criminal defendant to be convicted as a proxy for gangs or for the dangers of making suppose to society in general the sixth amendment of the constitution entitles defendants to an attorney who will make reasonable efforts to ensure that that does not occur but unfortunately in this case mr salazar did not get the benefit if of either of these protections he was convicted of first degree murder with two special circumstances and sentenced to life without parole as a proxy for gangs and their crimes the way that this happened is apparent from virtually every segment of the trial transcript in this case the prosecutor's tactics run from the opening argument through the closing and they were these the prosecutor lacked any clear evidence in this case what mr salazar actually did with regard to the crime the evidence showed that he was present at the time the murder occurred he destroyed evidence after the fact tried to conceal the crime from others including gang members nor did any evidence show that he had the intent to rob the victim for his car in fact no evidence showed what mr saw the bars actual role in the crime was there's no question that there were in my mind at least definitely issues along the way but where on a review so that makes it tough for you is there one particular error that you think is the most egregious that you want to focus on or is this more of a cumulative error question and then of course that we have to talk about prejudice correct you're right and this is definitely a cumulative error problem i don't think that it's productive to look at any of the prosecutors many many of inflammatory evidence in isolation they all worked together and i think it's it's instructive to look at the errors that the california supreme court actually found to be error in this case because there were at least three failures to object by trial counsel that were found to be deficient performance let's just talk about those first for a second first of all the trial counsel failed to object to extensive testimony about the mexican mafia being at war fare throughout california controlling street gangs from the prisons race based conflicts violence and intimidation by the mexican mafia which thank you don't link to south of our by talking about his ex thirteen tattoo that was found to be deficient performance second there was a deficiency by failure to object to a not just an isolated mention this was sort of a counter narrative as sort of a shadow narrative that has existed alongside the crime in this case and in sort of pervaded the prosecutor its argument suggesting that mr sell the car had somehow had used this done for some used by saw the bar in some other way about which the jury is not hearing he started this in opening argument he made references to the forty one handgun in opening argument and in fact he said without any supporting evidence there was no evidence in the trial that mr seldom are ever held or use that gun for any reason two guns one was a black and a big revolver that's the forty one no evidence ever actually showed that mr some other had that the other was a silver gun the big also of the revolver the murder weapon you're going to hear that the defendant was packing around those guns in the days and weeks prior to mr usa and being executed that was not supported by any evidence but it's formed a framework by which the prosecutor was able to then bring in extensive evidence about this other gun the black forty one that was repeatedly it was in evidence it was sent to the jury many times there was extensive evidence from detective brown about how this gun after the fact it was brought to mr and caesar's house and this was repeated over and over again  just ties into you from the very start of the case there's a forty one that was supposedly possessed by that without evidence extensive evidence about the delivery of this gun to in season and how this was part of the investigation for some unknown reason then he said this is relevant to show what happened in this case and that guns the testimony from brown about the delivery of the forty one to one caesar was basically in the context to show that so the bar is a high ranking gang the kind of gang member who possesses this type of a gun again and uses it to commit violent shootings that was the substance of detective brown's testimony about the delivery but any event yes it says there's evidence you don't know after trial feel free to come up to talk to me or mr mori out the defense attorney and ask us about this information we can tell you after the prejudice question and there was insufficient prejudice deficient performance on certain issues by the defense attorney going to say for example your client was overheard saying we had a one eighty seven someone yesterday walking us through why district court the trial court i'm sorry the district court in the state courts prejudice nelson was incorrect let's talk about that first of all your honor what was said was not that we had to one hundred seven someone it was that something happened and there had to be a one eighty seven so that was what the statement actually was but yes the prejudice was overwhelming and very severe i want to talk first about the purpose for which this was used by the prosecutor it was not used to talk about either of the elements of the step act one hundred six point two two gang unhandsome and those elements are where the defendant an active part discipline in a criminal straight game was it for the benefit of at the direction of or in association with a gang that those those purposes were not those for which this evidence with you to this extent it was used in the prosecutor eleven times in closing argument to argue that the violent o d d he had to have committed the murder or directed i guess my question here is focus on the evidence they're going to go up there and say this evidence the statement of the one eighty seven the shell casings the keys the fact the car was taken to a chop shop all that stuff was overwhelming evidence of guilt no matter what have no matter how bad the attorney was in this case also why are they wrong us to those like you to deal with why those pieces of evidence maybe are not as powerful as they're suggesting they are so but you can fill in the blanks and conclude that because he's a violent ody you can't believe that he was just present that's not believable violent o d s and gang members are the ones who commit crimes and shoot people with get with getting guns that was that was actually the prosecutor's argument that he made and i also want to focus on the california courts prejudice analysis what it said was the evidence that this was a robbery at a murder in commission of a robbery was overwhelming that is actually that is an unreasonable conclusion that's an unreasonable application of strickland to find that the evidence of a robbery felony murder was overwhelming it was not if if the car was simply taken to conceal the murder and get away from the murder that is purely incidental to to the murder so shortly before the murder it was a month of it we made the right a month before the murder he said to the vic he said to mr to heda if the victim does not stop disrespecting c j in front of her young daughter he's going to be attacked this happened was there another incident in which the young woman to sure seemed to want to protect from your science at the same thing happened again right seemed much stop disrespecting her in front of her daughter she's going to be attacked so this is not a clear gang related this idea that the woman who was being disrespected was going property and this was an affront to the game that really isn't consistent with his statement what he was upset about w the disrespect in front of her daughter and also as explained in the briefs there was no evidence that she was a gang member or again girlfriend that would make her gang property but just sort of returning to the question of prejudice i think it's important to look at prejudice as to whether as to the game special circumstance as to the robbery special circumstance as to first degree deliberate and premeditated murder or as a second degree murder intentional murder i think you have to analyze each of those separately i think as to the gang special circumstance there was overwhelming prejudice from the evidence that was introduced that had nothing to do with whether the facts of this case posed again related rethink i want to refer your honour's to the case california case of people versus killebrew which says to excuse this evidence it is still subject to section three fifty two when i was three callout fourth six forty four the court said the trial court apparently interpreted gardley as allowing police officers who testify as experts on gangs to state any opinions they may have about gangs in gang activities not so gardley remains limited by section three fifty two and in fact hardly itself talked about section three fifty two still having a role in limiting expert's testimony even where there is a gang allegation and alber on talks about that to how this evidence that's not related to the facts of the case just about gangs their practices and the balance in general had no legitimate purpose in that case even though in albert on there also was a step back on the prejudice issue how do you deal with the evidence the petitioner in the presence of two others  it was the same make and caliber as that yes there was mr kroll if you testified to that but once again the defendant destroyed evidence the fact that he destroyed evidence after the fact runs counter to again purpose because the only game purpose that was asserted for this is that the game will get notoriety and publicity that will enhance its reputation and status for violence when caught the i me well i mean that's the case then why would gangs ever want to try to threaten witnesses ok well here's i don't know your honor but let's also talk about the fact that mr salvo i saw that i told a fellow gang member not to talk about it  while committing the instant offenses know what no evidence of bragging of or graffiti to take credit for the crimes concealment not just to police but also to fellow gang member and also even to nice mr menees who's a neighborhood resident they go to take the car they don't tell  hey this was used to kill another another gang member they don't tell him that they say no we need to chalk this up as we you know we give an excuse about a girlfriend it was my girlfriend's car we can't make the payments anymore so they're not trying to publicize this to anybody even neighborhood residents they out of out far outside being territory to kill mr usa and he's not a gang rival the one comment stop respecting in front of her little daughter is not really related to any kind of a game purpose so i think the evidence of a game purpose is extremely weak evidence of robbery purpose also extremely weak and incidental taking of the cart purely incidental to robbery people versus green that does not mean that there is a felony murder evidence of premeditation and deliberation once again the evidence weighs quite strongly against that mr and mr south of are allowed himself to be seen leaving with mr yes and the car made a u turn he said something happened there had to be a one eighty seven he didn't say i did that when eighty seven and the next day he seems to morning your honors and may please the court deputy attorney general met at white on behalf of respondent i want to start with i think the sort of overarching theme with this case which is the importance of context and the importance of context with respect to the trial record i'm going to answer your honor's question first which is did the prosecutor say in his closing argument that there were facts the jury was not aware of that comment has been taken out of context and what the prosecutor said at the very beginning he his his closing argument was broken up over two days and at the very beginning of the second day he said you know it we talked about it and why dear there may be loose ends with this case and you know you promised in that you could decide the case on the facts before you even if there are those and or unanswered questions he said i think is opposing counsel reference you know at the end of the trial if you still sort of have those questions about those loose and feel free to come talk to us there may be things that you know the defense attorney and i can tell you are things that used to want to know about the case come talk to us i haven't heard of such as well and i think but again if you look at the paragraph immediately following that what he reference is is what happened to ruben switch what who was the codefendant in this case and there had been tons of testimony about the witnesses and their testimony in a previous trial in ruben's trial all the various was clearly involved in this as well and the prosecutor was can excuse me concerned that they may have lingering questions about what had happened to all the various had he been convicted what happened in his trial that is the context in which the prosecutor made this statement so it's not quite fair to say the prosecutor was inviting the yury to sort of rely on facts not before them because there were things they didn't know that had happened i think this is clear from the prosecutor's comments in that statement he immediately says that the jury has to you've agreed you are going to decide this case on the facts presented before you which is correct and that was his reminder to the jury that whatever your questions are about reuben olivero of what happened in his trial put those aside because you agreed you were going to decide this case on the facts before you that's correct and in context that comment i think has been unfairly represented as the prosecutor's urging the jury to sort of trust him wink wink there are facts you don't know about this case that contribute to south of our skill that's not quite a fair representation of the comment when it's read in context so again the same is true with respect to the forty one caliber gun it's true that the prosecutor said repeatedly that that forty one caliber gun there was no evidence that it was used in the murder there is evidence from witnesses that the defendant was carrying around two weapons in the weeks prior to this crime one of om very clearly and witnesses testified was a silver or chrome revolver they never found the silver or chrome revolver all they found was the forty one caliber gun the victim was shot twice he was shot once to the back of his head that and as the medical examiner explained it was a non fatal who did not penetrate the skull he would have been rendered unconscious and he would have fallen to the ground it was the second shot right to the back of his head that went through his brain that was the fatal shot and it was that shot that's the bullet that they recovered at the scene and that's the bullet that the ballistics expert testified was a three fifty seven magnum bullet that's the one that tied to the shell casing that the defendant threw into the river and a three fifty seven is consistent with what witnesses had described as the silver  forty one was relevant to explain that it was the gun that fired the fatal shot was most likely the silver or chrome three fifty seven weapon that the defendant had been seen with in the weeks immediately preceding crime that was all relevant to show either he was the direct perpetrator and used the gun that he'd been carrying to shoot and kill you sayan or it was relevant to show he was he was aiding and abetting in that he provided his silver or chrome revolver to the person who ultimately fired the fatal shot it's true that we don't know who fired the fatal shot and the prosecutor said that over and over again in his closing argument he had to prove that that either the defendant was liable as a direct perpetrator or the defendant was liable as an aider and abettor and all of this was relevant to show that his involvement in this crime was not merely a passive bystander who happened to you know show up at this scene and what somebody committed a murder that's the he had to prove beyond a reasonable doubt that that's not how this went down the gang evidence similarly has to be understood in that context which is that the gang evidence was relevant to show that in a game context if you were at a scene i mean like this one with the o j or shock collar of a gang the likelihood that he's a passive bystander not participating in a murder very slim and so the gang context was relevant to show that he was an editor and a better or a direct perpetrator i think all of that is well within appropriate use for gang evidence when it is a crime like this one that is a gang crime and and was committed for a gang motivated purpose on top of which i think opposing counsel sort of tries to paint the picture that this was not a gang crime the defendant had obvious visible gang tattoos including one across the back of his head he didn't exactly need to announce at every crime scene that it was a gang that you know the name of his gang or claim it at that at every crime scene because he has it tattooed across the back of his head he committed the crime with two other active participants of his criminal streaking he there was evidence regarding the threat he issued to the victim in the weeks prior to the murder there was evidence regarding you know him being seen in the car hours before it he placed a phone call to a witness on his way to the murder scene within a half mile of the murder scene from the victim's car asking for money so he could get to l a later that that phone call happened necessarily before the murder took place showing from the very beginning they intended to take that car and go to l a and of course they did because what were they going to do take take the victim in his car to a remote location shoot and kill him and then leave the car there i think it's strains credulity to suggest that they did not intend to take this car from the very  beginning i want to talk briefly again that sort of gets back to the purpose for which this evidence was used and the opposing counsel mentioned some of what's been characterized as overly prejudicial giving evidence about sexting in graffiti that kind of thing all of this was admitted to show the nature and circumstances of gangs and how they operate and that is to say that committing crimes in a gang context is often done as a group it's often done sort of supporting one another and aiding and abetting one another that expert testified about the importance of backing up the importance of sort of participating as a team and all of that was highly relevant to show that this was not verelst sort of off on his own committing a crime with which the defendant had no had no involvement that's just simply not how crimes occur in the gang context a d so it was that the gang evidence here i think also in contrast to cases like all ron and cases like some of the others that are cited in the briefing this was not just a crime committed that had an attached gang enhanced men this was a crime committed with a gang motive so that all of the evidence about gangs was relevant to show not just that the gang and handsome and to prove the elements of the gang handsome and it was relevant to prove the motive of the crime the intent of the actors all of the sort of more substantive pieces and i think again once that is understood if you look at the defense attorney's closing argument it becomes very clear what his tactic was he first of all the first thing he said what is the motive the motive is to protect the woman i forget her name sujit toscana yes yes the motive is to protect the scania right that's the motive that the prosecutor gonna what is all the general practices sexing in jumping in and out what would that have to do with the specific motive in this case i think that's where you're posing councils coming from that the over inclusiveness of all of the gang culture evidence posed a risk that the jury would convict just because he's part of this very violent crime with unsavory practices rather than focusing in on the specific motive and whether there was a plan to kill the victim prior to the actual one eighty seven being committed certainly and i'd like to answer the question in two parts the first is what that evidence how it was relevant to motive in the second is to sort of talk a little bit more about the defense attorney's tactic in not objecting to the admission of some of this evidence which again that's the issue before this court is whether the defense attorney was ineffective for failing to object to that the admission of that evidence that the motive and opposing counsel sort of makes much of the fact that toscana was not a girlfriend and so this couldn't have been the motive for the crime because the gang expert testified this only applied to gang girlfriends that's not quite accurate if you read the gang experts testimony what he said was women are considered property within the gang and they will sort of be protective an answer disrespects to gang girlfriends all the way down to you know a girl that a gang member thinks he might be dating but you know isn't dating or she hasn't she's not dating him so it wasn't the notion that games protect or answer disrespect to game girl friends the gang experts testimony was not limited to just exclusively identify girlfriends it was girls that are associated with a gang in lots of different ways so and toscana clearly meant that definition even if she wasn't technically somebody is girlfriend she was definitely associated with the gang and she would have fallen into you know the class of females that they felt they needed to answer a disrespect for the sexting and was relevant to show that again they commit crimes together that women are some of the other women to keep us scion interested and hanging around because he had money and drugs and he had this very nice car the same was true with respect the charge off one of the other witnesses that saw the car was using women to sort of entice them women that they were interested in to keep them kind of coming around and keep making use of whatever it was that whatever particular thing they had to offer the prosecutor talks about that in the closing argument i think the second piece of the question is the diff to the defense attorney's tactic in not objecting to the admission of those pieces of evidence the defense attorney went in knowing that this was a gang case and that he had to convince the jury to look at the evidence objective fleet despite the fact that it was a game case and if you read his closing argument that's exactly what he did he took those pieces of evidence that those women as property and the use of the forty one and they for the opening piece of his closing argument is the prosecutor admitted this evidence to scare you and to frighten you so that you would not do what you promised to do which was to look at the evidence objective and he goes through that i think you very effectively use those things to convince the jury that they needed to despite his defense gives me his client's involvement in a gang which he could not deny despite that they still had to assess the evidence of his aiding and abetting of the murder and he concedes the thing that i think given the strategy of arguing that the spike the fact that this is a gang related disagreement as to tactics and that does not establish ineffective assistance of counsel i think in this case if you read the defense attorney's closing argument you know in total he very effectively sort of communicated to the jury that you know the prosecutor is really doesn't have anything he doesn't have anything to show that south of are was actually participating in the crime and you can tell he has nothing to show that because he has trotted out all of these irrelevant facts in front of you to scare you and frighten you into convicting him without enough disposition that would have served the purpose that you tribute to them yes and i agree that i agree that he should have request he should have requested that limiting instruction that the california court of appeal also concluded he should have requested that instruction that conclusion was reasonable and again  the task here is whether the california courts determination of these issues is unreasonable plainly it's not the that tactic used by the defense attorneys or if the scene throughout his closing argument again context was also something he needed he argued that sound of our was guilty as an accessory because he had destroyed evidence the shell casings and chopping up the car and the defense attorney argued that he needed the gang context to explain why somebody would participate in destroying evidence of a murder after the fact and he argued he did that for all the reasons that the that the gang expert told you which is loyalty his gang you know he sort of needed to participate in that way he can he said sell the bar is an accessory after the fact but he is not an aider and abettor so he not only needed the gang context and needed some of that gang expert testimony but again i think he very effectively used the inflammatory pieces of evidence to his advantage all of this demonstrates that this was part of a bigger tactic and that the california court of appeals decision that you know these did not object on any basis or seeking to limit this extraordinarily extensive plethora of giving evidence it said this evidence is relevant gardley and its inquiry it did not address whether at three fifty two an objection should have been given whether counsel was inefficient for seeking for not seeking to limit it under three fifty two as unduly prejudicial that's the question we have at hand this court in cross versus smith said the fact that they tended may have committed another murder as was the prosecutor tried to say in this three fifty two objection this kind of evidence is so extraordinarily prejudicial there is no reasonable basis for not objecting or at least even trying to keep it under three fifty two i want to talk also about this idea that counsel had a tactical basis for letting in all of this extraordinarily prejudicial evidence as your honor noted counsel's strategy including was to say all this evidence came in and you shouldn't consider it it's too prejudicial if that was his tactic why not lay the framework for that way earlier in the trial by at least lodging some objection requesting limiting instruction in alderaan there was a limiting instruction in the court held that was still too prejudicial to introduce evidence of unrelated gang evidence counsel it seems to have been an afterthought by counsel to kind of come  up in closing argument and say i don't consider any of this evidence that i didn't object to throughout the whole course of the trial because you shouldn't consider it and in fact this idea that counsel needed the evidence to show that mrs shall the bar was an accessory after the fact not an aider and abett that's also completely unreasonable because it was the precise king evidence that the prosecutor used to argue that he was an aider and abettor the primary purpose for which the prosecutor used this king evidence was to say mr saw them or cannot have been merely present he had to have directed the killing aided and a