211, 212.5, subd. (c)); resisting an executive officer (count 19, § 69); resisting arrest while brandishing a deadly weapon (count 20, § 417.8); and receiving stolen property (count 22, § 496, subd. (a)). Many of these charges were alleged with a criminal street gang enhancement or weapons enhancements.

A jury convicted defendant of all charges, except for two counts of attempted murder—those related to Lawson and Bernstine. For the charges related to the killing of Marcus Russell, the jury found true the gang allegations and that a firearm had been used in the crimes, but could not agree on whether defendant had personally used ordischarged a firearm. As the gang allegations in the other counts, the jury found them true.

DISCUSSION

Substantial Evidence

Defendant contends no substantial evidence supports his convictions of counts 1-14 and 21-22. We first recount and analyze the evidence related to the March 2009 crimes, then address the September 2009 crimes, and then discuss the three street terrorism charges.

March 2009

Evidence

Counts 1-3 concern the March 10, 2009, murder of Marcus Russell. On that day, Russell and a woman, Jamesha Thompson, were driving east on the 580 freeway, coming from a photo shoot in Richmond. Russell was a rapper, and Thompson had agreed to pose for a new album cover. They were in Russell's grandmother's burgundy Nissan, a car Russell was known to drive. Thompson, sitting in the front passenger's seat, saw a red van pull close on the driver's side. While talking to Russell, she saw a gun pointed out the van's window. Marcus noticed her expression and turned to look, and then the shooting began. Russell died from gunshot wounds. Thompson, though shot, survived.

Immediately after the shooting, Thompson told police she saw two Black males, with complexions darker than hers, in the van but said she could not identify them, despite the police showing her photographs from MySpace of defendant and others. In a phone call with Russell's sister a few days later, however, Thompson said she could identify defendant as one of people responsible. According to the sister, Thompson said "it was [defendant]." According to Thompson, she did say it was defendant, but also noted the police and everybody were already on to him and the police had come by and tried to make her point him out. Russell's sister asked why Thompson was not coming forward herself, and Thompson said she was scared, and the conversation got heated.Indeed, Thompson fled the state fearing for her safety. It was not until 18 months later that police again reached out to Thompson and, after cajoling her in person and asking her to put herself in Russell's sister's shoes, persuaded her to name defendant and his friend, Scooter Do.

Defendant was no stranger to Thompson. Thompson knew him from when she was 10 and was, for a year or two, a cheerleader for defendant's Junior Pee Wee football team. She had also met him, when about age 12 or 13, at a birthday party for one of her cousins with whom defendant was friends. At the party, she recognized defendant from football. She did not see defendant again until the shooting, when she had just turned 19. Thompson had also known Scooter Do as defendant's friend from Easter Hill in Richmond; she had met him five to 10 times while growing up.

At first, Thompson told police only that she heard defendant was involved but she had not seen him. Then, later during the interview, Thompson named defendant and a man who goes by "Scooter Do," but did not say who was the shooter. Thompson testified at trial that, during this conversation with police, she "felt about the same" about her level of certainty as to each. She thought she had seen both men in her nightmares about the crime, which she had after being shown photos of both by the police during initial interviews. When the police followed up a few days later by telephone, Thompson repeated she was sure about defendant, and that he was the shooter, but volunteered that, in the meantime, she had realized she was probably mistaken about Scooter Do, because she recalled he had been in jail at the time and really only remembered the other man having distinct dreadlocks that made him look like Scooter Do.

At trial, Thompson said she had known all along defendant had shot her and Russell. Despite the mix up with Scooter Do, Thompson testified she was sure about defendant and nothing could change her mind on that point. He was the "one right there, and I saw him."

After talking with police, Thompson felt better about her conscience, if not about her personal safety. At trial, she remained scared and broke down crying.

Russell's sister testified Russell ran with the "Backstreets," got into fights and accumulated enemies, particularly from Easter Hill, but in recent years had devoted himself to his music and his daughter. His godfather also testified Russell was with the Backstreets. The prosecution's gang expert linked defendant with the Easter Hill Boys, a rival of the Backstreets. Defendant's MySpace pages suggested he was eager to avenge the death of his comrade Sean Melson, supposedly killed by a gang allied with Backstreets. During a police interview, defendant stated he was okay in Easter Hill, but would be shot if he went to Central Richmond.

Just a few days before the shooting, Russell's friend saw him point out a red "minivan" or "family van" on three occasions, a van which made Russell scared and which his friend recognized as belonging to defendant's mother and being driven, at times, by defendant. The night before the shooting, Russell's mother saw a red minivan parked near Russell's grandmother's house, and watched it drive away without turning its lights on. She also identified the van as belonging to defendant's mom, who lived nearby. (The parties stipulated defendant's mother's van was not used in the shooting.)

The shooting was reported about 4:05 p.m. and occurred near Bayview on interstate 580. Cell phone records for defendant's cell phone show it "pinged" (or was likely nearest) a tower at 3:51 p.m. near the Richmond-San Rafael Bridge (about 8.6 miles from the shooting) and a tower at 4:06 p.m. near Emeryville.

Analysis of Counts 1—

"[I]n reviewing a challenge to the sufficiency of the evidence, the relevant inquiry is whether, on review of the entire record in the light most favorable to the judgment, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt." (People v. Young (2005) 34 Cal.4th 1149, 1180 (Young).) The "court resolves neither credibility issues nor evidentiary conflicts," which remains "the exclusiveprovince of the trier of fact." (Id. at p. 1181.) "Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (Ibid.)

Defendant concedes the cell phone evidence, testimony about...