Victor Trillo v. T. Felker, et al

Filing

Filed amended opinion (J. CLIFFORD WALLACE, M. MARGARET MCKEOWN and RONALD M. GOULD) [9265977]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

VICTOR BERNARD TRILLO,
Petitioner-Appellant,
v.

No. 11-15463
D.C. No.
2:06-cv-01287-J
KS

MARTIN BITER, Acting Warden;
ATTORNEY GENERAL FOR THE STATE
OF CALIFORNIA,
Respondents-Appellees.

AMENDED
OPINION

Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted
March 13, 2014—San Francisco, California
Filed June 16, 2014
Amended October 6, 2014
Before: J. Clifford Wallace, M. Margaret McKeown,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Wallace

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TRILLO V. BITER
SUMMARY*

Habeas Corpus
The panel filed an amended opinion affirming the district
court’s denial of a 28 U.S.C. § 2254 habeas corpus petition
challenging a second-degree murder conviction.
The panel held that the prosecutor’s unsupported
comment implying that the defendant had switched his story,
which was improper under clearly established federal law, did
not materially affect the fairness of the proceedings because
the trial court sustained the defendant’s objection and the trial
court instructed the jury that statements made by the attorneys
during trial are not evidence.
The panel held that there was a sufficient basis for the
prosecutor’s statements about witness inconsistencies and his
implication that the witnesses had coordinated their
testimony.
The panel held that the California Court of Appeal’s
determination that the prosecutor’s statement urging the
jurors to convict – because they might be “very
uncomfortable” explaining to neighbors a vote to acquit –
was an unreasonable interpretation of clearly established
Supreme Court law barring the government from pressing the
jury to convict. The panel concluded, however, that the
defendant was not deprived of a fair trial because the
prosecutorial misstatement did not have a substantial and
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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injurious effect or influence in determining the jury’s verdict,
and therefore did not so infect the trial with unfairness as to
make the resulting conviction a denial of due process.
The panel held that the defendant’s counsel was not
constitutionally ineffective for failing to object to
prosecutorial statements that the defendant had removed his
shirt, and that counsel’s failure to object to the prosecutor’s
statements about gang connections did not prejudice the
defense.
The panel held that the exclusion of an uncorroborated
witness statement that might have supported a self-defense
theory did not violate due process.

COUNSEL
Steven C. Sanders (argued), Sanders & Associates, West
Sacramento, California, for Petitioner-Appellant.
R. Todd Marshall (argued), Deputy Attorney General,
Kamala D. Harris, Attorney General of California, Michael
P. Farrell, Senior Assistant Attorney General, and Catherine
Chatman, Supervising Deputy Attorney General, Sacramento,
California, for Respondents-Appellees.

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TRILLO V. BITER
OPINION

WALLACE, Circuit Judge:
After Victor Trillo was convicted of second-degree
murder by a trial court of the State of California, his
conviction affirmed by the California Court of Appeal, and
his state collateral remedies exhausted, he filed this habeas
petition pursuant to 28 U.S.C. § 2254. The district court
denied the petition. Trillo appealed. We granted a certificate
of appealability on three issues: “(1) whether the prosecutor
[in Trillo’s trial] committed prejudicial misconduct during
closing argument; (2) whether trial counsel was
constitutionally ineffective for failing to object to additional
closing remarks made by the prosecutor; (3) whether the trial
court violated petitioner’s Sixth Amendment right to present
a meaningful defense by excluding testimony regarding a
statement made by a witness to the victim which might have
corroborated petitioner’s theory of defense.” We have
jurisdiction over this timely filed appeal under 28 U.S.C.
§§ 2253, 2254, and 1291. We affirm.
I.
Trillo was at a party with several friends. Two individuals
at the party got into a fist fight. Confusion and yelling
followed. Several men took off their shirts and began
fighting. Trillo had a gun, and fired at another partygoer,
killing him. Trillo was later arrested after fleeing the scene
and the state.
Trillo’s theory in his state court trial for second-degree
murder was that he had acted in self-defense. According to
Trillo, during the fight he was hit in the back, and then saw

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someone approach him with a knife. At trial, Trillo’s attorney
attempted to have admitted witness testimony that a man had
approached the victim after the shooting asking “Was it worth
it?” In a hearing held outside of the jury’s presence, the trial
court refused to allow this testimony, because there was an
insufficient foundation to admit the statement.
Trillo’s attorney objected to three statements made by the
prosecutor during his closing argument. First, the prosecutor
stated that the “[f]irst story was a lame one, first story was I
wasn’t the shooter” — implying that Trillo had changed his
theory of the case from innocence to self-defense. After
Trillo’s attorney objected to this statement, the court
admonished the jury that “I don’t believe there was” evidence
supporting the prosecutor’s argument. A few moments later,
the prosecutor suggested that friends of Trillo’s who had
testified on his behalf had changed the stories they provided
to investigators after coordinating with each other. Defense
counsel again objected, which led to a hearing out of the
jury’s presence. The judge ultimately denied Trillo’s motion
for a mistrial or curative statement to the jury. Finally, the
prosecutor suggested what would happen to members of the
jury if they “walked” Trillo after they “got the instructions
about reasonable doubt.” The prosecutor stated that if jurors
informed a neighbor about the acquittal, “[y]our neighbor’s
going to be, you did what? And you’re going to be very
uncomfortable.” Defense counsel objected. The trial court
told the prosecutor to continue but to “relate to the evidence.”
The prosecution also made other statements in its closing
argument to which Trillo’s attorney did not object, including
statements that Trillo had removed his shirt at the beginning
of the fight, and that Trillo belonged to a gang and had a
criminal history.

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The jury convicted Trillo of murder. The judge denied his
motion for a new trial. He appealed the conviction to the
California Court of Appeal, which affirmed. People v. Trillo,
2004 WL 2943242 (Cal. Ct. App. Dec. 1, 2004). The
California Supreme Court denied his petition for review.
Trillo filed a timely state habeas petition and a timely federal
habeas petition. His federal petition was stayed to allow him
to exhaust his state court remedies. The County Superior
Court, the California Court of Appeal, and the California
Supreme Court denied his state petition.
After the denial by the California Supreme Court, he
renewed his federal petition. The district court denied the
petition. Trillo timely appealed from that judgment.
II.
We review the district court’s judgment denying habeas
relief de novo, and its findings of fact for clear error. Hein v.
Sullivan, 601 F.3d 897, 905 (9th Cir. 2010). Under the
Antiterrorism and Effective Death Penalty Act of 1996, we
only grant a federal habeas petition for claims adjudicated on
the merits by the state courts, if the state court adjudication
“(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” Harrington v. Richter, 131 S.
Ct. 770, 783–84 (2011), quoting 28 U.S.C. § 2254(d).
It appears that there was some confusion regarding the
issues in the certificate of appealability we granted. The first
issue is “whether the prosecutor [in Trillo’s trial] committed

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prejudicial misconduct during closing argument.” The second
issue is “whether trial counsel was constitutionally ineffective
for failing to object to additional closing remarks made by the
prosecutor.” Thus, the first issue on appeal is whether the
prosecutor committed prejudicial misconduct during closing
argument in the comments to which Trillo’s trial counsel
objected. The second issue on appeal is whether Trillo
suffered from ineffective assistance of counsel for the failure
of his trial counsel to object to other prosecutorial comments.
The distinction is important because the issues are governed
by different standards. The first is governed by the deferential
habeas standard from 28 U.S.C. § 2254(d). The second is
governed by the “doubly” deferential standard, under which
we defer both to the state courts’ determination that trial
counsel did not act ineffectively and then also defer to the
trial counsel’s representation as reasonable, so as not to
“second-guess” trial counsel who “observed the relevant
proceedings, knew of materials outside the record, and
interacted with the client, with opposing counsel, and with the
judge.” Harrington, 131 S. Ct. at 788.
In his opening brief filed in this court, Trillo’s argument
regarding the first issue for our review included both
prosecutorial statements to which his trial counsel had
objected and prosecutorial statements to which his counsel
did not object. In his reply brief, though, he clarified that the
first issue for our review pertains solely to statements made
by the prosecutor to which Trillo’s trial counsel objected.
That is the correct interpretation of our certificate of
appealability.

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TRILLO V. BITER
III.

Trillo’s counsel objected to three prosecutorial comments
during arguments. We now consider them.
A.
The prosecutor first argued to the jury that Trillo had
initially told the police that he was not the shooter, and that
“story was a lame one.” There was no evidence to support the
State’s implication that Trillo had switched his story. That
comment was improper under clearly established federal law,
as the California Court of Appeal later correctly recognized
on direct appeal. The state trial court sustained Trillo’s
counsel’s objection to that statement, and told the jury and
prosecutor “I don’t believe there was [any evidence of the
government’s implication], why don’t you continue.”
As the California Court of Appeal correctly held, the
prosecutor’s comment did not materially affect the fairness of
the proceedings because the trial court sustained the
defendant’s objection, and the trial court instructed the jury
that “[s]tatements made by the attorneys during trial are not
evidence.” We presume that juries listen to and follow
curative instructions from judges. See Fields v. Brown,
503 F.3d 755, 782 (9th Cir. 2007).
The prosecutor then argued that the testimony of Trillo’s
witnesses was inconsistent with prior statements they had
made, implying that they had contacted each other and had
coordinated their testimony to protect Trillo. Defense counsel
again objected, which led to a hearing outside the presence of
the jury. Ultimately, the trial court rejected Trillo’s argument
that the prosecutor’s statements about witness inconsistencies

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and implication that the witnesses had coordinated their
testimony were improper, and refused to instruct the jury
separately on the issue.
The comments were indeed appropriate, as the California
Court of Appeal later recognized on direct review. Some of
the witnesses who had testified on Trillo’s behalf had made
inconsistent statements, and admitted as much under crossexamination. One witness did suggest that a defense
investigator hinted that she should change her testimony to
support Trillo’s self-defense theory. Because there was a
sufficient basis for the prosecutor’s statements, he did not
commit misconduct by pointing out the inconsistencies in
witness testimony, especially when the witnesses themselves
admitted their statements were inconsistent. Sassounian v.
Roe, 230 F.3d 1097, 1106 (9th Cir. 2000). This was not, as
Trillo argues, the same “exact line” of argument as the prior
government statement. The prosecutor was not arguing that
Trillo had changed his story, but rather that the witnesses who
supported Trillo’s story had been inconsistent. That was an
acceptable argument based on the testimony.
Thus far, the only erroneous statement made by the
prosecutor was rectified by the sustaining of the objection.
B.
At the end of argument, the prosecutor described
“reasonable doubt” as “something that makes you
comfortable with your decision today,” so that each member
of the jury could “go explain to it to your neighbor next day,
conversation, explain the decision.” The prosecutor used this
theme to revisit the facts of the case in full. The prosecutor
then suggested that each of the members of the jury would

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explain to his or her neighbor “gosh, we got the instructions
about reasonable doubt, and we walked him. Your neighbor’s
going to be, you did what? And you’re going to be very
uncomfortable.” Trillo’s counsel immediately objected that
this statement was improper. Although the judge “noted” the
objection, the trial court allowed the prosecutor to finish his
argument, told him to “relate to the evidence,” and did not
specifically rule on the objection or admonish the prosecutor.
The prosecutor then asserted that he meant to suggest that the
members of the jury would “be uncomfortable is because not
reasonable for you of the evidence and couldn’t explain it
[sic] and make it reasonable if you tried.” On direct appeal,
the California Court of Appeal interpreted the prosecutor’s
statement to mean that the jurors “should convict because it
was not reasonable under the evidence to acquit.” Construing
the statement in this light, the California Court of Appeal held
that it was acceptable prosecutorial commentary.
But this interpretation was an unreasonable application of
clearly established federal law. “[T]he touchstone of due
process analysis in cases of alleged prosecutorial misconduct
is the fairness of the trial, not the culpability of the
prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). The
state court should have analyzed whether the statement to
which Trillo’s attorney objected was improper regardless of
the prosecutor’s intended meaning.
Given this standard, clearly established federal law from
the Supreme Court bars the government in a criminal trial
from pressuring the jury to convict the defendant. United
States v. Young, 470 U.S. 1, 18 (1985); Darden v.
Wainwright, 477 U.S. 168, 179–81 (1986). As we have
recognized, “[a] prosecutor may not urge jurors to convict a
criminal defendant in order to protect community values,

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preserve civil order, or deter future lawbreaking.” United
States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005)
(citations omitted).
Well-reasoned decisions from our sister circuits recognize
that examples of statements that constitute improper pressure
under Young include when prosecutors imply that jurors
should convict a defendant because failure to do so would
endanger their neighbors. See, e.g., United States v. Johnson,
231 F.3d 43, 47 (D.C. Cir. 2000) (holding that “the
prosecutor’s argument in this case improperly suggested that
the jury should convict the defendant in order to protect
others from drugs”); Gonzalez v. Sullivan, 934 F.2d 419, 424
(2d Cir. 1991) (holding that a prosecutor’s “reference to the
community’s cry for safer streets” was inappropriate).
Under Young, a prosecutor may not suggest that jurors
should vote to convict a defendant lest that defendant
endanger their neighborhood. It follows that jurors should not
be urged to vote to convict simply because they might be
uncomfortable with a vote to acquit. Thus, we conclude that
the California Court of Appeal’s determination that the
prosecutor’s statement was not improper was an unreasonable
interpretation of the clearly established principles from Smith
and Young.
C.
But we do not grant habeas petitions solely because a
prosecutor erred. Our aim is not to punish society for the
misdeeds of the prosecutor; rather, our goal is to ensure that
the petitioner received a fair trial. Smith, 455 U.S. at 219. We
grant habeas relief for prosecutorial misconduct only when
the misconduct prejudiced the petitioner. Hein, 601 F.3d at

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914. We determine whether the petitioner suffered prejudice
by placing the improper comments in the context of the entire
trial. To do that, we look to the weight of the evidence
submitted against Trillo, the prominence of the erroneous
comments in the entire trial, whether the prosecution
misstated the evidence, whether the judge instructed the jury
to disregard the comments, whether the comment was invited
by defense counsel in summation, and whether defense
counsel had an adequate opportunity to rebut the comments.
Id. In examining those suggested areas of concern, we
evaluate whether the error had a substantial and injurious
effect or influence in determining the jury’s verdict. Brecht,
507 U.S. at 637.
Although the judge did not sustain the objection from
Trillo’s lawyer to the comment about reactions from the
jury’s neighbors, there was powerful and overwhelming
evidence of Trillo’s guilt. Trillo admitted that he had killed
the victim, but argued at trial that he had acted in selfdefense. However, no witness besides Trillo testified that the
victim had a weapon, and emergency personnel did not see
any knife near the victim. Moreover, Trillo’s testimony about
the injury he allegedly suffered was inconsistent. He testified
that he was hit in the back by what felt like a punch, but when
he turned the only person behind him was the victim, who
was still a few feet away. Following the shooting, Trillo fled
the scene of the crime and then left California entirely. Not
only did the government submit sufficient evidence that
Trillo had not acted in self-defense, the government further
undermined whatever evidence Trillo submitted that he had
acted in self-defense. For example, the government showed
that witnesses who supported Trillo had given the police false
information, had attempted to contact Trillo, and had
withheld information from the police.

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The other issues that we consider, following Hein, also
show that any prejudice Trillo may have suffered was not
enough for us to grant him relief. The erroneous unrectified
comment did not play a prominent role in Trillo’s trial, but
instead was a single statement during a closing argument that
took twenty pages of transcript after a long criminal trial.
Accord Hein, 601 F.3d at 916 (“the comments were made in
the course of several days of summation after a two-month
trial . . . [and the inappropriate comment] appeared in one
paragraph of a summation that took up eighty-four pages of
the transcript”). Nor did the prosecution actually misstate the
evidence. Id. at 915.
Therefore, Trillo was not deprived of a fair trial because
under all the Darden factors recited in Hein, we conclude that
the prosecutorial misstatement did not have a substantial and
injurious effect or influence in determining the jury’s verdict,
and therefore did not so infect the trial with unfairness as to
make the resulting conviction a denial of due process. See
also Hein, 601 F.3d at 915.
IV.
The next issue we certified for appeal was whether trial
counsel was constitutionally ineffective for failing to object
to additional remarks made in the prosecutor’s argument.
Trillo argues that the prosecutor made improper statements to
which his trial counsel did not object. Those include
references to Trillo removing his shirt, which Trillo argues
implied to the jury that he had instigated the initial fight, and
references to Trillo’s gang connections and criminal history.
Trillo’s counsel was not constitutionally ineffective for
failing to object to the prosecutorial statements that Trillo had

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removed his shirt. Those statements were based on reasonable
inferences from the record. Gray, 876 F.2d at 1417
(“prosecutors are free to argue reasonable inferences from the
evidence”). Testimony established that Trillo’s friends who
were standing with him had removed their shirts, and a
witness described Trillo’s neck tattoo, which together
reasonably implied that he had removed his shirt. Indeed, on
appeal, Trillo now admits that there was a witness who
“remotely insinuated that [Trillo] removed his shirt.”
Trillo’s attorney’s failure to object to the government
statements about gang connections did not prejudice Trillo’s
defense. As mentioned above, there was powerful evidence
that Trillo had not acted in self-defense, and the trial court
reminded jurors that statements made by the attorneys are not
evidence. Thus, Trillo’s attorney’s failure to object did not
“undermine confidence in the outcome of the trial,” so we
refuse to grant habeas relief for ineffective assistance of
counsel. Cheney v. Washington, 614 F.3d 987, 997 (9th Cir.
2010) (citations omitted).
V.
The last issue for our review is “whether the trial court
violated petitioner’s Sixth Amendment right to present a
meaningful defense by excluding testimony regarding a
statement made by a witness to the victim which might have
corroborated petitioner’s theory of defense.” At his trial,
Trillo sought to introduce the testimony of a witness who
stated that he saw another man approach the victim
immediately after the shooting and said “Was it worth it?”
According to Trillo, this testimony supported his self-defense
theory, because the unidentified man was rhetorically asking
the victim why he chose to advance toward Trillo while

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armed. The trial court refused to admit this hearsay evidence
under California Evidence Code section 1240, which allows
the admission of spontaneous statements that “(a) [p]urport[]
to narrate, describe, or explain an act, condition, or event
perceived by the declarant; and (b) [were] made
spontaneously while the declarant was under the stress of
excitement caused by such perception.” Cal. Evid. Code
§ 1240 (West 2014). According to the California Court of
Appeal, which affirmed the exclusion of the witness’
testimony, the statement was ambiguous, so the trial court did
not abuse its discretion in excluding it. In this appeal, Trillo
argues that the decision to exclude the evidence was
erroneous, and the exclusion prejudiced him.
We do not review whether the decision to exclude the
evidence was consistent with state law. Bradshaw v. Richey,
546 U.S. 74, 76 (2005) (per curiam) (explaining that “a state
court’s interpretation of state law . . . binds a federal court
sitting in habeas corpus”). Instead, we only determine
whether the state evidentiary rule violates the federal
Constitution. Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(“our habeas powers [do not] allow us to reverse [a]
conviction based on a belief that the trial judge incorrectly
interpreted the California Evidence Code . . . The only
question for us is whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates
due process”) (internal quotation marks omitted)). The
application of state evidentiary rules must be consistent with
the right to due process protected by the Fourteenth
Amendment, but “do not violate a defendant’s constitutional
rights unless they infringe upon a weighty interest of the
accused and are arbitrary or disproportionate to the purposes
they are designed to serve.” Moses v. Payne, 555 F.3d 742,
757 (9th Cir. 2008) (alterations and citations omitted). A

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decision by a trial court to exclude evidence only violates the
Constitution if the evidence is “sufficiently reliable and
crucial to the defense.” United States v. Hayat, 710 F.3d 875,
898 (9th Cir. 2013) (citation omitted). If the evidence does
not bear “persuasive assurances of trustworthiness,” the trial
court’s decision to exclude the evidence could not violate due
process. Id. at 899 (citation omitted).
The exclusion of the witness statement here did not
violate due process. There was no evidentiary corroboration
at all for the witness statement in Trillo’s trial. The trial court
excluded the testimony of a single person who would have
testified that another man had asked the victim “Was it worth
it?” No other witnesses saw or testified to this alleged
statement. Indeed, as the California Court of Appeal pointed
out, it was not at all clear what “Was it worth it?” meant.
Without any corroboration, the trial court’s decision to
exclude the testimony could not violate the Constitution. Id.
at 898–99.
AFFIRMED.