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Yee Xiong v. M. D. Biter

August 20, 2012


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Yee Xiong, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Xiong is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent has answered. Xiong has not replied.


In May 2008 following a jury trial in the Sacramento County Superior Court Xiong was convicted of Murder in the First Degree (Cal. Penal Code § 187(a)), with further findings that Xiong had personally fired a firearm causing death (Cal. Penal Code § 12022.53(d)), that the crime was committed for the benefit of a street gang (Cal. Penal Code § 186.22(b)(1)), that the murder occurred as a result of firing a firearm from a vehicle (Cal. Penal Code § 190.2(a)(21)), and that Xiong had served a prior prison term (Cal. Penal Code § 667.5(b)). The trial court sentenced Xiong to life without the possibility of parole on the murder conviction, plus a consecutive term of twenty-five years to life for the personal use of a firearm enhancement and a one-year consecutive term for the prior prison term enhancement. The trial court also imposed various fines and fees, including, as relevant to the Petition before this Court, a parole revocation fine. The California Court of Appeal struck the parole revocation fine and affirmed the conviction and sentence in all other respects in an unpublished decision,*fn1 and the California Supreme Court denied review on March 18, 2010. Xiong timely filed his Petition for relief in this Court on March 11, 2011.*fn2

The California Court of Appeal summarized the factual basis underlying Xiong's conviction:


On February 17, 2006, Wang Lee brought his chicken to a house party in north Sacramento to participate in chicken fights. There were about 20 Hmong men at the party, including a number of Lee's friends and relatives. [Xiong] was also at the party, and had arrived there in a white Cadillac.

[Xiong] and Lee talked for about five minutes. Lee's brother described the conversation as "angry" and "harsh" and using "strong words." He felt [Xiong's] words were a threat and knew something would happen.

In keeping with the theme of the party, the two men initially discussed chickens. Lee had brought his chicken to the party and [Xiong] challenged him, saying his chicken could kick Lee's chicken's ass, killing it in "one hit." Lee rose to the challenge, telling [Xiong] to "bring it on." [Xiong] said his chicken had recently fought and needed to rest before fighting again.

The conversation then moved to shootings and the parties' respective gang involvement. [Xiong] said he had been shot and "jumped," and that this was not unusual for him. He asked Lee and his companions if they were gang members from the "south area." Lee said they were from the south area, but they were not in a gang. [Xiong] also talked about gang members from the north going to the south "doing shootings" and gang members from the south going to the north "doing shootings." [Xiong] claimed he was not a gang member, but that he was willing to kill people to become a "true gangster." Eventually, the conversation died out.

Because there were no chicken fights to watch at the party, the guests left to go to an alternate chicken fighting location.

[Xiong] left the party with at least three of his friends. They left the party in the white Cadillac which [Xiong] had driven to the party. [Xiong] was in the driver's seat.

Lee also left with his friends, riding in the front passenger seat of Yang Moua's car. [Xiong] followed Lee and his friends, running a red light. He drove slowly by Moua's car, made a U-turn and sped to catch up. As [Xiong's] car pulled alongside Moua's car, the driver's side window of the Cadillac was open and multiple shots were fired into Moua's car. Lee died of a gunshot wound to the head.

Three bullets were recovered from Moua's car and one from Lee's head. Two of the bullets were .45 caliber bullets. There were two bullet holes in the front right passenger area and the front right passenger window was shattered.

The next day, [Xiong] was pulled over in the Cadillac. The car was registered to his sister-in-law, but he made the payments on the car, had open access to it and drove it most often.

Upon being interviewed by the police, [Xiong] denied being at the chicken fighting party or in the Cadillac at all on the night of the murder.

A .45 caliber gun was found at [Xiong's] family home. Ballistics testing confirmed this was not the murder weapon. However, it appears [Xiong] may have thought it was the murder weapon. In a conversation between [Xiong] and his brother, Lue Xiong, Xiong told [Xiong] police had found the gun at the house. [Xiong] then mentioned a ".45" and said it was "Talee's gun." [Xiong] said he "should have woken up mom and dad to hide it under the pillows." [Xiong] also told his brother not to tell the police he was in the Cadillac that night, because if he was placed in the Cadillac, he "would not get out."

The jacket [Xiong] had worn to the chicken fighting party was found in the backseat of the Cadillac. There was gunshot residue on the jacket. There was also gunshot residue on the shirt [Xiong] was wearing, on the Cadillac's steering wheel, both the interior and exterior of the driver's side door and the ceiling above the driver. Residue samples were not taken from the backseat area or the passenger side of the car.

The gunshot residue expert testified gunshot residue can be deposited on a shirt without the wearer necessarily firing a gun. It can be deposited by brushing or leaning against something with residue on it. He speculated either the front passenger or a backseat passenger could have fired the gun and left residue particles on the driver's side of the car.

Hmong Nation Society (HNS) gang paraphernalia was found in [Xiong's] jail cell in March 2007. HNS "claims" north Sacramento. There was a cardboard cutout with the words "Hmong," "Nation," "Society," "Crip," "Northside," and Hmong RBG." [Xiong] had a tattoo on his back which said "Hmoob Laig" which means, "Hmong gangster or thug." He had a picture in his cell phone of gang graffiti. [Xiong's] brother believed he might be a gang member. Tong Vue, a former HNS member, testified that gang members will ask others where they are from to determine their gang affiliations. Vue also believed [Xiong] was a gang member and had seen him previously at a gang function.

Detective Joseph Bailey was qualified as an Asian gang expert. He testified the mentality among gang members is consistent among different ethnic groups. The perception of respect is important to gang members and an appearance of lack of respect can result in confrontations, including shootings. Gang members will claim some area of "turf," such as an area where they live or a portion of the city. To go into a rival gang members' turf is considered disrespectful. The primary activities of the HNS gang are criminal, including drug manufacturing and sales, drive-by shootings and murders. Bailey also testified about other shootings by HNS members which were similar to the shooting in this case. Bailey opined the type of shooting ...

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