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Yem v. Foulk

United States District Court, E.D. California

May 5, 2014

THEARA YEM, Petitioner,
FRED FOULK, Acting Warden, High Desert State Prison, Respondent.


JAMES K. SINGLETON, Jr., Senior District Judge.

Theara Yem, a state prisoner represented by counsel, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Yem is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at High Desert State Prison. Respondent has answered, and Yem has replied.


On October 5, 2009, a jury convicted Yem of the second degree murder of Kevin Nhep and also found true the special allegations that Yem personally and intentionally discharged a firearm causing death and that the murder promoted conduct by criminal street gang members. The jury also found Yem guilty of shooting at an occupied motor vehicle for the benefit of a criminal street gang and active participation in a criminal street gang.

With respect to the second degree murder conviction, the trial court sentenced Yem to an imprisonment term of 15 years to life plus 25 years to life on the firearm enhancement and 10 years to life on the gang enhancement. The trial court sentenced Yem to a consecutive imprisonment term of 15 years to life on the shooting at an occupied motor vehicle conviction plus 25 years on the firearm enhancement attached to that conviction. The court also sentenced Yem to a concurrent term of 2 years on the active participation in a criminal street gang conviction for a total imprisonment term of 90 years to life.

On direct appeal, the California Court of Appeal recounted the following facts underlying Yem's conviction:

Most of the percipient witnesses to the shooting lied to the police during the initial investigation and were affiliated with different gangs, whether they were validated members or not. They all, including [Yem], told the jury the same basic chronology of events, the details and various discrepancies of which are irrelevant to the issues before us. Because [Yem] admitted at trial that he shot Nhep and kept on shooting until his gun was empty, we begin with a synopsis of his testimony. The only issue before the jurors was whether they believed he had acted in self-defense.
[Yem] testified he spent several nights a week with Chantha Bun, a leader of the Tiny Raskal Gang (TRG), because Bun lived closer to where [Yem] worked. Although his social life revolved around TRG and he was photographed with gang members giving gang signs, he told the jury he was not a member of a gang and the signs were neighborhood signs, not gang signs. The events on the night of August 17, 2006, would suggest otherwise, even according to [Yem's] own telling of the story.
On that summer night, he was hanging out with Bun and other TRG members at Bun's house. [Yem], as was his custom, was armed with a nine-millimeter gun. Although it is unclear if he had it with him in the car, [Yem] had borrowed an Uzi. Bun and his girlfriend left to buy beer, cigarettes, and snacks at the Discount Liquor Store located two blocks from Bun's house. They returned, however, without the cigarettes. [Yem] and Bun went back to the liquor store in [Yem's] black Honda to get the cigarettes. Only [Yem] went inside.
Near the counter, [Yem] encountered David Suon, a former member of the Oak Town Crips from Oakland. Suon asked, "What's up, cuz?" and [Yem] responded, "What's up?" [Yem] did not feel threatened and he bought his cigarettes without incident.
But when he left the store, he saw Nhep standing by the side of a red Honda with several other Cambodians inside the car. Nhep had his hands inside his pants and was staring at him. He asked Nhep, "Do you have a problem?" and Nhep repeated the inquiry, "Do you have a problem?" [Yem] lifted up his shirt to show Nhep his gun, hoping that Nhep would back off. He was scared and thought Nhep would shoot him. [Yem] pulled out his gun and "just shot." He kept on shooting until the magazine was empty, but he testified he did not intend to hit any of the people in the car.
Bun drove up in [Yem's] car and they fled the scene. [Yem] threw away the gun and hid his car. He showered to remove the gunshot residue and drank beer with TRG members. The next day he went to work, collected his wages, tried to borrow money from a coworker, and returned to Antioch, where he lived with family members. When later apprehended, he lied to the police. Although he told the police initially he was not the shooter, he testified the group of people did not display a gun and he admitted he was the shooter.
Nhep's five friends gave similar accounts of the events leading up to the shooting, with minor discrepancies. They all agreed that no one in their group had thrown any gang signs, no one was armed, and no one verbally challenged [Yem]. They denied "mean mugging" him, that is, staring at him in a threatening or menacing manner. According to a few in the group, Nhep was holding a cell phone. After they saw [Yem's] gun, they unsuccessfully encouraged Nhep to get back into the car. One of them yelled to [Yem], "Hey, we got no problem." They saw [Yem] shoot Nhep. One of the girls was shot in the buttocks, another in the leg.
A gang expert testified to the sociology and psychology of gang members, particularly the Asian gangs operating in Stockton. He familiarized the jury with the leadership structure, customs and practices, and members identified with TRG, including the fact that because they claim "EBK" (everybody killer), they do not claim Blood or Crip gangs and will shoot anybody. The expert opined that [Yem] was an active member and committed the instant offenses for the benefit of the gang. He described the two predicate offenses committed by TRG members to satisfy the elements of the gang enhancements. [Yem] does not challenge the expert's testimony on appeal.

Through counsel, Yem appealed his conviction to the Court of Appeal, arguing that: 1) the trial court erred in admitting as a prior inconsistent statement the police statement of a witness who testified at trial; 2) the trial court erred in precluding defense counsel from cross-examining a prosecution witness about her prior juvenile adjudication for robbery; 3) the evidence was insufficient to sustain the jury's verdicts on the second degree murder and shooting at an occupied vehicle charges; 4) the trial court erred under Batson v. Kentucky, 476 U.S. 79 (1986), when it failed to find a prima facie case of discrimination after the prosecution peremptorily challenged an African American juror; and 5) the trial court erred when it sentenced Yem to a consecutive 10-year term on the gang enhancement to the murder conviction. Appellant's Opening Brief at i-iii. In a reasoned opinion, the appellate court struck the 10-year term imposed upon the gang enhancement but otherwise affirmed the judgment in its entirety. Yem, again proceeding through counsel, then raised the unsuccessful claims to the California Supreme Court in his application seeking leave to appeal. The supreme court denied the application without comment on August 15, 2012.

Yem timely filed a Petition for a Writ of Habeas Corpus to this Court on May 14, 2013.


In his counseled Petition, Yem asserts the four claims he unsuccessfully raised on direct appeal. First, he argues that his convictions for second degree murder and shooting at an occupied motor vehicle are unsupported by legally sufficient evidence. He next contends that his Sixth Amendment right to confrontation was violated when the trial court precluded him from cross-examining a prosecution witness with a prior juvenile adjudication for robbery by force or fear. He likewise claims that his rights to due process and a fair trial were violated when the trial court admitted as a prior inconsistent statement the statement to the police of an eyewitness who testified at trial. Finally, Yem argues that the trial court erred in denying his Batson motion.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).

To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).

In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear ...

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