Xiong v. Hatton

TOU VANG XIONG, Petitioner, v. S. HATTON, Warden, Respondent.

No. 1:19-cv-00569-DAD-SKO (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

November 21, 2019

FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS

[THIRTY DAY OBJECTION DEADLINE]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a sentence of 112 years-to-life for his conviction of two counts of second degree murder and one count of attempted murder. He has filed the instant habeas action challenging the conviction. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED.

I. PROCEDURAL HISTORY

On February 7, 2014, in Stanislaus County Superior Court, a jury found Petitioner guilty of two counts of first degree murder (Cal. Penal Code § 187), one count of attempted murder (Cal. Penal Code §§ 664, 187(a)), one count of assault with a deadly weapon (Cal. Penal Code §245(a)(1)), and attendant firearm enhancements (Cal. Penal Code §§ 12022.53(d); 12022.5(a)). (Doc. 20-3 at 2-6.¹) On June 30, 2014, Petitioner was sentenced to a combined indeterminate termof 132 years to life plus a determinate term of 7 years in state prison. (Doc. 20-3 at 80.)

Petitioner appealed to the California Court of Appeal, Fifth Appellate District ("Fifth DCA"). On July 20, 2016, the Fifth DCA reversed the convictions for first degree murder and premeditated attempted murder and remanded the matter back to the superior court for retrial or resentencing. (Doc. 21-10 at 79-80.) In all other respects, the judgment was affirmed. (Doc. 21-10 at 79.) On remand, the superior court resentenced Petitioner to a term of 112 years to life. (Doc. 21-11.) Petitioner then filed a petition for review in the California Supreme Court. (Doc. 21-12.) The petition was denied on October 19, 2016. (Doc. 21-13.)

Petitioner also sought collateral relief in the state courts. On December 11, 2017, Petitioner filed a petition for writ of habeas corpus in the Stanislaus County Superior Court. (Doc. 21-14.) The superior court denied the petition in a reasoned decision on April 26, 2018. (Doc. 21-17.) Petitioner then filed a habeas petition in the Fifth DCA on June 21, 2018. (Doc. 21-18.) The petition was denied on September 15, 2018. (Doc. 21-19.) He then filed a habeas petition in the California Supreme Court. (Doc. 21-20.) The petition was summarily denied on March 20, 2019. (Doc. 21-21.)

On April 26, 2019, Petitioner filed a petition for writ of habeas corpus in the Sacramento Division of this Court. (Doc. 1.) On May 2, 2019, the matter was transferred to the Fresno Division. (Doc. 6.) On August 7, 2019, Respondent filed an answer to the petition. (Doc. 19.) On October 3, 2019, Petitioner filed a traverse. (Doc. 27.)

II. FACTUAL BACKGROUND

The Court adopts the Statement of Facts in the Fifth DCA's unpublished decision²:

I

Prosecution Evidence

The Charged Offenses

As of July 20, 2009, Xay Yang resided in the 1700 block of Radley Place, Modesto. [Fn.2] Xay, who is Hmong, explained there are approximately eight last names inthe Hmong culture. If two people share the same last name, they are automatically part of the same clan. It is considered taboo to date or marry someone from the same clan, even though blood ties, if any, may be very distant. Clan members refer to each other as cousins or, in the case of someone older, grandparent or aunt or uncle, even if they are not blood relations.

[Fn.2] To avoid confusion, we refer to the Yangs and certain other individuals by their first names. No disrespect is intended. We also refer to the scene of the shooting, which was the address at which Xay lived, as dwelling A, and to the house directly across the street as dwelling B. Undesignated references to dates in the statement of facts are to the year 2009.

Nhia Yang was Xay's brother. As of July 20, he was living in a detached room behind dwelling A. The room had two doors and a small window, as well as electricity, but no kitchen or bathroom.

Xyeem Yang had known defendant for two months as of July 20. They were "[b]uddies." They lived together in Winton, along with Xyeem's "uncle," Bee Yang, Bee's son, and Gao Yang. [Fn.3] Gao and defendant had been going out as long as Xyeem had known defendant.

[Fn.3] Bee was not really Xyeem's uncle, but Xyeem referred to him as such as a sign of respect. Xyeem had known Nhia most of his life, but was not sure if there was a close family relationship.

Lee Pao Yang lived in the same residential complex as defendant, and they became friends. As of July 20, they had known each other since Lee got out of jail, following a receiving stolen property conviction, in June. Gao, Lee's distant cousin, introduced them. Lee had known Nhia two or three weeks. Defendant introduced them. During the time they knew each other, Lee and defendant smoked crystal methamphetamine together approximately twice a day almost every day. Defendant furnished the drugs. Lee did not know where he got them, although he personally saw defendant sell drugs.

Around 5:00 or 6:00 Saturday evening, July 18, Xyeem, defendant, Gao, and Lee went to a party in Modesto. Lee did not want to go and said he had to attend an uncle's funeral in Sacramento, but defendant pointed a gun at him and said if Lee did not go with him, defendant was going to take Lee's "whole family to a different place." Defendant took what Xyeem believed to be an AR-15 firearm in the car with them. He said it was for protection, but did not say protection from what. [Fn.4] Xyeem did not remember what happened from the time of the party into the next day, because he was drinking. He did see Gao and defendant arguing for a little bit; however, this was typical of their relationship. Xyeem saw them arguing every day about their relationship. Both would yell and accuse the other of cheating. Then they would make up.

[Fn.4] In the past, Xyeem had seen defendant with a .357 revolver and a .380 pistol in addition to the AR-15. According to Lee, defendant wrapped the AR-15 in a white towel and put it in the trunk just before they left for Modesto.

The group stayed at the party until early Sunday morning, July 19. They then went to Nhia's home, the detached room behind dwelling A. They all smoked methamphetamine, including Nhia, who had also been at the party. [Fn.5] At somepoint (Lee believed around 3:00 or 4:00 a.m.), everyone fell asleep. Xyeem was in the main house. Lee slept on the couch in Nhia's room. Nhia slept on one bed. Defendant and Gao slept on the other bed.

[Fn.5] Lee originally denied doing drugs to police because he was on probation. The five of them (Lee, Nhia, Xyeem, Gao, and defendant) smoked methamphetamine furnished by defendant on multiple occasions over the course of the weekend, although most of the times, Xyeem and Lee did not join in.

Sunday morning, everyone woke and started going about their day. According to Lee, they all did drugs and then ate breakfast in the kitchen of the main house. According to Xyeem, defendant said something about people wanting to do "voodoo things" to him. Defendant, Gao, and Xyeem went out to buy food and go to the Buddhist temple. [Fn.6] It was defendant's idea to go to the temple. He wanted to be blessed. He said he thought there was a bad spirit in him and he wanted to get rid of it. After they left the temple, they bought some groceries, then went home and cooked.

[Fn.6] Nhia and Lee stayed home. Lee did not call the police at this time to report defendant had threatened his family, because he was afraid defendant would return, learn he had called from Nhia, who was defendant's best friend, and do something to Lee's family or shoot him.

Lee estimated defendant and Gao were gone until night, perhaps six or seven hours. Just before defendant, Gao, and Xyeem left, Lee saw defendant bring the AR-15 into Nhia's room. It was still wrapped in the towel.

Xyeem recalled that he, defendant, and Gao returned to Nhia's room and smoked some methamphetamine. At some point, Gao cooked, and they ate in the living room of the main house. They then returned to Nhia's room. This was Sunday night, July 19. Around 10:00 p.m. or midnight, defendant, Gao, and Nhia went to Walmart to get some clothes. After they returned, defendant and Gao argued about being possessed and cheating on each other. At some point, defendant pulled out a revolver, unloaded it except for one bullet, spun the cylinder, pointed it at Gao, and pulled the trigger. Defendant was smiling when he did it. Xyeem had seen defendant do the same thing two or three times when arguing with Gao. Because Gao and defendant were getting violent, Xyeem put the AR-15 between Nhia and the bed. He also told defendant to "be cool." Defendant "chill [ed] out" after that. The five of them - defendant, Gao, Xyeem, Nhia, and Lee - then smoked methamphetamine "a couple times." About two hours later, around midnight or 1:00 a.m., Xyeem went to the front bedroom in the main house to sleep.

Lee recalled that defendant, Gao, and Xyeem returned around 8:00 or 9:00 p.m. Defendant brought some food and crystal methamphetamine into Nhia's room. Nhia cooked the food, and they all ate in that room. They all smoked some of the methamphetamine. Lee estimated the five of them had around four puffs each. After that, they just sat around and talked. This was around midnight. Lee was lying on the couch, texting his girlfriend on defendant's phone. [Fn.7] He was not paying attention to anything going on in the room.

[Fn.7] Lee did not have a phone of his own. Defendant loaned him his. Everyone went to bed between 1:00 a.m. and 2:00 a.m., with Lee, Nhia, defendant, and Gao bedding down in Nhia's room. As on the night before, defendant and Gao were on one bed, Nhia was on the other bed on the otherside of the room, and Lee was on the couch. Xyeem was in the front house.

Sometime after everyone went to bed, Lee, who was still

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