and Submitted May 9, 2017 Pasadena, California
from the United States District Court No.
2:10-cv-08842-JAK-JPR for the Central District of California
John A. Kronstadt, District Judge, Presiding
Faryar Farmani (argued), Farmani APLC, Rancho Santa Fe,
California, for Petitioner-Appellant.
M. Smith (argued), Deputy Attorney General; Kenneth C. Byrne,
Supervising Deputy Attorney General; Lance E. Winters, Senior
Assistant Attorney General; Gerald A. Engler, Chief Assistant
Attorney General; Office of the Attorney General, Los
Angeles, California; for Respondent-Appellee.
Before: Harry Pregerson and Michelle T. Friedland, Circuit
Judges, and Robert S. Lasnik, [*] District Judge.
panel reversed the district court's judgment denying
Jessie Rodriguez's habeas corpus petition challenging his
conviction for second-degree murder and attempted murder, and
remanded, in a case in which Rodriguez, who was fourteen
years old at the time detectives interviewed and arrested
him, argued that his written confession was obtained in
violation of Miranda v. Arizona.
reviewing the record available to the state courts, including
a videotape of the interview and transcript of that
videotape, the panel held that the California Court of
Appeal's determination that the detectives honored
Rodriguez's invocation of his right to counsel was
unreasonable. Having concluded that the state court's
decision was based on an unreasonable determination of facts,
the panel reviewed the legal issues de novo, and
held that the government failed to meet its heavy burden of
showing that Rodriguez's subsequent waiver of his right
to counsel was knowing, intelligent, and voluntary. The panel
held that the admission of Rodriguez's confession was not
harmless, and that Rodriguez is therefore entitled to habeas
LASNIK, DISTRICT JUDGE.
Jessie Rodriguez was fourteen years old, a California jury
found him guilty of second-degree murder and attempted
murder. Because the government relied on a coerced waiver of
the right to counsel to secure this conviction, we grant Mr.
Rodriguez's request for relief under 28 U.S.C. §
evening of February 23, 2005, while Manuel Penaloza and
Cynthia Portillo were walking near Gabanzo Park in Los
Angeles, a brown minivan slowed and approached
them. Mr. Penaloza saw two men in the van, the
driver and a passenger. The passenger asked the couple,
"Where are you from?" Mr. Penaloza understood this
question as a gang challenge - a demand to know what gang Mr.
Penaloza was affiliated with. He truthfully replied that he
was from the Drifters gang. Instantly, shots were fired from
inside the van. Mr. Penaloza was wounded in the shoulder, and
Ms. Portillo was shot in the head. Mr. Penaloza panicked and
fled. Ms. Portillo did not survive. People v.
Rodriguez, No. B194159, 2007 WL 4465197, at *1 (Cal.App.
Dep't Super. Ct. Dec. 21, 2007). Roughly two hours later,
Officer Carlos Langarica of the Los Angeles Police Department
saw a brown van driving in Highland Park. By that time, he
had received reports of the Gabanzo Park drive-by shooting
and another such shooting that night. Because the van matched
the description of the shooter's vehicle, Officer
Langarica stopped the van. Id. at *2.
Gomez was the van's driver; Richard Powell was the
passenger. Two fully loaded handguns were recovered from the
van, a .22 caliber revolver and a .25 caliber semiautomatic.
Ammunition for those weapons was also recovered, along with
an expended cartridge case and a leather glove. A live bullet
was found in Mr. Powell's pocket. Id.
Luis Rivera interviewed Mr. Gomez and Mr. Powell. Mr. Gomez
and Mr. Powell implicated a person named "Husky" in
the shooting. Detective Rivera determined that
"Husky" was the gang moniker of Jessie Rodriguez.
He obtained a photograph of Mr. Rodriguez and placed it in a
six-pack photographic lineup, which he showed to the shooting
victim Mr. Penaloza. Mr. Penaloza was very uncooperative. He
pointed to two photographs - including Mr. Rodriguez's
photograph - and said, "One of those two is the person
who shot me. There. Now you know." Id.
month later, on the morning of March 28, 2005, Detective
Rivera and his partner, Detective Jose Carrillo, arrested Mr.
Rodriguez at the juvenile probation camp where he was then
living and brought him to the local police station for an
interview. Id. At the time of his arrest and
interview, Mr. Rodriguez was fourteen years old. He had
completed ninth grade.
interview was videotaped and transcribed. The following
exchanges are excerpted from that transcript.
the officers delivered Miranda warnings to Mr.
Rodriguez, they questioned him about his name, address,
family, schooling, and juvenile record. They also asked
whether he had any nicknames or tattoos:
Officer: And you're from Highland Park?
Officer: And what do they call you?
Officer: Chubs, C-H-U-B-S. Anything else?
Officer: You don't have any other lead names? That's
the only lead name you have?
Officer: Cause I'm looking at your sheet here and it
shows that you have a lot of nicknames.
Officer: What other names do they say that they call you?
Rodriguez: Just Chubs.
Officer: I know, but what other names do you know that they
Rodriguez: Just that, Chubs.
Officer: Don't they call you Husky?
Officer: That's on your rap sheet.
Rodriguez: I know, cause that's like a long time ago
Officer: Do you have any tattoos?
Rodriguez: Yeah, on my arm.
Officer: Let me see what you have. HIP. That's fairly
Officer: Who did it?
Rodriguez: My friend.
Rodriguez: My friend.
Officer: What's your friend's name?
Officer: Victor what?
Rodriguez: Victor Rigosa or something like that.
Officer: Victor Rigosa.
Rodriguez: Yeah, something like that.
Officer: Is he in HIP too?
Officer: [Inaudible] What else do you got?
Rodriguez: That's it.
Officer: Let me se [sic] your upper arm? How about your other
arm? Do you have anything on your other arm?
Officer: That tattoos [sic] about what, three, four weeks
Rodriguez: Three months ago.
Officer: Three months ago, no, that's more than that