FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO ALANIZ GARCIA, No. 13-57071
Petitioner-Appellee,
D.C. No.
v. 5:12-cv-00865-SVW-SS
DAVID LONG,
Respondent-Appellant. OPINION
On Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
June 3, 2015—Pasadena, California
Filed December 21, 2015
Before: Raymond C. Fisher and Jay S. Bybee, Circuit
Judges, and Elizabeth E. Foote, District Judge.*
Opinion by Judge Bybee
*
The Honorable Elizabeth E. Foote, District Judge for the U.S. District
Court for the Western District of Louisiana, sitting by designation.
2 GARCIA V. LONG
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s judgment granting
Francisco Alaniz Garcia a writ of habeas corpus in a case in
which Garcia, after an interrogating officer read him his
Miranda rights and confirmed that he understand those rights,
responded with a simple “no” to the officer’s question asking
if he wished to talk.
Applying AEDPA’s deferential standard of review, the
panel held that the California Court of Appeal’s decision that
Garcia’s “no” response was ambiguous and equivocal in light
of other statements he made during the interview is both
contrary to and unreasonable application of established
Supreme Court law, and is based on an unreasonable
determination of the facts. The panel held that the trial
court’s error in not suppressing Garcia’s interrogation tape
and apology letter was prejudicial.
COUNSEL
Kamala D. Harris, Attorney General of California, Julie L.
Garland, Senior Assistant Attorney General, Kevin Vienna,
Supervising Deputy Attorney General, Jennifer A. Jadovitz
(argued), Deputy Attorney General, San Diego, California,
for Respondent-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARCIA V. LONG 3
Hilary Potashner, Acting Federal Public Defender, Margo A.
Rocconi (argued), Deputy Federal Public Defender, Los
Angeles, California, for Petitioner-Appellee.
OPINION
BYBEE, Circuit Judge:
Francisco Alaniz Garcia was brought into the police
station for questioning about allegations that he had sexually
molested his granddaughter. After reading Garcia his
Miranda rights and confirming that Garcia understood those
rights, the interrogating officer asked, “now having [those
rights] in mind, do you wish to talk to me?” Garcia
responded with a simple “no.” The Supreme Court in
Miranda v. Arizona said that when a suspect “indicates in any
manner . . . that he wishes to remain silent, the interrogation
must cease.” 384 U.S. 436, 473–74 (1966). The officer did
not cease, and he continued questioning Garcia and ultimately
obtained a confession. At his subsequent trial, the court, over
Garcia’s objection, allowed the prosecution to play the three-
and-a-half-hour confession tape to the jury.
The California Court of Appeal determined that Garcia’s
“no” response was ambiguous and equivocal in light of other
statements Garcia made during the interview and accordingly
rejected Garcia’s Miranda claim. The Court of Appeal also
concluded that, even if erroneous, the playing of Garcia’s
confession was harmless beyond a reasonable doubt.
We hold that any reasonable jurist would have to
conclude that “no” meant “no.” The Court of Appeal’s
4 GARCIA V. LONG
decision is both contrary to and an unreasonable application
of clearly established Supreme Court law, and it is based on
an unreasonable determination of the facts. Further, the trial
court’s error was not harmless. We affirm the district court’s
judgment granting the writ of habeas corpus.
I. FACTS
A. The Interrogation
In early 2007, sixteen-year-old Jane Doe told members of
her family that she had been sexually assaulted by Garcia, her
step-grandfather, for years. Jane had often spent weekday
afternoons, weekends, and school vacations with her
grandmother, Elsa Alaniz, and Garcia, Alaniz’s then-husband.
Jane was often left alone with Garcia while her grandmother
was working.
Several months after she told her family, Jane told Child
Protective Services about the molestations. Child Protective
Services then informed the police, and Moreno Valley Police
Detective Richard Beatty brought Garcia into the police
station for questioning.
After asking some preliminary questions—how Garcia
spelled his name, whether he had any hobbies, what he did
for work, and so on—Detective Beatty told Garcia that he
wanted to “talk to [him] about some things,” but before he
could do that, he was going to “read [him] something real
quick.” Detective Beatty then read Garcia his Miranda
rights:
Q: Okay, you have the right to remain silent.
Anything you say may be used against you in
GARCIA V. LONG 5
the court, okay. You have the right to an
attorney before and during any questioning,
and if you cannot afford to hire an attorney,
one will be appointed for—to you free of
charge.
A: Okay.
Q: Okay? Do you understand that?
A: Right.
Detective Beatty then asked the critical question: “Okay,
now having that [i.e., your Miranda rights] in mind, do you
wish to talk to me?” Garcia’s complete answer was “No.”
Detective Beatty pressed on, asking, “No?” This time,
Garcia elaborated: “No, because I don’t want to, uh, I don’t
know what to—what is these charges or, uh . . . .” Another
officer, Detective John Lenton, then cut in, saying, “Well,
you don’t want to talk to us because you don’t know the
charges. . . . You’re telling [us] we can’t tell you about it.”
Garcia told the detectives, “you say you have a right to—to
remain, you know . . . ,” and added, “I don’t want to, you
know, say something or if—if I don’t know what’s going on.”
At last, Garcia told the detectives he wanted to hear why he
had been brought in.
Detective Beatty told Garcia he had been brought in
because Jane alleged that he had abused her. Reminding
Garcia that “you said that you didn’t want to talk to us,”
Detective Beatty then asked, “so is it my understanding right
now that you do want to talk to me then?” Garcia
equivocated: “Well, the—the point . . . you know, again, uh,
6 GARCIA V. LONG
with all respect, you know, when you say you—you have
right to remain, you know . . . until you . . . get a lawyer.”
Detective Beatty then asked again whether Garcia wanted to
talk, and Garcia finally agreed, saying, “Yeah, we can talk,
yeah, I guess, why not.”
During the ensuing interview, Garcia at first steadfastly
denied any sexual contact with Jane. When asked if he
inappropriately touched Jane, he answered, “Well, of course
not, I didn’t do it.” When asked how old Jane was when
something first happened, he answered, “No, no, no, no.”
Ultimately, however, he admitted to three incidents. All three
times, he claimed, Jane initiated the sexual contact. He
claimed that all three incidents occurred when Jane was
fifteen years old and denied ever having sexual intercourse or
oral sex with Jane.
At Detective Beatty’s suggestion, Garcia wrote a letter of
apology to Jane, telling her he never meant to hurt her and
she was not “guilty of anything.” At the end of the interview,
Garcia was placed under arrest.
B. The Trial
Garcia was tried on one count of forcible rape of a minor
and eight counts of committing lewd and lascivious acts on a
minor. At trial, the prosecution called Jane as a witness. Jane
recalled one instance in which she performed oral sex on
Garcia when she was six or seven years old, but she testified
that this was not the first time he forced her to perform oral
sex on him. Jane knew she was supposed to give Garcia oral
sex whenever he removed his pants. She testified that she
performed oral sex on Garcia as often as ten to fifteen times
each month when she was between the ages of six and fifteen.
GARCIA V. LONG 7
Jane also testified that Garcia forced her to have sexual
intercourse with him once or twice each year for seven or
eight years. She testified that the first act of intercourse
occurred when she was six or seven and the last occurred
shortly before she turned age fifteen. The intercourse hurt,
and Garcia covered Jane’s mouth to stop her from yelling or
screaming. Jane testified that she did not tell anyone about
the molestations because she feared for her safety and that of
her grandmother.
On the fourth day of trial, the prosecutor sought to play
the recording of Garcia’s police interview to the jury. As the
audio recording started to play, defense counsel made a
sidebar objection and moved to suppress the confession based
on Garcia’s invocation of his right to remain silent under
Miranda. The judge denied the motion, ruling that Garcia’s
response—“no”—to Detective Beatty’s question—“now
having that in mind, do you wish to talk with me?”—was
equivocal. The prosecutor then proceeded to play the entire
audio recording (lasting three hours and forty-five minutes)
to the jury. The next court day, the prosecutor read to the
jury the apology letter that Garcia wrote to Jane toward the
end of the interrogation.
Garcia did not testify, and his lawyer presented no
affirmative defense. At closing arguments, Garcia’s counsel
began by telling the jury, “I’m not going to stand up here
before you and say that Mr. Garcia never touched [Jane Doe].
I think that would be foolish. And I don’t think any of you
would ever believe that he didn’t touch her. Of course he did
by his own words.” Garcia’s counsel said little about the
eight counts of committing lewd and lascivious acts on a
minor. He told the jury, “You probably have your minds
made up with regards to those.” Instead, he focused on the
8 GARCIA V. LONG
rape charge and argued that the State had not shown beyond
a reasonable doubt that Garcia had forced Jane to have sex.
During the State’s closing, the prosecutor, after first
recounting Jane’s testimony, focused the jury’s attention on
the interrogation:
[O]bviously I played that tape for you for a
reason. Knowing that he would be denying
these things happened. Why? What’s
important to take from that tape[,] hearing the
defendant and his pack of lies? How does that
support that we know [Jane Doe] is the one
who’s told us the truth?
The prosecutor told the jury that the tape “lets us know what
kind of man he is.” The tape also showed, according to the
prosecutor, that Jane, not Garcia, was telling the truth. Garcia
“had to keep flip-flopping” and “couldn’t keep the story
straight,” whereas Jane had “always told the same truth.”
After two and a half hours of deliberating, the jury found
Garcia guilty on all counts. Garcia was subsequently
sentenced to thirty-five years to life.
C. Direct Appeal
Garcia appealed his conviction to the California Court of
Appeal, arguing, among other things, that the interrogation
tape and apology letter were admitted at trial in violation of
Miranda. The court affirmed Garcia’s conviction in an
unpublished opinion.
GARCIA V. LONG 9
The court concluded that Garcia never unequivocally
invoked his right to silence because his “no” response was
“equivocal under the circumstances.” The court pointed out
that earlier in the interview, in response to questions about
whether Garcia went by other names or had ever been
arrested, Garcia initially answered “no,” but then “proceeded
to provide additional or contrary information despite his
initial negative response.” The court thus concluded that “the
context in which the [‘no’] response was made here shows it
was an ambiguous response.”
The court also determined that “[f]urther ambiguity was
cast upon [Garcia’s] initial ‘no’ response when [he] answered
the detective’s clarifying question.” By saying, “No, because
I don’t want to, uh, I don’t know what to—what is these
charges or, uh . . . ,” the court reasoned, Garcia “indicated
[that] his desire to remain silent was qualified based on his
lack of knowledge or understanding concerning what charges
or allegations had been made against him.” The court thus
held that the detective was free to continue questioning
Garcia and rejected the Miranda claim. The court also held
that, in any event, the admission of Garcia’s police station
interview statements “could not have affected the jury’s
guilty verdicts in counts 1 through 9 and was therefore
harmless beyond a reasonable doubt.”
The California Supreme Court summarily denied Garcia’s
petition for review.
D. Federal Habeas Proceedings
Garcia filed a petition for a writ of habeas corpus, and the
district court, adopting the magistrate judge’s
recommendation, granted relief on Garcia’s Miranda claim.
10 GARCIA V. LONG
The district court determined that the state court’s use of
Garcia’s postrequest statements to cast ambiguity on his
request to remain silent was contrary to the Supreme Court’s
decision in Smith v. Illinois, 469 U.S. 91 (1984) (per curiam).
And, the district court concluded, the state court’s finding that
Garcia’s request was ambiguous in light of his prerequest
statements was an unreasonable determination of the facts.
The district court explained that although Garcia “expanded
on his initial negative response to two . . . booking questions
cited by the state court, . . . [t]his shows only that Garcia was
prone to provide more information when prompted by the
officers. Garcia’s supplemental responses, viewed
objectively, do not show that his use of the word ‘No’ was
ambiguous.” The district court accordingly granted Garcia’s
habeas petition. We have jurisdiction to review the district
court’s decision under 28 U.S.C. § 2253.
II. STANDARD OF REVIEW
We review a district court’s order granting an application
for habeas relief de novo. Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004). In doing so, we look to the last reasoned
state court decision. Murray v. Schriro, 745 F.3d 984, 996
(9th Cir. 2014). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), federal habeas relief is only
available if the state court decision (1) was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the United States Supreme
Court; or (2) was based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(1), (2).
GARCIA V. LONG 11
III. DISCUSSION
The California Court of Appeal determined that Garcia’s
“no” response to Detective Beatty’s question whether Garcia
wanted to talk was ambiguous and equivocal in light of prior
and subsequent statements Garcia made during the
interrogation. The court also determined that even if the
interrogation and apology letter should have been suppressed,
any error was harmless beyond a reasonable doubt. Applying
AEDPA’s deferential standard of review, we hold that the
Supreme Court’s decisions in Miranda and subsequent cases
required the suppression of the interrogation tape and apology
letter. Because we also conclude that the admission of this
evidence at trial was prejudicial, we affirm the district court’s
decision granting the writ.
A. AEDPA Review of the State Court’s Miranda
Determination
“The state court decision here collides with AEDPA on
all grounds.” Anderson v. Terhune, 516 F.3d 781, 786 (9th
Cir. 2008) (en banc). It is both contrary to and an
unreasonable application of clearly established Supreme
Court law, and it is based on an unreasonable determination
of the facts.
In Miranda v. Arizona, the Supreme Court held that
whenever a criminal suspect is subjected to custodial
interrogation, he must be advised of certain rights now
familiar to all, including his right to remain silent. 384 U.S.
436, 444 (1966). When the police fail to give the required
warnings, “the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant.” Id. When the police do give
12 GARCIA V. LONG
the warnings, the Court explained, the suspect has a “right to
cut off questioning” that must be “scrupulously honored”: “If
the individual indicates in any manner, at any time prior to or
during questioning, that he wishes to remain silent, the
interrogation must cease.” Id. at 473–74, 479 (emphasis
added).
The Supreme Court has subsequently clarified that the
suspect’s right to cut off police questioning is triggered only
when the suspect unambiguously and unequivocally invokes
it, by invoking either the right to remain silent or the right to
counsel. See Berghuis v. Thompkins, 560 U.S. 370, 381–82
(2010) (right to remain silent); Davis v. United States,
512 U.S. 452, 458–59 (1994) (right to counsel). Thus,
remaining “largely silent” during an interrogation, Berghuis,
560 U.S. at 375 (brackets and internal quotation marks
omitted), or saying “Maybe I should talk to a lawyer,” Davis,
512 U.S. at 455, is not enough; when it is objectively unclear
whether the suspect is invoking his Miranda rights, the police
may continue to ask questions.
The Supreme Court’s decisions in Berghuis and Davis are
not, however, a license for the police or the courts to override
a suspect’s clearly expressed request to remain silent. As the
Court explained in Berghuis, when a suspect “simpl[y]” says
he wants to remain silent or says he does not want to talk with
the police, he has “invoked his right to cut off questioning.”
560 U.S. at 382 (internal quotation marks omitted). “[A]
suspect need not ‘speak with the discrimination of an Oxford
don.’” Davis, 512 U.S. at 459 (quoting id. at 476 (Souter, J.,
concurring)). Rather, he need only “articulate his desire to
[remain silent or] have counsel present sufficiently clearly
that a reasonable police officer in the circumstances would
understand the statement to be [such] a request.” Id.
GARCIA V. LONG 13
In Smith v. Illinois, the Supreme Court explained that
“[w]here nothing about the request . . . or the circumstances
leading up to the request would render it ambiguous, all
questioning must cease.” 469 U.S. 91, 98 (1984) (per
curiam). In such circumstances, the Court held, it is improper
for an officer to attempt to clarify the request; indeed, there
is nothing to “clarify.” Accordingly, if an officer seeks to
clarify an unambiguous request and elicits an equivocal
response, the suspect’s postrequest statements “may not be
used to cast retrospective doubt on the clarity of the initial
request itself.” Id. at 100.1
The Supreme Court has thus clearly established the
following points of law: First, an unambiguous and
unequivocal Miranda invocation “cuts off” questioning—
even questioning intended to clarify that the accused is
invoking his Miranda rights. See Berghuis, 560 U.S. at 382
(explaining that if the accused makes a “simple” statement
that he wants to remain silent, he invokes “his right to cut off
questioning” (internal quotation marks omitted)); Smith, 469
U.S. at 98 (“Where nothing about the request for counsel or
the circumstances leading up to the request would render it
1
We have previously avoided relying on the Supreme Court’s
invocation-of-counsel precedents as “clearly established” law in right-to-
silence cases. See, e.g., Anderson, 516 F.3d at 787 n.3 (“We rely on
Miranda and Mosley, not Davis, as ‘clearly established’ law.”). Since
then, however, the Supreme Court has held—in an AEDPA case—that
“there is no principled reason to adopt different standards for determining
when an accused has invoked the Miranda right to remain silent and the
Miranda right to counsel.” Berghuis, 560 U.S. at 381 (applying Davis in
a right-to-silence case). Following the Supreme Court’s lead, we
accordingly treat the Supreme Court’s invocation-of-counsel precedents
(e.g., Smith and Davis) as “clearly established” law, even though this is a
right-to-silence case.
14 GARCIA V. LONG
ambiguous, all questioning must cease.”). Second, an
ambiguous or equivocal Miranda invocation “do[es] not
require the cessation of questioning.” Davis, 512 U.S. at 459.
Finally, in determining whether a request is ambiguous or
equivocal, the court must apply an objective inquiry:
“Although a suspect need not speak with the discrimination
of an Oxford don, he must articulate his desire to have
counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement
to be a request for an attorney.” Id. (internal quotation marks
and citation omitted).
No one here contends, and the state court did not find,
that Garcia’s “no” was ambiguous or equivocal on its face.
The question asked—“now, having [your Miranda rights] in
mind, do you wish to talk to me?”—was clear as day. So too
was Garcia’s one-word response. Neither the detective nor
Garcia equivocated by using words such as “maybe” or
“might” or “I think.” Anderson, 516 F.3d at 788; cf. Smith,
469 U.S. at 96–97 (nothing in the statement “Uh, yeah, I’d
like to do that” suggested equivocation).
The question, then, is whether Garcia’s request to remain
silent was somehow ambiguous or equivocal in the context of
the whole interrogation. The California Court of Appeal
reasoned that “ambiguity was cast upon [Garcia’s] initial ‘no’
response when [he] answered the detective’s clarifying
question by telling him: ‘No, because I don’t want to, uh, I
don’t know what to—what is these charges or, uh . . . .’”
That is, the Court of Appeal ruled that Garcia’s
postinvocation response rendered his prior “no” ambiguous.
This reasoning was foreclosed by Smith, a decision the
Court of Appeal did not cite. When Smith was asked whether
GARCIA V. LONG 15
he understood his right to have a lawyer present, he
responded, “Uh, yeah, I’d like to do that.” Smith, 469 U.S. at
97. “Instead of terminating the questioning at this point,” the
detective “pressed him again,” asking, “Do you wish to talk
to me at this time without a lawyer being present?” Id. at 93.
The Supreme Court held that the detective’s clarifying
question was improper, and Smith’s equivocal response
(“Yeah and no, uh, I don’t know what’s what, really.”) could
not be used “to cast retrospective doubt on the clarity of the
initial request itself.” Id. at 93, 100 (emphasis omitted). The
Court explained that Miranda was a “bright-line
prohibition”—a rule necessary to prevent the authorities from
“wear[ing] down the accused and persuad[ing] him to
incriminate himself notwithstanding his earlier request.” Id.
at 98. The California Court of Appeal’s use of Garcia’s
postrequest statements to call his initial “no” into question
was “contrary to” this bright-line rule. See 28 U.S.C.
§ 2254(d)(1).
The Court of Appeal also determined that Garcia’s
request was rendered ambiguous by his conduct during the
booking portion of the interview, which was before the
officers gave him his Miranda warning. See Smith, 469 U.S.
at 99–100 (reserving the question whether “an accused’s
request for counsel may be characterized as ambiguous or
equivocal as a result of events preceding the request”). The
court highlighted the following colloquy:
Q: Do you ever go by any other names?
A: No.
Q: No? And where . . . .
16 GARCIA V. LONG
A: Well, yeah, yeah, before you continue, sir.
Uh, a long time ago when I was, uh, uh,
illegal in this country, oh, so many years, I
used, uh, Francisco Lopez.
....
Q: Okay. Were you ever in the military?
A: No.
Q: No?
A: No.
Q: Have you ever been arrested before?
A: No.
Q: No?
A: No, in . . . ’81 in Fullerton where
I—where I used to live . . . they detained me
. . . they let me . . . go.
The Court of Appeal found that because Garcia had twice
“provide[d] additional or contrary information despite his
initial negative response,” he had “used the term ‘no’
inconsistently.” The court thus reasoned that Garcia’s answer
“no” to Detective Beatty’s question whether he wanted to talk
was ambiguous “in the context of his preceding conversation
with the detective.”
GARCIA V. LONG 17
Although we give considerable deference to the state
courts, “AEDPA deference is not a rubber stamp.” Anderson,
516 F.3d at 786 (citing Miller-El v. Dretke, 545 U.S. 231,
240, 265 (2005)). The California Court of Appeal’s
determination that Garcia’s “no” was ambiguous, based on
just two instances in which he supplied additional information
after an initial “no” response, was both an unreasonable
application of Supreme Court law and an unreasonable
determination of the facts presented in the state court
proceedings.
To begin with, there was nothing “inconsistent” or
“contrary” about Garcia’s statements after his initial “no”
responses earlier in the interrogation. Garcia’s statement that
he had gone by the name Francisco Lopez “a long time ago”
when he was “illegal in this country” was consistent with his
initial answer “no” when asked, using the present tense, “Do
you ever go by any other names?” If anything the officer’s
question was ambiguous, and Garcia expanded on his answer
to ensure it was complete. But his “no” was a complete and
accurate response to the question actually asked: “Do you
ever go by any other names?”
Likewise, Garcia’s second statement that twenty-six years
earlier he was “detained” and “let . . . go” was consistent with
his initial answer “no” when asked, “Have you ever been
arrested before?” Garcia explained that the police “took me
to the. . . police station . . . , but . . . they [did]n’t arrest me.”
Again, he offered a complete explanation, consistent with his
“no” answer: he had not been arrested, although he was once
brought in for questioning and then released. The original
“no” was not ambiguous.
18 GARCIA V. LONG
At most, these two instances show that the detectives
could get Garcia to volunteer information that was relevant
but not directly responsive to the question asked by repeating
his initial answer back to him. If he answers “no” when the
police ask if he has any brothers, he may volunteer that he
does have a sister. If he answers “no” when the police ask if
he went to college, he may volunteer that he did finish high
school. Under the state court’s logic, because Garcia has
volunteered information twice before, it is legitimate for the
police to ask a clarifying question after he has unambiguously
invoked his Miranda rights because perhaps he will volunteer
more information a third time.
This logic is an objectively unreasonable application of
the Supreme Court’s precedents. See 28 U.S.C. § 2254(d)(1).
That the police, through previous questioning, may have
succeeded in getting a suspect to supplement his answer does
not mean that the police may then badger the suspect after he
has unambiguously invoked his right to remain silent because
he may once again supplement his answer. Under established
Supreme Court law, although context may be relevant to
determining whether a request is ambiguous, “it simply
cannot be manufactured by straining to raise a question
regarding . . . a facially unambiguous invocation of the right
to silence.” Anderson, 516 F.3d at 787 (citing Davis,
512 U.S. at 459, and Miranda, 384 U.S. at 473–74).
Miranda could not have been more clear on this point:
when an “individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease.” 384 U.S. at 473–74 (emphasis
added). Once he has exercised “the right to cut off
questioning,” his right must be “scrupulously honored.” Id.
at 474, 479. This “bright-line” rule is designed to protect
GARCIA V. LONG 19
interrogated suspects from police “‘badger[ing]’ or
‘overreaching’—explicit or subtle, deliberate or
unintentional.” Smith, 469 U.S. at 98 (alteration in original).
The California Court of Appeal’s decision is an unreasonable
application of these clear commands.
The Court of Appeal’s strained interpretation of Garcia’s
request also constitutes an unreasonable determination of the
facts. See 28 U.S.C. § 2254(d)(2). The state court found that
Garcia’s “no” was ambiguous in two ways. First, the court
found that Garcia’s request was ambiguous because it may
have been “qualified based on his lack of knowledge or
understanding concerning what charges or allegations had
been made against him.” But nothing in Garcia’s prerequest
statements supports that finding. At no point before he asked
to remain silent did Garcia say he wanted to know what
allegations had been made against him or suggest that he
would not talk unless he knew why he had been brought in.
“No” is not a qualified answer, and if it was “based on his
lack of knowledge or understanding” of the charges, it was
his privilege to remain silent. The officers were not entitled
to explore the reasons for his answer even if they suspected
that his reasons were thin or misguided.
Second, the court found that Garcia’s “no” was
ambiguous because it may not have been “genuine.” But
again, nothing in Garcia’s prerequest statements supports this
finding. The state court points to just two instances in which
Garcia volunteered information after he initially answered a
question with a “no.” But both instances involved a question
about historical facts; neither question had anything to do
with Garcia’s present willingness to talk. And, as we have
explained, there was nothing inconsistent about the two
supplemental responses identified by the state court. “No,”
20 GARCIA V. LONG
he does not ever go by any other names, but he did a long
time ago. And “no,” he has not ever been arrested, but once
he had been detained and let go. When Garcia said “no” to
prior questions, as he explained, he actually meant “no.” The
officers had no reason to believe that Garcia was answering
questions contrary to what he meant.
Indeed, the state court’s view of the record is belied by
the interrogating officers’ own statements during the
interview. Cf. Hurd v. Terhune, 619 F.3d 1080, 1089 (9th
Cir. 2010) (“[T]he interrogating officers’ comments show that
they subjectively understood Hurd’s responses as
unambiguous refusals.”). Neither officer ever suggested he
believed Garcia’s “no” was not genuine. To the contrary, the
first thing Detective Lenton said after Garcia made his
request was “Well, you don’t want to talk to us because you
don’t know the charges.” He added, “You just said you
didn’t want to talk to us because you don’t know what we’re
gonna talk to you about.” After telling Garcia about his
granddaughter’s allegations, Detective Beatty again told
Garcia, “Okay, well, I mean, you said that you didn’t want to
talk to us.”2
The officers were correct. The only reasonable reading of
the record is that Garcia told the officers that he wanted to
remain silent. Quite literally, however, the officers did not
take “no” for an answer. The Supreme Court has made clear
that when a suspect makes the “simple” statement that he
2
It is of no moment that the officers characterized Garcia’s request as
a refusal to talk because Garcia did not know why he had been brought in.
As we have explained, Garcia only expressed a desire to know what
allegations were being made against him after he unambiguously invoked
his right to remain silent.
GARCIA V. LONG 21
wants to remain silent, he invokes “his right to cut off
questioning.” Berghuis, 560 U.S. at 382 (internal quotation
marks omitted). By continuing to ask questions, the officers
failed to “scrupulously honor” Garcia’s simple request.
We accordingly hold that 28 U.S.C. § 2254(d) does not
bar habeas review of Garcia’s Miranda claim, and we
conclude, on de novo review, that Garcia’s constitutional
rights were violated when his interrogation tape was played
and his apology letter was read at trial.
B. Harmless Error Review
Miranda error does not entitle Garcia to habeas relief if
the error was harmless. In habeas proceedings, we apply the
actual-prejudice standard set forth in Brecht v. Abrahamson,
507 U.S. 619 (1993). Under Brecht, habeas relief is only
available if the constitutional error had a “substantial and
injurious effect or influence” on the jury verdict or trial court
decision. Id. at 623 (quoting Kotteakos v. United States,
328 U.S. 750, 776 (1946)). This standard is satisfied if the
record raises “grave doubts” about whether the error
influenced the jury’s decision. Davis v. Ayala, 135 S. Ct.
2187, 2203 (2015) (brackets omitted) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)).
Under AEDPA, we accord deference to a state court’s
harmlessness determination. Nevertheless, because the
Brecht standard that we apply on collateral review is “less
onerous” for the state than the “harmless beyond a reasonable
doubt” standard that state courts apply on direct review,
Brecht, 507 U.S. at 622–23 (quoting Chapman v. California,
386 U.S. 18, 24 (1967)), the Supreme Court has explained
that “it certainly makes no sense to require formal application
22 GARCIA V. LONG
of both tests (AEDPA/Chapman and Brecht) when the latter
obviously subsumes the former.” Fry v. Pliler, 551 U.S. 112,
120 (2007); accord Ayala, 135 S. Ct. at 2198. We therefore
apply the Brecht test, but we do so with due consideration of
the state court’s reasons for concluding that the error was
harmless beyond a reasonable doubt.
In Brecht, the Supreme Court determined that the state’s
improper use of the petitioner’s post-Miranda silence for
impeachment purposes was harmless. 507 U.S. at 638–39.
The Court noted that “[t]he State’s references to petitioner’s
post-Miranda silence were infrequent, comprising less than
two pages of the 900-page trial transcript in this case.” Id. at
639. And those references were cumulative in light of “the
State’s extensive and permissible references to petitioner’s
pre-Miranda silence.” Id. Moreover, because the physical
evidence presented at trial suggested that the petitioner had
intentionally shot the victim, “the State’s evidence of guilt
was, if not overwhelming, certainly weighty.” Id.
We cannot say the same here. Although Jane Doe’s trial
testimony was no doubt detailed and powerful, her testimony
was uncorroborated by physical evidence. A physician was
called simply to testify that it would have been futile to
examine Jane or to collect DNA evidence. And further, the
improperly admitted evidence did not, as in Brecht, merely
consist of “infrequent” references comprising less than two of
900 pages of transcript. The entire tape, lasting three hours
and forty-five minutes, was played to the jury, and the entire
apology letter, translated to English, was read to the jury.
The prejudice from a defendant’s confession “cannot be
soft pedaled.” Anderson, 516 F.3d at 792. “A confession is
like no other evidence”; it may be “the most . . . damaging
GARCIA V. LONG 23
evidence that can be admitted” against a defendant. Arizona
v. Fulminante, 499 U.S. 279, 296 (1991) (internal quotation
marks omitted). The jury heard Garcia admit to specific
instances of sexual misconduct with Jane. He said on the tape
that he hated himself for what he did and he felt like scum.
More than that, Garcia’s initial denial of the allegations and
subsequent contradictory admission seriously undermined his
own credibility and correspondingly bolstered Jane’s
credibility.
The State argues that Garcia did not actually confess to
any crimes during the interrogation—he only admitted to
three incidents when Jane was fifteen years old (the crimes
charged require that the victim be under fourteen), and he
claimed it was Jane who initiated the sexual contact.
Nonetheless, the prosecutor relied heavily on Garcia’s
admissions to argue that the jury should believe Jane’s
testimony. During closing arguments the prosecutor asked
the jury, “What’s important to take from that tape[,] hearing
the defendant and his pack of lies? How does that support
that we know [Jane Doe] is the one who’s told us the truth?”
The prosecutor continued:
Remember the way he denies it? So adamant
no, no, no, no. It’s always no, no, no, very
adamant.
....
[H]e sounds so convincing; right? He’s
saying, oh, my story is true. I don’t know
why she would say that. Ever see you naked?
No, no, no. I haven’t done anything wrong.
Why don’t you believe me? He’s pleading. I
24 GARCIA V. LONG
haven’t done anything. Why don’t you
believe me?
....
Well, then he changes his story, as we know.
The prosecutor then explained how Garcia’s story changed,
step by step. First, Jane came on to him, started touching
him. “Then he says, oh, I just couldn’t resist her.” Finally he
says, “I started touching and licking her, kissed her breast.”
The prosecutor also pointed out how Garcia “changed the
year all of a sudden.” “He says first, oh, back in 2000, maybe
2001. The officers said 2000, 2001? Yeah, 2000, 2001. Oh,
wait. . . . [S]he’s what, 17 now? No. 2005.” This, the
prosecutor explained, showed that “[h]e got caught there and
tried to correct himself.”
The prosecutor summed up by telling the jury members
they had to decide whose word to believe—Garcia’s, in his
confession, or Jane’s, at trial:
Ladies and gentlemen, when it’s time for
you to deliberate, as I told you at the
beginning of this case, that it’s your job to
kind of get to the truth. Are you okay with
that task? Part of that task is deciding what
you believe and what you don’t. You have
heard from [Jane Doe]. You have heard the
audio from the defendant.
Who couldn’t keep the story straight?
Who had to keep flip-flopping? Who
GARCIA V. LONG 25
admitted that he was sexually attracted to his
own granddaughter?
On the other hand, who has always told
the same truth, the same shameful, painful and
tearful truth that we saw up there? [Jane
Doe].
In short, Garcia’s interrogation statements were the focal
point of the prosecution’s closing argument. According to the
prosecutor, Garcia’s “pack of lies” showed that Jane was
telling the truth, and Garcia’s admission of sexual misconduct
“lets us know what kind of man he is.” In the absence of any
significant evidence, physical or otherwise, corroborating
Jane’s testimony, the interrogation tape and apology letter
substantially strengthened the government’s case.
The State argues that even if Garcia’s interrogation
statements and apology letter had been suppressed, Garcia
would still have been convicted of the charged crimes. The
State first notes that, under California law, Jane’s testimony
was sufficient to support a guilty verdict. But the question
under Brecht is not whether the properly admitted evidence
would have been sufficient; it is whether the improper
evidence had a substantial and injurious effect or influence on
the jury. Given the record here—in particular the
prosecution’s closing argument—we conclude it did.
The State also notes that Jane’s grandmother (Garcia’s
former wife) testified at trial that she asked Garcia how he
could have hurt Jane and that Garcia, instead of denying
wrongdoing, said he was sorry and told her that “God . . .
forgives.” To be sure, this testimony was harmful to Garcia’s
case. But still, the grandmother’s testimony that Garcia
26 GARCIA V. LONG
admitted to hurting Jane in unspecified ways was not nearly
as compelling as Garcia’s taped admission that he had
engaged in multiple specific sexual acts with Jane. Nor did
the grandmother’s testimony enable the prosecution to make
effective use of Garcia’s “flip-flopping.” It was no accident
that the prosecutor’s closing arguments pored over Garcia’s
interrogation statements while noting only in passing Garcia’s
implicit admission to Jane’s grandmother.
The California Court of Appeal determined that any
Miranda error was harmless beyond a reasonable doubt
because “defense counsel essentially conceded that [Garcia]
was guilty of the lewd act offenses charged in counts 2
through 9.” But defense counsel only conceded Garcia’s guilt
on the lewd act offenses because the improperly admitted
interrogation tape left him no other choice. Defense counsel
told the jury:
Now, with regards to these molestation
charges, we know we have Counts 2 through
9. Mr. Garcia in his own words to the
investigator, he said he touched her. He said
he touched her on three different occasions.
He told you how it happened. He wasn’t
denying it.
The difference between his testimony or
his statements and that of [Jane Doe] is when
it started. . . . But I’m not going to argue too
much about the 288 charges. You probably
have your minds made up with regards to
those.
GARCIA V. LONG 27
Far from showing that the admission of the interrogation tape
was harmless beyond a reasonable doubt, defense counsel’s
closing argument shows that the tape was indeed damning.
Counsel was forced to admit that, in his own words, Garcia
said he touched Jane Doe, explained how it happened, and
“wasn’t denying it.” The admission of Garcia’s confession
plainly affected counsel’s strategy—he could not deny that
Garcia had molested Jane but could only dispute the rape
charge by arguing that Garcia never used force or fear.
The state court also rested its harmlessness determination
on its conclusion that “the jury could not have used [Garcia]’s
interview statements to convict him of the rape charge.” In
particular, the court reasoned, the prosecution urged the jury
to convict Garcia of rape based on an incident of forced
sexual intercourse when Jane was six or seven years old, but
Garcia “steadfastly denied ever having sexual intercourse
with Jane” and denied any sexual contact with her when she
was six or seven years old. As we have explained, however,
this argument misses the point. That Garcia’s interrogation
statements, standing alone, were insufficient to prove his guilt
does not mean that they did not substantially influence the
jury’s verdict. As the prosecutor told the jury, “obviously I
played that tape for you for a reason.” The jury had heard
Garcia in his own voice—he “couldn’t keep the story
straight,” he “had to keep flip-flopping,” and he “admitted
that he was sexually attracted to his own granddaughter.”
Any reasonable application of Chapman would have to
account for these statements by the prosecution, yet the state
court never acknowledged them.
Exercising “extreme caution,” as we must, “before
determining that the admission of [a] confession at trial was
harmless,” Fulminante, 499 U.S. at 296, we conclude that the
28 GARCIA V. LONG
admission of Garcia’s interrogation and apology letter had a
substantial and injurious effect on the jury’s decision. Brecht,
507 U.S. at 637–38. The state court’s error was not harmless.
IV. CONCLUSION
The Supreme Court has repeatedly made clear that when
a suspect simply, unambiguously, and unequivocally says he
wants to remain silent, police questioning must end at once.
Under any reasonable interpretation of the facts, Garcia
simply, unambiguously, and unequivocally invoked that right.
Accordingly, clearly established Supreme Court law required
the suppression of Garcia’s interrogation tape and apology
letter. We affirm the district court’s judgment granting the
writ of habeas corpus. The State shall, within the time
prescribed by the district court, either release Garcia or grant
him a new trial.
AFFIRMED.