[00:00:00] Speaker 04:
And we'll proceed to hear argument in the first case on calendar for this morning, which is 21-55885, Michael Fimbres versus Matthew McVeigh.

[00:00:13] Speaker 04:
And we will hear first from Mr. Almazan.

[00:00:16] Speaker 04:
Did I pronounce that correct?

[00:00:17] Speaker 02:
Correct.

[00:00:18] Speaker 04:
All right.

[00:00:18] Speaker 04:
You may proceed.

[00:00:20] Speaker 02:
Good morning, and may it please the court, Pablo Almazan, for petitioner, Michael Fimbres, and I'll aim to reserve three minutes for rebuttal.

[00:00:26] Speaker 02:
At the start of the trial, the state's disrespect case had one path to victory.

[00:00:31] Speaker 02:
It had to show that Michael Fimbres, a gang member, had felt so genuinely disrespected by Taylor's actions that it compelled him to track Taylor down and shoot him dead in the middle of the street.

[00:00:42] Speaker 02:
And to carry its case along this path, the state was relying on a paid confidential informant with significant credibility concerns.

[00:00:49] Speaker 02:
To say the least, this would have been a long and arduous path for the state to follow.

[00:00:53] Speaker 02:
By the end of trial, however, an alternative and easier path to victory had opened up for the state.

[00:00:59] Speaker 02:
Under this path, the state no longer needed to rely on the paid confidential informant, and it no longer needed to show that Fimbers harbored any animosity towards Taylor.

[00:01:08] Speaker 02:
Instead, all the state needed to do was emphasize one thing, and that was that a third party had witnessed Taylor's disrespect towards Michael Fimbers.

[00:01:16] Speaker 02:
This third party witness mattered because Fembers' own counsel made the reckless decision to elicit testimony that the gang hierarchy would kill her client if he had failed to respond violently to Taylor's disrespect.

[00:01:29] Speaker 02:
In other words, now that Fembriss knew about this looming lethal threat from the gang hierarchy and no longer mattered whether or not he actually harbored any animosity towards Fembriss, all that mattered was this threat that basically provided an alternative life or death motive for him to now act offensively towards the victim.

[00:01:48] Speaker 02:
There are three reasons why the California Court of Appeals opinion unreasonably denied Fembriss' ineffective assistance claim.

[00:01:55] Speaker 02:
The first is that it completely ignored Council's explanation for eliciting the testimony at issue.

[00:02:00] Speaker 02:
Instead, it created three post hoc rationalizations for this testimony that found no support in the record.

[00:02:07] Speaker 02:
Second, it failed to recognize the harm that this testimony had on Fembers's case.

[00:02:12] Speaker 02:
Instead, it adhered to a Brightline rule.

[00:02:14] Speaker 04:
Can you address specifically the court's rationale that she was maybe not doing, maybe it didn't ultimately work, but that what she was trying to do was to elicit testimony that would provide some basis for dealing with the fact that he was caught in the course of attempting to flee to Mexico, which is a highly inculpatory circumstantial fact that she had to deal with.

[00:02:42] Speaker 04:
This was an effort to do that.

[00:02:44] Speaker 04:
Why is it unreasonable for them to say that that was within the realm of strategy?

[00:02:50] Speaker 02:
Sure.

[00:02:51] Speaker 02:
So first, I would like to point out that we didn't really have to guess as to what counsel's reason was.

[00:02:57] Speaker 02:
She did attempt to provide an explanation to the court when the court interrupted her.

[00:03:01] Speaker 02:
Where are you going with this line of questioning?

[00:03:03] Speaker 04:
Did she, in her closing argument, make any reference to this in terms of flight

[00:03:11] Speaker 02:
When she did she was not not to this testimony, when she did she was referring specifically to the testimony from the confidential informant, because that confidential informant was the one who allegedly told fembrous.

[00:03:23] Speaker 02:
Hey, the Mexican mafia is looking for you.

[00:03:25] Speaker 02:
They believe this was a drive by, you know I could help you now escape.

[00:03:30] Speaker 02:
Again, going back to her reason as to why she elicited this deadly consequence, gang testimony, that wasn't the reason.

[00:03:37] Speaker 02:
And if we look at her explanation when the court interrupted her, the first thing she said is, look, Your Honor, the state had just put on this confidential informant who stated that my client boasted to him that the shooting was about disrespect.

[00:03:52] Speaker 02:
So to me, clearly, her focus was on this alleged admission from her client.

[00:03:56] Speaker 02:
And then if we kind of put things in perspective, I think it helps show that that was the reason why.

[00:04:02] Speaker 02:
Basically, she wanted to neutralize that, the CIA's testimony.

[00:04:06] Speaker 02:
And if we look at the context of the trial first, you know, from opening to closing, counsel's argument was that this shooting was in self-defense.

[00:04:15] Speaker 02:
Although she had ample evidence to support that theory, there was one thing that kind of directly contradicted it, and that was the testimony from the CI, who obviously said, you know, your client told me that he admitted the shooting was because of disrespect.

[00:04:30] Speaker 02:
So that was her focus, and she could have easily kind of explained away the CI's testimony by just simply pointing to the fact that he had credibility issues and argued to the jury, look, he's lying, you can't believe him.

[00:04:41] Speaker 02:
But what she then wanted to do was kind of argue in the alternative.

[00:04:44] Speaker 02:
And that's even if you believe that this CI is actually telling the truth, it still doesn't matter because our client's self-defense theory still works.

[00:04:53] Speaker 02:
And that's because the reason he lied to him was to basically protect his own life from the deadly consequences from the gang hierarchy.

[00:05:02] Speaker 02:
And there's one other point I like to make to this is while the CI was still on the stand, counsel basically had him confirm that Fembriss was aware that that CI was connected to the gang hierarchy.

[00:05:12] Speaker 02:
So basically what counsel I think is pretty clear intended to do was she wanted to explain to the jury, look, you know, my client is talking to someone that she knows that he knows is connected to the gang hierarchy.

[00:05:25] Speaker 02:
So basically you have to be very careful.

[00:05:27] Speaker 02:
He has to be very careful with his choice of words.

[00:05:30] Speaker 02:
If he tells that person that look.

[00:05:32] Speaker 02:
You know, I actually tolerated the disrespect from Mr. Taylor, and I only actually shot him because I feared for my life.

[00:05:39] Speaker 02:
Then in that case, he would be viewed as weak or a coward, and then it would open him up for a hit to be murdered from the hierarchy.

[00:05:46] Speaker 03:
How much did the state, Mr. Amazon, how much did the state actually rely on that theory?

[00:05:51] Speaker 03:
I know you've spoken quite a bit about how his counsel did.

[00:05:55] Speaker 02:
Sure.

[00:05:55] Speaker 02:
So, and that's where I kind of wanted to make my initial point is,

[00:05:59] Speaker 02:
You know, initially the state's case was reliant on this one theory that basically Fimbers himself had felt so much, I guess, anger from Taylor's disrespect that it caused him to kind of go after him.

[00:06:13] Speaker 02:
Once this gang hierarchy testimony is in play, it kind of provides this alternate path to victory for the state.

[00:06:19] Speaker 02:
You know, now they don't have to show that, you know, he's actually motivated by this anger.

[00:06:25] Speaker 02:
It's basically just that there was a third witness who looked at it.

[00:06:29] Speaker 03:
Do you view the record as the state taking that path and closing?

[00:06:34] Speaker 02:
Sure, so, and I think here if we compare the opening statement and the closing argument, it's pretty clear that they go there.

[00:06:40] Speaker 02:
So in the opening statement, they recount the facts and then at the end, all they say is, look, you know, the CI admits or will testify that Embers admitted to him that the shooting was because of disrespect.

[00:06:53] Speaker 02:
Then once we get to the closing, although she does, or the prosecution does still argue that, they then also shift to a different argument and that's, look,

[00:07:01] Speaker 02:
And I think the words were, you know, I want you guys to remember one important thing, and that's that Fimbers's girlfriend had a front row seat to this disrespect.

[00:07:10] Speaker 02:
And then the prosecution goes on to say, if Fimbers doesn't take care of that, she's gonna have a story to tell.

[00:07:17] Speaker 02:
Well, the implication is a story to tell to who?

[00:07:19] Speaker 02:
It's the gang hierarchy.

[00:07:20] Speaker 02:
Because without that testimony that was elicited by counsel, there's no kind of weight behind that statement, right?

[00:07:26] Speaker 02:
Like, you know, what's, okay, someone saw it, who cares?

[00:07:29] Speaker 02:
But if someone saw it because,

[00:07:31] Speaker 02:
Now they're going to tell the gang hierarchy what happened and then now his life is in danger.

[00:07:35] Speaker 02:
Then basically the prosecution at that point is saying, look, he had no choice.

[00:07:39] Speaker 02:
He had to go after him.

[00:07:43] Speaker 04:
The issue of, because the Court of Appeal made alternative findings that it was within the realm of

[00:07:54] Speaker 04:
permissible strategy or reasonable strategy from an ex ante point of view, even if it didn't play out very well, but also that it was not prejudicial under Strickland.

[00:08:06] Speaker 04:
And can you address that?

[00:08:08] Speaker 02:
Sure, for the prejudice component of the court's analysis, they basically just adhere to this bright line rule that just because the testimony at issue was one or two pages, it just can't be harmful to fembrists.

[00:08:22] Speaker 04:
But it's really striking.

[00:08:23] Speaker 04:
This trial judge was really on top of this issue.

[00:08:28] Speaker 04:
I mean, in a very proactive way, he did not want this trial to get off the track.

[00:08:35] Speaker 04:
And it was kind of admirable to see the extent to which he was really interjecting to sort of make sure this stayed on track.

[00:08:44] Speaker 04:
And that's why it's so limited because of that.

[00:08:47] Speaker 04:
So given that, why isn't it, given that proactive intervention of the court repeatedly to try and minimize any improper introduction of gang testimony, why is it unreasonable for the California Court of Appeal to have said this

[00:09:05] Speaker 04:
ultimately wasn't prejudicial.

[00:09:08] Speaker 02:
So again, I don't think they actually try to look at the harm.

[00:09:11] Speaker 02:
They were reliant on the fact that it was so short of the list of the testimony.

[00:09:15] Speaker 02:
It was like one or two pages.

[00:09:16] Speaker 02:
But what they fail to consider is, you know, once that testimony comes in, that there's this alternative life or death motive for him to act,

[00:09:25] Speaker 02:
But in this instance, for him to act offensively to kill Taylor, as opposed to defensively and self-defense, you can't unring that bell.

[00:09:34] Speaker 02:
And that's where I think Buck v. Davis is instructive, because they recognize that even deadly toxins could come in small doses.

[00:09:42] Speaker 02:
So I think here is also what counsel should have realized, too, is from the numerous warnings she did receive from the court.

[00:09:50] Speaker 02:
that, you know, alarm bills should have gone off in her head and been like, okay, you know, maybe there is something wrong here.

[00:09:56] Speaker 02:
Why is he so concerned about this testimony?

[00:09:59] Speaker 03:
Well, that goes to performance, but that prejudice standard under Buck is extraordinarily high at this amount.

[00:10:08] Speaker 02:
Well, so I would say it's a reasonable probability of a different outcome, which is less than a preponderance of the evidence.

[00:10:15] Speaker 02:
And in this case, I would also like to point to, you know, Fembriss did have a pretty powerful self-defense case.

[00:10:22] Speaker 02:
You know, the victim himself was found to be carrying a weapon on his person when he died, which was a switchblade.

[00:10:27] Speaker 02:
He was found to have multiple drugs in his system that kind of corroborated the girlfriend's testimony that he was acting aggressively, threatening, kind of like paranoid towards Fembriss.

[00:10:37] Speaker 02:
We also have testimony from a third party witness who observed Mr. Taylor coming towards Fembers in their car.

[00:10:46] Speaker 02:
She actually, I think, testified that she thought Fembers was giving him a ride.

[00:10:49] Speaker 02:
Like, that's how clearly it was that he was approaching them.

[00:10:52] Speaker 02:
And then, you know, if we look at post-shooting, what was Fremers's reaction?

[00:10:58] Speaker 02:
You know, he was essentially breaking down.

[00:11:00] Speaker 02:
He was in shock.

[00:11:01] Speaker 02:
He was saying, oh my God, oh my God, basically in a state of disbelief that this had happened.

[00:11:06] Speaker 03:
But did not counsel develop most of that in both trial and closing?

[00:11:13] Speaker 03:
So why doesn't that mitigate the prejudice overall?

[00:11:18] Speaker 02:
Sure.

[00:11:19] Speaker 02:
So here's where I think having the two competing life or death motives matter, because there's a tiebreaker.

[00:11:27] Speaker 02:
And I would argue that the tiebreaker is the kind of timeline of events here.

[00:11:31] Speaker 02:
So we know that the disrespect happened before the shooting about 10 minutes earlier.

[00:11:36] Speaker 02:
So, you know, according to this gang hierarchy rule, basically the moment he gets disrespected in front of someone, now that triggers that life or death motive that, okay, now I have to act.

[00:11:47] Speaker 02:
So, so under that kind of theory, now he's going after Taylor.

[00:11:53] Speaker 02:
So when he gets to Taylor, even if at that point he reads, like he genuinely believes that, okay, my life is in danger.

[00:12:00] Speaker 02:
I have to shoot him.

[00:12:01] Speaker 02:
Well, he had already decided before, Hey, I have to kill this guy because otherwise the gang hierarchy is going to come after me.

[00:12:08] Speaker 02:
So I think that kind of shows the prejudice that even if he had this strong self-defense case, it kind of didn't matter because now this alternative life or death motive kind of kicked in first.

[00:12:18] Speaker 02:
And I see that I'm at three minutes, so unless the court has any other questions, I'll reserve the rest for a record.

[00:12:24] Speaker 04:
Thank you, counsel.

[00:12:25] Speaker 04:
All right, we'll hear now.

[00:12:29] Speaker 04:
Mr. Thakur, did I pronounce that correctly?

[00:12:32] Speaker 00:
talk or your talk or all right thank you H is deceptively silent good morning your honors may please the court Deputy Attorney General Shazad talk or for respondent I want to start with the testimony that was elicited and the court can find this I believe on page 492 of the excerpts of record

[00:12:54] Speaker 00:
The trial counsel in this case elicited testimony about the gang hierarchy, about the gang justice system, and about green lighting on one page of transcript, about six or seven questions.

[00:13:09] Speaker 00:
And thereafter, the trial court interrupted her and basically asked for an explanation.

[00:13:15] Speaker 00:
She didn't ultimately give a true reason.

[00:13:18] Speaker 00:
I think that's the fairest reading of the record.

[00:13:21] Speaker 00:
What she said was basically a restatement of two facts that had been elicited in testimony.

[00:13:27] Speaker 00:
One, that the prosecution had introduced evidence that her client petitioner had boasted to a confidential informant that he had committed the murder.

[00:13:40] Speaker 00:
And second, that, let's see, the,

[00:14:01] Speaker 00:
It was another fact, Your Honor, right after that.

[00:14:04] Speaker 00:
She didn't actually give an explanation for why she was eliciting the green lighting testimony.

[00:14:09] Speaker 00:
So the best way we can interpret why she actually did so is to look at her actions.

[00:14:15] Speaker 00:
And as I believe Judge Collins stated, in closing argument, she did ultimately say, she used the phrase green lighting.

[00:14:22] Speaker 00:
She said, well,

[00:14:24] Speaker 00:
Why to help explain why petitioner fled and made this plan to flee to Mexico she stated Why why didn't her eliciting that testimony really have the effect of undoing any?

[00:14:37] Speaker 01:
Self-defense defense that he had.

[00:14:39] Speaker 01:
I mean, it's pretty bizarre testimony.

[00:14:41] Speaker 00:
I think to have elicited Well, I think you know the the plane I think it's quite clear what she intended I mean the green lighting she she used that exact phrase in closing argument so

[00:14:52] Speaker 00:
You know while it may be unusual especially with the benefit of use it in closing argument.

[00:14:57] Speaker 00:
She said She said that the prosecution is going to ask why Petitioner fled to Mexico she said well the reason he fled to that he was making this plan to flee to Mexico is because the Mexican Mafia was interested in him and that they had green-lighted him so basically that he was fearful of

[00:15:19] Speaker 04:
Did she explain why they green-lighted him?

[00:15:24] Speaker 00:
Just that they were interested in him, Your Honor.

[00:15:26] Speaker 00:
Not anything further than that, but I think the testimony in particular, the fact that she had created this testimony that, okay, there's this thing called green-lighting where the gang hierarchy, the people who are influential in a gang can say, okay, this person is green-lit, that means they are

[00:15:45] Speaker 00:
subject to being killed so by explaining that concept of green lighting and how the gang hierarchy plays a role in that she point towards any theory as to why he was green lighted right so the jury would have understood why because in in the recording of the conversation between petitioners girlfriend and the confidential informant

[00:16:11] Speaker 00:
petitioner's girlfriend was informed by the confidential informant that influential people in the gang in the gang hierarchy were looking for petitioner and that they quote wanted to smoke him so it would have been understood by the jury that because the confidential informant had conveyed to Cordero petitioner's girlfriend who then conveyed to petitioner

[00:16:35] Speaker 00:
That's the reason.

[00:16:36] Speaker 00:
So there was a reason on the record, Your Honor, why he was greenlit.

[00:16:42] Speaker 03:
Well, I guess looking at the Court of Appeals decision and focusing on the D2 support in the record here,

[00:16:54] Speaker 03:
That's not what the Court of Appeals leads with.

[00:16:58] Speaker 03:
It's hard to read this as the court clearly surmising from the record what you surmise and what you ask us to surmise.

[00:17:12] Speaker 03:
Why doesn't that create a problem under D2 as an unreasonable reading of the record?

[00:17:16] Speaker 00:
So what's important to understand about this is the scope of the claim on appeal.

[00:17:22] Speaker 00:
Right now, Petitioner is challenging the testimony about gang justice system, gang hierarchy, and green lighting as being problematic, that defense counsel shouldn't have elicited that testimony.

[00:17:35] Speaker 00:
But on direct appeal, the claim was much broader.

[00:17:37] Speaker 00:
The claim was not only that this one page of testimony was problematic, but also that

[00:17:43] Speaker 00:
Basically, anything beyond the topic of disrespect was problematic.

[00:17:48] Speaker 00:
Some of the things that defense counsel ultimately elicited beyond the topic of disrespect from the gang expert was that Taylor, the victim, was a member of a different gang, that there was no rivalry between Taylor's gang and Petitioner's gang, that members of different gangs could have social relationships.

[00:18:13] Speaker 00:
So I think when we analyze the first two reasons given by the Court of Appeal, because the third reason is quite clearly the green lighting.

[00:18:20] Speaker 03:
Well, part of the first reason, though, seems to misapprehend who introduced the this is the streets type evidence, those are the concern he had that the victim might have been carrying a gun.

[00:18:37] Speaker 03:
They just get that wrong, don't they?

[00:18:38] Speaker 03:
In terms of where that testimony comes from, they attribute it to her cross of Morales and it came from Cordero.

[00:18:44] Speaker 00:
So I don't think they're actually saying that this is the streets testimony came from Officer Morales and not Cordero.

[00:18:52] Speaker 00:
I think what they're saying is Officer Morales' testimony helped her make that argument in closing.

[00:18:58] Speaker 00:
So in closing, she says this, she makes this argument about this is the streets.

[00:19:03] Speaker 00:
And so the reason that that's a compelling argument that that's more persuasive is because she's elicited testimony that Taylor the victim is a gang member.

[00:19:14] Speaker 00:
It doesn't hold as much weight to say this is the streets and there's going to be this reaction from petitioner if Taylor the victim is just an ordinary civilian.

[00:19:25] Speaker 00:
Now if he's a gang member then suddenly this is the streets, this was a reaction.

[00:19:30] Speaker 00:
In essence it creates

[00:19:32] Speaker 00:
an impression that petitioners' belief in the need for self-defense was reasonable.

[00:19:39] Speaker 00:
So I agree.

[00:19:41] Speaker 00:
I don't think the court is saying that these pieces of testimony, that this is the streets, this is a reaction, was actually from Officer Morales, but that Officer Morales' testimony actually helped in making the self-defense argument.

[00:19:58] Speaker 00:
I believe it was Judge Johnstone who mentioned the reliance by the prosecution on this testimony of the alleged second motive that petitioner was supposedly in fear of retaliation from his own gang.

[00:20:15] Speaker 00:
And petitioner cites to this portion of closing argument by the prosecution where he references this, that Cordero had a front row seat to the disrespect

[00:20:27] Speaker 00:
that she would have a story to tell that was not testimony elicited by defense counsel that was testimony elicited by the prosecution and Almost that exact language about miss Cordero having a story to tell It can be found on page 485 and that's during the direct examination of officer Morales not on cross Could you speak to the prejudice

[00:20:51] Speaker 00:
Yeah, absolutely.

[00:20:52] Speaker 00:
Your honor.

[00:20:53] Speaker 00:
And there's actually the court already sort of touched on the fact that this testimony was rather brief.

[00:21:01] Speaker 00:
But I think it's important to also acknowledge the overwhelming evidence that Petitioner premeditated the murder.

[00:21:08] Speaker 00:
The day of the shooting, Petitioner told Taylor's girlfriend that he was going to, and pardon my language, Your Honor, quote, fuck up, end quote, Taylor for stealing his drugs.

[00:21:20] Speaker 00:
Hours later, Taylor confronted Petitioner in front of Cordero, and he said, quote, and again, pardon my language, fuck your hood.

[00:21:28] Speaker 00:
which would have been understood, as Officer Morales testified, as quite a serious insult.

[00:21:33] Speaker 00:
And if the court is wondering, well, why didn't he just shoot him right there?

[00:21:36] Speaker 00:
In that instance, we have testimony from, or not testimony, but we have a recording.

[00:21:42] Speaker 00:
In which Cordero told the confidential informant that it was irresponsible for Taylor to show up in the alley behind petitioners home because that area was quote hot, meaning that it could have been subject to a police raid.

[00:21:55] Speaker 00:
So knowing that petitioner would not have wanted to shoot him right there.

[00:21:59] Speaker 00:
Instead, just a few moments later, Petitioner drove along a route that he knew Taylor would be taking to get to his house, or to get to his tent, because he was someone who was transient.

[00:22:11] Speaker 00:
And when he saw Taylor across the street, he parked his truck.

[00:22:17] Speaker 00:
One of the things that Petitioner mentions is that he parallel parked.

[00:22:21] Speaker 00:
That's completely not true, Your Honor.

[00:22:24] Speaker 00:
If the court looks at page

[00:22:26] Speaker 00:
And I want to get the citation right.

[00:22:29] Speaker 00:
It's at page 197 to 198.

[00:22:32] Speaker 00:
The record shows that he parked parallel to the sidewalk, not that he parallel parked, which is a distinction, your honor.

[00:22:40] Speaker 00:
We have an uninterested third party witness who from her front yard saw petitioner get out of his truck.

[00:22:48] Speaker 00:
He moved toward the middle of the street as Taylor moved toward the middle of the street.

[00:22:53] Speaker 00:
and he lifted his arm.

[00:22:54] Speaker 00:
She did not see him reach into his clothing for