United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a California state prisoner proceeding pro se with an
application for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. This action proceeds on the petition filed on
July 27, 2015, ECF No. 1, which presents four claims
challenging petitioner's 2012 conviction and sentence for
second degree murder with an enhancement for use of a firearm
in a violent offense, and a gang enhancement; and his 2013
conviction and sentence for the personal and intentional use
of a firearm causing great bodily injury or death. Respondent
filed an answer, ECF No. 11, and petitioner filed a traverse,
ECF No. 16.
and co-defendant Dominique Givens were charged in Sacramento
County with the 2009 murder of Sevon Boles. The homicide was
alleged to have been committed in the course of an attempted
robbery and for the benefit of a street gang.
14, 2011, the court heard a motion in limine objecting to
admission of shell casing evidence. RT 71. The prosecution
sought to present evidence about a shooting that had occurred
in San Francisco approximately a month after the murder at
issue in this case. The evidence was intended to show that
petitioner had fired approximately eight shots in San
Francisco on July 16, 2009, and that those bullets had been
fired from the same gun used in the June 22, 2009 Sacramento
shooting. RT 71-109, 111-116; see also CT 209-19
(moving papers), CT 220-21 (July 14, 2011 minute order), and
CT 222-25 (petitioner's opposition). The court allowed
the evidence, finding that the casings and witness
identification from the San Francisco shooting were probative
of petitioner's presence at the scene of the Sacramento
homicide. RT 106-07. The trial was continued to afford
additional time to review the San Francisco evidence. RT
to the start of trial, the court again heard arguments on a
motion in limine to limit evidence of the San Francisco
shooting. RT 180-200; see also CT 246-48
(petitioner's motion in limine no. 6). The court
reiterated that it wanted to limit the evidence as much as
possible. RT 199.
first trial commenced on May 1, 2012. The prosecution
presented the following evidence.
Heckard was an eye witness to the San Francisco shooting.
Outside the presence of the jury, the court conducted a
California Evidence Code section 402 hearing to determine the
admissibility and scope of her testimony. The court ruled
that Heckard could testify that she saw petitioner fire a gun
on July 16, 2009, but was not to testify whether anybody had
been shot or killed; the witness was cautioned that her
testimony was to be “very limited.” RT 289-91.
The court further ruled that Heckard could testify that she
had heard petitioner claim an affiliation with a particular
gang, but could not provide further information regarding the
gang because she was not testifying as an expert witness. RT
testified before the jury as follows. She had known
petitioner since he was about five or six living in the
Kirkwood area in San Francisco. RT 302-03. Heckard is
familiar with a group or a gang in San Francisco that refers
to itself as Kirkwood BNT. BNT stands for Broke Nigga's
Thievin' (“BNT”), and Heckard had heard
petitioner claim that gang. RT 304. Heckard testified to
seeing petitioner hang out with other members that she
thought were BNT members. RT 306. Heckard had three children
in July 2009. Her son was nine and she had two daughters ages
four and seven or eight. RT 307. Heckard was in the front
passenger seat in a vehicle that was driving in the Kirkwood
area. RT 309-10. Her children's father, Delvon Fields,
was driving the car with her three children and Mr.
Fields' mother in the back. RT 310. Heckard identified
the location of the vehicle and direction and course it
headed on a map for the jury. RT 310-11. The vehicle came to
a stop at a red light while Heckard was on the phone turned
towards the passenger window. RT 313. Then she heard the car
window shatter. RT 313. Heckard testified that she saw
petitioner fire a gun from the car next to the driver side of
the vehicle she was in. RT 314. Heckard identified a
photograph of the vehicle she was in with holes in the door
that were not there before that shooting. RT 315. Heckard
testified that she saw petitioner fire a weapon during the
shooting. RT 319. As the Court of Appeal's opinion notes,
the evidence involving the children and the driver's
mother was not mentioned in the pretrial 402
hearing. People v. Shaw, No. C072207, 2014
WL 4104676, at *3 n.2 (Cal.Ct.App. Aug. 21, 2014)
addition to Heckard's testimony regarding the San
Francisco shooting, the prosecution presented forensic
ballistic evidence linking the gun used in San Francisco to
the one used to kill Sevon Boles in Sacramento on June 22,
2009. Nine nine-millimeter Remington Peters Luger casings
plus one bullet fragment were found at the scene of the San
Francisco shooting. All nine casings were fired from the same
firearm. RT 373. As the Court of Appeal's summary states:
Nine nine-millimeter Remington Peters Luger casings found at
the scene of the San Francisco shooting were fired from the
same gun as the two nine-millimeter casings found at the
scene of the Sacramento-Boles shooting.
The five .22-caliber casings found at the scene of the
Sacramento-Boles shooting were fired from the Beretta seized
from [co-defendant Dominique Givens (“Givens”)]
in San Francisco. And the two bullets found in Boles's
body, as well as another bullet fragment found at that
shooting scene, were probably fired from this Beretta.
Boles died from gunshots to his chest and left thigh; he had
a baggie of marijuana in one of his pockets.
The police also found two bicycles near Boles.
Shaw, 2014 WL 4104676, at *2.
Sacramento victim, Sevon Boles (“Boles”), also
had a total of $15 on him, which was recovered by police
officials after the shooting. RT 645.
the Sacramento shooting, the prosecution presented several
witnesses. Stepphanya Spade (“Spade”) testified
that she lived in the Willow Pointe Apartments with her
friend Reebie Flowers (“Flowers”) and
Flowers' daughter. RT 408. Spade testified that
petitioner and co-defendant Givens stayed in her apartment
for a couple days. RT 409. The Sacramento shooting occurred
while they were staying there. RT 411. The day before the
shooting, Spade testified that she saw a gun in the living
room while Flowers was cleaning the apartment. RT 416.
Petitioner took the gun and left. RT 417. The evening of the
Sacramento shooting, Spade testified that she was in her
apartment with a friend, Flowers, and Flowers' daughter.
RT 417-18. Spade heard gunshots and saw petitioner running to
the other side of the apartments with a gun in his hand
saying “I got hit. I got hit.” RT 418-19. Spade
testified that she saw sparks from the gun when she was
sitting in her chair, and the sparks were right below from
where petitioner was running. RT 419. Spade saw Givens
running the opposite direction from petitioner. RT 419. Spade
testified that she saw a female who stayed in the apartments
running around screaming, “Where's my boyfriend,
Where's my boyfriend?” RT 422-23. Spade testified
that she observed petitioner was hit on his leg because he
was limping. RT 425.
also testified regarding the night of the Sacramento
shooting. Flowers testified that she lived with Spade at the
apartment complex where the shooting took place, and that she
met petitioner a few days before the shooting. RT 508.
Flowers testified that when she and Spade were cleaning the
apartment, Spade picked up a shirt and a gun fell out of it.
RT 512. According to Flowers, she and Spade said that it was
not cool, and petitioner got up, picked up the gun, and put
it in his waistband. RT 512-13. The night of the Sacramento
shooting, Flowers was in her apartment with her daughter,
Spade, and Spade's boyfriend's cousin. RT 516.
Flowers saw lights from firearms and heard gunshots coming
from the direction she saw petitioner head after he left her
apartment. RT 518-19. Flowers saw petitioner running to the
apartment below her apartment limping, saying he had been
hit, and asking someone to give him a ride to the hospital.
RT 519, 524. Flowers identified the locations in the
apartment complex on a diagram where she saw petitioner
before and after the Sacramento shooting. RT 521-25.
Sims (“Sims”) also testified during the
prosecution's case in chief. Sims testified that he
became a member of a gang called Kirkwood or BNT. RT 580. As
the Court of Appeal's statement of the case indicates,
Sims had “literally a score of charges pending against
him” and “testified pursuant to a prosecution
deal.” Shaw, 2014 WL 4104676, at *2; RT
592-94. Sims testified that he considered petitioner a member
of Kirkwood BNT for over fifteen years. RT 595. In June 2009,
Sims noticed petitioner was limping around and when he asked
petitioner about it, petitioner told him that there was an
incident and he was accidentally shot. RT 598. Sims testified
the injury was to petitioner's leg. RT 599. According to
Sims' testimony, petitioner told him that he was
“hitting licks, ” which refers to robbing
someone. RT 599. Petitioner told Sims that he and Givens came
across an individual who did not comply, so petitioner
started wrestling with him and Givens shot in his defense and
accidentally shot petitioner. RT 600.
Lathum (“Lathum”) testified that she was living
with Boles at the time of the Sacramento shooting in the
apartment complex where the shooting took place. RT 922-23.
Latham saw their friends show up, told Boles, and Boles left
the apartment and went downstairs. RT 923. Boles then came
back upstairs, grabbed a do-rag, and went back downstairs. RT
924. A few minutes after that, Lathum opened the door and
asked for a cigarette. RT 925. Lathum saw a man she had never
seen before with Boles; the man was next to Boles on a bike.
RT 924. After asking for the cigarette, Lathum testified that
she closed the door and then heard gunshots maybe one or two
minutes later. RT 925, 929. Lathum ran outside and saw
Boles' shoes on the ground. RT 925. She then started
screaming and asking what happened and what is going on. RT
925. Lathum identified petitioner as the person she saw with
Boles just before the shooting. RT 933.
Givens testified on his own behalf as follows. According to
Givens, petitioner asked him to travel to Sacramento in June
2009, the Saturday before the Sacramento shooting. RT 945.
Givens spent the night in the apartment complex where the
shooting took place, in Spade and Flowers' apartment,
that Saturday and Sunday night. RT 948. Petitioner also
stayed in Spade and Flowers' apartment. RT 948. Givens
testified that the following Monday, June 22, 2009, a
shooting took place at the apartment complex; Givens had been
around the building with a girl right before it happened and
had gone alone to the store on a bike to get a soda. RT
949-50. After the shooting, Givens ran towards a parking lot
and saw petitioner and another guy run into the apartment
complex. RT 951. During cross-examination, Givens identified
the other guy as the victim. RT 1015. Givens then ran into
the same apartment complex and the other guy ran out. RT 952.
Then Givens saw petitioner in a vacant apartment who handed
him two guns. RT 952. Givens hesitated to take the guns and
petitioner threw the guns onto a clothes hamper and ran out
saying he was hit. RT 982. He testified on cross-examination
that a couple hours later, “some guys from the
apartment complex came, asked [Givens] where [the guns] were.
[He] pointed to them and they took ‘em.” RT 991.
Givens did not know their names. RT 991. Givens then stayed
in the vacant apartment complex until the next morning when a
female acquaintance took him to the Greyhound bus station. RT
August 2009, San Francisco police searched Givens and found
on him a firearm that he purchased from petitioner within the
past month. RT 954-55. On cross-examination, Givens testified
that he purchased the gun from petitioner for $80 and knew it
was one of the guns he had seen at the Sacramento apartment
complex. RT 1001. After Givens was released from jail, he
received a phone call from petitioner who told him that the
gun was “involved in Sacramento.” RT 956, 1002.
According to Givens, “And that's when [he] found
out that it was actually a murder out here.”
Id. Givens admitted that he wanted to be a member of
Kirkwood BNT but denied being a member. RT 957. On
cross-examination, Givens admitted to writing rap lyrics and
gang graffiti in a notebook representing Kirkwood BNT. RT
1009-11. Givens denied having a gun on June 22, 2009,
shooting Boles on June 22, 2009, intending to rob Boles on
June 22, 2009, having a conversation with petitioner to rob
somebody on that date, and shooting petitioner on accident.
RT 965. Givens knew petitioner to be a member of Kirkwood BNT
since 2002 or 2003. RT 971-72.
prosecution presented testimony of San Francisco police
detective Leonard Broberg (“Broberg”) as an
expert on African-American gangs in the Bayview Hunter's
Point area. RT 785-90; see generally RT 785-849.
Broberg explained that there are six validated gangs in the
Bayview Hunter's Point area, and a couple more gangs that
are documented. RT 798. A validated gang means that
“somebody within that particular gang has either come
to court and the courts have found that there's enough
evidence that the gang exists, ” which validates the
gang's existence. RT 798. Broberg explained that in San
Francisco they use a strict list of elements as validation
criteria. RT 799. Kirkwood BNT is one of the six validated
gangs in the Bayview Hunter's Point area. RT 800-01.
testified that Kirkwood is an informal gang in which someone
has a position in the gang by putting in work for the gang,
which includes committing acts of violence. RT 810. To become
part of the Kirkwood gang a person has to grow up in the
neighborhood where the gang was or become friends with some
of the gang members. RT 811. Broberg testified that Kirkwood
BNT's primary activities include narcotics violations or
sales, weapons violations, guns, assault rifles, robberies,
carjacking, and witness intimidation. RT 812. With regard to
whether the Sacramento shooting was committed for the benefit
of the Kirkwood BNT gang, Broberg explained during his
testimony that “the whole culture of gangs is about the
interchangeability of fear and respect. In order to be
respected, you need to be feared. And in order to be feared,
you have to show that you're willing to step up.”
RT 846. He further explained that “[d]uring the course
of conversations, you know, individuals are talking about
hitting other individuals of gangs or committing robberies.
It's a very specific act of violence, especially when
they're going to shoot somebody. So now that individual
within that gang has established a reputation within the
gang, showing other gang members he's willing to step up,
commit crimes, put in some work for the gang, but he's
also sending a message outside the gang.” RT 847.
Broberg concluded that “[w]hat happened here in
Sacramento, that information got back to San Francisco and to
individuals back there. So both of the individuals that were
involved in this enhanced their reputations by the use of the
gun and by shooting the individual that they were attempting
to rob.” RT 847-48. Broberg agreed that the actions
benefited both individual gang members within the gang,
Kirkwood BNT, and Kirkwood's reputation in intimidation
in the community as word spreads. RT 848.
stipulated he is a member of Kirkwood BNT and is associated
with a member of Kirkwood BNT, including on June 22, 2009. RT
773, 820; RT 1121. The parties also stipulated that Kirkwood
BNT is a criminal street gang under California Penal Code
sections 186.22(b)(1) and 186.22(E)(1); and that there are
the requisite three predicate crimes to satisfy the
requirements of the Penal Code in determining whether
Kirkwood BNT is a criminal street gang. RT 1121.
closing arguments, petitioner moved to have part of
Broberg's testimony stricken, namely “any reference
to any additional communication to himself beyond Mr.
Sims” regarding whether word had gotten back to San
Francisco regarding the shooting and whether petitioner was
involved. RT 1151-53. In response, the prosecution argued
that Broberg testified on direct that it was his opinion that
the crime benefited the gang and it was only in response to
petitioner's counsel's question that he elaborated
that he “had spoken with other officers that related to
him, through a confidential informant, that word had gotten
back to San Francisco regarding the shooting, and Mr. Givens
and Mr. Shaw's involvement in that shooting.” RT
1151-52. The court denied the motion as untimely, finding
that “without reference to either the transcript or
contemporaneous with the testimony, there's very little
the Court can do without seeing the totality of the
testimony. It's awkward for [the court] to either order
the jury to disregard a portion of his testimony without
seeing how it related to the totality of his testimony,
whether it came from direct, whether a response to cross or
redirect, recross.” RT 1154.
Court of Appeal summary recounted the conclusion of the first
After much deliberation, a jury convicted defendant London
Ramon Shaw of second degree murder of Sevon Boles (Pen. Code,
§ 187, subd. (a)),  and sustained
enhancement allegations that defendant personally used a
handgun (§ 12022.53, subd. (b)) and committed the
offense for the benefit of, or in association with, a
criminal street gang (§ 186.22, subd. (b)(1)). The jury
acquitted defendant of attempted robbery of Boles.
(§§ 664/211.) The jury could not reach a decision
on whether defendant, or another principal in this
gang-related offense, personally and intentionally discharged
a firearm causing death. (§ 12022.53, subds. (c), (d),
(e).) Nor could the jury reach a decision on any of the
similar substantive or enhancement charges against
defendant's codefendant, Dominique Givens.
Shaw, 2014 WL 4104676, at *1 (footnote omitted).
September 14, 2012, the trial court heard petitioner's
motion for a new trial. RT 1348; see also CT 481-90.
The defense moved the court to set aside the gang enhancement
under California Penal Code § 186.22(b)(1), arguing that
“the jury relied on unsubstantiated, if not completely
contrived, evidence by a gang expert.” RT 1349.
Petitioner based his argument in part on Broberg having notes
that were not given to the defense. RT 1350. The prosecution
opposed the motion, arguing in part that Broberg “gave
detailed testimony in regards to how this crime benefited the
gang.” RT 1353. The trial court summarized the evidence
at trial and denied the motion, concluding that “there
is more than sufficient evidence to support [the jury's]
findings . . ., including the gang enhancement.” RT
was sentenced for second degree murder with a gang
enhancement for an indeterminate term of 15 years,
consecutive to the determinant term of 10 years for the
personal use of a firearm. RT 1367-68. At sentencing, the
prosecution confirmed that it would retry petitioner on the
charge that he personally and intentionally discharged a
firearm causing death (Cal. Penal Code §
12022.53(c)-(e)), and that he committed the offense for the
benefit of, or in association with, a criminal street gang
(Cal. Penal Code § 186.22 (b)(1)). RT 1369-70. A
September 28, 2012 trial date was requested. RT 1370.
second trial commenced on January 9, 2013 with jury
selection. RT 1419. On January 10, 2013, the trial court
heard petitioner's motion to dismiss based on his
statutory right to a speedy trial (see Cal. Penal
Code § 1382(a)(2)). RT 1456. The motion was denied
initially, RT 1466, and on further consideration, RT 1582,
Flowers, Sims, Lathum, and Givens did not testify at the
second trial. Heckard's testimony was similar to her
testimony in the first trial summarized above, with few
exceptions. Heckard did not testify about petitioner's
affiliation with Kirkwood BNT and did not identify the
location of the vehicle on a map for the jury. RT 1510-78.
Spade's testimony was similar to her testimony in the
first trial with the following exceptions. RT 1595-1662. She
testified that she did not recall testifying in the first
trial that she saw sparks coming from the direction where
petitioner had been running or saw a gun in petitioner's
hand. RT 1654-55. Spade also did not testify that petitioner
said, “I got hit. I got hit.” Nor did Spade
testify that she observed petitioner was hit on his leg.
However, the jury had access to two interviews with Spade
dated September 15, 2009 and November 18, 2009 during which
she recounted these eyewitness observations. CT 748-87. Spade
did not recall Givens' name at the second trial.
jury found petitioner guilty of personally and intentionally
discharging a firearm and caused great bodily injury or death
within the meaning of California Penal Code §
12022.53(e). RT 1878. Petitioner was sentenced to a total
term of forty years to life for second degree murder and
related enhancements. RT 1889.
September 20, 2013, petitioner filed a timely, consolidated
appeal with the California Court of Appeal, Third Appellate
District. Lodged Doc. 1. Petitioner argued that (1) the trial
court erred by allowing the prosecution to admit inflammatory
evidence of the San Francisco shooting, (2) the gang
detective's inadmissible opinion that, based on his
review of the police reports, petitioner committed the crime
to benefit a gang prejudiced petitioner, (3) there was
insufficient evidence to support the gang enhancement, and
(4) the cumulative errors warrant reversal. Id. On
August 24, 2014, the California Court of Appeal affirmed
petitioner's judgment of conviction and sentencing in a
reasoned opinion. Shaw, 2014 WL 4104676.
October 1, 2014, petitioner appealed to the California
Supreme Court, alleging that (1) the gang detective's
inadmissible opinion that, based on his review of the police
reports, petitioner committed the crime to benefit a gang
prejudiced petitioner, (2) there was insufficient evidence to
support the gang enhancement, (3) the trial court erred by
allowing the prosecution to admit inflammatory evidence of
the San Francisco shooting, and (4) counsel was ineffective
in failing to timely assert his right to a speedy trial on
the enhancement. Lodged Doc. 5. On November 12, 2014, the
California Supreme Court summarily denied review. Lodged Doc.
19, 2015, by operation of the prison mailbox rule, petitioner
filed a petition for habeas corpus in this
court. ECF No. 1. On March 15, 2016, respondent
answered. ECF No. 11. On September 9, 2019, petitioner filed
his traverse. ECF. No. 16.
GOVERNING HABEAS RELIEF UNDER THE AEDPA
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented