PAUL M. ZAPATA, Petitioner-Appellant,
RODOLFO VASQUEZ, Respondent-Appellee
Argued and Submitted, San Francisco, California September 11, 2014.
Appeal from the United States District Court for the Northern District of California. D.C. No. 3:10-cv-00176-TEH. Thelton E. Henderson, Senior District Judge, Presiding.
The panel reversed the district court's denial of a California state prisoner's habeas corpus petition challenging a conviction for first-degree murder with enhancements for committing an offense for the benefit of a criminal street gang and personally discharging a firearm in the course of the offense, and remanded with instructions to grant the petition.
The panel held that defense counsel's failure to object to the prosecutor's falsified inflammatory and ethnically charged remarks, delivered during closing argument moments before the jury was sent to deliberate the case, constituted ineffective assistance of counsel. The California Court of Appeal's failure to so conclude was based on an unreasonable factual determination and was an unreasonable application of controlling Supreme Court law.
Steven G. Kalar, Federal Public Defender for the Northern District of California; Robert M. Carlin (argued), Assistant Federal Public Defender; Mara K. Goldman, Research and Writing Attorney, San Jose, California, for Petitioner-Appellant.
Kamala D. Harris, Attorney General of California; Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, John H. Deist (argued), Deputy Attorney General, San Francisco, California, for Respondent-Appellee.
Before: Stephen Reinhardt, Raymond C. Fisher and Marsha S. Berzon, Circuit Judges. Opinion by Judge Fisher
Raymond C. Fisher,
In 2004, a jury convicted Paul Zapata of first-degree murder in violation of California Penal Code § 187, along with enhancements for committing an offense for the benefit of a criminal street gang and personally discharging a firearm in the course of the offense. He was sentenced to two consecutive terms of 25 years to life in prison. He appealed to the California Court of Appeal, which denied relief in a reasoned opinion, and to the California Supreme Court, which denied review. Having exhausted those avenues, he filed a habeas corpus petition in federal district court, which the court denied. He appeals that denial, arguing in part that his trial counsel's failure to object to egregious prosecutorial misconduct during closing argument constituted ineffective assistance of counsel substantially affecting the outcome of his trial. We agree, and reverse the district court and remand the case with instructions to grant Zapata's habeas petition.
In May 2001, shortly after placing a call on a pay phone, a 19-year-old student named Juan Trigueros was shot and killed in a 7-Eleven parking lot on Leavesley Road in Gilroy, California. At the time of the shooting, which took place around 2 a.m., Trigueros was wearing a basketball jersey emblazoned with the number 8, for Los Angeles Lakers star Kobe Bryant. The area in which the shooting took place was controlled by the Norteños street gang, of which there were several subgroups, or " cliques."  One such clique, of which Zapata was a member, was Outside Posse, or " OSP." As an OSP member, Zapata had participated in attacks on Eighth Street gang members and Mexican nationals.
The Norteños' rivals were a subset of the Sureños street gang known as Eighth Street, whose identifying symbol was the number 8. Sureños tended to be first-generation Mexican immigrants who spoke limited English, whereas Norteños tended
to be established U.S. residents who spoke English rather than Spanish. According to an expert on gang activity in the area, by wearing the number 8 in Norteño territory, Trigueros, a first-generation Mexican immigrant, was a " marked man." There was no evidence Trigueros was affiliated with the Sureños.
The only eyewitness to the shooting, Brian Puphal, testified that he observed one man " [f]acing the pay phone trying to concentrate on whatever he was talking about" and a second man, about two or three feet away, " [r]aising his arms in anger" and yelling at the person on the phone. Puphal saw the man who was yelling draw a pistol from his waistband and fire a shot at the man who was on the phone, from two or three feet away, and then fire a second shot from about six feet away. The man who was on the phone -- later identified as Trigueros -- stumbled into the 7-Eleven, where he died. Puphal saw the shooter run away through a nearby car wash and, soon thereafter, saw a white pickup truck drive slowly past the 7-Eleven. Puphal described the shooter to a police sketch artist, noting he was " sure" the killer had a " scraggly goatee." He was not, however, able to identify anyone as the shooter when shown two photographic lineups, one of which included a photograph of Zapata. At trial, Puphal was shown a June 2001 photograph of Zapata and testified that the person depicted in the photo " [c]ould be" the shooter. In a pretrial statement, Puphal described the shooter as being 5'5", but at trial he recalled the shooter being " somewhere around" 5'5" to 5'8" tall.
A second witness, Joe Morton, had been working at the neighboring Shell gas station when he heard gunshots, went outside, and saw a man he described as " nonchalantly walking" from the direction of the 7-Eleven before getting into a white Ford pickup truck. Morton described the man as being between 5'10" and 6' tall.
A third witness, Felipe 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 damage after hitting a traffic island. He testified that he was " positive" the vehicle was a Toyota, and a month before trial, he identified Zapata's white Toyota pickup truck, with damage, as the one that he saw that night.
Zapata's ex-girlfriend, Nancy Echeverria, testified that she and Zapata had attended a barbeque at an OSP member's home a few blocks from the 7-Eleven in the hours before Trigueros' murder. She said Zapata left between 10 and 11 p.m. to drive a friend to work. In November 2002, 18 months after the murder, Echeverria placed a call to a police tip line and told Detective Daniel Zen she suspected Zapata had committed the crime. In an interview with Detective Zen, Echeverria said she thought Zapata was the killer because the police sketch looked like him and his truck had disappeared the following morning. At trial, however, Echeverria testified that she saw Zapata driving his truck the day after the shooting, and that she had overstated the degree of resemblance between Zapata and the police sketch. She also testified that she had been motivated to call the tip line because Zapata had broken up with her and she wanted to " burn" him and his new girlfriend " in a big way."
Another witness, Sarah Sanchez, the ex-girlfriend of an OSP member, testified that shortly after the shooting, in May or early June 2001, she saw Zapata when she was driving an OSP member named Donald Reyes to the " Ramirez ranch," the home of mutual friends in Gilroy. According to
Sanchez, Zapata asked her to drive his truck to Stockton or Manteca; when she asked why, Zapata said he had " shot up somebody at 7-Eleven."
Victoria Lopez, who was dating Zapata's close friend, Edward Lopez, at the time of the murder, told Detective Zen in a 2002 interview that Zapata drove a white pickup truck in the spring of 2001 but began to drive a black Taurus shortly after the shooting in May 2001. She said Edward told her Zapata's truck was " broke[n] down" and being stored at the Stockton home of Rico Clarke, a former OSP associate. At trial, however, Lopez testified she thought Zapata drove the truck " sometime after" May 2001 until he got a black car and could not recall the rest of her pretrial statement.
Detective Zen testified that in December 2002, Echeverria told him Zapata's truck was located at the home of Priscilla Pena, Zapata's new girlfriend. Zen located the truck there, but it was gone a few months later. Zen eventually located the truck at Pena's sister's house and seized it in March 2003.
The defense called a handful of witnesses, including Pena; Zapata's uncle, Rocky Reyes; and Zapata's cousin, Donald Reyes. All of these witnesses said Zapata was incapable of growing a goatee, countering Puphal's description of the shooter as having a goatee. They also testified that Zapata continued to drive the white pickup truck well into the summer of 2001, long after the Trigueros shooting.
At trial, the state was represented by Stuart Scott, a Santa Clara County Deputy District Attorney. In closing, Scott argued that Zapata had previously been involved in attacks on Eighth Street gang members and Mexican nationals and that the similarity between his likeness and Puphal's description of the perpetrator, disappearance of his white pickup truck and confession to Sarah Sanchez compelled a finding of guilt. The defense countered that the prosecution had been unable to link Zapata conclusively to the scene of the crime either through positive eyewitness identification or physical evidence and emphasized bias and credibility problems with several of the prosecution's witnesses.
Critical to the issue before us, at the end of the trial during the prosecution's closing rebuttal argument, Scott wove out of whole cloth, with no evidentiary support, a fictional and highly emotional account of the last words Trigueros heard Zapata shout as Zapata supposedly shot him. The prosecutor ascribed to Zapata several despicable, inflammatory ethnic slurs:
Picture, if you will, the last words that Juan Trigueros heard before the defendant shot him in the back and to make sure he was dead shot him in the chest. What were the last things he heard? What's the reasonable inference of what was going on that precise moment the second before he's mortally wounded? Fuckin' scrap. You fuckin' wetback. Can you imagine the terror and the fear Juan Trigueros must have felt as he's cowering into the phone. . . . Fuckin' scrap. Wetback.
The prosecutor repeated these inflammatory remarks twice more, including just before the jury retired to begin deliberations.
These slurs were invoked deliberately. In his opening statement, the prosecutor had told the jury the word " scrap" is " a derogatory term -- it's like using the N word -- for Mexican nationals. It's very derogatory. Mojado [wetback] is another derogatory term." The prosecution's expert witness testified " scrap" means " piece
of shit," and that although Mexican nationals " might not realize exactly what it means as far as the significance of it . . . it's taken as an insult" and would be " fighting words" to a Sureño gang member.
Zapata's counsel neither objected to the fictional, inflammatory statements in the closing argument nor asked the trial court to issue a curative instruction. The jury was then sent to deliberate. After three hours, it found Zapata guilty of first-degree murder.
In January 2009, the California Court of Appeal affirmed Zapata's murder conviction. The California Supreme Court denied review. Zapata next petitioned the federal district court for habeas relief in January 2010. The district court denied his petition but granted a limited certificate of appealability. Zapata timely appealed the district court's judgment.
STANDARD OF REVIEW
We review de novo the district court's denial of Zapata's § 2254 habeas petition. See Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). Because this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), habeas relief can be granted only if the state court proceedings " 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 resulted in a decision that was " based on an unreasonable ...