People v. Blackmon CA5 ( 2022 )

Filed 4/27/22 P. v. Blackmon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082196
Plaintiff and Respondent,
(Kern Super. Ct. No. BF113213A)
v.
TED BLACKMON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Detjen, J.
INTRODUCTION
In 2007, appellant Ted Blackmon was convicted after a jury trial of the first degree
premeditated murder of Damon Moore, with the special circumstance that the murder
was intentional, committed while he was an active participant in a criminal street gang,
and it was carried out to further the activities of the gang. He was also convicted of the
attempted premeditated murder of Kathy Crump. The prosecution’s theory was that
Blackmon intentionally killed Moore because the victim happened to be wearing a shirt
in the color claimed by a rival gang. Blackmon was sentenced to life in prison without
the possibility of parole.
In 2019, Blackmon filed a petition for resentencing pursuant to Penal Code1
section 1170.95 and asserted that he was convicted of murder and attempted murder
based on the felony-murder rule and/or the natural and probable consequences doctrine,
he was not the actual killer because there was evidence that someone else could have
been the gunman, and his conviction must be reversed because of the amendments to
section 188 and 189. The superior court denied the petition.
On appeal, Blackmon’s appellate counsel has filed a brief which summarizes the
facts with citations to the record, raises no issues, and asks this court to independently
review the record. (People v. Wende (1979) 25 Cal.3d 436.) Blackmon has filed a
supplemental brief. We affirm.
FACTS2
In July 2005, business partners Mark Young and Damon Moore, their employee
Kathy Crump, and her boyfriend, Bural Trevan Wilkins, were traveling from Sacramento
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 Our factual summary is taken from this court’s nonpublished opinion that
affirmed Blackmon’s convictions on direct appeal. (People v. Blackmon (Nov. 18, 2008,
F052535).) The parties stated these facts in their briefing before the superior court, and
Blackmon did so again on appeal. We recite these facts to provide context for the court’s
ruling and the parties’ arguments. As will be explained below, we do not rely on this
2.
to Las Vegas in a rented midsized sports utility vehicle (SUV). They were making the
trip to celebrate Moore’s impending marriage. Young was driving and Moore had fallen
asleep in the front passenger seat; Crump and Wilkins were passengers in the back seat.
Early the morning of July 15, 2005, Young exited the highway in Bakersfield to
get gasoline and coffee; he and pulled into a gasoline station that shared space with a fast-
food restaurant. The station was well-lit and there were lots of people around. Young
parked the SUV at a gasoline pump with the driver’s side closest to the pump and went
into the station to pay for the gasoline. Crump and Wilkins got out, went to the back of
the SUV and lifted up the hatch; Wilkins was going through the luggage to find flipflops
he wanted to change into, and Crump was showing Wilkins what she had packed for him.
When she got out of the SUV, Crump left the right rear passenger door wide open.
Moore was asleep inside the SUV. Young returned to the SUV. While he was
standing by the SUV, Young noticed a Black man walking toward the vehicle. Young
looked over the SUV’s hood and got a one-second glance at the man’s face and upper
body. Young thought the man’s eyes looked odd; they were kind of “glossy,” as if he
were on drugs. This was the only time Young saw the man’s face. The man continued
walking while Young turned his attention back to pumping gas.3
Crump, who was still standing with Wilkins at the back of the SUV, also noticed
the man walking across the gasoline station’s lot. The man did not appear to be coming
from a vehicle or going towards the station’s store. Crump noticed him because he was
dressed “totally different” than everyone else at the station, and she thought he was cute.
factual summary in resolving the issues presented in this appeal. (See § 1170.95, subd.
(d)(3).)
3 A trial, Young, who is six feet two inches tall, described the man as shorter than
him, maybe five feet eight inches to five feet 10 inches tall, 160 pounds or less, with one
eyelid “kind of shut” and “kinda lower than the other.” Young also described the man as
having a medium complexion and a small mustache, and testified he was not wearing a
hat or glasses.
3.
At trial, Crump described him as being “clean-cut,” meaning he was neat; he had on a
nice shirt, which she described as a blue short-sleeve, button-up shirt with a pattern on it,
and clean shoes, which she said were ankle-high hiking-type boots that were yellowish-
orange in color. His shirt was untucked, and he had on long, blue jean shorts. The man
was not wearing a hat. Crump did not remember if he had jewelry on, and although she
could see his arms from right above the elbows down, she did not remember seeing any
tattoos on his arms or body. He had a “fade” haircut, longer on the top and short in the
back; Crump did not remember the man having any facial hair. Crump, who is five feet
four inches tall, testified the man was a little taller than her.
The man walked past the SUV. Both Crump and Wilkins heard him say, “I see
you, baby.” Crump turned to look in his direction to see who he was talking to and saw
an older model tan car with a brown top passing by. It looked like the man and the
person in the car, who was a Black male, were nodding their heads at each other. Crump
saw two people inside the car and noticed the front passenger was a woman. Wilkins
also looked in the direction of the voice after the man’s statement, which was the first
time he noticed him. Wilkins thought the man and the person in the car knew one
another.
Crump turned her attention back to the SUV. Out of the corner of her eye, Crump
saw the man walk past her toward the front of the SUV and the door she left open.
Wilkins also saw the man walk towards the SUV with his right hand in his pocket. As he
was walking, the man glanced briefly over at Wilkins, who was able to see his whole
face. Wilkins had a clear view of the man as he walked toward him. At trial, Wilkins
estimated the man’s height as the same as his, five feet six inches, and described him as
wearing a loose, short-sleeve dark blue, gray and white striped, button-down shirt that
was not tucked in, blue jean shorts that fell below his knees, and white tennis shoes. He
did not have anything covering his head, and Wilkins did not see any jewelry or tattoos.
4.
Wilkins testified the man was clean-shaven, with the exception of a lightly shaved, thin
mustache, and his hair was very short, like a taper cut.
The Shootings
As Wilkins and Crump watched, the man walked up to the SUV’s door that
Crump had left open, pulled out a handgun, which Crump and Wilkins believed to be a
revolver, and shot Moore in the head.
Crump was standing at the back of the SUV, with the hatch open; she was looking
around the back of the SUV at the man as he pulled the gun from his pocket and looked
directly at him as he shot Moore. Wilkins saw the man point the gun at Moore; the SUV
did not obstruct his view.
After the shot was fired, Crump froze, and Wilkins ran toward the restaurant to get
help. The man turned towards Crump and fired a shot at her that went past her as she felt
what she believed to be gunpowder burn her right cheek. They were looking at one
another, face to face, when the man fired the shot. This was the only time Crump saw the
man’s face; she was looking down the gun, which he was holding with only his right
hand, into the man’s eyes. Although the gun hid a portion of the man’s right eye, Crump
thought she “got a really good look at him.” Crump fell to the ground on her knees. The
man ran away.
Wilkins heard the second shot as he ran. A window at the station shattered.
Wilkins turned and saw Crump down on the cement. Because he did not know whether
Crump had been shot, he went back to the SUV.
Young dropped to the ground when he heard the shots fired. When he stood up,
Young saw Moore’s head tilted back and blood gushing out of his nose. Moore had been
shot twice behind the right ear and, according to the pathologist who performed his
autopsy, died within a few seconds of being shot. As there were no powder burns around
the entrance wounds, the pathologist estimated the firearm’s muzzle was at least
12 inches from Moore’s head when the shots were fired.
5.
Within seconds of the gunshots, on-duty Bakersfield Police Officers John Billdt
and Nate Anderberg, who heard the gunshots while they were picking up food from the
fast-food restaurant’s drive-thru, drove into the gasoline station’s lot to try to determine
the gunfire’s origin. Officer Billdt did not see any shooting victims in the area of the gas
pumps. He made a radio broadcast that shots had been fired at the station, and the
officers circled the area in search of a suspect without success. Officer Anderberg
documented the time of the shooting as 0117 hours.
Trial Identifications of Blackmon
At trial, Young identified Blackmon as the man who walked up to the SUV just
before Moore was shot, and testified he was 80 to 90 percent certain of the identification
based on Blackmon’s size. Crump and Wilkins also identified Blackmon at trial as the
shooter; Crump testified Blackmon “look[ed] like the same person.” The jury was shown
a July 15, 2005, video recording from the gasoline station’s security camera. Crump,
Wilkins, Young and the shooter are visible on the recording, as is other information the
witnesses described, including the tan and brown vehicle and the police car that was at
the fast-food restaurant when the shooting occurred.
The Police Investigation
Bakersfield Police Officer Daniel McAfee responded to the dispatch regarding the
shooting. Officer McAfee saw [the victim] in the SUV’s front passenger seat bleeding
from his head and nose. Officer McAfee noticed a man, later identified as Ricky Burns,
standing just outside the crime scene tape. Officer McAfee spoke with Burns and made a
report of this contact.
Bakersfield Police Officer Eric South also responded to the scene and spoke with
Crump and Wilkins. Wilkins described the shooter as a Black male, in his 20’s, five feet
seven inches tall, wearing a light blue shirt and long blue jean shorts. The police took
Crump, Wilkins and Young to look at a suspect, but he was a Hispanic male who did not
resemble the shooter.
6.
Detective Daniel Stevenson, the lead investigator, had brief conversations with
Crump, Wilkins and Young at the crime scene. The three witnesses were taken to the
police station to be interviewed. After Detective Stevenson interviewed them, he asked
Crump and Wilkins, but not Young, to help prepare composite likenesses of the shooter
on a computer.4 Crump said she would not mind doing that, but when Detective
Stevenson told her she could clarify any of the facial features or anything else she saw
with the lab technician, she responded “I didn’t really look at his face that much.”
Detective Stevenson did not discuss with her when she saw the shooter’s face or for how
long, but it was evident to him from speaking with her that she had seen the shooter’s
face when he shot at her.
Wilkins and Crump worked separately with Bakersfield Police Department crime
lab technician Rebecca Stokes to come up with a composite sketch of the person who
shot Moore. The composites were pieced together using a computer composite sketch
program which contains databases of facial features, including foreheads, chins, noses,
mouths and eyes. Stokes explained to both Wilkins and Crump that while the program
uses real features from real human beings, they had to understand it would not be an
exact likeness of the perpetrator and they were trying to achieve a “close likeness” of
what they remembered. In making choices for the composite sketch, Wilkins and Crump
selected the same eyes and mouth. At trial, Crump described the right eye in the
composite as being a droopy eye because the top of the lid above the eye sags.
4 According to Detective Stevenson, Wilkins told him the suspect was a Black
man in his early to mid-20’s, five feet six inches tall, 150 to 155 pounds, with a fade
haircut, i.e. shaved on the side with a little hair on the top. Wilkins said the man was
“smooth shaved,” maybe with a thin mustache. The man wore a button-down shirt,
which was blue plaid with thin white stripes. Wilkins thought the man wore white tennis
shoes, but he did not look that closely because he was focusing on the man’s upper body.
According to Detective Stevenson, Crump told her the suspect was “barely taller” than
she was, maybe five feet six inches to five feet seven inches tall, with a short afro,
wearing a very long and baggy baby blue button-up shirt, in his mid to late 20’s or
“maybe early thirties.”
7.
Once Wilkins and Crump finished their composites, they each signed a form
which indicated the composite was complete, they were satisfied with the result and the
likeness was the closest they could come to what they were remembering. At trial,
Wilkins testified the composite was “similar” to the shooter. Wilkins explained it “got
the eyes right and that was about it. Everything else was so-so ... But not – it was just –
everything was kind of pieced, but it wasn’t – it was close as it can come at that time.”
On cross-examination, Wilkins stated that he “was working around the eyes, as close as I
can get.”
Detective Stevenson interviewed Ricky Burns on July 16, 2005. As a result of that
interview, Stevenson put together a photographic lineup of six photographs, which
included a picture of someone named Eric Bender in position six and e-mailed the lineup
to the Sacramento County Sheriff’s Department. That evening, Sacramento County
Sheriff's Department Detective David Clegg showed the lineup to Crump and Wilkins
separately at their Sacramento apartment. Crump viewed the lineup for about one minute
and said, “I just can’t be sure.” Crump testified at trial that the eyes in one of the photos
were close, but “there was other traits that didn’t look right” and “it wasn’t the guy.”
Wilkins viewed the lineup for approximately two minutes. According to Detective
Clegg, Wilkins told him it was between photos two and six. Wilkins then covered up all
other photos except two and six and said, “[T]he eyes look like number two,” but he was
not sure. At trial, Wilkins testified that number one had a similar hairline and number
two’s eyes were similar, but he did not see anyone in that group of pictures that he knew
was the shooter.
On July 19, 2005, Detective Stevenson interviewed Eric Bender. Bender at first
denied having a nickname or moniker, but he later said he once went by “E,” although he
no longer did. When shown a photograph of Ricky Burns, he stated he did not recognize
the person in the photograph or the name.
8.
Bender, who was born in May 1978 and at the time of trial was 28 years old,
testified that he was an East Side Crips gang member, but claimed he dropped the
affiliation when he was 24 or 25 years old. At the time of Moore’s shooting, Bender had
a fade haircut and more than likely was clean-shaven. For many years Bender, who is
five feet four and a half inches tall and weighs about 130 or 135 pounds, has been known
as either “Little E” or “Lil E.” Ellis Stafford, Bender’s much taller half-brother, is called
“Big E.” From time to time, Bender has simply been called “E.” When he was
interviewed in July, Bender denied knowing Ricky Burns even after a photo of Burns was
shown to him. He does, however, know Burns and addresses him by the nicknames “Big
Guy,” “Big Dude,” or “Big Man.” Bender testified at the time of the shooting he lived
with his mother in an apartment on H Street in Bakersfield.
Blackmon’s assigned parole officer, Jerry Walsh, saw him on July 15, 2005.
Blackmon, whose date of birth is July 3, 1980, came into the parole office at 2:30 p.m.
that day after Officer Walsh left a card at Blackmon’s residence at 8:30 a.m. instructing
him to report to Officer Walsh’s office. Blackmon seemed a “little bit … ‘tweaked,’ ” by
which Officer Walsh meant he was a little nervous, upset and on edge, like he might be
under the influence. Blackmon provided a urine sample, which Officer Walsh took
because Blackmon had given an earlier positive test for cocaine. On July 26, 2005,
Walsh took Blackmon into custody because the July 15 test came back positive for
cocaine. As part of the booking process, the officer took a photograph of Blackmon.
Pretrial Identification of Blackmon
For reasons never articulated at trial, officers put together another photographic
lineup of six pictures, which included the July 26, 2005, picture of Blackmon in position
number six. Detective Stevenson showed the lineup to Crump and Wilkins individually
on July 26, 2005. Crump viewed the lineup between one to three minutes before
selecting Blackmon's photograph. Detective Stevenson asked Crump if she was sure, and
she said she was. At trial, Crump testified that when looking at the photographs, she
9.
always looked at the eyes first, and she recognized the shooter “almost instantly” because
the eyes were the same. While what drew her attention to the photograph was that his
right eyebrow was lifted and right eye sagging a little on top, “the whole picture” looked
familiar to her as the person had the same lips, nose, and shape of face as the shooter.
Crump testified she was 98 percent sure this was the shooter.
According to Detective Stevenson, Wilkins looked at the photographs for a few
minutes before selecting Blackmon’s photograph. Wilkins testified at trial, however, that
when he saw the lineup, he “went straight to the guy who did it” and immediately
brought it to the detective’s attention. Neither Crump nor Wilkins said anything about
the person’s eyes when they identified Blackmon’s photograph. In a subsequent
interview, Wilkins told Detective Stevenson that when he first saw the second lineup, he
thought two of the photographs in the lineup, number one and number six, looked very
similar and were actually of the same person but on different dates. Wilkins said,
however, the person in number six was more similar to the person at the time of the
shooting and was the person who committed the murder.
A private investigator came to Young’s office in Sacramento in May 2006 and
showed him six photographs in sequential lineup. When Young was shown the fourth
photograph, which was of Blackmon, he said, “[T]here’s something about the eye.”
After viewing the remaining two photographs, Young told the investigator, “[I]t has been
so long and I don’t want to identify the wrong person,” and “[T]hese are just head shots.
It would really help to see a full-body photo. As I remember, the guy was skinny and
short.” At trial, Young testified that one of the pictures stood out to him. When shown
the same photographs at trial, Young selected the fourth photograph as the one that
looked familiar to him.
On July 26, 2005, Detective Stevenson and other Bakersfield police officers
searched Blackmon’s mother’s apartment on Cottonwood Road in Bakersfield. The
10.
officers were looking for specific items of clothing, including a blue plaid shirt. Officers
found a brown striped shirt, a pair of blue jean shorts, and white tennis shoes.
The Gang Expert
Bakersfield Police Sergeant Greg Jehle, a supervisor in the gang unit, testified as a
gang expert. Bakersfield has roughly 2,000 Crips, split among three major gangs: the
East Side Crips, the West Side Crips, and the Country Boy Crips. The gasoline station
where Moore was killed is located in an area claimed by the East Side Crips. The street
on the west side of the station is the boundary between the East and West Side Crips.
The Crips gangs originally wore three different shades of blue: baby or powder
blue for the Country Boy Crips; navy blue for the East Side Crips; and turquoise blue for
the West Side Crips. While these color codes were strict in the past, gang members are
no longer as rigid in wearing particular colors because the gang law now recognizes that
as a method of identifying gang participants. If a gang member is found hanging out in a
rival gang’s territory, it is likely a violent act will result. The rival gangs hate each other
and are at war. Gang members retaliate for past shootings of their members.
In 1996, a highly respected member of the East Side Crips, Rodney Sorriell, who
had been paralyzed in an earlier drive-by shooting, was killed when two gunmen wearing
Halloween masks shot Sorriell and others who had been participating in a high stakes
dice game. Sorriell went by the moniker “E-Double.”
In Sergeant Jehle’s opinion, Blackmon was an active member of the East Side
Crips at the time of the murder. Blackmon claimed membership in the East Side Crips
during a January 2000 arrest and an October 2000 field interview. In December 2000, he
was arrested in a known East Side Crip stronghold. In June 2002, Blackmon was shot
five times while standing in a known East Side Crip hangout. In February 2004, he was
arrested and admitted his association with the gang, and in April 2004, he was arrested
after discarding a revolver while fleeing from the police. Blackmon was in custody from
April 17, 2004, until May 11, 2005. Blackmon has tattoos indicating his affiliation with
11.
the East Side Crips, including “Lakeview Gangsters” and “East Side 300 Blocc” tattoos.
He also has a tattoo that is a tribute to Sorriell. Blackmon also had written three letters in
which he identified himself with the moniker “E-Double” or “Mr. E-Double.” In a
recorded pretrial telephone call, Blackmon referred to himself as “E.”
Sergeant Jehle testified Bender is a documented member of the East Side Crips.
Sergeant Jehle believed Bender was an active member of the gang at the time of the
Moore shooting. Bender's moniker is “Lil E.” He does not have tattoos on his forearms,
legs or face. Bender has an extensive criminal history, including the commission of
crimes Sergeant Jehle believed were for the benefit of the East Side Crips.
In 2005, the Country Boy Crips and West Side Crips were in a truce with each
other, but both remained at “war” with the East Side Crips, with the predominant rivalry
being between the East Side and Country Boy Crips. When Moore was murdered, he
was wearing a shirt that was the bright baby blue color claimed by the Country Boy
Crips.
In Sergeant Jehle’s opinion, Moore’s murder, the attempted murder of Crump, and
the possession of the firearm used to commit the crimes, were all committed for the
benefit of the shooter’s gang, and Moore died because of the color of his shirt.
Interviews With Blackmon
On July 27, 2005, Detective Stevenson interviewed Blackmon, who was in
custody. Detective Stevenson told Blackmon he wanted to question him about a shooting
that took place a week or so earlier at a gas station and advised Blackmon of the warnings
pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Blackmon waived those rights and
agreed to speak to the detective.
Blackmon said he knew nothing about the shooting other than seeing something
about it either on television or in the newspaper. Detective Stevenson asked Blackmon
whether he could account for his whereabouts on July 15, 2005, at about 1:00 a.m.
Blackmon replied he was “here and there,” by which he meant he was either at his
12.
grandmother’s apartment or at the house of his girlfriend, Deva Thompson. Blackmon
said he was always at one or the other of the two locations.
Blackmon initially denied using any moniker or nickname and specifically denied
using the moniker “E-Dub.” Blackmon later admitted he had taken the name “E-Double”
after Sorriell’s murder, but said he no longer went by that name and claimed the moniker
was different than “E-Dub.” Blackmon acknowledged he had been a gang member in the
past, but stated he no longer associated with gang members and decided to leave the gang
life after being shot.
Detective Stevenson showed Blackmon the composite picture prepared based on
Wilkins’s description of the gunman. Blackmon said he did not believe the sketch looked
like him; Detective Stevenson disagreed. Blackmon said he always had some facial hair,
but the sketch did not show any.
Detective Stevenson showed Blackmon a May 11, 2005, photograph that showed
him with only a thin mustache. Blackmon also said he always wears a hat, and the
composite did not show a hat. Blackmon pointed out that the suspect in the sketch had
droopy eyes; Detective Stevenson responded that Blackmon’s right eye was droopy.
Blackmon responded, “Well, that might be true,” but stated the left eye in the composite
was droopy and his left eye was not. Detective Stevenson told Blackmon that witnesses
had picked his picture out of a photographic lineup. Blackmon said they must have been
mistaken, since “all black people look alike.” Detective Stevenson told him that one of
the witnesses was Black. Blackmon responded they still must have been mistaken
because he was not involved. Blackmon said the person who did the shooting must have
looked like him and that is why the witnesses were mistaken.
Detective Stevenson and Detective Joe Aldana interviewed Blackmon again on
July 30, 2005. The interview was recorded and transcribed. A redacted version of the
recorded interview was played for the jury and the jurors were given a transcription of the
interview to help them follow the recording. During the interview, when shown a picture
13.
of Ricky Burns, Blackmon said he looked familiar, and it had been a while since he had
last seen him but denied associating with him. Blackmon told them that the last time he
had been in the vicinity of the fast-food restaurant, he was with Deva and there was a cop
behind them. It was at night, but he could not remember the exact date, although he said
it was probably the previous month. Blackmon said he had not been out long enough to
think about doing anything like this and why would he do some “stupid shit like this”
after only being out of the “joint” for two months. Blackmon claimed he was not running
or hiding from anything, so he did not keep track of where he was 20 days ago or on any
given date. Blackmon denied shooting people and asked why he would shoot someone
he did not know. Blackmon told the detectives he was with Deva at 1:15 a.m. on July 15,
or he was sleeping at home. When the detectives asked him where he was with Deva, he
responded he knew “exactly where I was at.”
Detective Aldana suggested Blackmon was “[g]etting back at the Country for E
Double.” Detective Stevenson also suggested Blackmon was not telling them where he
was at the time of the shooting because the jail was in lockdown and “you can’t get a
hold of somebody and say hey, tell ‘em I was with you.” Finally, Blackmon told the
detectives he was at his grandmother’s home on Kentucky Street with his grandmother
and his brother, Demetrius, at the time of the shooting.
Next, Blackmon told the detectives he got a room with somebody that day, but he
could not remember where, and the cocaine he used made his mind “cloudy.” Then he
said, “I don’t give a fuck about what Deva tryin’ to set no motive so you guys can build a
case on it .” Blackmon said he had no reason to shoot the victim because he “ain’t even
from out here, man,” and asked why he would be at the fast-food restaurant at 1:00 in the
morning. Blackmon told the detectives once again he was having trouble with his
memory, and “I was either here or there.” The next moment, he said, “Yeah, I believe I
was at home, man. On fuckin’ Kentucky. I believe I was at home. [¶] … I believe Deva
did come get me, I believe she did come get me … that’s what I believe.… I believe she
14.
did come get me but I can't remember it .…” Blackmon believed he saw Deva on the
15th, because he went to a shopping mall with her that day.
Detective Stevenson went to the mall and obtained surveillance videotapes that
confirmed Blackmon was there on the morning of July 15, 2005.
Defense Case
Mitchell Eisen, Ph.D., testified for the defense as an expert on memory and
suggestibility. Dr. Eisen’s role was to describe the current state of science in that area,
not to offer his opinion as to the accuracy of the witnesses’ testimony.
Dr. Eisen pointed out that people can only recall events to which they have paid
attention and the ability to pay attention is itself limited. Dr. Eisen described the basic
findings of the scientific community for accurate identification in a photo lineup. First,
no one in the array should stick out unduly from the other photos. Second, an
identification made in a laboratory environment tends to be significantly more accurate if
made within 10 to 12 seconds than an identification made after a longer survey of the
photos. There is no correlation between the confidence a person expresses in an
identification and the accuracy of the selection.
Bender, who was recalled as a witness, testified that while he was paroled at the
H Street apartment, he actually lived with his girlfriend at an apartment on Real Road.
On July 16, 2005, Bakersfield police seized a blue and white plaid short-sleeve shirt and
jean shorts from the H Street apartment.
At trial, Bender testified he did not have any clothing at the H Street apartment,
and he did not recognize the clothing that was seized. Bender claimed his brother,
Stafford, lived at the H Street apartment and thought the clothing belonged to him.
Counsel for the parties, however, stipulated that Stafford had been continuously
incarcerated since August 25, 2003. At trial, Bender denied telling Detective Stevenson
he lived at the H Street apartment and denied acknowledging the seized clothing
belonged to him.
15.
When Detective Stevenson questioned Bender on July 19, 2005, Bender said he
was living with his mother on H Street and did not deny the clothing was his, even after
being told it would be tested for gunshot residue and blood. But in a second interview on
September 13, 2005, after Bender was told gunshot residue was found on the shorts,
Bender denied the clothes belonged to him and said he had not worn any clothes that
were at his mother’s house in over three years.
Firearms examiner Gregory Laskowski testified the shorts from the H Street
apartment were examined for gunshot residue and a single particle of unburned
smokeless gunpowder was found on them. Laskowski also examined two pillows for
gunshot residue and found up to two smokeless gunpowder particles on one of the
pillows. In Laskowski’s opinion, the particle from the shorts and the particles from the
pillow were probably from two different ammunition sources, as they were dissimilar.
Laskowski could exclude the particles from being from the same cartridge and probably
from the same class of cartridge of a particular manufacturer.
The 15-year-old daughter of Blackmon’s girlfriend, Deva Thompson, testified that
Blackmon wore a hat and jewelry every day. The jewelry included a watch, one or two
thick gold necklaces, and a diamond earring. During July 2005, Blackmon was growing
a beard, but it was cut short, and a mustache.
Ricky Burns testified he was at the gasoline station that night driving a tan car
with a brown fin top. Burns had been drinking at two clubs in East Bakersfield and was
on the way home with two young ladies he met that night. They went to the fast-food
restaurant to get something to eat. While driving through the station’s lot, Burns saw a
person walking towards his car. He thought it was “my homie ‘Lil E’,” so he called out
to him and said, “What’s up, E?” Burns said he was “pretty buzzing.” The person
nodded in response to the greeting.
Burns drove through the station to place an order at the fast-food restaurant’s drive
thru. As he was about to order, Burns heard what sounded like about 12 gunshots. Burns
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thought someone was shooting at him, so he “punched it through” the drive-thru lane and
drove around by the gasoline pumps. Burns saw a highway patrol vehicle entering the
station. Burns left the station, dropped the young ladies off, and returned to the gasoline
station; he was gone for five to 10 minutes. Burns parked on the street and walked to the
station to see whether “Lil E” had been shot.
Burns talked to police officers and later went to the police department, where
Detective Stevenson interviewed him. During that interview, Burns identified a
photograph of Bender as the person he saw there that night who he thought was “E.”
Burns testified at trial that the person he saw the night of the murder who he thought was
“E” was short and skinny. The person had short hair, “like a fade,” and was in his late
20’s or early 30’s. Burns thought the man was wearing a jacket and white t-shirt, and he
may have been wearing a hat.
As a long-term Bakersfield resident, Burns knows both Blackmon and Bender.
Burns explained that all Black people in Bakersfield know one another. Burns knows
Blackmon as Teddy, and also calls him Teddy Bear, Teddy Love Bug, Ted, or “T.” He
has never known Blackmon to go by the name E-Double. Burns did not know how many
times he had socialized with Blackmon, but estimated it was “a lot of times.” The last
time he saw Blackmon before the shooting was “probably at a party or something” within
a year before the shooting. Burns testified he did not see Blackmon at the gasoline
station just before the gunshots were fired; he thought he saw “Lil E.” Burns also
testified he told the detectives he was so drunk that night that he was not sure who he had
seen, but he could tell them “for sure who I thought I’d seen,” which was Bender.
The videotape of Burns’s interview with Detective Stevenson on July 16, 2005,
was played for the jury. Burns told Detective Stevenson when he pulled into the fast-
food restaurant’s parking lot, he saw a man wearing yellow shoes jaywalking to the
gasoline station from the donut shop across the street. That was when he stopped and
thought he saw “my boy ‘E.’ ” Burns said, “What’s up ‘E’?” Burns described “E” as
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being short and wearing a “wife beater” under a short-sleeve button-up shirt that was
open. Burns did not see his shoes. Burns did not know why “E” would have waved at
him because “E” would not have recognized Burns’s car, since Burns had not seen “E” in
about three years.
Officer Daniel McAfee testified that he talked to Burns at the gasoline station the
night of the murder, and Burns told him he saw an individual there he thought he
recognized and believed his name was “E.” Burns described the individual as between
five feet five and five feet seven inches tall, of small stature, wearing blue jean shorts and
a short-sleeve button-up shirt. Officer McAfee also talked to Wilkins on the scene and
described Wilkins as being a short, Black male. Wilkins described the shooter as being
in his mid-20’s, five feet six inches tall, 150 pounds, and wearing a blue hat, a blue plaid,
short-sleeve button down shirt, and white athletic shoes with red striping. Crump told
Officer McAfee that the guy who shot her was Black, and she got a good look at him.
Wilkins also told Officer McAfee he got a “real good look” at the shooter. Young only
described the shooter to Officer McAfee as being a Black male.
PROCEDURAL BACKGROUND5
On April 10, 2006, an information was filed in the Superior Court of Kern County
charging Blackmon with count 1, first degree premeditated murder of Moore (§ 187,
subd. (a); § 189), with the special circumstance that the murder was intentional and
committed while he was an active participant in a criminal street gang and it was carried
out to further the activities of the gang (§ 190.2, subd. (a)(22)), a gang enhancement
5 The following procedural background is from the records of Blackmon’s 2007
jury trial that were augmented to the instant appellate record, and this court’s opinion and
the appellate records from his first appeal, People v. Blackmon, supra, F052535, of which
we have taken judicial notice without objection from the parties. (§ 1170.95,
subd. (d)(3); Evid. Code, § 450, § 452, subd. (d), § 459; In re W.R. (2018) 22 Cal.App.5th
284, 286–287, fn. 2.)
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(§ 186.22, subd. (b)(1)), and an enhancement for the personal discharge of a firearm
causing death (§ 12022.53, subd. (d)).
Blackmon was also charged with count 2, attempted premeditated murder of
Kathy Crump (§§ 664, 187, subd. (a), § 189), with a gang enhancement and a personal
discharge enhancement (§ 12022.53, subd. (c)); and counts 3, 4, and 5, felon in
possession of a firearm (former § 12021, subd. (a)(1)), with gang enhancements.
It was further alleged Blackmon had one prior strike conviction, one prior serious
felony enhancement (§ 667, subd. (a)), and two prior prison term enhancements (§ 667.5,
subd. (b)).
On the prosecution’s motion, the court dismissed counts 4 and 5, felon in
possession of a firearm.
Jury Instructions
At Blackmon’s trial, the jury was instructed on first and second degree murder,
premeditation and deliberation, express and implied malice, and attempted murder.
As to the special circumstance, the court gave the jury CALJIC Nos. 8.80.1 and
8.81.22, that if it found Blackmon guilty of first degree murder, it must determine
whether the murder was “an intentional killing by an active street gang member” and
whether Blackmon “intentionally killed the victim.”
The jury was also instructed on evaluating eyewitness identification testimony.
The jury was not instructed on the aiding and abetting, principals and accomplices,
the felony-murder rule, the natural and probable consequences doctrine, or any
underlying felonies, target or nontarget offenses.
Convictions and Sentence
On February 9, 2007, the jury convicted Blackmon of count 1, first degree
premeditated murder with the gang special circumstance; count 2, attempted
premeditated murder; and count 3, felon in possession of a firearm; and the gang and
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firearm enhancements were found true. Blackmon admitted the prior conviction
allegations.
On March 12, 2007, the court denied Blackmon’s motion for new trial. As to
count 1, first degree murder with the special circumstance, the court sentenced him to life
in prison without possibility of parole, plus 25 years to life for the personal discharge
enhancement, and consecutive terms of five years for the prior serious felony
enhancement and one year for the prior prison term enhancement.
As to count 2, attempted premeditated murder, the court imposed 15 years to life,
doubled to 30 years to life as the second strike term, plus 20 years for the firearm
enhancement, five years for the prior serious felony enhancement, and one year for the
prior prison term enhancement; and a consecutive term of eight months (one-third the
midterm) for count 3, doubled to 16 months as the second strike term, plus determinate
terms for the gang and prior conviction enhancements.
Blackmon’s Direct Appeal
On November 18, 2008, this court filed the nonpublished opinion that affirmed
Blackmon’s convictions on direct appeal. (People v. Blackmon, supra, F052535.)
We rejected his argument that the People failed to prove he was the gunman, that
there was insufficient evidence he was the person who shot the victims, and that the
evidence instead showed Bender was the gunman.
“All three witnesses testified that they saw the shooter’s face.
Young saw the shooter’s face and upper body for at least a second as the
shooter walked past the SUV. Wilkins saw the shooter’s face when the
shooter glanced over at him as he was walking toward the SUV’s open
door. Crump saw the shooter’s face when he pointed the gun at her and
fired. While as Blackmon points out Crump told Detective Stevenson that
she didn’t look at his face that much and she testified the gun hid a portion
of the shooter’s right eye, Detective Stevenson also testified that it was
clear to him that she did get a look at his face when he shot at her and
Crump told an officer at the scene that she got a good look at the shooter.
That Wilkins and Crump selected the same eyes and mouth when coming
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up with their composite drawings of the shooter supports the jury’s implicit
finding that they both saw and remembered the shooter’s face.
“Both Crump and Wilkins picked Blackmon as the shooter when
Detective Stevenson showed them a photographic lineup on July 26.
Notably, neither Crump nor Wilkins selected Bender’s photograph as the
shooter in the photographic lineup they were shown on July 16. While both
Crump and Wilkins expressed uncertainty when viewing the first lineup,
they explained at trial that there were features on one or two of the
photographs that were similar to the shooter, but no one in the first lineup
was the shooter. Although they both took a minute or more to identify
Blackmon as the shooter in the second lineup, and Wilkins believed two of
the photographs were of the same person, both Wilkins and Crump testified
that the person in photograph number six, i.e., Blackmon, was the shooter.
“All three witnesses commented on an unusual feature of the
shooter's eye. Parole Officer Walsh agreed Blackmon’s right eyelid droops.
Blackmon contends the witnesses’ failure to mention the droopy eye before
Blackmon was identified in the photographic lineup calls his identification
into question. Crump testified, however, that the composite sketch showed
the droopy right eye. When Detective Stevenson showed Blackmon the
composite, Blackmon acknowledged the sketch showed droopy eyes, but
claimed it showed both eyes as droopy while only his right eye was droopy.
From this evidence, the jury reasonably could conclude that because the
sketch shows the droopy eye, which both Wilkins and Crump selected,
there was no need to specifically tell the police about the droopy eye. [¶]
“In addition to the eyewitness identifications, other evidence tied
Blackmon to the shooting. Young testified the shooter’s eyes looked
‘glossy,’ as if he were on drugs; Blackmon tested ‘dirty’ for drugs the day
of the shooting. Blackmon is a verified and admitted member of the East
Side Crips criminal street gang; he has gang tattoos and used the moniker
‘E-Double.’ Moore was wearing the color of Blackmon’s rival gang, the
Country Boy Crips, when he was shot and was in East Side Crips
‘territory.’ In his recorded interview, Blackmon told Detective Stevenson
the last time he had been at the fast-food restaurant he saw police there. In
addition, Blackmon was unable to offer a coherent or consistent
explanation of where he was when the shooting occurred. During his first
interview, he told police he was ‘here and there’ and eventually said he was
either at his grandmother’s apartment or girlfriend’s house. At his recorded
interview, he said alternatively he was at his grandmother’s home with his
brother, he got a room with somebody, he was with his girlfriend, and his
mind was cloudy so he was not sure where he was that night.
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“Blackmon contends the evidence established Bender, not he, was
the actual shooter, as Burns identified Bender as the person he saw at the
gasoline station’s lot prior to the shooting, Bender had the same motive to
shoot Moore as Blackmon did since he was also an East Side Crips gang
member, and the eyewitness identifications are more consistent with
Bender’s appearance. Burns’s testimony, however, is less than credible.
Burns admitted he was so drunk that night that he wasn’t sure who he had
seen, but he thought he saw Bender, and admitted at one point in his
testimony that he did not know if the person he saw was Bender or
Blackmon. It appears from the security videotape that the shooter was
waving at Burns’s car from quite a distance, since Burns’s car enters the
picture from the same direction the shooter is waving toward. In an
interview with Detective Stevenson, Burns stated he did not know why the
shooter was waving at him and he didn’t know how Bender would know
his car, since he hadn’t seen Bender in about three years. The jury was free
to reject his testimony; it is not our role to reevaluate the testimony and
credibility of witnesses. (People v. Koontz [(2002) 27 Cal.4th 1041,
1078].)
“While Bender may have had features similar to the shooter’s and
the same motive for the murder, the eyewitnesses identified Blackmon as
the shooter. The jury obviously found these witnesses to be credible.
Blackmon’s argument is, in essence, a request that we reweigh the
evidence, which we cannot do. Instead[,] we conclude his identification as
the shooter is supported by substantial evidence.” (People v. Blackmon,
supra, F052535, at pp. 20–23.)
This court also rejected Blackmon’s claims of sentencing error, and ordered the
minutes corrected to correspond to the court’s oral pronouncement of judgment.
SENATE BILL NOS. 1437 & 775
The instant appeal is from the denial of Blackmon’s petition for resentencing that
he filed pursuant to Senate Bill No. 1437 (2017–2018 Reg. Sess. (Senate Bill 1437)).
Senate Bill 1437 was effective on January 1, 2019, and amended “ ‘the felony
murder rule and the natural and probable consequences doctrine, as it relates to murder,
to ensure that murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the underlying felony who
22.
acted with reckless indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th
952, 959 (Lewis).)6
“Substantively, Senate Bill 1437 accomplishes this by amending section 188,
which defines malice, and section 189, which defines the degrees of murder, and as now
amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th
719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842.)
“In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to section 188 or 189 made effective January 1, 2019.’
[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ [Citation.] If a petition fails to comply with subdivision (b)(1),
‘the court may deny the petition without prejudice to the filing of another petition.’ ”
(Lewis, supra, 11 Cal.5th at pp. 959–960.)
6 As amended, section 189, subdivision (f) states an exception that allows
“individuals to be convicted of felony murder even if they did not act with malice and do
not fall in one of the three categories of section 189, subdivision (e), where the victim is
a peace officer engaged in the course of his or her duties and the defendant knows (or
reasonably should know) these facts.” (People v. Hernandez (2021) 60 Cal.App.5th 94,
99.)
23.
“Where the petition complies with section 1170.95, subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines
that a prima facie showing for relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to vacate the murder
conviction and to recall the sentence and resentence the petitioner on any remaining
counts in the same manner as if the petitioner had not … previously been sentenced,
provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.]
‘The prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage,
‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing.’ ” (Lewis, supra, 11 Cal.5th at p. 960.)
Lewis
In Lewis, the court interpreted the provisions of section 1170.95 and held that
petitioners “are entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ ” (Lewis, supra, 11 Cal.5th at p. 957.) “ ‘If the petitioner has requested
counsel, the court shall appoint counsel to represent the petitioner.’ ” (Id. at p. 963,
italics added in original.)
Lewis also held that “at the prima facie stage, a petitioner’s allegations should be
accepted as true, and the court should not make credibility determinations or engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Lewis,
supra, 11 Cal.5th at p. 974.) When the court conducts the prima facie determination,
section 1170.95, subdivision (b)(2) only permits screening out “noncomplying petitions,
not petitions that lack substantive merit.” (Lewis, at p. 968.)
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Lewis further held that after appointing counsel, the trial court may rely on the
record of conviction to determine whether the prima facie showing has been made in
order “to distinguish petitions with potential merit from those that are clearly meritless.”
(Lewis, supra, 11 Cal.5th at p. 971.) “While the trial court may look at the record of
conviction after the appointment of counsel to determine whether a petitioner has made a
prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c)
is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the
court takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ ” (Lewis, at p. 971.)
“ ‘However, if the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is justified in making a
credibility determination adverse to the petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at
p. 971, italics added.)
“Appellate opinions … are generally considered to be part of the record of
conviction. [Citation.] However, as we cautioned in [People v. Woodell (1998) 17
Cal.4th 448, 457], the probative value of an appellate opinion is case specific, and ‘it is
certainly correct that an appellate opinion might not supply all answers.’ [Citation.] In
reviewing any part of the record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] As the People emphasize, the ‘prima facie bar was intentionally
and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.)
“[T]here is no categorical bar to consulting the record of conviction at the prima
facie stage.” (Lewis, supra, 11 Cal.5th at p. 972, fn. 6.) “In sum, the parties can, and
should, use the record of conviction to aid the trial court in reliably assessing whether a
petitioner has made a prima facie case for relief under [section 1170.95,] subdivision (c).”
(Id. at p. 972, fn. omitted.)
25.
The prima facie determination is a question of law, and the court may deny a
petition at the prima facie stage if the petitioner is ineligible for resentencing as a matter
of law. (Lewis, supra, 11 Cal.5th at p. 966.)
Lewis announced a prejudicial error standard under People v. Watson (1956) 46
Cal.2d 818, if the court failed to appoint counsel or violated the petitioner’s statutory
rights under section 1170.95, and the petitioner must “therefore ‘demonstrate there is a
reasonable probability that in the absence of the error he [or she] … would have obtained
a more favorable result.’ ” (Lewis, supra, 11 Cal.5th at p. 974.)
Therefore, to demonstrate prejudice from the denial of a section 1170.95 petition
before the issuance of an order to show cause, the petitioner must show it is reasonably
probable that, absent error, his or her petition would not have been summarily denied
without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972–974; see People v.
Watson, supra, 46 Cal.2d at p. 836.)
Senate Bill No. 775
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,
effective on January 1, 2022. (2020–2021 Reg. Sess.; Stats. 2021, ch. 551, § 1 (Senate
Bill 775).) As a result of the amendments, section 1170.95 clarified that “persons
convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person's participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1170.95, subd. (a).)
The amendments also codified the holding in Lewis that “[u]pon receiving a
petition in which the information required by this subdivision is set forth …, if the
petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner.” (§ 1170.95, subd. (b)(3).) After the petition is filed, the People shall file a
response and the petitioner may serve a reply. (Id. at subd. (c).)
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After the parties have the opportunity to submit briefs, “the court shall hold a
hearing to determine whether the petitioner has made a prima facie case for relief.”
(§ 1170.95, subd. (c).) If the petitioner makes the prima facie showing, “the court shall
issue an order to show cause.” (Ibid.) If the court declines to issue an order to show
cause, “it shall provide a statement fully setting forth its reasons for doing so.” (Ibid.)
If an order to show cause is issued, “the court shall hold a hearing to determine”
whether to vacate the petitioner’s conviction, recall the sentence, and resentence
petitioner. (§ 1170.95, subd. (d)(1).) At the hearing, the prosecution has the burden to
prove beyond a reasonable doubt that petitioner is guilty of murder or attempted murder
under the amended versions of sections 188 and 189. (§ 1170.95, subd. (d)(3).)
“At the hearing to determine whether the petitioner is entitled to relief … [t]he
admission of evidence in the hearing shall be governed by the Evidence Code, except that
the court may consider evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony, stipulated evidence, and
matters judicially noticed. The court may also consider the procedural history of the
case recited in any prior appellate opinion. However, hearsay evidence that was
admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be
excluded from the hearing as hearsay, unless the evidence is admissible pursuant to
another exception to the hearsay rule. The prosecutor and the petitioner may also offer
new or additional evidence to meet their respective burdens. A finding that there is
substantial evidence to support a conviction for murder … is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022, italics added.)
BLACKMON’S SECTION 1170.95 PETITION
On November 20, 2019, Blackmon filed, in pro. per., a petition in the superior
court for resentencing pursuant to section 1170.95 and requested appointment of counsel
and an evidentiary hearing. Blackmon filed a supporting declaration stating he was
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convicted of murder and attempted murder based on the felony murder rule and the
natural and probable consequences doctrine.
Blackmon separately raised several claims of alleged error that occurred at his jury
trial, including the People’s purported use of false evidence, ineffective assistance of his
trial attorney, he was illegally arrested without a warrant, exculpatory evidence was
excluded from trial, the identification evidence was false and unreliable, and his
convictions were not supported by substantial evidence.
The People’s Opposition
The court appointed counsel to represent Blackmon.
On February 6, 2020, the People filed opposition to the petition and recited the
facts from this court’s prior opinion. The People argued Blackmon was not entitled to
relief under section 1170.95 because he was charged and convicted as the actual killer, he
was not prosecuted under the felony-murder rule or the natural and probable
consequences doctrine, and the gang special circumstance was found true, that he acted
with intent to kill.7
Blackmon’s Reply
On September 30, 2020, Blackmon’s counsel filed a reply to the opposition that
also relied on the facts from this court’s prior opinion.
Blackmon argued he made a prima facie showing for relief under section 1170.95
because he was not the actual killer, citing the evidence introduced at trial that the
gunman could have been Eric Bender, and questioning the reliability of the eyewitness
identifications. Blackmon further argued the jury’s true finding on the special
circumstance did not make him statutorily ineligible for relief.
7 On February 6, 2020, the prosecution filed a motion to dismiss the petition
because Senate Bill No. 1437 was unconstitutional. On March 12, 2020, the court denied
the prosecution’s motion to dismiss.
28.
The Court’s Denial of the Petition
On December 16, 2020, the court issued a minute order and denied the
Blackmon’s section 1170.95 petition without a hearing or stating reasons for not issuing
an order to show cause.
On December 28, 2020, Blackmon filed a timely notice of appeal from the denial
of his petition.
DISCUSSION
As noted above, Blackmon’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that Blackmon was
advised he could file his own brief with this court. By letter on September 16, 2021,
2021, we invited him to submit additional briefing.
Blackmon’s Supplemental Brief
On October 12, 2021, Blackmon filed a supplemental brief in pro. per., asserting
that he was entitled to relief under section 1170.95 because he was convicted of murder
and attempted murder based on the felony-murder rule and/or the natural and probable
consequences doctrine.
Blackmon separately argued the superior court should hold an evidentiary hearing
to address the alleged errors that occurred at his jury trial, including his claim that the
prosecutor allegedly conspired with the police, and the court improperly excluded
evidence about the photographic lineups.
Blackmon’s Allegations About the Jury Trial
We first note that Blackmon cannot raise issues arising from his jury trial as the
basis for his section 1170.95 petition. Section 1170.95 provides a mechanism for
resentencing individuals whose convictions are no longer valid due to changes to
sections 188 and 189. (§ 1170.95, subd. (a)(3).) It does not provide a mechanism for
challenging a jury’s prior factual findings. (People v. Allison (2020) 55 Cal.App.5th 449,
461.) “The purpose of section 1170.95 is to give defendants the benefit of
29.
amended sections 188 and 189 with respect to issues not previously determined, not to
provide a do-over on factual disputes that have already been resolved.” (Ibid.)
The Record
As to the merits of Blackmon’s petition, we note that while the trial court
appointed counsel and the parties fully briefed the matter, the court failed to comply with
section 1170.95, subdivision (c) because it summarily denied the petition without
conducting a hearing or giving a statement of reasons for not issuing an order to show
cause. It is also unclear what materials the court relied on and what conclusions it drew
in determining Blackmon was ineligible for resentencing, but the parties’ briefs restated
this court’s factual statement from Blackmon’s direct appeal.
The opinion in Blackmon’s direct appeal is part of the record of conviction that the
court may consider in determining whether petitioner has made a prima facie showing of
resentencing eligibility. (Lewis, supra, 11 Cal.5th at p. 972.) However, the role of the
appellate opinion is circumscribed. The factual summary contained in an appellate
opinion is not considered admissible evidence regarding a petitioner’s resentencing
eligibility (§ 1170.95, subd. (d)(3)), and the court may not engage in factfinding based on
the appellate opinion at the prima facie stage (Lewis, at p. 972).
The trial court erroneously denied Blackmon’s petition without holding a hearing,
issuing a statement of reasons when it declined to issue an order to show cause, and to the
extent it engaged in premature factfinding at the prima facie state. (§ 1170.95, subd. (c).)
If the trial court committed error by failing to comply with section 1170.95, we may
affirm if petitioner was not prejudiced by the error. (Lewis, supra, 11 Cal.5th at pp. 972–
974.)
Prejudicial Error
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent the statutory errors, his or her petition would not have been summarily denied
30.
without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972–974; People v.
Watson, supra, 46 Cal.2d at p. 836.)
Pursuant to section 1170.95, a petitioner is ineligible for resentencing if he or she
was the actual killer, acted with the intent to kill or malice aforethought, or was a major
participant in the underlying felony who acted with reckless indifference to human life.
(§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3); see People v. Gentile, supra,
10 Cal.5th at p. 842.) The court may rely on jury instructions, which are part of the
record of conviction, to make the prima facie determination because the instructions
“given at a petitioner’s trial may provide ‘readily ascertainable facts from the record’ that
refute the petitioner’s showing, and reliance on them to make the eligibility or entitlement
determinations may not amount to ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, disapproved
on another ground in Lewis, supra, 11 Cal.5th 952.)
Blackmon was not prejudiced by the court’s failure to comply with
section 1170.95 because the record shows he was ineligible for relief as a matter of law.
First, Blackmon was charged and convicted as the actual killer. The procedural records
from Blackmon’s trial show the jury was instructed on first and second degree murder,
premeditation and deliberation, express and implied malice, and attempted murder. The
jury was not instructed on aiding and abetting, principals and accomplices, the felony-
murder rule, the natural and probable consequences doctrine, any underlying felonies, or
target or nontarget offenses. He was also convicted of attempted premeditated murder as
the actual shooter. He was not convicted as an aider or abettor, or under the felony-
murder rule or the natural and probable consequences doctrine. (§ 1170.93, subd. (a)(3);
Lewis, supra, 11 Cal.5th at p. 959 [“the Legislature passed Senate Bill 1437 ‘to amend
the felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who [inter alia] is not
the actual killer’ ”].)
31.
As a separate matter, Blackmon is also ineligible for relief under section 1170.95
because of the jury’s true finding on the gang special circumstance under section 190.2,
subdivision (a)(22), which imposes a sentence of death or life without the possibility of
parole for a murder involving the defendant’s active participation in a criminal street
gang. To find that special circumstance true, the jury was required to find that Blackmon
intended to kill the victim. (§ 190.2, subds. (a)(22), (c); People v. Allison, supra,
55 Cal.App.5th at pp. 460–461; accord, People v. Fayed (2020) 9 Cal.5th 147, 201–202
[considering murder for financial-gain special circumstance pursuant to § 190.2,
subd. (a)(1)].) The jury was instructed that if it found Blackmon guilty of first degree
murder, it must determine whether the murder was “an intentional killing by an active
street gang member” and Blackmon “intentionally killed the victim.” The true finding on
the gang-related special circumstance therefore establishes the jury made the necessary
finding so that his murder conviction continues to be valid under the law as amended by
Senate Bill 1437 (2017–2018 Reg. Sess.).
We thus conclude Blackmon is ineligible for resentencing as a matter of law, and
he was not prejudiced by the court’s summary denial of his petition. (Lewis, supra, 11
Cal.5th at pp. 972–974.)
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed
32.