Francisco Garcia v. David Long

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.