Zapata v. Vasquez

788 F.3d 1106 (9th Cir. 2015)

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Nature of the Case

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Facts

A 19-year-old student named Juan Trigueros was shot and killed in a 7-Eleven parking lot. Trigueros was wearing a basketball jersey emblazoned with the number 8, for Los Angeles Lakers star Kobe Bryant. The shooting took place was controlled by the Norteños street gang. P was a member of the Outside Posse, or 'OSP.' P had participated in attacks on Eighth Street gang members and Mexican nationals. P's rivals were the Sureños street gang known as Eighth Street, whose identifying symbol was the number 8. Sureños were first-generation Mexican immigrants who spoke limited English. Norteños were established U.S. residents who spoke English rather than Spanish. By wearing the number 8 in Norteño territory, Trigueros was a 'marked man.' In closing, the prosecutor argued that P had previously been involved in attacks on Eighth Street gang members and Mexican nationals and that the similarity between his likeness and a witness description of the perpetrator, disappearance of his white pickup truck and confession to Sarah Sanchez compelled a finding of guilt. P countered that the prosecution had been unable to link P 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. During the prosecution's closing rebuttal argument, the prosecutor wove out of whole cloth, with no evidentiary support, a fictional and highly emotional account of the last words Trigueros heard P shout as P supposedly shot him. The prosecutor ascribed to P several 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.' These remarks were repeated twice or more. P's counsel neither objected to the fictional, inflammatory statements in the closing argument nor asked the trial court to issue a curative instruction. P was found guilty of first-degree murder. P eventually petitioned the federal district court for habeas relief. It denied his petition but granted a limited certificate of appealability. P appealed.