Filed 8/21/14 P. v. Shaw CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                      C072207, C073199

                   Plaintiff and Respondent,                                (Super. Ct. No. 09F09120)

         v.

LONDON RAMON SHAW,

                   Defendant and Appellant.




         After much deliberation, a jury convicted defendant London Ramon Shaw of
second degree murder of Sevon Boles (Pen. Code, § 187, subd. (a)),1 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


1 Undesignated statutory references are to the Penal Code.


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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.

       In a retrial involving defendant Shaw, another jury sustained the section 12022.53,
subdivision (e) (hereafter section 12022.53(e)) enhancement allegation that one of the
principals in this gang-related second degree murder of Boles personally and
intentionally discharged a firearm causing death. (See also § 12022.53, subd. (d).)

       Sentenced to 15 years to life on the second degree murder and 25 years to life on
the section 12022.53(e) enhancement, defendant Shaw, in consolidated appeals from the
trial and the retrial, contends (1) the trial court erroneously admitted evidence of another
shooting as well as a gang expert’s opinion that defendant committed the crime to benefit
the gang; (2) the evidence is insufficient to support the gang enhancement; and (3) his
counsel was ineffective in failing to timely assert defendant’s right to a speedy retrial of
the section 12022.53(e) enhancement.

       We find no prejudicial error, individually or cumulatively, and shall affirm the
judgment.

                              FACTUAL BACKGROUND
Earwitnesses

       There were three “earwitnesses” who heard the shooting and saw matters before
and after it.

       One of these witnesses was Boles’s fiancée. She testified that on June 22, 2009, at
8:00 or 9:00 p.m., Boles grabbed a do-rag and went out of the Sacramento apartment the
two of them shared. She then opened their apartment door and saw Boles standing




                                              2
outside with defendant, who was on a mountain bike. Moments later, she heard gunshots
and ran outside; Boles had been shot.

       During the two days prior to the shooting, defendant and codefendant Givens had
been staying at the same apartment complex, in the apartment of the other two
earwitnesses. A day before the shooting, one of these witnesses found a handgun, which
apparently belonged to defendant (the witness testified the gun was “like a nine-
millimeter or something like that”). On the day of the shooting, defendant asked this
witness to phone a man who apparently sold marijuana. And just moments before the
shooting, defendant got on a bicycle and rode in the direction of where the shooting took
place in the apartment complex parking lot. As for the shooting, both of these witnesses
testified that upon hearing multiple gunshots outside they went to their apartment
balcony, where they saw defendant limping away in one direction (saying, “I got hit”)
and codefendant Givens running in another; one of the witnesses saw something in
defendant’s hand (which she assumed was a gun).
Defendant’s San Francisco Shooting and Givens’s San Francisco Gun

       A witness testified that on the afternoon of July 16, 2009, defendant was a
passenger in a car in the Bayview/Kirkwood area of San Francisco that had stopped for a
traffic light. The witness was the front seat passenger in a car that was stopped next to
defendant’s car; the driver of the witness’s car was the father of her three children, who
were in the rear seat along with the driver’s mother. Defendant fired several shots toward
her car, shattering the driver-side window. This witness knew defendant and codefendant
Givens as they all had grown up together in the Kirkwood area of San Francisco. She
added that defendant was a member of the BNT (Broke Niggas Thievin’) gang, and
Givens associated with BNT members.

       About two months after the Boles shooting, on August 16, 2009, police in San
Francisco stopped Givens and found a loaded .22-caliber Beretta pistol in his pocket.


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Ballistics and Other Physical Evidence

       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 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.
Thomas Sims

       Thomas Sims, a BNT member with literally a score of charges pending against
him, testified pursuant to a prosecution deal. Sims stated that defendant and Givens were
also BNT members. When Sims noticed in June 2009 that defendant was limping,
defendant explained that he (defendant) and Givens were robbing an individual out of
town when a scuffle ensued and Givens accidentally shot defendant while trying to
defend him.
Codefendant Givens’s Testimony

       Givens testified that he and defendant had stayed at the apartment complex where
Boles was shot; that he (Givens) was returning to that complex on a bike (from a trip to
the store) when he heard gunshots, and saw defendant and another man run by; that
defendant tried to foist two handguns on Givens (a nine-millimeter and a .22-caliber), but
Givens refused (although about a month before he was stopped by police, Givens bought
a .22-caliber gun from defendant to protect his property).



                                             4
Defendant’s Statement to the Police

       Defendant told the police he was walking with a woman he was visiting in
Sacramento (not in the area of the subject apartment complex) when a man approached
and asked him where he was from. Defendant replied he “ain’t got no gang bang” and
walked away. The next thing he knew, he had been shot.
Gang Expert Evidence

       San Francisco police detective Leonard Broberg testified as an expert on black
gangs in San Francisco’s Bayview area, including BNT. Broberg opined that, based on
his review of the police report and his training and experience, the Sacramento-Boles
shooting was committed for the benefit of BNT by enhancing the reputation of the gang
and defendant for violence.

       The parties stipulated that BNT is a criminal street gang and that defendant was a
BNT member on June 22, 2009. Detective Broberg testified Givens was a BNT member.

                                      DISCUSSION

                       I. Evidence of the San Francisco Shooting

       Defendant contends the trial court erred prejudicially by allowing the prosecution
to admit inflammatory evidence of the July 16, 2009 San Francisco drive-by shooting.
We disagree.

       In an in limine hearing on this matter, the trial court carefully circumscribed the
evidence of this shooting that would be admitted, stating, “We want[] [this evidence] just
to be very sanitized. There was a shooting in San Francisco [directed toward the driver
of the car], and [defendant] was identified, and the casings match [(i.e., the nine-
millimeter casings found at the Sacramento-Boles shooting and the San Francisco
shooting)]. That’s it.” The jury would not hear that the driver had been fatally shot, nor




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that defendant was present when Givens apparently shot at the driver the day before, nor
that this shooting may have been gang related.

       And at an Evidence Code section 402 admissibility hearing at which the victim-
front passenger witness testified about the San Francisco shooting, the trial court
reiterated: “She[] [will] testify in her belief, consistent with prior reports, that she saw
[defendant] fire a gun in a car in which she was sitting. And that’s the relevance for our
purpose because of the casings.”

       At trial, the front passenger witness testified along these lines, noting the several
shots fired at her car. Additionally, she noted that her three children and the driver’s
mother were in the back seat of the car during the shooting;2 and the prosecutor
introduced into evidence a photograph showing six bullet holes in the car’s driver-side
door, and a bullet fragment that was found on the rear floorboard.

       Defendant argues this additional evidence was inflammatory and impossible to
ignore, the proverbial “elephant in the room”; as characterized by defendant, this
evidence showed he fired nine shots, unprovoked, at a vehicle occupied by women and
children. We disagree that the admission of this additional evidence constitutes
reversible error.

       First, defendant did not make a specific objection to this additional evidence on
the record. A judgment shall not be reversed because evidence was erroneously
admitted, unless a timely, specific, legally supported objection to the evidence was made,
and the evidence’s admission resulted in a miscarriage of justice. (Evid. Code, § 353.)

       Second, in the in limine proceedings, the prosecutor had agreed to limit the
evidence of the San Francisco shooting in line with a proposal defendant had made—i.e.,


2 This additional evidence involving the children and the driver’s mother was not
mentioned in the pretrial evidentiary admissibility hearings.

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a person claimed to have seen defendant fire the gun, and the casings in the San
Francisco shooting matched those in the Sacramento-Boles shooting—if defendant
agreed that the identification of him was accurate. Otherwise, the prosecutor intended to
present evidence to corroborate the front seat passenger witness’s testimony regarding the
San Francisco shooting. Defendant declined the prosecutor’s qualification, believing it
would foreclose him from attacking the credibility of the San Francisco witness.

       Third, defendant’s counsel, during cross-examination, questioned the front
passenger witness in a manner that had her explain that after the shooting she checked on
her children (to make sure they were all right).

       Fourth, the trial court instructed the jury, “If you decide that [defendant]
committed the uncharged act [(i.e., the San Francisco shooting)], you may, but are not
required to consider that evidence for the limited purpose of deciding whether or not the
ballistics evidence demonstrates that the nine-millimeter shell casings recovered from the
crime scene in [the Sacramento] case were fired from the same gun. [¶] Do not consider
this evidence for any other purpose.”

       Fifth, and finally, given the casings-based relevance of the San Francisco shooting
to the Sacramento shooting, at a minimum the jury was going to hear a witness testify
that she saw defendant shoot into a car in which she was a passenger. For defendant,
then, there was no escaping from evidence that he had at least once shot at people
(presumably, unjustifiably). The additional evidence challenged here was not all that
much more inflammatory than this relevant evidence that was certain to be admitted.

       We conclude the admission of the challenged additional evidence concerning the
San Francisco shooting does not constitute reversible error.




                                              7
             II. Gang Expert’s Opinion that the Sacramento-Boles Shooting
                            Committed for BNT’s Benefit

         Defendant raises two contentions on this subject.

         First, defendant contends that Detective Broberg’s opinion that defendant
committed the Boles murder for the benefit of the BNT gang was improperly admitted
because the prosecutor’s questioning eliciting this opinion was not phrased as a
hypothetical, and the jury was just as qualified as Broberg to determine who murdered
Boles.

         Weaving through defense counsel’s sustained objections, Detective Broberg
opined essentially that based on the police report of the Sacramento-Boles shooting and
on his training and experience, the crime was committed for the benefit of BNT. Broberg
explained, “What happened here in Sacramento, that information got back to San
Francisco . . . . 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.”

         Detective Broberg did not testify explicitly that defendant committed the Boles
murder. Rather, Broberg testified that this murder was committed for the benefit of BNT
and he explained the benefit (enhancing the reputation of BNT and defendant for
violence). The jury was well aware that it had been empaneled to determine the charges
here. In any event, if Broberg crossed the line of expert witness propriety in this regard,
defendant was not prejudiced. On the issue of whether a crime is gang related, a gang
expert is permitted to respond to hypothetical questions from the prosecutor that closely
track the evidence in a thinly disguised manner. (People v. Vang (2011) 52 Cal.4th 1038,
1041, 1048 (Vang).)

         For his second point, defendant asserts there was no admissible reliable evidence
to support the basis of Detective Broberg’s opinion that the Sacramento-Boles shooting


                                              8
would benefit the BNT gang and defendant by enhancing their violent reputations; that
basis, as noted, was that information of the Sacramento-Boles shooting had gotten back
to San Francisco. We disagree.

        When defense counsel cross-examined Detective Broberg as to the basis of his
opinion, Broberg replied that he relied on what BNT member Sims had told him, on what
another San Francisco police officer had told him (Broberg identified this officer and
noted this information came from that officer’s informant), as well as on other
unidentified people in San Francisco who were aware of what had occurred (but Broberg
had not talked with those people).

        Expert testimony may properly be based on material that is formally inadmissible
as evidence so long as that material is of a type reasonably relied upon by similar experts
to form their opinions, and is itself reliable. (People v. Gardeley (1996) 14 Cal.4th 605,
618.)

        As a basis for forming his opinion, Detective Broberg could properly rely on
hearsay information received in his conversation with BNT gang member Sims, and from
another police officer (who is presumed reliable). (People v. Thomas (2005)
130 Cal.App.4th 1202, 1209-1210 [a gang expert may give opinion testimony based upon
hearsay statements, including conversations the expert has had with gang members and
with the expert’s colleagues]; People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9
[accord]; see People v. Hill (1974) 12 Cal.3d 731, 761, overruled on another point in
People v. De Vaughn (1977) 18 Cal.3d 889, 896, fn. 5; see also People v. Hill (2011)
191 Cal.App.4th 1104, 1131 & fn. 18.) As for the “other unidentified people” with
whom Broberg had not talked, that information may not be reliable; but we deem this
information harmless in light of the reliable information Broberg cited and the fact that
this unreliable information was presented primarily as a basis for the jury to evaluate
Broberg’s opinion rather than for the information’s truth. (People v. Thomas, supra,


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130 Cal.App.4th at pp. 1209-1210; People v. Vy, supra, 122 Cal.App.4th at p. 1223, fn. 9;
see People v. Hill, supra, 12 Cal.3d at p. 761; see also People v. Hill, supra,
191 Cal.App.4th at p. 1131 & fn. 18.)

                  III. Sufficiency of Evidence of Gang Enhancement

       Defendant contends the evidence is insufficient to prove the section 186.22,
subdivision (b)(1) gang enhancement—i.e., he committed the Sacramento-Boles shooting
for the benefit of the San Francisco BNT gang. We disagree.

       In reviewing the sufficiency of the evidence in a criminal case, we review the
whole record in the light most favorable to the challenged finding to determine whether it
contains evidence that is reasonable, credible, and of solid value from which a reasonable
trier of act could have made that finding. (People v. Johnson (1980) 26 Cal.3d 557, 578.)

       “ ‘Expert opinion that particular criminal conduct benefited a gang’ is not only
permissible but can be sufficient to support the . . . section 186.22, subdivision (b)(1),
gang enhancement.” (Vang, supra, 52 Cal.4th at p. 1048.) In part II. of the Discussion,
ante, we concluded Detective Broberg’s opinion that the Sacramento-Boles shooting
benefited the BNT gang was properly admitted.

       In addition to Detective Broberg’s opinion, there was other evidence to support
this gang enhancement.

       Defendant stipulated he was a BNT member on the date of the Boles shooting.
Detective Broberg testified codefendant Givens was a BNT member as well. At a
minimum, the evidence showed that defendant and Givens were in Sacramento together
at the time and place of the crime.

       Upon returning to San Francisco after the Sacramento-Boles shooting, defendant
explained his limp to fellow BNT member Sims in the following way. Defendant and
“Dominique” (presumably, Givens) were out of town, “hitting licks or whatever” (i.e.,


                                             10
robbing someone). They came across a noncompliant victim, a tussle ensued, and Givens
fired a shot in his defense, accidentally hitting defendant. While defendant and Sims’s
conversation was not of the usual gang-bragging variety found in the decisions upon
which defendant relies in contrast to this conversation, the conversation’s participants,
idiomatic language, and routine description of horrific facts suggest the Boles shooting
was gang related.

       Finally, defendant’s statement to the police indicated he was shot in a gang
context. While this statement did not concern the Boles shooting, it nevertheless
comprised a gang shooting context.

       We conclude the evidence is sufficient to support defendant’s section 186.22,
subdivision (b)(1) gang enhancement.

                 IV. Speedy Trial of Section 12022.53(e) Enhancement

       Defendant contends his counsel was ineffective in untimely asserting defendant’s
statutory speedy trial right (§ 1382, subd. (a)(2)) on the retrial of the section 12022.53(e)
enhancement. We disagree, finding defendant was not prejudiced.

       Section 1382, subdivision (a)(2), which implements in part the state constitutional
right to a speedy trial, directs a trial court, among other things, to dismiss a mistried
felony action when a defendant is not retried on it within 60 days of the mistrial, unless
good cause to the contrary is shown. (People v. Villanueva (2011) 196 Cal.App.4th 411,
422-423 (Villanueva).)

       Here, the trial court declared on May 31, 2012, a mistrial on the section
12022.53(e) enhancement, but defense counsel did not move to dismiss the retrial until its
commencement in early January 2013. The trial court denied defendant’s motion as
untimely.




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       To establish ineffective assistance of counsel, defendant must show (1) his counsel
failed to act as a reasonably competent attorney, and (2) prejudice resulted (i.e., there is a
reasonable probability defendant would have fared better in the absence of counsel’s
failing—a probability sufficient to undermine confidence in the outcome). (People v.
Gates (1987) 43 Cal.3d 1168, 1183, overruled on another point in People v. Williams
(2010) 49 Cal.4th 405, 458-459.) If a defendant cannot show prejudice, a court need not
determine whether counsel performed deficiently. (People v. Hayes (1990) 52 Cal.3d
577, 608, 612.)

       Defendant concedes the law is settled that an enhancement on which a jury has
deadlocked may be retried “in isolation” after the jury has convicted on the offense
underlying the enhancement. (People v. Anderson (2009) 47 Cal.4th 92, 98, 123
(Anderson).) Defendant argues, though, that since case law generally does not view an
enhancement as existing independently from its underlying offense, an enhancement
retrial that is dismissed on speedy trial grounds under section 1382, subdivision (a)(2)
cannot be refiled without pleading the underlying offense; but the underlying offense,
defendant continues, cannot be repleaded because the constitutional principle of double
jeopardy precludes such pleading as defendant has already been tried on that offense.
Relying on this legal Catch-22, defendant claims his counsel prejudiced him by failing to
timely assert defendant’s statutory speedy trial right of his section 12022.53(e)
enhancement retrial. (§ 1382, subd. (a)(2).) Had defense counsel timely asserted this
right, the section 12022.53(e) enhancement retrial would have been dismissed without
possible refiling.

       For three reasons, we do not see the conundrum that defendant does.

       First, our state’s highest court, in Anderson, has concluded that double jeopardy
does not prohibit retrial of a mistried enhancement “in isolation” where a jury has
convicted the defendant of the offense underlying the enhancement but has deadlocked


                                              12
on the enhancement. (Anderson, supra, 47 Cal.4th at p. 98, italics added.) This situation
is similar to the one before us; in this context, an enhancement can be deemed to exist
independently of the underlying offense for the procedural purpose of its retrial (although
the trier of fact in the retrial will presumably have to be told the defendant has been found
guilty of the underlying offense; and, indeed, this is what happened in defendant’s
enhancement retrial here). (See Anderson, supra, 47 Cal.4th at p. 124 (conc. opn. of
Moreno, J.).)

       Second, defendant cannot claim that the section 1382 speedy trial right applies to
the retrial of his mistried section 12022.53(e) enhancement, without also acknowledging
that section 1387 applies as well. Sections 1382 and 1387 are part of “a series of statutes,
commencing with . . . section 1381, which are a construction and implementation of the
California Constitution’s speedy trial guarantee (Cal. Const., art. I, § 15).” (Villanueva,
supra, 196 Cal.App.4th at p. 422.) Under section 1387, a single dismissal of a felony
action, on speedy trial grounds, is not a bar to a second prosecution of the matter.
(Villanueva, at p. 417; § 1387, subd. (a); 5 Witkin & Epstein, Cal. Crim. Law (4th ed.
2012) Criminal Trial, § 488, p. 754.) Consequently, even if defense counsel had timely
and successfully asserted defendant’s speedy trial right of the section 12022.53(e)
enhancement, with a resultant dismissal of that enhancement prosecution, the prosecutor,
under section 1387, could have retried “in isolation” the enhancement in a second
proceeding. Defendant cannot invoke the right provided by section 1382 without
meeting the responsibility required by section 1387. Accordingly, defendant was not
prejudiced by his counsel’s alleged ineffectiveness.

       And, third, defendant has not been prejudiced in any broader legal sense. The
section 12022.53(e) enhancement retrial did not violate: (1) double jeopardy, because the
original jury deadlocked on this enhancement allegation but convicted on its underlying
offense; (2) due process, because defendant was originally charged with this


                                             13
enhancement; or (3) any principles of fairness, because nothing was sprung on defendant
to his disadvantage—he was simply retried in customary fashion on a matter on which
the first jury had deadlocked. (See Anderson, supra, 47 Cal.4th at pp. 121-122.)

      In the end, then, as in Anderson, there was “ ‘no legal or practical barrier’ ” to
prevent the retrial of defendant’s section 12022.53(e) enhancement had his counsel
successfully moved to dismiss the first retrial on speedy trial grounds. (Anderson, supra,
47 Cal.4th at p. 121.) Consequently, defendant cannot show his counsel was ineffective
because he cannot show his counsel’s alleged ineffectiveness prejudiced him.

                                     DISPOSITION

      The judgment is affirmed.




                                                        BUTZ                  , J.



We concur:



      BLEASE               , Acting P. J.



      HOCH                 , J.




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