F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

V I C T O R B E R

N AR D T R I L L O , Petitioner-Appellant
,

v

.

M AR T I N B I T E R , Acting W arden; A T T O R N E Y G E N E R A L F O R T H E S T A T E O F C A L I F O R

N I A , Respondents-Appellees

. N o. 11-15463

D.C. No. 2:06-cv-01287-J KS

AMENDED OPI NI ON

Appeal from the United States District Court for the Eastern District of California J ames K. Sing leton, Senior District J udg e, Presiding

Argued and Submitted March 13, 2014—San F rancisco, California

F iled J une 16, 2014 Amended October 6, 2014

B efore: J . Clifford W allace, M. Marg aret McKeown, and Ronald M. Gould, Circuit J udg es.
Opinion by

J udg e W allaceT R I L L O V

. B I T E R 2

SUMMARY *

Habeas Corpus

The panel filed an amended opinion affirming the district court’s denial of a 28 U.S

. C

. § 2 2 54 h abeas corpus petition challeng ing a second-deg ree murder conviction.

The p a nel held that the p rosecutor’s un supported
comment imply ing that the defendant had switched his story , which was improper under clearly established federal law, did
not materially affect the fairness of the p r oceeding s because the trial court sustained the defendant’s objection and the trial
court instructed the jury that statements made by the attorney s during trial are not evidence.

The p anel held that there was a sufficient b a s is for the prosecutor’s statements about witness inconsistencies and his implication that the w itnesse s h ad coordinated their testimony

.

The panel h e l d t hat the California Court of Appeal’s determ i n ation that the prosecutor’s statement urg ing the jurors to c onvict – because they migh t be “very uncomfortable” ex plaining to neig hbors a vote to acqu i t

– was an unreasonable interpretation of clearly e stabli s h e d Supreme Court law barring the g o vernment from pressing the jury to convict. Th e panel concluded, however, that the defendant was not depri v e d o f a f air trial because the
p r o secutorial misstatement did not have a substantial a nd

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co nv en i en ce o f

th e read er.T R I L L O V

. B I T E R 3

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

o r e d id not so infect the trial with unfairness as to make the resultingconviction a denial of due process.

The panel held that the defendant’s counsel wa s n o t constitutionally ineffective for failing to object to prosecutorial statements that the defendant had removed his shirt, a n d t h at counsel’s f ailure to object to the prosecutor’s statements a

bout g ang connections did not preju d ice the defense.

The p anel held that the ex clusion of an uncorroborat ed witness statement that mig ht h ave supported a s elf-defense theory did not violate due process.

COUNSEL

Steven C. Sanders (arg

u ed), Sanders & Associates, W e st Sacramento, California, for Petitioner-Appellant.

R. Todd Marshall ( a rgued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Michael P. F arrell, Senior Assistant Attorney G eneral, a nd Catherine C h a t m a n , S u p ervising D eputy Attorney General, Sacra m e nt o , California, for Respondents-Appellees.T R I L L O V

. B I T E R 4

OP INION

W A L L ACE, Circuit J udg e :

After Victor Trillo was con v i cted of second-degr ee murder b y a trial court of the State of California, his conviction affirmed by the California Court of Appe a l
, a nd his state c ollateral remedies ex hausted, he filed this h abeas petition pursuant to 28 U.S. C

. § 2254. The district court denied the petition. Trillo a p p ealed. W e g ranted a certificate of appealability on three issues: “(1) whether th e p ro secutor [ in Trillo’s trial] committed prejudicial misconduct during

c l o s i n g a rgu m e n t ; ( 2 ) w h e t h e r t r i a l c o u n s el w a s constitutionally

ineffective for failing to object to additional closing remarks made by the prosecutor; (3) w hether the trial
court violated petitioner’s Six th Amendment rig ht to present

a meaning ful defense by ex cludin g t estimony reg arding a statement made b y a witness to the v ictim which mig ht have

c o r r o borated petitioner’s theory o f defense.” W e have jurisdiction over this timely filed a p peal under 2 8 U .S.C. §§ 2253, 2254, and 1291. W e affirm.

I

.

Trillo w as at a party w ith several friends. Two individuals
at the party g ot into a fist f ig ht. Confusion and y elling followed. Several me n took off their shirts and b eg an fig hting

. Trill o h ad a g un, and fired at another partyg oer, killing h im. Trillo was later arres t e d after fleeing the scene and the state.

Trillo’s theory in his state court trial for second-degr ee murder was that he h ad ac t e d i n self-defense. According to Trillo, du r ing the f

ig ht he was hit in the back, and then sawT R I L L O V

. B I T E R 5

someone a

pproach him with a knife. At trial, Trillo’s attorney attempted to have admitted witness testimony that a man h ad approached the victim after the shooting asking “W as it w orth it? ” I n a hearing

held outside of the jury ’s presence, the trial
court refused to allow th i s t es timony
, because there was an insufficient foundation to admit the statement.

Trillo’s attorney objected to three statements made by the prosecutor during h is closing argument. F irst, the p rosecutor stated that t h e “ [ f] irst story was a lame o ne, first story was I wasn’t the shooter”

— imply ing that T r illo had c h ang ed his theory of the case f

r om innocence to self-defense. After Trillo’s att o r n ey objected to this statement, the court admonished the jury that “I don’t believe there w as” evidence supporting the prosecutor’s a rgument. A few moments later, the prosecutor sug g e sted that frien d s of Trillo’s who h ad testified on his behalf had chang ed the stories they provided
to investig ators after coordinating with each other. Defense counsel ag ain objected, which led to a h e ar i n g o ut of the jury ’s presence. The judg e ultimately denied Trillo’s motion for a mistrial or curative statement to the j u r y

. Finally
, the prosecutor sug g e sted w hat would happen to members of the jury if they “walked” T r illo after they “g ot the instructions about reasonable doubt.” The prosecutor stated that if jurors informed a neig hbor abou t the acquittal, “[ y ] our neig hbor’s
g oing to be, y ou d id w hat? A nd y ou’re g oin g t o b e v ery 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 beg inning of the fig ht, a

nd that Tr i l l o belong ed to a g ang and had a criminal history

.T R I L L O V

. B I T E R 6

The jury convicted Trillo of murder. The judg e denied his motion for a new trial. He appealed the conviction to the California Court of Appeal, w hich affirmed. People v. Trillo
, 2004 W L 2943242 (Cal. Ct. App. Dec. 1, 2004 )

. T he California Supreme Court denied his petition for revi e w

. Trillo filed a timely state habeas petition and a timely federal habeas petition. His federal petition was stay ed to allow him
to ex h a u s t h is state court remedies. The County Superior Court, the California Court o f A ppeal, and the California Supreme Court denied his state petition.

After the denial by the California Sup r e m e Court, he

r enewed his federal petition. The district court denied the petition. Trillo timely

appealed from that judgment.

I I

.

W e review the district court’s judg ment denying h abeas relief de novo, and its finding s of fact for clear error. Hein v

. S u l l i va n , 601 F .3d 897, 905 (9th Cir. 2010). U nder the Antiterrorism and Effective Death Penalt y A ct of 1996, we only g r ant a federal habeas petition for claims adjudicated on the merits by the state courts , if the state court a djudication “(1) resulted in a decision that was c o ntrary to, or involved an unreasonable application of, clearly established F ederal law,

as determined by the Supreme Court o f the U nited States; o r (2) r es ulted in a d e c ision that w as based on a n unreasonable determination of the facts in lig ht of the evidence p r e s e n ted in the State court proceeding .” Harrington v. Richter
, 131 S. Ct. 770, 783–84 (2011), quoting 28 U.S.C. § 2254(d).

I t appears that there was some c o nfusion reg arding the issues in the certificate of appealability we g ranted. The first issue is “whether the prosecutor [ in Trillo’s trial] committedT R I L L O V

. B I T E R 7

prejudicial misconduct during closing a r g ument.” The second issue is “ whether trial counsel was constitutionally i n e ffective for failing to object to additional closing r emarks made b y the prosecutor.” Thus, the first i s s u e on appeal is whether the prosecutor committed prejudicial misconduct d uring closing
argument in the comments to which Trillo’s trial counsel objected

. The sec o n d issue on a p peal is whether Trillo suffered from ineffective assistance of counsel for the failure of his trial counsel to o bject to other prosecutorial comments. The distinction is important b ecause the issues are g overned by different standards. The first is g overned by the deferential habeas s t a ndard from 28 U.S.C. § 2254(d). The second is
g overned by the “doubly ” deferential standard
, u n d er which

w e d e fer b oth to the state courts’ determination that tri al counsel did not act ineffectively and then also defer to the trial counsel’s r epresentation as reasonab le, so as not to “second-g uess” trial counsel who “observed the relevant proceeding s, knew of materials outside t h e record, a nd interacted with the client, with o pposing c ounsel, and with the judg e.” Harrington , 131 S. Ct. at 788.

I n h is opening brief filed in this court, Trillo’s argument reg arding the first i s s u e f or our review included both prosecutoria l statements to which his trial counsel h ad objected and prosecutorial statements to which his counsel did not object. I n his reply brief, thoug h, he clarified that the f i r s t issue for o ur review pertains solely to statements ma d e by the prosecut o r t o which Trillo’s trial counsel objected. That is the co r r ect interpretation of our certificate o f appealability

.T R I L L O V

. B I T E R 8

I I I

.

Trillo’s counsel objected to three prosecutorial c omments during arguments. W e now consider them.

A.

The p r osecutor first argu ed to the jury th a t Trillo h ad i n i t i ally told the police that h e was not the shooter, and t h at “story was a lame one.” There was no e vidence to support the State’s implication that Tr illo had switched his story

. That
comment was improper under clearly established federal law,

as the California Court o f Appeal later correctly recogniz ed

on direct appeal. T h e state trial court sust a i n e d Trillo’s counsel ’ s objection to that statement, and told the jury a nd prosecutor “I don’t believe there was [any evidence of the
g overnment’s implication] , why don’t y o u continue.”

A s t h e California Court of Appeal correctly held, the prosecutor’s comment did n ot materially affect the fairness o f the proceeding s bec au se the trial c ourt sustained the defendant’s objection, and the trial court instructed the jury that “[ s] tatements made by t h e attorney s during trial are not evidence.” We presume that j u r i es listen to and f ollow curative instruct i o n s from judg e s. S ee Fields v. Brown
, 503 F .3d 755, 782 (9th Cir. 2007).

The prosecutor then argued that the testimony of Trillo’s witnesses was inconsistent w ith prior statements t h ey h ad made, imply ing that they had contacted each o ther and h ad coordinated their testimony to protect T rillo. Defense counsel
ag ain objected, which led to a hearing outside the presence o f the jury

. U ltimately
, the trial court rejected Trillo’s argument that the prosecutor’s statements about w itness incon s i s tenciesT R I L L O V

. B I T E R 9

and implication that the witnesses had c o o r d inated their testimony were improp e r, and refused to instruct the jury separately on the issue.

The comments were indeed appropriate, as the California Court of Appeal later recogniz ed o n direct review. S ome o f the witnesses who h ad t estified o n Trillo’s behalf h ad made inconsistent statements, and admitted as much unde r crossex amination. One w itness d id sug g est that a defense investig at o r hinted that she should chang e her testimony to support Trillo’s self-defense t h e o r y

. B ecause there was a sufficient b asis for t h e p r o secutor’s statements, he did not commit misconduct by p o i nting o ut 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). T h i s was not, a s Trillo argu es, the same “ex act line” of argument as the prior
g overnment statement. The p rosecutor was not a rguing that Trillo h ad chang ed his story , but rather that the witnesses w ho supported Trillo’s story had been incon s istent. That was an acceptable arg

ument based on the testimony

.

T h u s far, the only erroneous statement made by t h e prosecutor was rectified by the sustaining of the objection.

B

.

At t h e end of argument, the prosecutor described “reasonable d oubt” a s “ something that makes y ou comfortable with y our decision today ,” so that e ach member of the jury could “g o ex plain to it to y o ur neig hbor nex t day
, conversation, ex plain the decision.” The prosecutor used this
t h e m e to revisit the f

acts of the case in full. The prosecuto r then sug g ested that each of the members of the jury wouldT R I L L O V

. B I T E R 10

ex p lain to his or her neighbor “g osh, we g ot the instructions about reasonable doubt, and we walked him. Your neig hbor’s
g oing to be, y ou d id w hat? A nd y ou’re g oing t o b e v e ry uncomfortable.” Trillo’s counsel immediately objected t h at this statement was improper. Althoug h the judg e “noted” the objection, the trial c o urt allowed the prosecutor to f inish his
argument, told him to “relate to the evidence,” and did not specifically r

ule on the objection or admonish the prosecutor. The prosecutor then a sserted that he meant to sug g e st that the members of the jury w ould “be uncomfortable is because not reasonable for y ou of the evidence and couldn’t e x plain it [ sic] and make it reasonable if y ou tried. ” O n direct appeal,
t h e California Court of Appeal interpreted the prosecutor’s statement to m e a n t hat the jurors “ should convict b ecause it

was not reasonable under the evidence to acquit.” Construing the statement in this lig ht, the California Court of Appeal h eld that it was acceptable prosecutorial commentary

.

B u t this interpretation was an unreasonable application o f clearly established f

ederal law. “[ T] he touchstone of d ue process a naly sis in c a ses of alleg ed prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v

. Phillips
, 455 U.S. 2 09, 219 (1982). The
state court should have analy z ed whether th e s t atement to which T rillo’s attorney o b j e cted w as improper reg ardless o f the prosecutor’s intended meaning

. Given this standard, c learly established federal law from the Supreme Court bars the g overnment in a criminal trial from pressuring the jury to convict the defendant

. U n i t ed States v. Y

oung , 470 U.S. 1, 1 8 ( 1985); D a rden v

. W ainwright
, 4 77 U.S. 1 68, 179–81 (1986)

. As we have
recogniz ed, “ [ a] prosecutor may not u r ge jurors to convict a criminal defendant in order t o protect community values,T R I L L O V

. B I T E R 11

p r eserve civil order, or deter future lawbreaking .” Unite d States v. W

eatherspoon
, 4 10 F .3d 1142, 1149 (9th Cir. 2 005) (citations omitted).

We l l

- r e a soned decisions f rom our sister circuits reco gn i ze that ex amples o f statements that c onstitute improper p ressure under Y oung inclu d e when prosecutors imply that jurors should convict a defendant b e c a use failure to do so would endang er their neig h

bors. See, e.g. , United States v

. Johnson
, 231 F .3d 4 3
, 4 7 (D.C. Cir. 2000) (holding that “the prosecutor’s argument in this case improperly sug g ested that the jury should convict the def e n d a n t in order to protect others from drug s”); Gonzalez v. Sullivan
, 934 F .2d 4 19, 424 (2d Cir. 1991) (holding that a prosecutor’s “reference to the community ’s cry

for safer streets” was inappropriate).

Under Y oung , a prosecutor may not su gge st that jurors should vote to convict a defendant lest t h a t defendant endang er their neig hborhood. I t follows that jurors should not be urg e d to vote to c o nvict simply because t h e y mig h t be uncomfortable with a vote to acquit. Thus, we conclude that th e C alifornia Court of Appeal’s determination that the prosecutor’s statement was not i m p r oper was an unreasonable interpretation of the clearly established principles from Smith and Y oung

.

C.

B u t w e do not g rant h abeas petitions s o l e l y b ecause a prosecutor erred. Our aim is n o t t o p unish society for the misdeeds of the prosecutor; rather, our g oal is to ensure that the p etitioner r eceived a fair trial. S mith
, 455 U.S. at 219. W e g rant habeas relief for p r osecutorial misconduct only when
t h e misconduct prejudiced the petitioner. Hein
, 601 F .3d atT R I L L O V

. B I T E R 12

914. W e determine whether the petitioner suffered prejudice by placing the improper comments in the contex t of the entire trial. To do that, we look to the w eig ht o f the e v i d e n c e submitted ag ainst Trill o , t h e prominence of the erroneous comments in the e ntire trial, whet h e r the prosecution misstated the evidence, whether the judg e instructed the jury
to disreg ard the comments, whether the c omment was invited by defense counsel in summation, and whether d e f e n s e counsel had an adequate opportunity to rebut the comments. Id. I n ex amining those sugge sted areas of concern, we evaluate whether the error had a substantial an d i njurious ef f e c t o r influence in determining the jury ’s verdict. Brecht
, 507 U.S. at 637.

Althoug h the judg e d i d not sustain the objection from Trillo’s lawyer to the comm e nt about reactions from the jury ’s neig h

bors, there was powerful and overwhelming evidence of T rillo’s g uilt. Trillo admitted that he had killed the victim, b u t argued at trial that he h a d a cted in selfdefense. However, no witness besides T r illo testified that the victim had a weapon, and emerg ency personnel d i d not see any knife near the victim. Moreover, Trillo’s testimony about the injury he alleg edly suffered was inconsistent. He testified that he was hit in the back b y what felt like a punch, but when he turned the o nly person behind him w as the victim, w ho

was still a f

ew feet away

. F ollowing the shooting
, T r illo fled
t h e scene of the crime and then left California e ntirely

. N o t only did the g overnment submit s u fficient evidence that T r illo had not acted in self-defense, the g overnment furt h e r undermined whatever e v idence Trillo submitted tha t h e h ad acted in self-defense. F or e x ample, the g overnment s h o wed that witnesses who supported Trillo had g iven the police false information, had atte m p ted to contact Trillo, and h ad withheld information from the police.T R I L L O V

. B I T E R 13

The oth e r i s sues that we consider, following H ein
, also show that any prejudice Trillo may have suffered was not enoug h f o r u s to g rant him relief. The erroneous unrectified

co mment did not play a prominent r ole in Trillo’s trial, but instead was a sing le statement during a closing argument that took twenty p ag es of transcript after a long crimina l trial. Accord Hein
, 601 F .3d at 916 (“the comments were made in the course of several day s of summation after a two-month trial

. . . [ an d the inappropriate comment] appeared in o ne paragraph of a summation that took up eig hty -fou r p a ges o f the transcript”). Nor did the prosecution actually misstate the evidence. Id. at 915.

Therefore, Trillo was not deprived of a fair trial because under a ll the Darden f

actors recited in H

ein
, we conclude that the prosecutorial misstatement did not have a substantial a nd injurious effect or influence in determining the jury ’s verdict, and therefore did n ot s o i n f ect the trial with unfairness as to make the resulting conviction a denial o f d u e p rocess. See also Hein , 601 F .3d at 915.

I V.

The nex t issue w e certified f or appeal was whether trial counsel was c onstitutionally ineffective for failing to object
to a d d i tional r emarks made in the p r osecutor’s argument. Trillo a rg ues that the prosecutor made improper statements to which his trial counsel did n o t o b ject. Those include

r e ferences to Trillo r emoving his shirt, which Trillo argu e s implied to the jury that he had instig ated the initial fig ht, a nd references to Trillo’s g ang connections and criminal history

.

Trillo’s counsel w as not constitutionally ineffectiv e for failing to o bject to the prosecutorial statements that Trillo h adT R I L L O V

. B I T E R 14

removed his shirt

. Those statements w ere based on reasonable inferences from the record. Gray
, 8 76 F .2d at 1417 (“prosecutors are free to a

rgue reasonable inferences from the evidence”). Testimony establ i shed that Trillo’s friends w ho

wer e s t a nding with him had removed their shirts, and a witness d e s c r i bed T r illo’s neck tattoo, which tog ether reasonably implied that h e had removed his shirt. I ndeed, on appeal, T rillo now a dmit s t h at there was a witness w ho “remotely insinuated that [ Trillo] removed his shirt.”

Tr i llo’s attorney ’s failure to object to the g overnment statements about g ang connections did not prejudice Trillo’s defense. As mentioned ab ove, there was powerful evidence that T rillo h ad not acted in self-defense, and t h e trial court reminded jurors that statements made by the attorney s are not evidence. Thus
, T r i llo’s attorney ’s failure to object did not “undermine confidence in the outcome of the trial,” so we refuse to g rant habeas relief for ineffective assistance o f counsel. Cheney v. W

ashington
, 614 F .3d 987, 997 (9th Cir. 2010) (citations omitted).

V.

The last issue for o ur review is “whether t h e t rial court

v i o lated petitioner’s Six th A mendment rig ht to present a meaning ful d e f

ense by ex cluding testimony reg arding a statement made by a witness to the v ictim which mig ht have corroborated pe t i tioner’s theory of defense.” At his trial, Trillo soug ht to introduce the testimony of a wi t n e s s w ho
st a ted that h e saw another man approach the victim immediately a fter the shoot i n g a nd said “W as it w orth it? ” According to Trillo, this testimony supported his self-defense theory
, because the unidentified man w as rhetorically asking the victim why he chose to advance toward Tr i l l o whileT R I L L O V

. B I T E R 15

armed. T he trial court refused to admit this hearsay evidence under California Evidence Code section 1240, which allows the a dmission of spontaneous statements that “(a) [ p] urport[ ] to n a r r a te, describe, or e x plain an act, condition, or event perceived by the declarant; and ( b ) [ were] made spontaneously while the d eclarant was under the stress o f

ex c itement caused by such perception.” Cal. Evid. Code § 1240 (W est 2014). A ccording to the California Court o f Appea l, w hich affirmed the e x clusion of the witness’ testimony
, the statement was ambig uous, so the trial court did

n o t abuse its discretion in ex cluding it. I n this appeal, Trill o argues that the decision to ex clude th e e vidence was erroneous, and the ex clusion prejudiced him.

W e do not review wh ether the decision to ex clude the evidence was c onsistent with state law. Bradshaw v. Richey
, 546 U.S. 74, 76 (2005) (per curiam) (ex p laining that “ a state court’s interpretation o f s tate law

. . . binds a federal court sitting in habeas corpus”). I nstead, w e only de t e r m ine whether the state evidentiary rule v iolates the federal Constitution. Estelle v. McGuire
, 502 U.S. 62
, 7 2 (1991) (“our h a beas powers [ d o not] a llow us to rev e r s e [ a] conviction based o n a belief that the trial judg e incorrectly interpreted t h e California Evidence Code

. . . The only question f

o r us is whether the ailing instruction by itself so i n f ected the entire trial that the resulting conviction viol at e s due process”) (internal quotation marks omitted))

. The application of state evidentiary rules must be consistent with the rig ht to due p r ocess protected by the F ourteenth Amendment, but “do not violate a defendant’s constitutional rig hts unless they infring e upon a weig hty interest o f the accused a nd are arbitrary or d isproportionate to the purposes they are desig ned to serv e

. ” M oses v. Payne
, 555 F .3d 742, 757 (9th Cir. 2008) (alt e r a t i o ns a n d citations omitted). AT R I L L O V

. B I T E R 16

decision by a trial court to e x clude evidence only violates the C o nstitution if the evidence is “sufficiently r eliable a n d crucial to the defense.” United States v

. Hayat
, 710 F .3d 875, 89 8 ( 9th Cir. 2013) (citation o mitted). I f the evidence does
not bear “persuasive assurances of trustworthiness,” the trial court’s decision to ex clude the e v idence could not v iolate d ue process. Id. at 899 (citation omitted).

The ex clusion of the w itness statement here di d n ot violate d u e p rocess. There was n o evidentiary corroboration
at all for the witness statement in Trillo’s trial. The trial court

ex c luded the testi m o n y of a sing le person who would have testified that another man had asked the victim “W a s it w orth it? ” No o ther witnesses s a w o r testified to this alleg ed
statement. I ndeed, as the California Court of Appeal pointed out, it was not at all clear w hat “W as it worth it? ” meant. W ithout any corroboration, the tr i a l c ourt’s decision to

ex c lude the testimony

could not violate the Constitution. Id. at 898–99.

AF F IRMED.