FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VICTOR BERNARD TRILLO,

Petitioner-Appellant,

v.

MARTIN BITER, Acting Warden;

ATTORNEY GENERAL FOR THE STATE

OF CALIFORNIA,

Respondents-Appellees.

No. 11-15463

D.C. No.

2:06-cv-01287-J

KS

AMENDED

OPINION

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

Amended October 6, 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 filed an amended opinion affirming 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 the prosecutor’s unsupported

comment implying that the defendant had switched his story,

which was improper under clearlyestablished federal law, 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 California Court of Appeal’s

determination that the prosecutor’s statement urging the

jurors to convict – because they might be “very

uncomfortable” explaining to neighbors a vote to acquit –

was an unreasonable interpretation of clearly established

Supreme Court law barring the government from pressing the

jury to convict. The panel concluded, however, that the

defendant was not deprived of a fair trial because the

prosecutorial misstatement did not have a substantial and

* 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

injurious effect or influence in determining the jury’s verdict,

and therefore did not so infect the trial with unfairness as to

make the resulting conviction a denial of due process. 

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 a 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, SupervisingDeputyAttorneyGeneral, Sacramento,

California, for Respondents-Appellees.
4 TRILLO V. BITER

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

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
TRILLO V. BITER 5

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

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.
6 TRILLO V. BITER

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

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
TRILLO V. BITER 7

prejudicial misconduct during closing argument.” The second

issue is “whether trial counsel was constitutionallyineffective

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

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.
8 TRILLO V. BITER

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

comment was improper under clearly established federal law,

as the California Court of Appeal later correctly 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.”

As the California Court of Appeal correctly held, 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
TRILLO V. BITER 9

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 crossexamination. 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

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 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
10 TRILLO V. BITER

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,

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 this interpretation was an unreasonable application of

clearly established federal law. “[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). The

state court should have analyzed whether the statement to

which Trillo’s attorney objected was improper regardless of

the prosecutor’s intended meaning.

Given this standard, clearly established federal law from

the Supreme Court bars the government in a criminal trial

from pressuring the jury to convict the defendant. United

States v. Young, 470 U.S. 1, 18 (1985); Darden v.

Wainwright, 477 U.S. 168, 179–81 (1986). As we have

recognized, “[a] prosecutor may not urge jurors to convict a

criminal defendant in order to protect community values,
TRILLO V. BITER 11

preserve civil order, or deter future lawbreaking.” United

States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005)

(citations omitted).

Well-reasoned decisions from our sister circuits recognize

that examples of statements that constitute improper pressure

under Young include when prosecutors 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).

Under Young, a prosecutor may not suggest that jurors

should vote to convict a defendant lest that defendant

endanger their neighborhood. It follows that jurors should not

be urged to vote to convict simply because they might be

uncomfortable with a vote to acquit. Thus, we conclude that

the California Court of Appeal’s determination that the

prosecutor’s statement was notimproper was an unreasonable

interpretation of the clearly established principles from Smith

and Young.

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
12 TRILLO V. BITER

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 the error had a substantial and injurious

effect or influence in determining the jury’s verdict. Brecht,

507 U.S. at 637.

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

the victim, but argued at trial that he had acted in selfdefense. 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.
TRILLO V. BITER 13

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”). Nor did the prosecution actually misstate the

evidence. Id. at 915.

Therefore, Trillo was not deprived of a fair trial because

under all the Darden factors recited in Hein, we conclude that

the prosecutorial misstatement did not have a substantial and

injurious effect or influence in determining the jury’s verdict,

and therefore did not so infect the trial with unfairness as to

make the resulting conviction a denial of due process. See

also Hein, 601 F.3d at 915.

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
14 TRILLO V. BITER

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

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
TRILLO V. BITER 15

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.

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
16 TRILLO V. BITER

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

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.