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Shaw v. High Desert State Prison Warden

United States District Court, E.D. California

December 17, 2019

LONDON SHAW, Petitioner,
v.
HIGH DESERT STATE PRISON WARDEN, Respondent.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         BACKGROUND

         I. First Trial

         A. Pretrial Proceedings

         Petitioner 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.

         On July 14, 2011, the court heard a motion in limine objecting to admission of shell casing evidence. RT 71.[1] 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).[2] 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 115-16.

         Prior 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.

         B. Trial Proceedings

         The first trial commenced on May 1, 2012. The prosecution presented the following evidence.

         LaToya 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 296-98.

         Heckard 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.[3] People v. Shaw, No. C072207, 2014 WL 4104676, at *3 n.2 (Cal.Ct.App. Aug. 21, 2014) (unpublished).

         In 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.

         The Sacramento victim, Sevon Boles (“Boles”), also had a total of $15 on him, which was recovered by police officials after the shooting. RT 645.

         Regarding 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.

         Flowers 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.

         Thomas 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.

         Leanna 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.

         Co-defendant 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 952-53.

         In 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.

         The 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.

         Broberg 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.

         Petitioner 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.

         Before 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.

         As the Court of Appeal summary recounted the conclusion of the first trial:

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).

         On 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 1358-64.

         Petitioner 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.

         II. Trial Two

         A. Trial Proceedings

         The 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, 1588-92.[4]

         Witnesses 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.

         The 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.

         B. Post-Conviction Proceedings

         On 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.

         On 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. 6.

         On May 19, 2015, by operation of the prison mailbox rule, petitioner filed a petition for habeas corpus in this court.[5] ECF No. 1. On March 15, 2016, respondent answered. ECF No. 11. On September 9, 2019, petitioner filed his traverse. ECF. No. 16.

         STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA

         28 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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