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

P A U L M. Z A

P A T A , Petitioner-Appellant

,

v.

R O D O L F O V A S Q U E Z ,

Respondent-Appellee

. No. 12-17503

D.C. No. 3:10-cv-00176-TEH

OPI NI ON

A ppeal from the United States District Court for the Northern District of California Thelton E. Henderson, Senior District J udg e , Presiding

Arg ued and Submitted September 11, 2014—San F rancisco, California

F iled J une 9, 2015

B efore: Stephen Reinhardt, Ray mond C. F isher and Marsha S. B erz on, Circuit J udg es.

O pinion by

J udg e F isherZ A P A T A V

. V A S Q U E Z

2

SUMMARY *

Habeas Corpus

The p anel reve r s ed the district c ourt’s denial of a California state prisoner’s habeas corpus petition challeng ing

a conviction for first-deg ree murder with enhancements fo r committing an offense for the benefit of a criminal stre et g ang and p ersonally discharg ing a firearm in the course o f the offense, a nd remanded with instructions to g rant the petition.

The panel held that d e f

ense counsel’s failure to object
to the prosecutor’s falsified inflammato r y and ethnically

c h a r g ed remarks, delivered during c losing arg ument m o m e n t s before th e j u ry w as sent to deliberate the c ase, constituted ineffective as s i stance of counsel. T h e California Court o f Appeal’s failure to so conclude was b ased on an unreasonable factual determination a

n d was an unreasonable a pplication of controlling Supreme Court law.

COUNSEL

St e v e n G

. Kalar, F ederal Public Defender for the Northern District of California; Rob e r t M. Carlin (arg ued), Assistant F ederal Pu b l i c Defender; Mara K. G oldman, Research a nd W r iting Attorney
, San J ose, California, for PetitionerAppellant.

* 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 een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.Z A P A T A V

. V A S Q U E Z 3

Kamala D

. Harris, At t orney General of California; Dane R. Gillette, Chief Assistant Attorney General, Gerald A

. Eng ler, Senior A ssistant At torney G eneral, Peg g y S. Ruffra, Supervising De p uty Attorney General, J ohn H. Deist (arg ued), D e p u ty Attorney General, San F rancisco, California, for Respondent-Appellee.

OP INION

F I SHER, Circuit J udg e :

I n 2004
, a jury convicted Paul Z a pata of first-deg r ee murder in violation of California Penal C o d e § 187, along with enhancements for committing a n offense for the benefit of a criminal street g ang and personally discharg ing a firearm in the course of the offense. He was se n t e n c e d to two consecutive terms of 25 y e ars to life in prison. He appealed
to the California Court of Appeal, w hich denied r e l i e f i n a reasoned opinion, a

nd to the California Supreme C o u r t , which denied review. Having e x hausted those avenu e s , h e filed a habeas corpus petition in federal d istri ct court, w hich the court denied. H e appeals that denial, arg uing in part that his trial counsel’s failure to o b ject to eg reg ious prosecutorial misconduct during closing arg ument constituted ineffective assistance of couns e l s ubstantially affecting the outcome o f his trial. We ag ree, and reverse the district court and remand the case with instructions to g rant Z apata’s habeas petition.

BACK G ROUND

I n May 2001, shortly after placing a call on a pay phone,

a 19-y ear

- o l d student named J uan Trig ueros was shot a nd killed in a 7 -Eleven parking lot on L e avesley Road in Gilroy

,Z A P A T A V

. V A S Q U E Z

4

C a l ifornia. At the time of the shooting

, which took plac e around 2 a.m., Trig ueros was w earing a baske t ball jersey emblaz oned with the number 8, for L o s Ang eles L akers star Kobe B ry ant. The a

rea in which the shooting took place was controlled by the Norteño s s t r e e t g ang , of which there were several subg roups, or “cliques.” 1 One such clique, of which Z a pata was a member, was Outside Posse, or “OSP.” As an OSP me m ber, Z apata had participated in a ttacks on Eig hth Street g ang members and Mex ican nationals.

The N orteños’ rivals were a subset o f the Sureños street g ang k nown as Eig hth Street, whose identify ing sy mbol was the number 8. Sureños tended to be first-g eneration Mex ican immig rants who spoke limited Eng lish, whereas Norteños tended to be established U.S. resi d ents who spoke Eng lish rather than Spanish. According to an ex p ert on g ang activity in the area, by wearing the number 8 in N o rteño territory

, Trig ueros, a first-g eneration Mex ican im m i grant, was a “marked man.” There w as no evidence Trig ueros was affiliated with the Sureños.

The only ey ewitness to the shooting

, B rian Puphal, testified that he observed one man “ [ f ] acing the pay phone try ing to concentrate on whatever he was talking about” and

a second man, about two or three f e e t a way , “[ r] aising his

arms in ang er” and y elling at the person o n t h e phone. Puphal saw the man who was y e lling draw a p ist o l f ro m his waistband and fire a shot at t h e m a n who was on the phone, from two or three feet a

way , and then f

ire a second shot from about six feet away

. The man who was on the phone – later identified as T rig ueros – stumbled into the 7-Eleven, where

1 T h e p ro secu tio n ’ s e xp e r t o n Gilro y g an g s, Of f icer Geo f f Gu erin

, ref erred to th e No rteñ o g an g su b g ro u p s as “ cliq u es.”Z A P A T A V

. V A S Q U E Z 5

he died. Puphal saw the shooter run a way throug h a nearb y

car w ash a

nd, soon thereafter, saw a w hite pickup truck drive slowly p ast the 7-Eleven. Puphal described the shooter to a police sketch artist, noting h e w as “sure” the killer had a “scrag g ly g oatee.” He was not, however, able to identify
any one as the shooter when shown two photog raphic lineups,

one o f which included a photog raph of Z apata. At trial, Puphal w a s shown a J une 2001 photog raph o f Z apata a nd testified that the person depicted in the photo “[ c] ould be” the shooter. I n a pretrial statement, Puphal described the shooter

as being 5' 5"
, but a t trial he r ec a l led the shooter being “somewhere around” 5' 5" to 5' 8" tall.

A second w i t n e s s, J oe Morton, had been working at the neig hboring Shell g as station when he h eard g unshots, went outside, and saw a man h e d esc r i b e d as “ nonchalantly walking ” from the direction of the 7-Elev e n b efore g etting into a white F ord pickup truck. Morton d escribed the man a s being between 5' 10" and 6' tall.

A third witness, F e l i p e Davila, testified that he was shopping at the 7-Eleven when he heard “screeching ” and ran outside to see a white truck being driven in a “wild” manner and sustain damag e after hitting a traffic island. He testified that he was “positive” the vehicle was a Toy ota, and a month before trial, he identified Z a p a ta’s white Toy o ta pickup truck, with damag e, as the one that he saw that nig ht.

Z apata’s ex -gi r l friend, Nancy Echeverria, testified that she and Z apata had attended a barbeque at an OSP member’s home a few blocks from the 7-Eleven in the hour s before Trig ueros’ murder. She sa i d Za p ata left between 10 a nd 11
p.m. to drive a friend to work. I n November 2 002, 18 months after the murder, Echeverria placed a call to a police tip lineZ A P A T A V

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6

and told Detective Daniel Z en s he suspected Z apata h ad committed the crime. I n an interview with D etective Z en, Echeverria said she thoug ht Z apata was the killer because the police sketch looked like hi m and his truck h ad disappeared the following morning

. At trial, however, Echeverria testified that she saw Za p a ta driving his truck the day a fter the shooting

, and that she had overstated the deg ree o f resemblance between Z apata and the p olice sketch. She also testified that she had been motivated to call the t ip line b e c ause Z apata had broken up with her and she wanted t o “burn” him and his new g irlfriend “in a big way .”

Another witness, Sarah Sanchez

, the ex

- g irlfriend of an OSP member, testified that shortly after the shooting

, in May

or early J u ne 2001, she saw Z apata when she was driving an OSP member n amed Donald Rey es t o the “Ramirez ranch,” the home of mutual friends in Gilroy

. 2 According to Sanchez

, Z a pata a sked her to d

rive his truck to Stockt o n o r Manteca; when she asked why

, Z apata said he h a d “shot u p somebody at 7-Eleven.”

Victoria L opez , who was dati n g Z a pata’s close friend, Edward L opez , at the time of the murder, told Detective Z en in a 2002 interview that Z apata drove a white pickup truck in the spring of 2001 b ut beg an to drive a black Taurus shortly after the shooting in May 2001. She said Edw a rd told her Z a pata’s truck was “broke[ n] do w n ” a nd being stored a t the Stockton home of Rico Clarke, a former OSP asso c i a t e

. At trial, however, L opez testified she thoug ht Z apata drove t h e

2 Sp ecif ically

, S an ch ez testif

ied sh e saw Z ap ata b etw een tw o d ay s an d

a w eek bef

o re s h e read ab o u t t

h e 7

- Elev en m

u rd er an d saw th e co m

p o site sk etch in th e n ew s p a p e r. D u rin g cro ss- ex am in atio n , s h e ex p lain ed th at sh e read th is n ew sp ap er article in late May o r early J u n e.Z A P A T A V

. V A S Q U E Z 7

truck “sometime after” May 2 001 until he g ot a black car a nd could not recall the rest of her pretrial statement.

Detective Z en testified t

h a t i n December 2002, Echeverria told him Z apata’s truck was located at the home of Prisci lla Pena, Z apata’s new g irlfriend. Z en located the truck there, but it was g one a fe w months later. Z en eventually located the truck at Pena’s sister’s house and seiz ed it in March 2003.

The defense called a handful of witnesses, including Pe n a; Z a pata’s uncle, Rocky Rey es; and Z apata’s cousin, Donald Rey es. All of these w itnesses said Za p a t a was incapable of g rowing a g oatee, countering Pupha l ’s description of the shooter a s hav i ng a g oatee. They also testified that Z apata continued to drive the white pickup truck well into the summer of 20 0 1
, long after the T rig ueros shooting

.

At trial, the state was represented by Stuart Scott, a Santa Clara County Deputy District A ttorney

. I n closing

, Scott
arg ued that Z apata had previously been involved in attacks on Eig hth Street g ang members and Mex ican nationals and that the similarity between his l i k e n ess and Puphal’s d escription of the perpetrator, disappe a r a n c e of his white pickup truck and confession to Sarah Sanchez compelled a finding o f g uilt. The defense countered that the p r o s ecution had been unable
to link Z a pata conclusively to the scene of the crime either th r oug h positive ey ewitness identification or phy sical evidence and emphasiz ed bias and credibility problems with several of the prosecution’s witnesses.

Critical to the issue before u s, at the end of the trial during the prosecution’s closing r e b uttal a r g ument, Scott wove out of whole cloth, with no evidenti a r y s u p port, a fictional a ndZ A P A T A V

. V A S Q U E Z

8

h ig hly emotional account o f the last words Trig ueros hear d Z a pata shout a s Z apata supposedly shot him. The p rosecutor ascribed to Z apata several despicable, inflammatory e th n i c slurs:

Picture, if y ou w ill, the last words that J u an Trig ueros heard before the defenda nt shot him in the back and to make sure he was dead

s h o t h i m in the chest. W hat w ere the last thing s he heard? W h a t’s the reasonable i n ference of what w as g oing on that precise
moment t h e second before he’s mortally wounded? Fu c k i n’ scrap. You fuckin’ wetback. Can y

o u imag ine the terror and the fear J uan Trig ueros must have felt as he’s

co we r i n g into the p hone.

. . . F u ckin’ scrap. W e tback.

The p rosecutor repeated these inflammatory r emarks twice
more, incl u d ing just before the jury retired to beg in deliberations.

These slurs were invoked d e liberately

. I n his opening statement, the prosecu tor had told the jury the word “ scrap” i s “ a d er og a tory term – it’s like using the N w ord

– for Mex ican nationals. I t’s very derog a tory

. Mojado [ wetback] is another d erog atory term.” The prosecution’s e x p er t witness testified “scrap” means “piece of shit, ” a nd that althoug h Mex ican n ationals “mig ht not realiz e ex actly what it means a s f

a r a s the sig nificance of it

. . . it’s taken as an insult” and would be “f i gh t ing w ords” to a Sureño g ang member.Z A P A T A V

. V A S Q U E Z 9

Z apata’s c ounsel neither objected to the fic t i o nal, inflammatory statemen t s in the closing arg u ment nor asked the trial c ourt to is s u e a curative instruction. The jury was th e n s ent to d eliberate. After three h ours, it found Z apata g uilty of first-deg ree murder.

I n J a nuary 2009, the California Court of Appeal affirmed Z a pata’s murder conviction. The California Supreme Court denied review

. Za p a ta nex t petitioned the federal district
court for habeas relief in J a nua r y 2 0 1 0

. The district court denied his peti t i o n but g ranted a limited certificate o f appealability

. Z apata timely appealed the district court’s judg ment.

STANDARD OF REVIEW

W e review de novo the district court’s denial of Z apata’s § 2254 habeas petition. See Hurles v. Ry a n , 752 F .3d 768, 777 (9th Cir. 2014). B ecause this case is g overned by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas relief c a n be g ranted only if the state court proceeding s “resulted in a decis i o n that was contrary to, o r involved an unreasonable a p p l i cation of, clearly e stablished F ederal law as determined by the Supreme Court o f the United States” or resulted in a decision that was “based on an unreasonable determina t i o n of the facts in lig h t of the evidence presented in the State court proceeding .” 28 U .S.C. § 2254(d)(1)–(2).

D ISCUSSION

Z apata a rg ues the prosecutor’s inflammatory

, fabrica t ed and ethnically charg ed c omments constituted prosecutorial misconduct and that h i s counsel provided ineffectiveZ A P A T A V

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10

assistance by failing to object to them. Althoug h we cannot reach the prosecutorial misconduct claim because it is procedurally d efaulted, we ag ree that counsel’s failure to insulate the jury from the prosecutor’s g rossly im p r o p e r comments constituted ineffective assistance. 3

I. P rocedural def

ault of prosecutorial m isconduct claim

Z apata first arg ues the prosecutor’s comments constituted misconduct. B ecause the state court r e v iewed the m e r its o f the direct prosecutorial misconduct claim, he c ontends, we may a s w e l l

. “I f a state appellate court o verlooks the procedural defaul t an d considers an objection on the merits, the state has n ot relied on the procedural bar a n d the federal
courts may review the claim.” Thomas v. Hubbard

, 273 F .3d 1164, 1176 (9th Cir. 2001), overrul e d on other grounds by Payton v. W

oodford

, 299 F .3d 815 (9th Cir. 2002) (en banc). “[ U] nless a [state] c ourt ex pressly (not implicitly ) states that it is relying upon a procedural bar, we m ust construe an ambig uous state court response as acting on the merits of a claim, if such a construction is plausib l e

. ” Chambers v

. McDaniel , 549 F .3d 1191, 1197 (9th Cir. 2008).

H ere, the state court ex pressly invoked a p rocedural b a r in addressing Z apata’s prosecutorial misconduct c laim,
say ing that “[ d] ue to counsel’s f a ilure to object to these remarks,

. . . the claim of prosecutorial error , as such, is not available on appeal.” Althoug h the court went on to discuss
t h e merits of the claim, because it separately relied on t h e procedural bar, t h e claim is defaulted. See Loveland v

. Hatcher

, 231 F .3d 640, 643 (9th Cir. 2000) (holding that,

3 B ecau se w e co n clu d e th at Z ap ata’ s p etitio n sh o u ld b e g ran t ed o n

th is b asis, w e d o n ot reach h is rem ain in g claim s.Z A P A T A V

. V A S Q U E Z 11

when “reliance upon [ the state court’ s ] procedural bar rule

was an independent a

nd alternative basis for its denial of the
p e t ition, review on the merits of the petitioner’s fede ra l constitutional claim in f e deral court is precluded”). Moreover, Z apata does not s ee k to e x cuse his procedural default. W e therefore c a

nnot r each the claim on the m e r i t s , althoug h the nature of the prosecutor ’ s remarks remains relevant to Z apata’s ineffective assistance claim.

II. Inef f ective assistance o f counsel for f ailure to object t o closing rem a rks

Z apata n ex t arg ues his trial cou nsel was constitutionally ineffective for failing to object to the prosecutor’s fabricated and inflammatory remarks. See Trillo v. Biter
, 769 F .3d 995, 1002 (9th Cir. 2014) (analy z ing instances o f p r osecutorial misconduct to which trial counsel did not object as ineffective assistance claims). 4 Under Strickl a n d v. W a shington

, 466 U .S. 6 68, 687 (1984), Z apata must demonstrate both that his counsel’s performance w as deficient and that the deficient perform a n c e prejudiced his defense. On habeas review, “[ t] he p ivotal question is whether the state court’s a pplication of the Strickland standard was unreasonable.” Harrington v

. Richter

, 562 U.S. 86, 101 (2011). N o t w ithstanding AEDPA’s deferential standard of r e v i e w , we conclude the state court

4 Z ap ata h as req u ested w e ex p an d th e certif icate o f ap p ealab ility (COA )
to co n sid er th is claim

, b e c a u s e th e district co u rt g ran ted a COA o n ly on th e d irect p ro secu to rial m isco n du ct claim . T h e g o v ern m en t states th at i t h as “ ad dress[ed ] th e claim in directly b y s h ow in g th at th ere w as eith er n o p ro secu to rial m isco n d u ct o r p o ssib ility o f p rej u d ice.” W e th eref o re g ran t Z ap ata’ s req u est to ex

p an d th e C OA p u r su a n t to Nin th Circu i t Ru le 22

- 1 (e). S ee S l a ck v. M cDa n i el

, 52 9 U.S. 4 7 3
, 4 84 (2 0 0 0 ). No tab l y , th e d istrict co u rt ad d ressed

Z ap ata’ s claim

as an in ef

f ectiv e assistan ce claim rath er th an

as a d irect p ro secu to rial m isco n d u ct claim

.Z A P A T A V

. V A S Q U E Z

12

unreasonably determined that Z apata’s counsel was not deficient in failing to object to the p rosecutor’s inflammatory remarks on rebuttal a

nd that Z ap a t a w a s not prejudiced as a consequence.

A. Deficient performance

W e first consider whether Z apata’s counsel per formed de ficiently by failing to object to the prosecutor’s r emarks. To do so, we mus t d e termine w hether the prosecutor’s remarks constituted objectionable misconduct. S ee Juan H

. v. Allen

, 408 F .3d 1 262, 1273 (9th Cir. 2005) (ex p laining that the merits of the underly ing claim “ c o n t rol the resolution o f
t h e Strickland claim b ecause trial counsel cannot have be e n ineffective for failing to raise a meritless objection”). I n this respect, o ur task is made e asy because the California Court o f Appeal itself concluded “the prosecutor committed serious misconduct.”

During closing rebuttal, the prosecutor u r ge d the jury to “[ p] icture” the “last words that J u a n T r i gueros heard,” a nd then u ttered the following phrases: “F u c k ing scrap. W etback. I mag ine ag ain the last words y o u hear before y ou leave this Earth.” The prosecutor repeated the slurs s e v e r a l times, emphasiz ing the falsified story of the victim’s f inal moments as a theme in his rebuttal:

Picture, if y ou w ill, the last words that J u an Trig ueros heard before the defendant shot him in the back and to make sure h e was dead shot him in the chest. What were the last thing s he h e ard? W hat’s the r easonable inference of what was g oing on in that p recise moment the second before he’s m o r tally wounded?Z A P A T A V

. V A S Q U E Z 13

Fu ckin’ scrap. You fuckin’ w etback. Can
y ou imag ine the terror and the fea r

. . . J u an Trig ueros must have felt as he’s c owering into the phone as Puphal told y ou kind of bending into the phone to try [to] avoid this person, to not have any issue, to just try [ to] g et home and lea d his life. F uckin’ scrap. W etback. He died b ecause h e was bor n i n Mex ico a nd he made the mistak e o f w earing a number 8 jersey on L e avesley Avenue in the city o f Gilroy and made the m i stake of being at 7

- Eleven the sa m e nig ht the defendant was partying five blocks a

way

. W hat a way to ex it this world.

. . . .

W e aring that number 8 L a k ers jersey

. W r ong place at the wrong time. Desperate. F u cking
scrap. W etback. I mag ine ag ain the last words
y ou hear before y

ou leave this Earth. . . .

. . . .
[ Z apata] chose this [ gang ] lifesty le. J u an Trig ueros didn’t choose it. T ry to re m ember those last words. F uckin’ scrap. W e t back. And in a few seconds he’s left this Earth at the
ag e of 19 y ears old. J uan Trig ueros.

I n addition, the pr o secutor entreated the jurors to “use
y our God-g iven common s e n s e , and do the correct thing in
t h i s case w hich is to bring this man to justice. I f y ou can’ tZ A P A T A V

. V A S Q U E Z

14

bring J uan Trig ueros back, this is the n ex t best thing

. Do the rig ht thing , L adies and Gentlemen. Please, I implore y ou.”

The state court, n o ting the p r osecutor’s im p roper arg ument was “the most troubling ” of the issues Z apata raised

on direct appeal, cog ently ex plained why the prosecu t orial remarks, which it labeled “pure fiction,” amoun t e d to “serious misconduct”:

[ T ] he sug g estion that the k iller was shouting ethnic epithets was wholly speculative. The only ey ewitness to the actual shooting

, B rian Puphal, was able to say only that the k i l l er

w as shouting and g esticulating at the vict i m , who was cow e r i ng into the phone booth. Some basis f

or th e prosecutor’s speculation could be found in the facts that defendant a nd

some of his OS P companions possessed a demonstrated animosity toward Mex ican nati o n a l s , a

nd that to w ear number 8 in the neig hborhood of the shooting would furnish a particular stimulus for a

ny OSP membe r t o inflict violence upon the w earer’s person. B ut while this chain of inferences could furnish a motive for the shooting and elements such as intent and premeditation, it was pure fiction to suppose that it also e stablished what was actually being said at the time of the shooting

.

More c r i t i cally

, the fiction thus spun by the prosecutor was both inflammatory and wholly

ex traneo u s to any issue properly before the jury

. . . . The p rosecutor c ould h ave n o reason for mentioning it other t h an to inflame theZ A P A T A V

. V A S Q U E Z 15

jury ’s sentiments. There was simply no occasion for the jury to c ontemp late the victim’s subjective ex perience at the time o f his murder, e v e n if there had been an evidentiary basis to do so. B y deliberat ely drawing the jury ’s attention to that irrelevant and improper consideration, the prosecutor committed serious misconduct.

The court’s conclusion that the prosecutor committed

se r ious misconduct was entirely correct. See Darden v

. W ainwright

, 477 U.S. 168, 180–81 ( 1986) (observing that inflammatory and misl e a d i ng arg ument is improper). I n a similar cont ex t, we h eld that a prosecutor c ommits misconduct by recou n t ing the crime from the victim’s perspective during

closing arg u ment:

[ T] he prosecutor eng ag ed in misco n d u ct when he delivered a soliloqu y i n the voice of the victim. B y doin g s o , the [ p] rosecutor inappropriately obscured the fact that his role is to vindic a t e the public’s interest in punishi n g crime, not to ex act reveng e on behalf of an individual vi ct i m. F urthermore, the p rosecutor seriously risked manipulating and m i sstating the evidence by creating a fictiti ous character based on the dead victim and by “testify ing ” in the voice of the character as if h e had been a percipient witness. F inally

, by testify ing as [ the victim]

, the p rose c u t o r a l s o r isked improperly inflaming the passions of the jury throug h his first-person appeal to its sy mpathies for the victim who, in the words of the prosecutor,Z A P A T A V

. V A S Q U E Z

16

was a g entle man who did nothing to deserve his dismal fate.

Drayden v. W

hite , 232 F .3d 704, 712–13 (9th Cir. 2000). 5

Those same concerns ex ist here. F irst, by u r gi n g the jurors to base their decision on an ex p erience o f t h e v ictim the state court labeled “ p u re fiction,” the p rosecutor improperly encourag ed them to c o nvict Z apata out o f
sy mpathy f or Trig ueros and animus towards the killer. Second, by falsely say ing the victim heard hateful ethnic slurs in the moments before his d eath, the prosecutor manipulated and misstated the evidence. A s the state court ex plained, the only ey ewitness to the murder, B rian Puphal, testified that he could n ot h e ar what the killer was y e l l ing in the moments before Trig ueros’ death. Yet the prosecutor presen t e d t h is fictional scenario as thoug h it was f a c t. A n d j u st before concluding his rebuttal arg u ment, he inv ited the jurors to

“ r e member those last words” Trig ueros heard as thoug h Z a pata had uttered them. The fabrication was especially pernicious because of the ex tensive evidence o f Za pata’s
g ang -related criminal history

. By c o n cocting the details o f the victim’s dy ing ex perience in this manner, the prosecutor

5 A lth o u g h D ra

yd en is a p re- A EDP A case, see 2 3 2 F.3 d at 7 0 8
, i t ap p lied clearly estab lish ed Su p rem e Co u rt p reced en t

– sp ecif ically

, Da rd en , 47 7 U.S. 1 6 8
, an d Do n n elly v. DeCh risto fo ro , 4 1 6 U.S. 6 3 7
, 6 4 2 (1 9 7 4)

– t o an aly ze th e p rej u d i cial ef f ect o f pro secu to rial m isco n d u ct, see id

. at 71 3

– 1 4 ; see a lso Pa rker v. Ma tth ews , 1 3 2 S. Ct. 2 1 4 8
, 2 1 5 3 (2 0 1 2) (“ T h e ‘ clearly estab l i s h ed Fed eral law ’ relev an t h ere is o u r d ecisio n in Da rd en v. W a in wrig h t , w h ich ex plain ed t

h at a p ro secu to r’ s im

pro per

co m m en ts w i ll b e h eld to v io late th e C o n s titu tio n o n ly if th ey ‘ so in f ected th e trial w ith u n f

airn ess as to m ak e th e resu ltin g co n v ictio n a d en ial o f du e p ro cess.’ ” (citatio n

o m itted )).Z A P A T A V

. V A S Q U E Z 17

p urposefully blurred the d istinction between Z a pata’s p as t convictions and the crime for which he was standing trial. 6

F inally

, the statements were imp ro p e rly desig ned to

a p p e a l to the passions of the jury

. T hat the slurs we r e directed at a specific ethnic g roup particularly risked sparking visceral outrag e among members o f the jury and encourag ed them to c onvict based on emotion rather than evidence. 7 Cf.

6 No r can th e p ro secu to r’ s s tatem en t s b e ch aracterized as r e a s o n a b l e in f eren ces th at c o u l d b e d raw n f ro m th e ev id en ce. A l th ou g h th ere w as

ev id en ce th at OSP m em

b ers h ad sh o u

ted th ese w o rd s i n an u n re l a t e d attack th at occu rred sev en w eek s af ter th e T rig u ero s sh o o tin g , th ere w as

n o t a sh red o f ev i d en ce in th e reco rd th at th e sh o o ter u ttered th ese w ord s to T rig u ero s. A l th o u g h

a p ro secu t o r “ m ay

strik e h ard b lo w s, h e i s n ot at lib erty to strik e f

o u l o n es.” Berg er v. Un ited S ta tes , 2 9 5 U.S. 7 8
, 8 8 (1 9 3 5). Su ch “ f

o u l blo w s” in clu d e sp in n in g a f ictio n an d p resen tin g i t as th e tru th to th e j u ry

in a clo sin g su m

m atio n

.

7 R a c i a l a n d e t h n ic slu

rs i n cite p articu lar o f

f en se an d o u t

rag e in th e listen er. A s o n e sch o lar h as o b serv ed :

u ses o f slu

rs

. . . are o f

f en siv e sim

p ly b ecau s e th ey

so m etim es co n stitu

te v io latio n s o n th eir ve ry p ro h ib itio n

. J u st as w

h o ev er v io l ates a p ro h ib itio n risk s

o f f en d i n g t h o se w h o resp ect it, p erh ap s th e f act t h a t slu rs are p ro h ib ited ex plain s w h y w e can n o t escap e th e af f ect, h atred an d n eg ativ e asso ciatio n tied to th em

. . . . P ro h ib i ted w ord s are u su ally b an i sh ed w h erev er th ey

o ccu r. T h is ex p lain s w

h y b y stan ders (ev en w

h en silen t)

a r e u n c o m f ortab le, o f ten em b arrassed

, w

h en co n f ro n t e d b y a slu r. W h atev er o f

f en ses th ese co n f

ro n tatio n s

ex act, t h e a u d i e n ce risk s co m

p licity

, as if t

h e o f f en s e

w ere th ru st u

p o n th em , n o t b ecau se o f i ts co n ten t, b u t b e c au se o f a resp o n sib ility w e all in cu r in en su rin g certain v io latio n s are p rev en ted ; w h en th ey are n o t, th ey

m u st b e rep o rted an d p o ssib ly p u n ish ed

. T h eir

o ccu rren ces tain t u s all.Z A P A T A V

. V A S Q U E Z

18

McCleskey v. Kemp
, 481 U.S. 279, 309 n.30 (1987) (noting “[ t] he Constitution p rohibits raci a lly b iased prosecutorial
arg uments” (citing Donnelly

, 416 U.S. at 64 3 ) )

. The prosecutor’s remarks here pl a i nly constituted objectionable and serious misconduct, a s t h e California Court of Appeal concluded.

Nonetheless, the court stopped short of holding that trial counsel performed deficiently by failing to object:

[ T ] he r ecord does not affirmatively sug g e st any tactical reason fo r the lack of objection. I t is n onetheless conceivable that counsel h ad such a rea son. Where jury arg ument is concerned, it is alway s conceivable – if barely

– that something in the tone of the challeng ed remarks leads counsel to believe the y may backfire. This p ossibility may seem especially remote here, where the prosecutor

a p pears to have p resented the case w i t h considerable competence and skill. The same may be said, however, of defense c oun s e l. W e are s i mply unable to say on this cold record that there c ou l d b e no conceivable tactical reason for the latter’s acquiescence in the former’s improper jury arg u ments.

That conclusion is unreasonable, particularly g iven the seriousness of the prosecutor i a l misconduct that the state court itself articulated so powerfully

.

Ern ie L ep o re, S

p eech a n d Ha r

m , N.Y. T im es, No v

. 7, 2 0 1 0
, a va ila b le a t h ttp ://o p in io n ato r

. b l o g s

. n y t i m es.co m

/2 01 0 /1 1 / 0 7 /sp eech

- an d

- h arm / (last

v isited May 2 0 , 2 0 1 5 ).Z A P A T A V

. V A S Q U E Z 19

On habeas review, we accord deference both t o trial counsel’s failure to object and to the state court’s conclusion that such f

ailure was r easonable. See Y arborough v. Gentry
, 540 U.S. 1, 6 (2003) (ack n o w l e d g ing review is “doubly deferential when it is conducted throug h the lens of fede ra l habeas”). W e consider whether “it would h a v e b e en reasonable to reject [ Z apata’s] allega tion of deficient performance for any of the reasons ex pressed by the c ourt o f appeal.” Cannedy v. A dams

, 706 F .3d 1148, 1159 (9th Cir. 2013). “Be c a u s e of the difficulties inherent in making the

ev aluation, [ we] must indulg e a strong presumption that

coun s el’s conduct f

alls within the w ide rang e of reasonable professional assi s t a n c e; that is, [Z a p ata] must overcome the presumption that, u nder the circu m s t a n ces, the challeng ed action mig ht be consi dered sound trial strateg y .” Tilcock v

. Budge

, 538 F .3d 1 1 38, 1146 (9th Cir. 2008) (quoting Strickland , 466 U.S. at 689).

Althoug h “[ t] he rig ht to effective assi s t a nce ex tends to closing a rg uments,” Y

arborough

, 540 U.S

. at 5, failure to object during a closing summation g enerally does not constitute def

i c ient performance. “[ A] bsent eg reg ious misstatements, the f

ailure to object during closing arg ument and opening statement is within the wide rang e of permissible professional leg al c o nduct.” Cunningham v. W ong , 704 F .3d 1143, 1 159 ( 9th Cir. 2013) (internal q u o t ation marks omitted). H ere, however, t h e r emarks – fabricated from whole cloth, desig ned to inflame the passions of the jury a nd delivered in the waning moments of trial – unque s t ionably

were “eg reg ious misstatements.” Even if t he first such remark could have “backfir e [ d ] ,” as the state court hy pothesiz ed, a timely objection would have curtail e d i ts

r epetition. I nstead, trial counsel’s silence, and the judg e’ s consequent failure to intervene, may have been p erceived b yZ A P A T A V

. V A S Q U E Z

20

the jury as acquiescence in the truth of the imag ined scene –

o r a t l east, in the validity of such speculation about t h e victim’s last minutes. 8

Especially sig nificant is the timi n g of the comments, which were made during rebuttal after defense counsel’s last opportunity to address the jury . The prosecutor repeated the slurs toward the very end of h is closing rebuttal; after urg ing the jurors to “ [ t ] ry to remember those last words. F uckin’
scrap. W etback,” he declared, “I ’m pretty much done.” B y reserving the remarks f

or rebuttal, the prosecuti o n insulated them f rom direct challeng e. As a result, the only w ay Z a pat a ’ s t ri a l c o u n s el c o u l d h a v e challeng ed the misstatem e nts would have been to object and r equest a curative instruction.

Defense counsel’s failure to object t o t h is eg reg ious misconduct therefore “fell b elow an o b j e c tive standard o f reasonableness.” S

trickland

, 466 U .S. a t 6 88. The state court’s conclusion that “ it is alway s conceivab l e ” that trial counsel mig ht have a r eason not to ob j ec t t o improper jury
arg ume n t – even where, as here, it was falsified, inflammatory a

nd delivered immediately before the jury was sent to deliberate Z apata’s fate

– contravenes the Supreme C o u r t’s admonition that “courts may not indulg e post h oc rationaliz ation for counsel’s decisionmaking that contradicts the available evidence of couns e l ’ s actions.” Harrington
, 562 U.S. a t 108 ( internal quotation marks omitted); see also W iggins v. Smith

, 539 U.S. 51 0
, 5 2 6–27 (2003) (rejecting a state court’s at t e m p t to rationaliz e counsel’s limited investig ation into mitig ating evidence as a strateg ic decision

8 In deed

, d u rin g th e d ef

en se clo s i ng , th e p ro secu to r d id n o t h esitate to

o b j ect to p o ten tially

im p ro p er statem en ts b y

d ef en se co u n sel.Z A P A T A V

. V A S Q U E Z 21

when available evidence sug g ested counsel’s conduct stemmed f

ro m “ i n a t t e n t i o n , n o t r e a s o n ed strateg ic judg ment”)). Mo r eo ver, b y stating that “ it is alway s

c o nceivable” that the “ tone” of the challeng ed rem a r k s provides a reason not to o bject, the state court effectiv ely eliminated the possibil ity o f ever finding ineffectiveness o f counsel f o r f a iling to object during closing summat i o n , n o matter how eg r eg ious the arg ument.

Here, the record sug g ests “nothing strateg ic about failing
to object” to p atent, inflammatory and repeated misconduct. Tilcock

, 538 F .3d a t 1 1 4 6 ; cf. United States v. Sanchez

, 659 F .3d 1252, 1258 (9th Cir. 2011) (noting defense counsel should have objected to the prosecutor’s improper rebuttal so the district court could issue a “strong ly w o r d e d curative instruction”). T h e state court’s determination that Z apata’s attorney did not perform deficiently plainly was objectiv ely unreasonable under § 2254(d)(1).

B. Prejudice

W e therefore t u rn to the state court’s conclusion that Z a pata was not prejudiced by the prosecution’s unchalleng ed
arg ument. To establish prejudice u n d er Strickland

, “[ t] he likelihoo d o f a d ifferent result must be substantial, not just conceivable.” Harrington
, 562 U.S. at 112

. On h abeas review, “[ i] nstead of consideri n g w h ether [ Z apata] met the burden of proving p r ejudice, we must decide whether the
state post-conviction court was rea s o n a b le in determining that [ he] w as not prejudiced.” V e g a v

. R yan , 757 F .3d 960, 969 (9th Cir. 2014) (internal quotation marks omitted). I n other words, under AEDPA, Z apata is entitled to r e lief only if the
st a t e c ourt’s prejudice analy sis was contrary to, o r an unreasonable application of, Strickland ’s prejudice p r o n g , seeZ A P A T A V

. V A S Q U E Z

22

28 U.S.C. § 2254(d)(1); or if the state court’s prejudice analy sis “was based on an unreasonable determination of the facts in lig ht of the evidence p r es e nted in the State court proceeding

, ” id. § 2254 ( d )(2). W e “must uphold the state court’s decision if ‘fairminde d jurists could disag ree’ as to whether it was correct.” Gulbrandson v. Ryan
, 738 F .3d 976, 990 (9th Cir. 2013) (quoti n g Harrington
, 562 U.S. at 8 8). Here, the totality of the c ircumstances shows the California Court of Appeal’s prejudice determination was unreasonable.

1. The e vidence of guilt w as w e ak, and the state court’s contrary conclusion rested on m ultiple unreasonable determ inations of the f a cts.

Although t he state court a cknowledg ed that “the prosecution case w as hampered by weaknesse s i n the identification evidence,” it nevertheless c o ncluded it was

“ hig hly u nlikely that the jury was influenced by the prosecutor’s improper a rg ument as opposed to th e other strong evidence of [ Z apata’s] g uilt.” T h e “strong evidence” the court cited included these “facts”:

(1) “ the universe o f likely perpetrators was effect i vely confined to OSP members b y the absence of any ex planation for the crime other than g ang -related hatred”;

(2) the similarities between Z apata’s likeness an d t he
po l i c e s ketch meant “the g unman was either [ Z apata] o r another O SP membe r who also happened to resemble the sketch”; and

(3) “[ t] he involvement of [ Z apat a] ’s pickup in the

s h o o t i n g , which the defense did not seriously contest, madeZ A P A T A V

. V A S Q U E Z 23

it ex tremely likely that he was either th e gu n m a n or the driver.”

The court concluded that “[ t] hese facts, which do not depend on the credibility of any witness who had an arg uable motive to lie, pointed st r o n g ly to [ Z a pata] as the actual killer.”

The r ecor d d o es n ot support the court’s characteriz ation of this evidence, and its ultimate p rejudice det e r m i n ation
reg arding the facts was unreasonable on the act u a l record. The state court’s first observation is demonstrably an unreasonable determination of the facts. See 28 U .S.C. § 2254(d)(2)

. B ecause OSP was just one of many active Norteño g a

ng s in the Gilroy area, the universe of perpetrators

was not “confined to O SP membe r s ”

– it was sig nificantly broader than the state court assumed. The prosecution’s g ang

ex p ert, Officer Guerin, testified that t h e re were “several cliques of Norteño g ang s” a c tive in the area, including OSP, East Side Gilas, F irme Mafia, F amily Unity and the B rown Pride King s, and “some other smaller ones.” He furt h er testified that “any person f rom a No rt eño g ang ” would have viewed a member of Ca l l e Ocho ( “Eig hth Street”) as the
enemy and thus w o uld have harbored animosity towards

s o m eone w earing a number 8 jersey like the o ne J u a n Trig ueros had on. Guerin n oted the “big g est . . . two” g a ng s

were th e E ast Side Gilas and OSP, both of which had been particularly a ctive the summer of T rig ueros’ shooting

. W h en asked why a man wearing a number 8 jersey would be targ e ted, Guerin said:

8 is common – is a

n identify ing number for all

our Sureño g ang s in Gilroy

. . . . So it’s sig nificant in that in m y o p inion

. . . if a nyZ A P A T A V

. V A S Q U E Z

24

N o rteño gang member including someone from OSP sees someone

. . . who[ m ] they perceived to b e a possible ga n g m ember or a Sureño g ang member wea r i n g a jersey with the number 8 it could help better their perception as to that person beingfrom and a member of the Eig hth Street Sureño g ang

.

The prosecutor questioned Guerin about the sig nificance of the area where Trig

u eros was stranded:

Q: That particular a

r ea down L e a vesley past the 7-Eleven where our shooting took place

. . . is that an area that is more Norteño controlled or Sureño controlled?

A: I t would be more – we see more activity of Norteño gang members in that area.

Q: I s that a

n area where if an Eig hth Street
g ang member would appear or try to loiter or hang out h e would be someone possibly challeng ed by

a Norteño g ang member?

A: Correct.

. . . [ That area is] hig hly traversed by every one in town and most imp o rtantly Norteño gang members.

Guerin further ex

plained:

7-Eleven on L eavesley – L eavesley is a main road in Gilroy

– is predominantly a Norteñocontrolled area

. Many Norteño gangZ A P A T A V

. V A S Q U E Z 25

m em b e r s live in the immediate area

. . . so I consider that area a Norteño gang area

.

An d a Sureño g ang member g oing into that

are a , whether it’s the 7-Eleven store, the Rotten Robbie’s g as station or the g as station

across the street

. . . those are a ll areas where Norteños frequent

. And if a Sureño comes i n t o t h at area they ’ re g oing to – if they com e

across Nor t e ño gang members they ’re g oing
to b e looked upon as not be i n g in the proper area for that – for a Sureño g ang member.

Given thi s uncontradicted evidence, the state court unreasonably assume d t h a t the shooter had to be an OSP member. 9 Guerin’s testimony e stablishes that all Norteño
g ang s frequented the area n ear the 7-Eleven and that any o ne of them w ould have viewed a man w earing the number 8 with animosity

. Even f

actoring in Guerin’s testimony that OSP and anothe r l arg e N orteño g ang , East Side Gilas, were particularly active in the summer of 2 0 0 1
, t he u n iverse o f potential g u n men was still sig n ificantly b roader than a sing le Norteño “clique.” I f the potential shooter could just as likely have been a member of the East Side Gilas, another major No r t e ñ o subg r oup, let a lone any one of the many other

9 T h e s tate co u rt’ s m isu

n d erstan d in g reg ard in g th e u n iv erse o f p o ten tial sh o o ters i s ref

lected elsew

h ere in its op in io n

. T h e co u rt w ro te: “ A n ex p ert testif ied th at th e n ei g h b o r ho o d in w h ich h e h ad stran d ed h im self w as claim ed as tu rf b y Ou tsid e P o sse (OSP ), a lo cal cliq u e o f th e No rteñ o s street g an g. ” T h e g an g ex p ert’ s t estim o n y estab lish es t h e area w as g en erally claim ed as No rteñ o tu rf

, n o t s p e cif

ically OS P tu rf

. T h e g an g

ex p ert testif

ied t h at “ [w ]e h av e sev eral cliq u es o f No rteñ o g an g s,” in clu d in g O SP
, an d th at th e area su rro u n d in g t h e 7 -E l ev en w as

“ pred o m in an tly

a No rteñ o- co n tro lled area.”Z A P A T A V

. V A S Q U E Z

26

Norteño subg roups in Gilroy

, then the mere fact of Z apata’s OSP membership was less probative of his g uilt.

Second, a

nd for the same reason, t h e c o urt’s second assumption – that the similarities between Z apata’s face a nd the police sketch meant t hat the shooter had to be a n OSP

m ember who resembled Z a pata – also c onstitute s a n unreasonable determination of the f a c ts. See 28 U .S.C. § 2254(d) (2 ). Ag a in, according to the prosecution’s o wn

ex p ert witness, OSP was just one of many Norteño subg roups whose members f

requented the area near the 7-Eleven, so the
state court’s b elief that the shooter c o u ld only have been an OSP member resembling the sketch was unreasonable. 1 0

Third, the court’s s tatement that the involvement o f Z a pata’s white Toy ota pickup truck in the shooting was never seriously contested is also directly contradicted by the record. Defense counsel not only cross-ex amin e d t he prosecution’s witnesses on their v ehicle identification testimony

, b u t also

ex p licitly hig hlig hted the conflicts and inconsistencies in that testimony during his closing arg u ment.

As Z a pata’s attorney emphasiz ed at tr i al, the state’s witnesses di s agr eed on the make and the ty pe of vehicle involved in the s h o o ting

. Morton, who testified that he h ad “be[ e n ] i n automotive all [ his] life,” said the vehicle was a

10 Mo reo v er, th ere w as d isag reem en t at trial ab o u t th e d eg ree to w h ich Z ap ata actu ally resem

b led th e sk etch

. W h en ask ed to co m p are h is sk etch
ag ain st a co n tem

p o ran eo u s p h oto o f Z ap ata, t h e po lice sk etch artist co u ld
say o n ly th a t t

h ere w as “ so m e lik en ess.” Pu p h al, w h o se descrip tio n f o rm ed th e b asis o f th e s k etch

, w as n e v er ab le to id en tif y Z ap ata in a p h o to lin eu

p . A n d Ech ev erria, w h o in itially said th e sk etch lo o k ed “

j u st lik e” Z ap ata, t estif

ied at t rial t h at sh e h ad p u rp o s ely o v erstated th e d eg ree to w h ich th e sk etch resem

b led Z ap ata.Z A P A T A V

. V A S Q U E Z 27

F ord truck or an SUV wi t h a t opper. Puphal testified the truck was a sing le c a

b white pickup; at trial, when shown a photog raph of Z apata’s truck, he said only that it “could be” th e o n e involved in the shooting

. Althoug h Davila testified that the truck was a Toyota, it was only a month before trial, and over three y ears a f

te r t h e murder, that he identified Z a pata’s truck as the one involved in the shoot i n g. I n sum, the defense vig orously

arg u ed this point and created enoug h uncertain t y t o give at least some jurors reason to doubt whether th e ge t a way car was Z a pata’s w hite pickup. 1 1 The

11 Def e n s e co u n sel attack ed th e v eh icle id en tif i catio n testim o n y in clo sin g su m

m atio n , arg u i n g :

Serg ean t Dav ila g av e u s t estim o n y t h at’ s in co n sisten t

a nd irreco n cilab le w ith th e testim on y o f B rian P u p h a l

an d i n co n sisten t an d irreco n c i l a b le w ith th e testim o n y [o f ] J o e Mo rto n

. S erg ean t D a v i l a i s t h e o n ly w itn ess

w h o co m es in to t

h is co u rtro o m an d tells u s h e saw a T o y o t a p ick

u p tru ck

. Is th at b ecau se h e recalls seein g

a T o y o ta p i c k u p tru ck b ecau se h e m ig h t h av e seen a p h o to o f it w h en h e m et w ith Detectiv e Z en ? Or d id it

co m e u p

– o r i s it a reco l lectio n ? W h o k n o w s w h ere i t

c a m e fro m

. A n d w

h y is – y o u k

n o w , th at’ s j u st o n e p iece o f th e p ro blem

. Yo u k n o w , y o u ’ v e g o t J o e Mo rto n w

h o tells y o u h e’ s b e e n i n au to m o tiv e all h is lif e, h e th in k s i t w as a Fo rd

, th in k s i t h as a cam per sh ell. W e’ v e g o t B rian w h o j u st k n o w s it w as a w

h i te tru ck

, a f o u r- b y

- f o u r. A n d th en h ere is th e tim in g p ro b l em

. . . . [Dav ila] say s h e sees s o m eb o dy d riv in g l i k e a w ild m an an d d riv i n g l ik e a w ild m an I h av e i n q u o tes. T h at w as a w ild m an th at n o o n e else saw d riv in g th a t n i g h t, th at n o b o d y else rep o rts. He h eard

a screech in g n o ise. A n oise t h at n o b o d y else h eard

. No

o n e else rep o rted

. . . . T w o p eo p l e s ee a tru ck slo w ly

m o v in g p ro g ressin g d ow n L eav esley an d t h en d o w n Mu rray

. No b o d y h eard t

h e pealin g [sic] o f ru

b ber, th at screech in g n o ise [Dav i la] ta l k ed ab o u t. A n d y o u ’ l lZ A P A T A V

. V A S Q U E Z

28

evidence about th e t ru c k was not only hotly disputed, but it f e l l s h ort of establishing the vehicle at the shooting w a s Z a pata’ s

. T he state court’s contrary determination that the involvement o f Z apata’s truck was “not seriously c ontested” misstated the r ecord and w a s unreasonable as well. Taken tog ether, the foreg oing three critical, but unfounded, f actual assumptions w ere unreasonable and seriously u ndermine the state court’s prejudice assessment.

I n addition, the state court emphasiz e d t h a t a “g uilty verdict was also strong ly favored by the testimony a nd
statements of the three witnesse s a t tacked as ‘the i n f ormants’ 1 2 by the defense,” particularly the “ directly incriminat[ ing ] ” testimony of Sarah Sanchez

, w h o testified that Z apata told her h e “shot up” the 7-Eleven. I n assessing the streng th of this testimony

, h owever, the court e n tirely

recall [Dav ila] w as in th e g as statio n w h en h e h ears th at

n o ise. H e’ s i n th e g as s tatio n w h en h e h ears th e tw o sh ots an d sh o rtly th ereaf

ter h ears th e screech in g so u n d

. Yo u k n o w , so u n d s th at n o b od y h eard

. J o e Mo rto n g oes

o u t an d h e t o ld u s o n th e Mu rray Street s id e o f th e Sh ell statio n in tim e to see w

h at h e th ou g h t w as a w

h ite Fo rd
p i c k u p tru ck w ith a cam

p er d riv in g aw ay

. No screech in g , n o lay in g of ru b b er o n th e p av em en t, n o

co l lid in g w ith th e m ed ian

. Yo u k n o w , it’ s

– d o I th in k [Dav ila] cam e i n to th is c o u rtro o m an d lied to y ou ? A b s o lu tely n o t

. . . . W h at y o u k n o w o f th is case, th e

ev id en ce th at w e h av e all seen an d h eard

, w as h e

w ro n g ? A b so lu tely

. B u t th e p ro secu tio n em b races h is testi m o n y w ith t

h e ex cep tio n of th e tim in g p ro b lem b ecau se h e’ s th e o n e p erso n w ith o u t a d o g in th is f

ig h t th at r ecalls h av i n g s een a T o y o ta p ick u p tru ck

. Yo u k n o w , if it d o esn ’ t m ak e sen se y o u h av e to rej ect it.

12 Z ap ata’ s co u n sel ref

erred to S arah San ch ez, Nan cy Ech ev erria an d Victo ria L o p ez as “ th e in f o rm an ts” in

h is clo sin g arg u

m en t.Z A P A T A V

. V A S Q U E Z 29

overlooked a serious i n consistency in Sanchez ’s testimony and her resulting questionable credibility

. Cf. Mi ller-El v

. Cockrell

, 5 37 U.S. 322, 340 (2003) (“A federal c ourt can di s a g ree with a state court’s c r edibility determination and, when g uided by AEDPA, conclude t h e d ecision was unreasonable or that the f a ct u al p remise was incorrect b y clear and c onvincing evidence.”). Sanchez testified that in May or e a r ly J une 2 001, very shortly after the shooting

, Z a pata approached her while she was d ropping o ff an OSP

a ssociate n amed Donald Rey es at the Ramirez ranch. S h e testified that Z apata a sked if she could “do him a favor,” a nd drive his truck to Stockton or Manteca because “he had shot up somebody

at 7-Eleven.” D onald Rey es, who testified for the defense, said he had n ever asked Sanchez for a ride a n d

was incarcerated from April to the middle of J une 2001, a fact
to which the p arties stipulated. F u rthermore, as t h e s tate court did note, Sanchez also adm i t t ed at trial that she harbored ill will towards Z apata b ecause, in November 2002, he and a g roup of OSP a ssociates attacked her new boy friend, presumably to send a messag e f rom her p r e v ious boy friend,

an OSP member. She did not contact the p o l i c e about what Z a pata purportedly told her until after that attack.

The test i m o n y of Nancy Echeverria, Z a pata’s ex

g irlfriend, w as also subject to attack for bias. Echeverria, who was dating Z apata at the tim e o f t h e Trig ueros murder, testified at trial t h a t s he first suspected Z apata may have committed the m u r d er after seeing the police sketch shortly afterward, but she called the police tip line only in December 2002, after Z apata had broken up with her a n d 1 8 months after the shooting

. She testified at trial that she ex ag g erated the deg ree o f resemblance between the police sketch a nd Z a pata and lied about when she last saw the truck because she wanted to “burn” Z a

pata and h i s n e w g irlfriend “in a bigZ A P A T A V

. V A S Q U E Z

30

w a y

. ” F urthermore, she admitted she had not b een entirel y truthful in her pretrial conversations w ith Detective Z en about Z a pata’s involvement in the murder: “[ N ] ot every thing I said

was true, so it’s kind of like, y o u k n o w , I lied and I had to face reality

. ”

Similarly

, Victoria L o pez retreated at trial from her pretrial statement that she “ kind o f th[ ou gh t ] it w as stupid [ Z apata] ” who committed the murder because h e b e g a n driving a black Taurus after May 2001. She testified that she continued to se e Za p ata d rive the white pickup after May 2001 a nd that she could not remember the rest of her pretrial

s t a tement. The prosecution attempted to ex plain t h e inconsist e ncies by arg uing Echeverria and L opez h ad received threats from OSP members prior to trial, but the fact remained there were serious inconsistencies between their pretrial statements and in-court testimony

. 1 3

Considering these facto rs tog ether, we conclude the California Court of Appeal’s prejudice det e r mination was based o n multiple misapprehensions of th e r ecord, and its
assessment of the streng th o f the evidence ag ainst Z a pata was therefore unreasonable. F irst, its conclusion that the universe of perpetrators was limited to OSP m e m b ers is contradicted by the testimony of the prosecuti on’s own g ang ex pert, w ho testified that OSP was just one o f several a c tive Norteño
gang s in the area, a

nd that members o f any one of t h e m would have viewed a perceived Sureño with animosity

.

1 3 Sp ecif ically

, th e p ro secu tio n p resen ted ev id en ce th at Ech ev erria w as af raid t o testif

y b ecau se sh e h ad b een in tim id ated b y OSP m em b ers. Detectiv e Z en testif

ied Ech ev erria to ld h im

th at sh e w o u ld lie if sh e w as f o rced to testif

y i n c o u r t

. Ech ev erria, h o w ev er, said sh e w as af raid to testif y b ecau s e sh e h ad lied in h er p retrial statem en ts.Z A P A T A V

. V A S Q U E Z 31

Second, its observation that the involv e ment of Z apata’s truck in the shooting was never seriously contested is belied by the record; the state’s witnesses could not ag ree on the ty p e o f vehicle involved in the s h ooting

. F inally

, the “ directly incriminating ” testimony of Sarah Sanchez was subject to attack f o r both credibility

and bias, and the statements made by Echeverria and L o pez were also subject to viable credibility

challeng es.

I n addition to the considerations ex p licitly mentioned b y the state court, two additional foundations of the prosecution’s c ase were weak at best. F irst, the prosecution
arg ued Z apata’s truck disappeared immediately following the Trig uero s murder. T h ere was, however, contradictory evidence about when th e truck disappeared. I n pretrial statements, Echeverria said the truck was “g one the n ex t day

, in the morning

, ” a

nd L opez observed that Z apata b eg an driving a black Taurus “rig ht after” t h e murder and h ad stashed his truck at the Stockton home o f R i c o Clarke. At trial, however, Echeverria testified she saw Z apata driving the truck in Gilroy the day after the murder, in the afternoon, a nd L opez testified she saw Z apata drive the truck “ s o metime after” the Trig ueros shoot i n g. 1 4 Clarke denied having kept

14 S pecif ically

, w h e n q u estio n ed ab o u t w

h en sh e last saw t

h e tru ck

, L o pez h ad

th e f o llo w in g ex ch an g e w ith

th e p ro secu to r:

Q: No w d id y o u ev er see th at w h ite pick u p t ru ck af ter th e s h o o t i n g at th e 7

- Elev en o n L eav esley in May 2 0 0 1 ?

A : Yeah

, I th i n k h e u sed

to d r ive it a fterwa r d s

.
Q: W h en ?Z A P A T A V

. V A S Q U E Z

32

t h e t ruck for Z apata, and D etective Z en testified that he d i d
not se e the truck a t Clarke’s house when he went to i n v e stig a te in late 2002. I n December 2 002, Z en f ound t h e truck at an apartment complex in nearby Morg an Hill where Priscilla Pena, Z apata’s new g irlfriend, was living

. I n March 2003, Z en seiz ed the t r u ck f rom Pena’s sister’s house, also located in Morg an Hill.

There was also conflicting evidence about why the truck disappeared from Gilroy

. W itnesses on both sides t e stified that Z apata’s truck was a “ p i e c e of junk,” in bad condition, and may have broken down. Multiple witnesses also testified

A : I

– w ell, so metime a

fter Ma y I g u e s s u n til h e g o t a b lack car.

Q: Ok ay

. Do y o u recall tellin g Dan Z en th at as so o n as it h ap pen ed h e did n ’ t d riv e h i s tru ck n o m o re. Do y ou

rem em b er tellin g Dan Z en

th at?

A : I rem em

b er it h ad b ro k en d o w

n o n th e si d e of th e f reew ay

. . . .
Q: Yo u n ev er saw th e tr u c k t h e d ay af ter, th e m o n th af ter, six m on th s af

ter, a y ear af

t er th e 7

- Elev en sh oo tin g , d id y o u ?

A : W h at d o y o u

m ean ?

Q: Yo u n ev er saw

th e tru ck af ter th e sh o o tin g ?

A : A f t er th at h ad h ap p en ed ?

Q: A f ter y o u read it in th e p ap er, co rrect.

A : N o , b ecau se h e h a d d riv en it af terw ard s b u t it h ad b ro k en d o w n . A n d af ter th at – af ter th at th e car w asn ’ t f ix ab l e . . . .Z A P A T A V

. V A S Q U E Z 33

Z a pata moved to Holl ister sometime a f ter the shooting a

nd that the truck had been relocated there.

Second, the prosecution e mphasiz ed the simi l a rity between Z apata’s likeness and the ey ewitness descriptions o f the shooter. Puphal de s cribed the shooter to a police sketch artist shortly after the shooting as a “stocky ” H i s p anic man with a scrag g ly but “complete g oatee” a nd beads ar o u n d his neck, and Z apata had a tattoo on his neck. At trial, however, Puphal fai l e d t o positively identify Z a p ata in a photog raph shown at trial, nor was he able to identify Z apata in a pretrial photog raphic lineup. Shortly after the sh o o t i n g, in a police statement, Puphal d e scribed the shooter as be i n g 5 ' 5"
, 1 5 whereas J o e M o r t o n, who h eard the shots and saw a man fleeing the scene of t h e cr ime, testified he was sure the man had been b etween 5 ' 10" a nd 6' tall. W hen asked if there was “[ a] ny chance he was five seven,” Morton responded, “No.”

F urthermore, Echeverria told Detective Z en during a pretrial interview that the sketch looked “ j ust like” Z apata when he was try ing to g row a g oatee. During crossex a mination, however, she testifi ed Z apata never had a g oatee l i k e the one pictured in the sketch and was incapab l e o f
g rowing one:

Q: And y ou told t h e Court at that time that
y ou told that lie because y o u didn’t l i k e [ Z apata] . I s that the truth?

15 A t trial, P u

p h al in itially testif

ie d d u r i n g d irect ex am in atio n th at th e sh o o ter w as b etw een 5 ' 5 " an d 5 ' 8 "
, b u t w h en q u estio n ed o n c r o ssex am in atio n , P u

p h al stated th at th e sh oo ter w as “ ap p ro x im ately ” 5 ' 5 "

.Z A P A T A V

. V A S Q U E Z

34

A: That’s the truth. A nd when I had seen the sketch I fig ured, y ou know, if I say that he h ad

a g oatee or tried to g row one it w as g oing to make it seem more like, y o u know, g ive

– well, basically

, that h e was – it was just g oing to land on him that he did do it.

Q: W e ll, it w ould make h im look like the g u y in the sketch.

A: Correct.

Similarly

, witnesses for both the prosecution and defense testified Z apata could not g row a go a t ee

. Given Puphal’s
statement that the g unman “definitely ” sported a g oatee, this testimony further undercuts the deg ree to which Z apata matched the ey

ewitness description of the shooting

.

I n short, a s the stat e c o u rt acknowledg ed, the prosecutio n’s case was “hampered b y weaknesses in the identification evidence.” A c a reful re ading of the record reveals that the case was even weake r than the state court believed it to be, sufficie n t l y s o that the court’s conclusion that the jury was n ot influenced by the prosecutor’s “serious,”

u n challeng ed misconduct was manifestly unreasonable. B y contrast, in Darden

, the Supreme Court concluded an improper prosecutorial arg ument was not prejudicial because “[ t] he weig ht o f t h e evidence ag ainst petitioner was heavy ; the overwhelming ey ewitness and circumstantial evidence to support a finding of g uilt o n all charg es reduc e d the lik e l ihood that the jury ’ s decision was influenced b y arg ument.” 477 U.S. at 182 (citation and i n ternal quotation marks omitted)). Unlike in that case, here, the likelihood the jury ’s decision was influenced by the prosecutor’s eg reg iousZ A P A T A V

. V A S Q U E Z 35

and inflammatory closing arg ument is h eig htened because the evidence ag ainst Z apata was w eak, and the ey e w itness a nd circumstantial evidence was far from overwhelming

.

2. The prom inence and tim ing of the com ments also point to prejudice.

T he prosecutor’s inflammatory r emarks were also prominent in the contex t of the entire trial. The p rosecutor repeated the statements throug ho ut the closing rebuttal, a nd they w e r e among the last w ords the jurors heard before they

were sent to deliberate. The presentation o f improp e r material at the end o f trial “ mag nifie[ s] ” its prejudicial effect because it is “freshest in the mi n d of the jury when [ it] retire[ s] to deliberate.” Crotts v. Smith

, 7 3 F .3d 861, 867 (9th Cir. 1 996) (internal citation and quotation marks o mitted), superseded by statute on other grounds as stated in Van Tran v. Lindsey

, 2 12 F .3d 1143 (9th Cir. 2000); see also Sanchez

, 659 F .3d at 1261 ( observing that improper p r o s e cutorial
comment in a closing rebuttal was particularly problematic because “it was the last arg ument the jury heard before g oing
to the jury r oom to deliberate,” thus “increas[ ing ] the risk that the inflammatory statement would improperl y influence the jurors”).

3. The c om m ents w ere not a reasonable inf erence f rom the record.

That the prosecut o r’ s c o mments were not a reasonable inference from the record al s o mag n ifies their prejudicial impact. A s the state court d eclared, they were “pure fiction.” Althoug h the evidence showed Z apata was i n volved in another incident in which OSP members used such epithets, there was no evidence to eve n s u ggest such comments wereZ A P A T A V

. V A S Q U E Z

36

made here. Additionally

, the failure of either defense counsel

o r t he court to question the prosecutor’s r epeated, albe i t fictitious, version of the v ictim’s last minutes would have led the jurors either to assume the statements were accurate or, at least, that the rank speculation was p e r missible. T h is case thus stands apart f

rom others concluding that prosecutorial misconduct was not prejudicial. See, e .g. , Darden

, 477 U.S.
at 182 (noting the prosecutor’s improper comment did not “manipulate or misstate the evidence”).

4. The comme nts w ere not invited by def ense counsel.

Under the doctrine of “invited response,” “the reviewing
court must not only weig h t h e impact of the prosecutor’s remarks, but must a lso take into a ccount d efense counsel’s opening salvo.” United States v. Y oung , 4 70 U.S. 1, 12 (1985). Here, nothing in defense counsel’s closing arg ument invited the inflammatory remarks. Cf. D arden

, 477 U.S. at 182 (noting that “[ m] uch of the objecti o n a b l e content was invited b y o r was responsive to the opening summation of the defense”). This factor too c oun sels in favor of finding the remarks prejudicial.

5. No specif

ic lim iting instruction w as given.

F inally

, a l thoug h the jury was g enerally instructed that “statements made b y the a ttorn e y s during the trial are not evidence,” the jury was never specifically instructed to disreg ard the inflammatory statements made i n the prosecutor’s rebuttal. B y contrast, cases that ha v e h eld prosecutorial misconduct n onprejudicial have pointed to the

use of a specific limiting instru c t i o n

. See, e .g. , Donnelly v

. DeChristoforo

, 416 U.S. 637, 645 (1974) (noting theZ A P A T A V

. V A S Q U E Z 37

prosecutor’s p otenti al ly improper remark was “followed b y specific disapproving instructions”); Cheney v . W a shington

, 614 F .3d 987, 997 (9th Cir. 2010) (holding the state court

r e asonably determined the petitioner was not prejudice d b y improper closing arg ument when “ counsel brought the prosecutor’s impropriet y t o the court’s attention with only a slig ht delay ”).

Considering the weaknesses in the prosecution’s case a nd the seriousn e s s o f the misconduct, we hold not only that prejudice was established o n the record, but al s o t h a t the California Court of Appeal unreasonably determined Z apata

was not prejudice d by his counsel’s failure to o bject to the prosecutor’s eg

reg ious remarks.

CONCLUSION

Defense counsel’s failure to object t o t h e prosecutor’s inflammatory

, fabricated and ethnicall y charg ed e pithets, delivered in the momen t s b efore the jury was sent to deliberate Z apata’s case, constituted ineffective assistance o f counsel. T he California Court of Appeal’s failu r e t o so conclude was based on unreasonable f actual d e t erminations and was a n unreasonable application of controlling Supreme Court law. See 28 U.S.C. § 2 2 54(d)(1)–(2). W e thus REVERSE the judg ment a nd REMAND the case with instructions to g rant the petition for habeas corpus.