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Kongkham v. Yates

June 3, 2010

AMPHONE KONGKHAM, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are Petitioner's petition for a writ of habeas corpus (Doc. 1), respondent's answer (Doc. 25), and petitioner's reply (Doc. 29).

I. BACKGROUND

A. Facts*fn1

The California Court of Appeal recited the following facts, and petitioner has not offered any clear and convincing evidence to rebut the presumption that these facts are correct:

On April 21, 2004, 15-year-old Lilly Chanthavong was riding her bicycle with two friends. She noticed a red hatchback automobile with three people in it. She recognized one of the passengers as a person she knew as "Hum." She also recognized the driver, but she did not know his name. The car slowed down and followed Lilly for a few minutes. Then the car made a U-turn and went another way.

Lilly continued riding her bicycle. As she continued down the street, Lilly saw the driver of the vehicle standing near a street corner. Lilly rode past him. The man followed Lilly, grabbed her by her neck, and pulled her off her bicycle. He yanked a gold necklace with a jade Buddha charm off Lilly's neck and ran away.

Shortly thereafter, Officer Mitchell Marquez arrived at the scene. Lilly told him what happened and provided him with a description of her assailant. A month and a half later, Lilly identified defendant in a photographic lineup as the man who had taken her necklace.

Before trial, defendant moved to exclude evidence of his gang membership. The trial court tentatively ruled gang evidence was inadmissible because it was irrelevant, but said the evidence could become relevant to the victim's state of mind, if, for example, she refused to testify out of fear. The court also noted the evidence could become probative of potential witness bias should a witness give inconsistent statements while testifying.

At trial, Lilly cried when asked to identify her assailant and asked to speak with her mother. Out of the jury's presence, the prosecutor argued that, in accordance with the court's previous ruling, gang evidence was now admissible to explain Lilly's fear of identifying defendant in court. The court decided that if Lilly could not or would not identify anyone, the prosecutor could ask her if she believed defendant was a member of a gang.

Lilly then testified she was afraid to identify her assailant and began to cry again. She identified defendant by describing what he was wearing, but she never pointed to him. Later, out of the jury's presence, the court noted Lilly's "extreme reluctance" in identifying defendant and labeled the identification "cryptic" but "sufficient." The court decided Lilly's state of mind was at issue, and allowed the prosecution to introduce evidence showing Lilly was afraid to identify defendant because she believed him to be a member of Laos Pride Gangsters (LPG). The court gave the jury a limiting instruction stating the gang evidence related only to Lilly's state of mind.

Lilly then testified she believed defendant was a member of LPG because his relatives had "LPG" tattooed on their arms, she had seen defendant in the company of LPG members, with whom she was familiar, and had seen defendant wear a shirt with "LPG" inscribed on the pocket.

The prosecution introduced additional gang evidence when 15-year-old Andy Phonesavanh testified. Andy testified he remembered telling a detective he was in the backseat of a red hatchback with defendant and "Hum" on April 21, 2004. Andy remembered telling the detective he saw Lilly on her bicycle and defendant said he planned to take her necklace from her. He remembered telling the detective that defendant left the car and later returned with the necklace. Andy also testified everything he told the detective was a lie and he was home all day on April 21, 2004.

Further, Andy testified he knew defendant and "Hum" were gang members, but Andy denied being a gang member. After the prosecutor asked Andy how long he had been "hanging out with" LPG, defense counsel objected, and the court held a sidebar discussion. The court ruled the prosecutor could ask Andy if he associated with LPG for the limited purpose of proving witness bias. Andy resumed his testimony, and stated he had not associated with LPG "that long." The court again provided the jury with a limiting instruction telling them it could only consider the gang evidence to "show the witness' potential bias and his state of mind." Upon further questioning, Andy admitted he had been associating with LPG for four years.

The court also ruled gang evidence was relevant on the issue of the perpetrator's identity, in addition to the grounds stated before. The court reasoned that, since Lilly was reluctant to identify defendant in court because she believed him to be a gang member, her initial statements to the police on the day of the robbery were relevant to her identification of defendant as the perpetrator. The court maintained, however, that evidence of an unrelated alleged shooting incident in 2003, as well as the fact that defendant was a "validated" gang member, were irrelevant and inadmissible under Evidence Code section 352.

Officer Marquez testified Lilly told him she believed the man who took her necklace was a member of LPG. Marquez said Lilly gave him an address of where she believed LPG "hung out." The court provided a limiting instruction informing the jury that the evidence was only relevant to ...


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