Victor Trillo v. Martin Biter , 754 F.3d 1085 ( 2014 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    VICTOR BERNARD TRILLO,                   No. 11-15463
    Petitioner-Appellant,
    D.C. No.
    v.                      2:06-cv-01287-J
    KS
    MARTIN BITER, Acting Warden;
    ATTORNEY GENERAL FOR THE STATE
    OF CALIFORNIA,                             OPINION
    Respondents-Appellees.
    Appeal from the United States District Court
    for the Eastern District of California
    James K. Singleton, Senior District Judge, Presiding
    Argued and Submitted
    March 13, 2014—San Francisco, California
    Filed June 16, 2014
    Before: J. Clifford Wallace, M. Margaret McKeown,
    and Ronald M. Gould, Circuit Judges.
    Opinion by Judge Wallace
    2                         TRILLO V. BITER
    SUMMARY*
    Habeas Corpus
    The panel affirmed the district court’s denial of a 
    28 U.S.C. § 2254
     habeas corpus petition challenging a second-
    degree murder conviction.
    The panel held that an improper comment by the
    prosecutor did not materially affect the fairness of the
    proceedings because the trial court sustained the defendant’s
    objection, and the trial court instructed the jury that
    statements made by the attorneys during trial are not
    evidence.
    The panel held that there was a sufficient basis for the
    prosecutor’s statements about witness inconsistencies and
    his implication that the witnesses had coordinated their
    testimony.
    The panel held that the prosecutor’s statements describing
    “reasonable doubt” as “something that makes you
    comfortable with your decision today,” and suggesting that
    jurors would “be very uncomfortable” explaining to
    neighbors if “we walked him,” were improper. The panel
    concluded, however, that the defendant was not deprived of
    a fair trial because there is no reasonable probability that the
    jury would have reached a different verdict without the
    prosecutorial misstatements.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    TRILLO V. BITER                        3
    The panel held that the defendant’s counsel was not
    constitutionally ineffective for failing to object to
    prosecutorial statements that the defendant had removed his
    shirt, and that counsel’s failure to object to the prosecutor’s
    statements about gang connections did not prejudice the
    defense.
    The panel held that the exclusion of an uncorroborated
    witness statement that might have supported his self-defense
    theory did not violate due process.
    COUNSEL
    Steven C. Sanders (argued), Sanders & Associates, West
    Sacramento, California, for Petitioner-Appellant.
    R. Todd Marshall (argued), Deputy Attorney General,
    Kamala D. Harris, Attorney General of California, Michael
    P. Farrell, Senior Assistant Attorney General, and Catherine
    Chatman, Supervising Deputy Attorney General, Sacramento,
    California, for Respondents-Appellees.
    OPINION
    WALLACE, Circuit Judge:
    After Victor Trillo was convicted of second-degree
    murder by a trial court of the State of California, his
    conviction affirmed by the California Court of Appeal, and
    his state collateral remedies exhausted, he filed this habeas
    petition pursuant to 
    28 U.S.C. § 2254
    . The district court
    denied the petition. Trillo appealed. We granted a certificate
    4                      TRILLO V. BITER
    of appealability on three issues: “(1) whether the prosecutor
    [in Trillo’s trial] committed prejudicial misconduct during
    closing argument; (2) whether trial counsel was
    constitutionally ineffective for failing to object to additional
    closing remarks made by the prosecutor; (3) whether the trial
    court violated petitioner’s Sixth Amendment right to present
    a meaningful defense by excluding testimony regarding a
    statement made by a witness to the victim which might have
    corroborated petitioner’s theory of defense.” We have
    jurisdiction over this timely filed appeal under 
    28 U.S.C. §§ 2253
    , 2254, and 1291. We affirm.
    I.
    Trillo was at a party with several friends. Two individuals
    at the party got into a fist fight. Confusion and yelling
    followed. Several men took off their shirts and began
    fighting. Trillo had a gun, and fired at another partygoer,
    killing him. Trillo was later arrested after fleeing the scene
    and the state.
    Trillo’s theory in his state court trial for second-degree
    murder was that he had acted in self-defense. According to
    Trillo, during the fight he was hit in the back, and then saw
    someone approach him with a knife. At trial, Trillo’s attorney
    attempted to have admitted witness testimony that a man had
    approached the victim after the shooting asking “Was it worth
    it?” In a hearing held outside of the jury’s presence, the trial
    court refused to allow this testimony, because there was an
    insufficient foundation to admit the statement.
    Trillo’s attorney objected to three statements made by the
    prosecutor during his closing argument. First, the prosecutor
    stated that the “[f]irst story was a lame one, first story was I
    TRILLO V. BITER                        5
    wasn’t the shooter” — implying that Trillo had changed his
    theory of the case from innocence to self-defense. After
    Trillo’s attorney objected to this statement, the court
    admonished the jury that “I don’t believe there was” evidence
    supporting the prosecutor’s argument. A few moments later,
    the prosecutor suggested that friends of Trillo’s who had
    testified on his behalf had changed the stories they provided
    to investigators after coordinating with each other. Defense
    counsel again objected, which led to a hearing out of the
    jury’s presence. The judge ultimately denied Trillo’s motion
    for a mistrial or curative statement to the jury. Finally, the
    prosecutor suggested what would happen to members of the
    jury if they “walked” Trillo after they “got the instructions
    about reasonable doubt.” The prosecutor stated that if jurors
    informed a neighbor about the acquittal, “[y]our neighbor’s
    going to be, you did what? And you’re going to be very
    uncomfortable.” Defense counsel objected. The trial court
    told the prosecutor to continue but to “relate to the evidence.”
    The prosecution also made other statements in its closing
    argument to which Trillo’s attorney did not object, including
    statements that Trillo had removed his shirt at the beginning
    of the fight, and that Trillo belonged to a gang and had a
    criminal history.
    The jury convicted Trillo of murder. The judge denied his
    motion for a new trial. He appealed the conviction to the
    California Court of Appeal, which affirmed. People v. Trillo,
    
    2004 WL 2943242
     (Cal. Ct. App. Dec. 1, 2004). The
    California Supreme Court denied his petition for review.
    Trillo filed a timely state habeas petition and a timely federal
    habeas petition. His federal petition was stayed to allow him
    to exhaust his state court remedies. The County Superior
    6                      TRILLO V. BITER
    Court, the California Court of Appeal, and the California
    Supreme Court denied his state petition.
    After the denial by the California Supreme Court, he
    renewed his federal petition. The district court denied the
    petition. Trillo timely appealed from that judgment.
    II.
    We review the district court’s judgment denying habeas
    relief de novo, and its findings of fact for clear error. Hein v.
    Sullivan, 
    601 F.3d 897
    , 905 (9th Cir. 2010). Under the
    Antiterrorism and Effective Death Penalty Act of 1996, we
    only grant a federal habeas petition for claims adjudicated on
    the merits by the state courts, if the state court adjudication
    “(1) resulted in a decision that was contrary to, or involved an
    unreasonable application of, clearly established Federal law,
    as determined by the Supreme Court of the United States; or
    (2) resulted in a decision that was based on an unreasonable
    determination of the facts in light of the evidence presented
    in the State court proceeding.” Harrington v. Richter, 
    131 S. Ct. 770
    , 783–84 (2011), quoting 
    28 U.S.C. § 2254
    (d).
    It appears that there was some confusion regarding the
    issues in the certificate of appealability we granted. The first
    issue is “whether the prosecutor [in Trillo’s trial] committed
    prejudicial misconduct during closing argument.” The second
    issue is “whether trial counsel was constitutionally ineffective
    for failing to object to additional closing remarks made by the
    prosecutor.” Thus, the first issue on appeal is whether the
    prosecutor committed prejudicial misconduct during closing
    argument in the comments to which Trillo’s trial counsel
    objected. The second issue on appeal is whether Trillo
    suffered from ineffective assistance of counsel for the failure
    TRILLO V. BITER                         7
    of his trial counsel to object to other prosecutorial comments.
    The distinction is important because the issues are governed
    by different standards. The first is governed by the deferential
    habeas standard from 
    28 U.S.C. § 2254
    (d). The second is
    governed by the “doubly” deferential standard, under which
    we defer both to the state courts’ determination that trial
    counsel did not act ineffectively and then also defer to the
    trial counsel’s representation as reasonable, so as not to
    “second-guess” trial counsel who “observed the relevant
    proceedings, knew of materials outside the record, and
    interacted with the client, with opposing counsel, and with the
    judge.” Harrington, 
    131 S. Ct. at 788
    .
    In his opening brief filed in this court, Trillo’s argument
    regarding the first issue for our review included both
    prosecutorial statements to which his trial counsel had
    objected and prosecutorial statements to which his counsel
    did not object. In his reply brief, though, he clarified that the
    first issue for our review pertains solely to statements made
    by the prosecutor to which Trillo’s trial counsel objected.
    That is the correct interpretation of our certificate of
    appealability.
    III.
    Trillo’s counsel objected to three prosecutorial comments
    during arguments. We now consider them.
    A.
    The prosecutor first argued to the jury that Trillo had
    initially told the police that he was not the shooter, and that
    “story was a lame one.” There was no evidence to support the
    State’s implication that Trillo had switched his story. That
    8                      TRILLO V. BITER
    comment was improper, as the California Court of Appeal
    later recognized on direct appeal. The state trial court
    sustained Trillo’s counsel’s objection to that statement, and
    told the jury and prosecutor “I don’t believe there was [any
    evidence of the government’s implication], why don’t you
    continue.”
    The prosecutor’s comment did not materially affect the
    fairness of the proceedings because the trial court sustained
    the defendant’s objection, and the trial court instructed the
    jury that “[s]tatements made by the attorneys during trial are
    not evidence.” We presume that juries listen to and follow
    curative instructions from judges. See Fields v. Brown,
    
    503 F.3d 755
    , 782 (9th Cir. 2007).
    The prosecutor then argued that the testimony of Trillo’s
    witnesses was inconsistent with prior statements they had
    made, implying that they had contacted each other and had
    coordinated their testimony to protect Trillo. Defense counsel
    again objected, which led to a hearing outside the presence of
    the jury. Ultimately, the trial court rejected Trillo’s argument
    that the prosecutor’s statements about witness inconsistencies
    and implication that the witnesses had coordinated their
    testimony were improper, and refused to instruct the jury
    separately on the issue.
    The comments were indeed appropriate, as the California
    Court of Appeal later recognized on direct review. Some of
    the witnesses who had testified on Trillo’s behalf had made
    inconsistent statements, and admitted as much under cross-
    examination. One witness did suggest that a defense
    investigator hinted that she should change her testimony to
    support Trillo’s self-defense theory. Because there was a
    sufficient basis for the prosecutor’s statements, he did not
    TRILLO V. BITER                        9
    commit misconduct by pointing out the inconsistencies in
    witness testimony, especially when the witnesses themselves
    admitted their statements were inconsistent. Sassounian v.
    Roe, 
    230 F.3d 1097
    , 1106 (9th Cir. 2000). This was not, as
    Trillo argues, the same “exact line” of argument as the prior
    government statement. The prosecutor was not arguing that
    Trillo had changed his story, but rather that the witnesses who
    supported Trillo’s story had been inconsistent. That was an
    acceptable argument based on the testimony.
    Thus far, the only erroneous statement made by the
    prosecutor was rectified by the sustaining of the objection.
    B.
    At the very end of argument, the prosecutor described
    “reasonable doubt” as “something that makes you
    comfortable with your decision today,” so that each member
    of the jury could “go explain to it to your neighbor next day,
    conversation, explain the decision.” The prosecutor used this
    theme to revisit the facts of the case in full. The prosecutor
    then suggested that each of the members of the jury would
    explain to his or her neighbor “gosh, we got the instructions
    about reasonable doubt, and we walked him. Your neighbor’s
    going to be, you did what? And you’re going to be very
    uncomfortable.” Trillo’s counsel immediately objected that
    this statement was improper. Although the judge “noted” the
    objection, the trial court allowed the prosecutor to finish his
    argument, told him to “relate to the evidence,” and did not
    specifically rule on the objection or admonish the prosecutor.
    The prosecutor then asserted that he meant to suggest that the
    members of the jury would “be uncomfortable is because not
    reasonable for you of the evidence and couldn’t explain it
    [sic] and make it reasonable if you tried.” On direct appeal,
    10                     TRILLO V. BITER
    the California Court of Appeal interpreted the prosecutor’s
    statement to mean that the jurors “should convict because it
    was not reasonable under the evidence to acquit.” Construing
    the statement in this light, the California Court of Appeal held
    that it was acceptable prosecutorial commentary.
    But we disagree with the California Court of Appeal.
    “[T]he touchstone of due process analysis in cases of alleged
    prosecutorial misconduct is the fairness of the trial, not the
    culpability of the prosecutor.” Smith v. Phillips, 
    455 U.S. 209
    ,
    219 (1982). We must determine whether the statement to
    which Trillo’s attorney objected was improper, regardless of
    the prosecutor’s intended meaning.
    In a criminal trial, the government cannot pressure the
    jury to convict the defendant. United States v. Young,
    
    470 U.S. 1
    , 6–10 (1985). As we have recognized, “[a]
    prosecutor may not urge jurors to convict a criminal
    defendant in order to protect community values, preserve
    civil order, or deter future lawbreaking.” United States v.
    Weatherspoon, 
    410 F.3d 1142
    , 1149 (9th Cir. 2005) (citations
    omitted).
    The well-reasoned decisions of our sister circuits make
    clear that prosecutors cannot imply that jurors should convict
    a defendant because failure to do so would endanger their
    neighbors. See, e.g., United States v. Johnson, 
    231 F.3d 43
    ,
    47 (D.C. Cir. 2000) (holding that “the prosecutor’s argument
    in this case improperly suggested that the jury should convict
    the defendant in order to protect others from drugs”);
    Gonzalez v. Sullivan, 
    934 F.2d 419
    , 424 (2d Cir. 1991)
    (holding that a prosecutor’s “reference to the community’s
    cry for safer streets” was inappropriate).
    TRILLO V. BITER                       11
    We agree with the principle established by these cases. A
    prosecutor may not suggest that jurors should vote to convict
    a defendant lest that defendant endanger their neighborhood.
    Of course, jurors should not vote to convict simply because
    they might be uncomfortable with the result. Thus, we
    conclude that the final statement made by the prosecutor was
    improper.
    C.
    But we do not grant habeas petitions solely because a
    prosecutor erred. Our aim is not to punish society for the
    misdeeds of the prosecutor; rather, our goal is to ensure that
    the petitioner received a fair trial. Smith, 
    455 U.S. at 219
    . We
    grant habeas relief for prosecutorial misconduct only when
    the misconduct prejudiced the petitioner. Hein, 
    601 F.3d at 914
    . We determine whether the petitioner suffered prejudice
    by placing the improper comments in the context of the entire
    trial. To do that, we look to the weight of the evidence
    submitted against Trillo, the prominence of the erroneous
    comments in the entire trial, whether the prosecution
    misstated the evidence, whether the judge instructed the jury
    to disregard the comments, whether the comment was invited
    by defense counsel in summation, and whether defense
    counsel had an adequate opportunity to rebut the comments.
    
    Id.
     In examining those suggested areas of concern, we
    evaluate whether there was a “reasonable probability” that the
    jury would have reached a different result without the
    offending comments. 
    Id.
     at 914–15.
    Although the judge did not sustain the objection from
    Trillo’s lawyer to the comment about reactions from the
    jury’s neighbors, there was powerful and overwhelming
    evidence of Trillo’s guilt. Trillo admitted that he had killed
    12                    TRILLO V. BITER
    the victim, but argued at trial that he had acted in self-
    defense. However, no witness besides Trillo testified that the
    victim had a weapon, and emergency personnel did not see
    any knife near the victim. Moreover, Trillo’s testimony about
    the injury he allegedly suffered was inconsistent. He testified
    that he was hit in the back by what felt like a punch, but when
    he turned the only person behind him was the victim, who
    was still a few feet away. Following the shooting, Trillo fled
    the scene of the crime and then left California entirely. Not
    only did the government submit sufficient evidence that
    Trillo had not acted in self-defense, the government further
    undermined whatever evidence Trillo submitted that he had
    acted in self-defense. For example, the government showed
    that witnesses who supported Trillo had given the police false
    information, had attempted to contact Trillo, and had
    withheld information from the police.
    The other issues that we consider, following Hein, also
    show that any prejudice Trillo may have suffered was not
    enough for us to grant him relief. The erroneous unrectified
    comment did not play a prominent role in Trillo’s trial, but
    instead was a single statement during a closing argument that
    took twenty pages of transcript after a long criminal trial.
    Accord Hein, 
    601 F.3d at 916
     (“the comments were made in
    the course of several days of summation after a two-month
    trial . . . [and the inappropriate comment] appeared in one
    paragraph of a summation that took up eighty-four pages of
    the transcript”). While the judge failed to sustain Trillo’s
    lawyer’s objection to the comment about the jurors’
    neighbors, he did generally instruct the jury after arguments
    that “[s]tatements made by the attorneys during the trial are
    not evidence.” That general instruction further mitigated any
    prejudice Trillo may have suffered. 
    Id. at 916
     (“[t]he trial
    court . . . gave timely cautionary instructions to the jury,
    TRILLO V. BITER                        13
    including general instructions about the hortative nature of
    summation”).
    Therefore, Trillo was not deprived of a fair trial because
    there is no reasonable probability that the jury would have
    reached a different verdict without the prosecutorial
    misstatements.
    IV.
    The next issue we certified for appeal was whether trial
    counsel was constitutionally ineffective for failing to object
    to additional remarks made in the prosecutor’s argument.
    Trillo argues that the prosecutor made improper statements to
    which his trial counsel did not object. Those include
    references to Trillo removing his shirt, which Trillo argues
    implied to the jury that he had instigated the initial fight, and
    references to Trillo’s gang connections and criminal history.
    Trillo’s counsel was not constitutionally ineffective for
    failing to object to the prosecutorial statements that Trillo had
    removed his shirt. Those statements were based on reasonable
    inferences from the record. Gray, 876 F.2d at 1417
    (“prosecutors are free to argue reasonable inferences from the
    evidence”). Testimony established that Trillo’s friends who
    were standing with him had removed their shirts, and a
    witness described Trillo’s neck tattoo, which together
    reasonably implied that he had removed his shirt. Indeed, on
    appeal, Trillo now admits that there was a witness who
    “remotely insinuated that [Trillo] removed his shirt.”
    Trillo’s attorney’s failure to object to the government
    statements about gang connections did not prejudice Trillo’s
    defense. As mentioned above, there was powerful evidence
    14                     TRILLO V. BITER
    that Trillo had not acted in self-defense, and the trial court
    reminded jurors that statements made by the attorneys are not
    evidence. Thus, Trillo’s attorney’s failure to object did not
    “undermine confidence in the outcome of the trial,” so we
    refuse to grant habeas relief for ineffective assistance of
    counsel. Cheney v. Washington, 
    614 F.3d 987
    , 997 (9th Cir.
    2010) (citations omitted).
    V.
    The last issue for our review is “whether the trial court
    violated petitioner’s Sixth Amendment right to present a
    meaningful defense by excluding testimony regarding a
    statement made by a witness to the victim which might have
    corroborated petitioner’s theory of defense.” At his trial,
    Trillo sought to introduce the testimony of a witness who
    stated that he saw another man approach the victim
    immediately after the shooting and said “Was it worth it?”
    According to Trillo, this testimony supported his self-defense
    theory, because the unidentified man was rhetorically asking
    the victim why he chose to advance toward Trillo while
    armed. The trial court refused to admit this hearsay evidence
    under California Evidence Code section 1240, which allows
    the admission of spontaneous statements that “(a) [p]urport[]
    to narrate, describe, or explain an act, condition, or event
    perceived by the declarant; and (b) [were] made
    spontaneously while the declarant was under the stress of
    excitement caused by such perception.” 
    Cal. Evid. Code § 1240
     (West 2014). According to the California Court of
    Appeal, which affirmed the exclusion of the witness’
    testimony, the statement was ambiguous, so the trial court did
    not abuse its discretion in excluding it. In this appeal, Trillo
    argues that the decision to exclude the evidence was
    erroneous, and the exclusion prejudiced him.
    TRILLO V. BITER                         15
    We do not review whether the decision to exclude the
    evidence was consistent with state law. Bradshaw v. Richey,
    
    546 U.S. 74
    , 76 (2005) (per curiam) (explaining that “a state
    court’s interpretation of state law . . . binds a federal court
    sitting in habeas corpus”). Instead, we only determine
    whether the state evidentiary rule violates the federal
    Constitution. Estelle v. McGuire, 
    502 U.S. 62
    , 72 (1991)
    (“our habeas powers [do not] allow us to reverse [a]
    conviction based on a belief that the trial judge incorrectly
    interpreted the California Evidence Code . . . The only
    question for us is whether the ailing instruction by itself so
    infected the entire trial that the resulting conviction violates
    due process”) (internal quotation marks omitted)). The
    application of state evidentiary rules must be consistent with
    the right to due process protected by the Fourteenth
    Amendment, but “do not violate a defendant’s constitutional
    rights unless they infringe upon a weighty interest of the
    accused and are arbitrary or disproportionate to the purposes
    they are designed to serve.” Moses v. Payne, 
    555 F.3d 742
    ,
    757 (9th Cir. 2008) (alterations and citations omitted). A
    decision by a trial court to exclude evidence only violates the
    Constitution if the evidence is “sufficiently reliable and
    crucial to the defense.” United States v. Hayat, 
    710 F.3d 875
    ,
    898 (9th Cir. 2013) (citation omitted). If the evidence does
    not bear “persuasive assurances of trustworthiness,” the trial
    court’s decision to exclude the evidence could not violate due
    process. 
    Id. at 899
     (citation omitted).
    The exclusion of the witness statement here did not
    violate due process. There was no evidentiary corroboration
    at all for the witness statement in Trillo’s trial. The trial court
    excluded the testimony of a single person who would have
    testified that another man had asked the victim “Was it worth
    it?” No other witnesses saw or testified to this alleged
    16                    TRILLO V. BITER
    statement. Indeed, as the California Court of Appeal pointed
    out, it was not at all clear what “Was it worth it?” meant.
    Without any corroboration, the trial court’s decision to
    exclude the testimony could not violate the Constitution. 
    Id.
    at 898–99.
    AFFIRMED.