United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DENY PETITION FOR WRIT
OF HABEAS CORPUS
K. Oberto, United States Magistrate Judge.
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.
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.) On June 30, 2014, Petitioner was
sentenced to a combined indeterminate term of 132 years to
life plus a determinate term of 7 years in state prison.
(Doc. 20-3 at 80.)
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.)
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.)
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.)
Court adopts the Statement of Facts in the Fifth DCA's
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 in the 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
[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
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
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
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
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
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 some point
(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 other side
of the room, and Lee was on the couch. Xyeem was in the front
Sometime after everyone went to bed, Lee, who was still
texting his girlfriend, heard defendant and Gao moving and
whispering as they tried to have sex. Gao did not want to
have sex while Lee and Nhia were in the room, and she and
defendant started arguing. It was commonplace for them to
argue; Lee estimated they argued about twice a week, and he
basically ignored it. [Fn.8] This night, the argument went on
and on. Lee tried to sleep, but had to use the bathroom and
so he got up around 4:30 to 5:00 a.m. and entered the front
house through the French door in the back. The lights were
off in Nhia's room. Defendant and Gao had been loudly
arguing for an hour or two. At no time that evening had Lee
seen defendant pull a gun on Gao. At the time Lee left the
room, the rifle was between defendant's and Nhia's
[Fn.8] Lee testified at the preliminary hearing that the
relationship between the two was fine, and they argued once
in a while, mostly over money and drugs.
Because he did not feel comfortable listening to Gao and
defendant argue, Lee remained in the bathroom a good 15 to 20
minutes. When he returned, the lights were on in Nhia's
room. Defendant and Gao were still yelling at each other.
Nhia had gotten out of bed and was sitting on a chair. Gao
was sitting on the bed. Defendant was holding the rifle. He
was the only person in the room holding a weapon.
Gao and defendant argued for another five minutes or so, then
defendant fired five shots into the ceiling by Nhia's
bed. He was very angry. Everyone fell silent and looked at
him. He then pointed the AR-15 directly at Gao, who put her
hands up to try to protect her face, and fired three times
without saying anything. The bullets struck Gao in the face,
and she fell on the bed. Defendant then started to swing the
gun at Lee, who was standing in the doorway, and Lee crouched
and ran as gunfire came his way.
Lee ran around the house, then stopped to check if he had
been hit. He realized he had been shot because blood was
coming from his mouth. [Fn.9] He heard defendant say,
“This is what you get, Nhia.” Defendant sounded
angry. Lee heard a couple of gunshots a couple seconds after
defendant spoke, and he took off running again. He ran for
several blocks, because he was scared of defendant chasing
after him and killing him. He called 911 on defendant's
[Fn.9] Lee was struck on the chin and both arms. He
ultimately was hospitalized for two weeks as a result, and
had to have surgery to have his chin reconstructed and his
teeth repaired. Afterward, his jaw was wired shut for six
On the night of July 19 and into the early morning of July
20, Xay, who was a fulltime student and also worked, was
finishing up her homework in her room, which was adjacent to
the walkway separating Nhia's room from the main house.
She was completely sober.
Xay went to bed around 2:00 a.m. on Monday, July 20. She
subsequently was awakened by a few loud pops that seemed to
come from the direction of Nhia's room. She looked at the
clock; it was 5:20 a.m. She heard Nhia say something like,
“Hey, man, ” or “Eh, man.” He seemed
surprised and confused. His voice came from inside his room.
Xay then heard three or four more shots.
Not realizing at the time she was hearing gunshots, Xay ran
toward the French door, which was the only exit directly into
the backyard, to see what was going on. She saw defendant
standing on the walkway a couple of feet from the French door
and four or five feet from the east entrance to Nhia's
room. Defendant was holding a rifle and a handgun. He was
pointing the rifle toward the east door of Nhia's room.
He appeared cautious, as if he was still waiting for someone.
He did not ask Xay for help or to call an ambulance. He told
her, “You guys set these tigers on me, ” and that
there were tigers everywhere. [Fn.10] She thought he meant
actual people that were related to her, i.e., members of the
Yang clan, as opposed to an animal with claws, because Hmongs
usually used “tiger” to refer to someone the
person disliked. “Tiger” was a common insult.
[Fn.11] It could, however, refer to a supernatural being that
was a menacing creature. At some point, defendant told Xay he
was a shaman and was capable of seeing “these
things.” [Fn.12] Other than using the word
“tiger, ” defendant seemed oriented to time and
place. Xay believed defendant to be referring to people.
[Fn.10] Xay also reported defendant said, “You guys set
these monsters on me.” [Fn.11] Xay explained that
animals play a significant role in Hmong culture. Certain
animals, like tigers, carry a negative connotation.
[Fn.12] Xay explained the Hmong people's cultural beliefs
include a deep-rooted belief in the spiritual world. The
Hmong perform rituals on a yearly basis to keep their
spiritual being well. They also have shamans who are capable
of communicating with the dead, and who do what is necessary
to repair the living spiritual being. The spirits choose who
will be a shaman, and while there are quite a few shamans in
the Hmong population in Stanislaus County, it is common for
people to claim to be shamans when they are not. In the Hmong
culture, there is no designated place to go to worship,
although Xay knew of Laos Temple in Ceres. If a person needs
prayer or blessings, he or she goes to a shaman. Likewise, if
a person feels he or she has an evil spirit inside, which is
relatively common, he or she normally visits a shaman.
Defendant also demanded several times that Xay call his
father. Xay truthfully told him the house phone could not
make long-distance calls. She had a cell phone in her hand,
but hid it from defendant because she did not want him to
Defendant had Xay open the French door all the way so he
could see inside. He pointed the handgun directly at her
forehead from an inch or two away and told her to come
outside. He told her “he had killed the two tigers, he
killed them there, ” and he pointed to Nhia's room.
He wanted her to take him home, and said if she did not help
him, she would see what would happen. He pointed her to the
room where the bodies were and forced her to go and look at
Xay went to the door of Nhia's room. Defendant kept the
gun pointed at her the whole time. She looked inside and saw
Nhia on the couch. He appeared to be dead. Defendant said
there was a second body, but Xay did not see anyone else, as
she could not see the whole room from just outside the door.
Defendant asked Xay if she was scared. She told him yes. He
seemed very proud of and boastful about what he had done.
Xay walked back toward the French door, while defendant
backed up toward the fence. He made Xay swear she would help
him. He made her raise her hand and swear upon the next
generations and on the name of her recently deceased father,
so that if she did not help him, she would be cursed.
Defendant said if Xay did not help him, the next thousands of
generations of Yangs would be cursed. [Fn.13]
[Fn.13] Xay explained curses are common in the Hmong culture.
If someone does something wrong or does not live up to an
agreement, the wronged person can put a curse on the
wrongdoer. Swearing oaths and cursing are taken very
Defendant said Xay had to drive him home, because then his
family could help him. She said she could not do that without
her purse and key, which were in her room. Defendant kept
insisting that she take him home. He seemed in a hurry to get
out of there, but refused to exit through the front door or
the back gate. He then told her to address the tiger that had
gotten away. Xay did not see anyone else around.
Xay kept telling defendant that he had to let her get her
purse and key, which were in her room, or there was no way
she could help him. He finally relented, then told her to
open the front door so he could run through the house. Xay
obeyed, then defendant told her to come back toward him and
stay in the middle of the living room. He still had the gun
pointed at her. He then quickly ran through the house and
stopped by the passenger side of Xay's vehicle. Xay made
it appear she was going toward her room, then ran to the
front door and closed and locked it.
During the entire incident, which lasted about five minutes,
Xay never saw anyone but defendant. He never described to her
seeing something that was not really there.
As of July 20, Daniel Garza lived next door to dwelling B.
Early that morning, he heard “a whole bunch” of
gunshots coming from dwelling A. Looking out his front
window, he saw a man holding some kind of rifle and a reddish
blanket exit the front door of dwelling A. The person, whom
Garza pointed out to the police when they arrived, went right
across the street to dwelling B. He appeared to be walking
normally. He stood in the front yard of dwelling B some eight
to 10 minutes, until the police arrived. At one point, Garza
heard him loudly say, “Open the door.” When the
police arrived, Garza heard the person say to them,
“Kill me. Kill me, ” or “Shoot me. Shoot
The police received a call about the shooting at 5:25 a.m.,
from a neighbor who reported hearing four to five shots
fired. In addition, Lee called 911. He reported he had been
shot in the mouth and the arm, and he was hiding in the
backyard of an abandoned house because defendant, whom he
named (by nickname) as the shooter, was coming. Lee reported
there were two other shooting victims still at the house, but
he had run away and was bleeding to death. Lee said defendant
had three guns.
Multiple officers from the Modesto Police Department and
deputies from the Stanislaus County Sheriff's Department
responded to dwelling A. Officer Murphy was the first on
scene, arriving at 5:32 a.m. Upon his arrival, he saw
defendant, who matched the description of the suspect,
standing in front of dwelling B. Defendant
“frantically” told Murphy that his cousins had
tried to kill him. When Murphy asked where they were,
defendant pointed to dwelling A.
Officer Wesley arrived a short time later to find Murphy
giving commands to defendant. Defendant, who was standing in
the front yard of dwelling B, a few feet from the garage, was
wearing nothing but boxer shorts. He was not holding any
weapons. He came out to the officers as ordered and was
placed in handcuffs. He seemed fairly calm, considering the
Defendant was placed in the back of a patrol vehicle. Wesley
sought to identify him, and defendant gave his name and date
of birth. Defendant's answers were responsive to each
question Wesley asked, and he appeared to be oriented to his
current location. However, he told Wesley, “Officer,
they tried to fucking kill me, ” followed immediately
by something about black magic. He appeared nervous and
agitated, although he was cooperative. All told, Wesley spent
about a minute and a half with defendant. Wesley, who had
received training in determining whether someone was under
the influence, did not perform such an evaluation on
defendant, and observed nothing to suggest defendant was
impaired by methamphetamine.
Meanwhile, Officer Kroutil joined the search team that
entered dwelling B based on information the suspect had fled
to that address and possibly headed into the backyard. In
clearing the garage, Kroutil discovered a Colt Sporter rifle,
the civilian version of an M16, partially wrapped in a red
towel under the minivan. The rifle had a 30-round magazine,
meaning the weapon could carry 31 rounds if fully loaded. The
weapon was empty. A red substance that appeared to be blood
was on the barrel and fore end of the gun. A loaded Ruger
revolver, from which two shots had been fired, was found in
vegetation next to the door of the garage.
Kroutil then went back across the street to dwelling A.
Inside the structure behind the house were a deceased male --
Nhia __ and female __ Gao __ both of whom had what appeared
to be bullet holes and gross trauma from being shot at close
range. There were shell casings and a live round on the
floor. There were a lot of bullet holes in the walls, and
some in the ceiling. Multiple baggies of methamphetamine were
found throughout the structure. Also found was a glass pipe
used for smoking methamphetamine. [Fn.14] A blood trail
exited the structure and led to Lee, who was found several
[Fn.14] Two days after the shooting, a gun was found between
the mattresses of one of the beds in the room. It had
after-market grips on it. A search of defendant's home in
Winton turned up a photograph of defendant with a weapon in
his waistband that appeared identical to the one recovered
from the bed. Another photograph seized in the same search
showed defendant with his arm around Gao's neck. In his
hand was a Ruger revolver that was consistent with the Ruger
recovered the morning of the shooting. Defendant appeared to
be pointing the gun at the photographer.
Nhia's autopsy revealed he had nine high-velocity-type
gunshot wounds to the body, two of which entered from the
back. [Fn.15] The range of fire for most of them was
intermediate (meaning, assuming the weapon used was a rifle,
the tip of the barrel was within two to three feet), although
one of them, which was to the head and caused massive
destruction of the skull and brain, was within inches. Nhia
also had three blunt force injuries to the face that had a
circular pattern consistent with a stabbing motion of a
barrel of a rifle. There were signs the same type of injury
occurred to the eye, which was collapsed but without signs of
circular cuts. Two fairly intact projectiles were recovered
during the autopsy. One, which was recovered from one of the
shots to the back, came from the Ruger found in the
vegetation outside the garage of dwelling B.
[Fn.15] An AR-15 or M16, which are similar, would be
considered high-velocity weapons.
The cause of death was multiple gunshot wounds. Most of the
damage was to Nhia's head and upper abdomen, and most of
the wounds were potentially fatal. Although the sequence of
wounds could only be generalized, given the distance, it was
probable the wounds to the torso were received first, then
the one to the head was probably the last shot. Death would
have occurred within seconds of that shot.
Gao's autopsy revealed five high-velocity-type gunshot
wounds, two of which entered from the back. At least one,
which hit the hand and then caused massive destruction to the
flesh of the face and exited the throat, was a lethal wound.
The cause of death was multiple gunshot wounds. Death could
have occurred in minutes to an hour or slightly more.
Blood was drawn during each autopsy. Nhia's blood
contained methamphetamine in a concentration of 1, 180
nanograms per milliliter. Gao's blood contained
methamphetamine in a concentration of 2, 660 nanograms per
milliliter. Dr. Carpenter, who performed the autopsies,
explained that postmortem blood levels are “notorious
for being inaccurate as to what the level was just prior to
death, ” because the levels obtained from toxicology
tests vary depending on the location from which the blood was
Blood was drawn from defendant at 10:27 a.m., approximately
five hours after the shooting. [Fn.16] It contained
methamphetamine in a concentration of 150 nanograms per
milliliter. Daniel Coleman, a criminalist supervisor with the
Department of Justice toxicology laboratory who analyzed
defendant's blood, explained that if a person takes a
drug over a long period of time, his or her tolerance
increases and it takes more of the drug to produce the same
effect. Coleman had run thousands of blood tests to quantify
the presence of methamphetamine. The highest level he had
seen in someone still alive was around 2, 000 nanograms per
milliliter. The typical range for a person who would be
considered under the influence for purposes of a violation of
Health and Safety Code section 11550 would be 300 to 700
nanograms per milliliter, although it could be lower or
higher for some individuals. A concentration of 10 to 50
nanograms per milliliter would be the therapeutic level,
meaning the level at which the drug would be prescribed; 600
to 5, 000 nanograms per milliliter would be the toxic level,
meaning there would be negative effects; and a concentration
of greater than 10, 000 nanograms per milliliter would be
[Fn.16] Detective House of the Modesto Police Department was
the lead investigator for this case. He transported defendant
to the hospital to have blood drawn. Although House did not
specifically evaluate defendant for being under the influence
of a controlled substance, he believed, based on his training
and experience, defendant might be under the influence;
hence, the blood draw.
Coleman explained the concentration in defendant's blood
would have been as of the time the blood was drawn. Although
a number of variables affected how quickly drugs were
eliminated from a person's body, the half-life of
methamphetamine - the amount of time it took to reduce
concentration by half - typically was six to 15 hours. There
was, in essence, a “drug curve” entailing
absorption, distribution, metabolism, and elimination of the
drug, that represented the drug's concentration. Without
information concerning where the person was in the process,
concentration could not be extrapolated back in time to a
point before the blood was drawn. If, however, a person
consumed methamphetamine before being taken into custody, he
or she was taken into custody no later than 5:33 a.m., his or
her blood was drawn at 10:27 a.m., and the person's
concentration was 150 nanograms per milliliter, Coleman would
expect that person's concentration to be higher at 5:33
a.m. than at 10:27 a.m. How much higher would depend on a
number of variables. In Coleman's opinion, it would
likely be less than 300 nanograms per milliliter at 5:30 a.m.
Although the person's concentration could have been 2,
000 nanograms per milliliter or even higher at some point, it
would have been earlier than 5:30 a.m. The higher the peak
concentration, the longer it would take to get down.
Carpenter placed Gao's and Nhia's methamphetamine
concentrations in the toxic range, which potentially could
start as low as 200 nanograms per milliliter. When people
have methamphetamine levels in the toxic range, they can have
“disturbing” side effects. These can include
insomnia, excessive nervousness, loss of appetite, inability
to control anger, and anything associated with
hyperstimulation. The stimulation is called “fight or
flight”; the body becomes very vigilant, and in fact
more vigilant than desired. At extremely high levels,
hallucination can be a side effect of methamphetamine
ingestion. Methamphetamine is not normally a hallucinogenic,
however. [Fn.17] Where methamphetamine is concerned,
tolerance plays a role. If a person is a heavy
methamphetamine user, his or her tolerance will be higher so
it takes more of the substance to cause the same effect.
Someone taking methamphetamine for the first time would be
affected by side effects at a lower level than a continuous
user of the drug. Methamphetamine in a concentration of under
200 nanograms per milliliter would be considered in the
therapeutic range and was probably not a level likely to
cause unwanted side effects. For a hallucinogenic side
effect, the level would likely have to be high in the toxic
range, although this would depend on the individual.
Carpenter explained an individual's behavior cannot be
predicted simply from his or her blood level because his or
her tolerance is not known. He would not expect someone who
used methamphetamine daily and whose level was 150 nanograms
per milliliter to have side effects.
[Fn.17] Carpenter explained that “hallucinogenic”
means the person develops loss of orientation to person,
place, time, and situation; and may suffer delusions and
visual and/or auditory hallucinations. It is a drug-induced
psychosis that can occur on rare occasions in certain
individuals with high levels.
House interviewed defendant beginning shortly after 1:00 that
afternoon. [Fn.18] Defendant was mostly calm, although he
became angry on occasion. He was responsive for the most
part, although sometimes he was evasive. House found him
calculating and able to reason. He appeared to be oriented to
time, place, and situation. Early in the interview, he
expressed knowledge Gao had been shot. Over the course of the
interview, defendant claimed he was angry about it, but did
not appear to be emotionally upset, even though he said Gao
was “the love of his life” and Nhia was his best
friend. [Fn.19] He also said he considered Lee to be a
[Fn.18] Portions of the video recording of the interview were
played for the jury.
[Fn.19] House knew Xyeem had told another detective that on
the night before the homicides, Xyeem overheard defendant
asking Gao ...