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Rodriguez v. McDonald

United States Court of Appeals, Ninth Circuit

September 29, 2017

Jessie Rodriguez, Petitioner-Appellant,
Mike McDonald, Warden, Respondent-Appellee.

          Argued and Submitted May 9, 2017 Pasadena, California

         Appeal 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

          Tony Faryar Farmani (argued), Farmani APLC, Rancho Santa Fe, California, for Petitioner-Appellant.

          Ryan 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.


         Habeas Corpus

         The 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.

         After 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 relief.



         When 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. § 2254.

         I. BACKGROUND

         On the 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.[1] 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.

         Angel 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.

         Detective 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.

         Over a 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.

         This interview was videotaped and transcribed. The following exchanges are excerpted from that transcript.

         Before 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?
Rodriguez: Yeah.
Officer: And what do they call you?
Rodriguez: Chubs.
Officer: Chubs, C-H-U-B-S. Anything else?
Rodriguez: No.
Officer: You don't have any other lead names? That's the only lead name you have?
Rodriguez: Yeah.
Officer: Cause I'm looking at your sheet here and it shows that you have a lot of nicknames.
Rodriguez: [Inaudible]
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 call you?
Rodriguez: Just that, Chubs.
Officer: Don't they call you Husky?
Rodriguez: No.
Officer: That's on your rap sheet.
Rodriguez: I know, cause that's like a long time ago [inaudible].
Officer: Do you have any tattoos?
Rodriguez: Yeah, on my arm.
Officer: Let me see what you have. HIP. That's fairly new.
Officer: Who did it?
Rodriguez: My friend.
Officer: Huh?
Rodriguez: My friend.
Officer: What's your friend's name?
Rodriguez: Victor.
Officer: Victor what?
Rodriguez: Victor Rigosa or something like that.
Officer: Victor Rigosa.
Rodriguez: Yeah, something like that.
Officer: Is he in HIP too?
Rodriguez: No.
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?
Rodriguez: No.
Officer: That tattoos [sic] about what, three, four weeks old?
Rodriguez: No.
Officer: Yeah.
Rodriguez: Three months ago.
Officer: Three months ago, no, that's more than that ...

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