The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Gary A. Feess, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
FEDERAL COURT PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on May 3, 2012. Petitioner filed a supporting Memorandum on May 8, 2012. Respondent filed an Answer and a supporting Memorandum on June 5, 2012. Respondent also lodged several documents on June 5, 2012. Petitioner filed a Reply to the Answer on June 19, 2012.
An Information charged Petitioner with the first-degree murder of Derek Ochoa, and also made allegations related to firearm and gang enhancements (Clerk's Transcript ("C.T.") 129-31). At the outset of trial, Petitioner sought to suppress statements he had made to law enforcement on February 10, 2006 (C.T. 140-54). The challenged statements occurred during two different interrogations: (1) an interrogation occurring at the San Bernardino Sheriff's Department station (prior to which Petitioner did not receive any Miranda warnings); and (2) a subsequent interrogation occurring at the Riverside Police station (prior to which Petitioner did receive Miranda warnings) (id.).
Following an evidentiary hearing, the trial judge suppressed the non-Mirandized statements, finding that Petitioner had been in custody when he made those statements (Reporter's Transcript ("R.T.") 4-26). The trial judge refused to suppress the subsequent Mirandized statements, however (id.). The judge reasoned that under the "totality of the circumstances" Petitioner's statements had been voluntary, such that Petitioner's Mirandized statements were admissible (R.T. 26). At trial, the prosecution introduced a videotaped recording of Petitioner's Mirandized statements (R.T. 349-53
The jury found Petitioner guilty of first-degree murder (R.T. 451-52). The jury also found to be true the firearm and gang-related enhancement allegations (R.T. 451-52). Petitioner received a sentence of 25 years to life for the murder, plus an additional 25 years to life for the firearm enhancement (R.T. 464). The sentencing judge stayed an additional term of 25 years to life for the gang-related enhancement (id.).
On direct appeal, Petitioner argued, inter alia, that the trial court erred in failing to suppress Petitioner's Mirandized statements (Lodgment 2). Petitioner also argued that his sentence of 50 years to life is unconstitutionally disproportionate to his crime (id.). Petitioner made similar claims in a petition for writ of habeas corpus filed with the California Court of Appeal (Lodgment 3). This petition included a transcript of a law enforcement interrogation of Petitioner occurring on February 9, 2006 (the day before Petitioner made the statements that were introduced at trial) (id.).
After declining to consolidate the direct appeal with the habeas petition, the Court of Appeal affirmed the judgment in a reasoned opinion and denied the habeas petition summarily (Lodgments 8, 9). In the reasoned opinion, the Court of Appeal applied a "totality of the circumstances" standard to conclude that Petitioner's statements were voluntary (Lodgment 8, pp. 13-26). The Court of Appeal recited that, among the factors to be considered as part of the totality of the circumstances, "are the crucial element of police coercion; the length of the interrogation; its location; its continuity; and the defendant's maturity, education, physical condition, and mental health" (Lodgment 8, p. 14).
In a petition for review and a separate petition for writ of habeas corpus, Petitioner raised with the California Supreme Court the same claims previously rejected by the California Court of Appeal (Lodgments 12, 17). By orders filed November 17, 2010, and March 30, 2011, the California Supreme Court summarily denied both petitions (Lodgments 13, 18).
At approximately 4:00 p.m. on January 11, 2006, an armed individual emerged from a silver Toyota Camry, shot a 16-year-old pedestrian named Derek Ochoa at least three times, and yelled "Delhi" (the name of an Orange County gang) (R.T. 77-78, 94, 96, 98-100, 147, 149-50, 162-63, 176-80, 194-97). Ochoa had claimed to be a member of a gang that was an enemy of the Delhi gang (R.T. 140-150, 152). Ochoa died as a result of the shooting (R.T. 196-200). The fatal bullet had struck Ochoa in the right side of his back (R.T. 196).
Law enforcement investigators eventually came to suspect that Petitioner, then 15 years old, had been involved in the shooting. The investigators evidently developed this suspicion because: Petitioner personally had suffered a gang-related assault shortly before the shooting; Petitioner had drawings with the word "Delhi" in his bedroom; Petitioner had moved from his family residence shortly after the shooting of Ochoa; and Petitioner had made cellphone calls to Andres Munoz after the assault on Petitioner (R.T. 272-79, 280, 285, 296-302). Andres Munoz was a high school student to whose residence investigators had traced the silver Toyota Camry involved in the shooting, and Munoz also had Delhi gang paraphernalia in his bedroom (R.T. 214-44).
Law enforcement officials interrogated Petitioner on January 13, 2006, February 9, 2006, and February 10, 2006. The Court summarizes some of the more relevant aspects of these interrogations below.*fn1
On January 13, 2006, Detective James Brandt questioned Petitioner at the home of Petitioner's aunt. Brandt mentioned Derek Ochoa, but most of the discussion concerned the gang-related assault Petitioner had suffered shortly before the shooting of Ochoa. Petitioner said he had moved from his family home because of the assault, admitted he knew that Delhi was a "group in Santa Ana," and claimed that his Delhi-related drawings had something to do with Petitioner's desire for a career in tattooing. Petitioner admitted knowing Ochoa in school, but claimed he did not have any problem with Ochoa. Petitioner said he thought the 5150 Riverside gang, which supposedly does not like people from Orange County, may have been responsible for the assault on Petitioner.
Between 5:20 a.m. and 5:30 a.m. on February 9, 2006, a SWAT team served a search warrant where Petitioner was residing (R.T. 218, 227). Before the residence was secured, Petitioner was detained and handcuffed. When the residence was secured, the cuffs were removed and Petitioner was allowed to eat breakfast. Brandt told Petitioner that Petitioner was not under arrest, but that Brandt would like to ask Petitioner questions at the station house. Petitioner agreed, and he was taken to the station house (C.T. 94-95).
At the station house on February 9, 2006, Brandt and Detective R. Wheeler questioned Petitioner. They told Petitioner he was not under arrest. Petitioner said he hoped that he could make things easier for the detectives. The detectives told Petitioner they had some information connecting Petitioner to the homicide, including records of Petitioner's cellphone calls, the car involved, and witnesses who observed people in the car. Petitioner repeatedly denied any involvement in the homicide, and claimed to have been at his home at the time. When the detectives expressed disbelief, Petitioner suggested, "Don't you guys have a lie detector or something? I, I was in my house" (Lodgment 17, page 13 of transcript). According to the transcript, the recording contains some sounds of "coughing" and "sniffing."
While answering repetitious questioning, Petitioner eventually appeared to succeed in correcting the detectives' timeline of events. The detectives mistakenly had believed that Petitioner's assault and Ochoa's shooting had occurred on the same day, when in fact the assault on Petitioner had occurred the day before the shooting of Ochoa.
The detectives urged Petitioner to "be a man" and admit culpability in Ochoa's shooting (Lodgment 17, page 43 of transcript). The detectives also suggested a mitigating scenario according to which Petitioner merely happened to be in the car at the scene of the shooting and had been surprised when other people in the car shot Ochoa. Petitioner continued to maintain his innocence. The detectives offered Petitioner water, and Petitioner apparently accepted. The detectives suggested that Petitioner was a good person, with a loving family, but that Petitioner was not being honest.
The detectives falsely represented that witnesses had identified Petitioner as having been at the scene of the crime. At one point, Petitioner said "I don't really want to say nothing no more. . . . Trying to cooperate here," after which Brandt asked a few more questions (Lodgment 17, page 51 of transcript). Petitioner then said "Stop asking me questions," to which Brandt responded, "No, I'm not gonna stop asking you questions" (Lodgment 17, page 52 of transcript). The questioning continued very briefly, and unproductively. Brandt then asked if Petitioner would be willing to take a lie detector test, and Petitioner said he would. Shortly thereafter, Petitioner also said "You guys stop asking me . . . kinda questions," to which Wheeler responded "We got to find out what happened man" (Lodgment 17, page 54). Petitioner said "Stop asking this kind of stuff man." (Id.)
Wheeler confirmed that Plaintiff's age was 15, and then told Petitioner that Petitioner's one and only hope was to "be straight," suggesting that a jury would see right through Petitioner's false claims of innocence (Lodgment 17, pages 54-55). Wheeler stated, "Give me something to write down in my report about how you were there, about how you know what happened. You have to [sic] it, it's the only chance you got right now is to be heard. After that, nobody's gonna care a thing about what you got to say" (Lodgment 17, pages 55-56). Wheeler referred again to Petitioner's loving family and suggested that Petitioner own up to his mistakes. Petitioner continued to deny that he knew anything about the shooting.
Brandt suggested that perhaps Ochoa had said something he should not have said, and Brandt asked if Ochoa had reached for his pockets. Petitioner claimed to be afraid of "nothing," and continued to say that he did not know anything about the shooting (Lodgment 17, page 63). Brandt represented that if the interrogation ended, Brandt would not come back, and would go to the D.A.'s office and win the case against Petitioner. Brandt then said "Last chance," to which Petitioner responded, "I don't know nothing man" (Lodgment 17, page 64). The entire February 9, 2006 interrogation comprises 64 pages of transcript.
III. February 10, 2006 (San Bernardino)
After sleeping overnight in his home, Petitioner was returned to the San Bernardino County Sheriff's station by Detectives Brandt and M. Medici mid-morning on February 10, 2006, so Petitioner could take a polygraph examination. Petitioner's parents reportedly had given consent for the polygraph examination. The San Bernardino Sheriff's polygrapher, Robert Heard, questioned Petitioner initially. After the conclusion of the polygraph examination, Brandt and Medici questioned Petitioner at the same location. These events took place in an interview room over a period of approximately two and a half hours. Petitioner was seated at a chair by a table. There were no restraints, no gun pointing and no yelling. There were no physical abuses or verbal threats. No one showed Petitioner any gory photographs of Ochoa. Petitioner was not stripped or put into jail clothing. Petitioner was predominantly responsive to the questioning, although he intermittently indicated that he did not want to answer further questions. Petitioner was not given any Miranda warnings while at the San Bernardino County Sheriff's station.
Before actually administering the polygraph examination to Petitioner, Heard and Petitioner engaged in a dialogue concerning polygraph examinations, Heard's experience, Petitioner's ambition to be a firefighter and other matters. Petitioner said he had slept for approximately six hours the previous night. Heard denied any intention of tricking Petitioner. Heard asked questions concerning Ochoa, and Petitioner denied planning or participating in Ochoa's death.
When presented with a consent form for the polygraph examination, Petitioner claimed not to understand what the terms "duress" and "coercion" meant, but denied that he was being forced to take the examination and denied that anyone had threatened to do something to him if he refused to take the examination. Petitioner also apparently needed Heard's help understanding the term "immunity." Heard explained the consent form appropriately and indicated that Heard would give the polygraph results to the Riverside Police Department. Petitioner agreed to take the examination, signing a form stating, inter alia, "I understand that I could not be forced to take the test by anyone and I have the right, at any time, to leave the examination room" (C.T. 294). Heard offered a bathroom break, which Petitioner declined. After a "dry run" in which Petitioner again denied planning or participating in Ochoa's death, Heard began the actual polygraph examination. During the examination, Petitioner repeatedly denied planning or participating in Ochoa's death.
Almost immediately after concluding the polygraph examination, Heard advised Petitioner that Petitioner had failed. Heard told Petitioner that Heard had no doubt Petitioner was present when Ochoa was shot. Heard asked Petitioner what had happened and Petitioner admitted that he and others were "cruising through there and um, a lot of people saw it, cause like we, were cruising through there. We didn't have no gun though, and um, (clears his throat) he had some trouble with those guys form [sic] 18th Street" (C.T. 253). Heard accused Petitioner of "dancing around" and reiterated that he wanted to know what really happened. Petitioner said "it wasn't me or my cousin that shot him," but it was "those guys from 18th Street" (C.T. 253-54). Petitioner admitted that "We were around there." (C.T. 254). Heard told Petitioner "That's not gonna work . . . I know you were there, and I know the shooter was in your car or got out a your car because witnesses, a whole bunch of witnesses say three people in the car" (C.T. 254). Heard said he had been told Petitioner was a nice young man and Heard said only good people get the job of firefighter. Heard said he was going to give Petitioner a chance to talk. Petitioner claimed that only he and his cousin were in the car, not three people. Heard expressed skepticism, and suggested "Even if you were the shooter, if you were doing it in self defense, that's, the, that can, the detectives can work with that" (C.T. 254-55). Petitioner claimed that neither he nor his cousin did the shooting. Heard also suggested a scenario in which Petitioner may have been looking to "thump" somebody in retaliation for the previous assault and then something happened that Petitioner didn't have any control over (C.T. 257). After Heard interrupted an answer by Petitioner, the following exchange occurred:
PETITIONER: I don't wanna talk about this no more. HEARD: You don't wanna talk about this anymore? PETITIONER: No.
HEARD: Is that how you want to leave it? PETITIONER: Yeah.
Heard continued to ask questions for a few more minutes. When Petitioner asked Heard what would happen if Petitioner did not say anything, Heard indicated that the investigation nevertheless would continue. Heard suggested a scenario in which Petitioner was looking to "smack somebody around" and had someone else with him who Petitioner knew had a gun (C.T. 258). Heard said that he knew there were three people in the car but he did not know who did the shooting. Heard said "If it wasn't you, you should give it up. If it was you, and it was self defense you should say hey" (C.T. 259). Petitioner said, "But it was me or if it wasn't, everybody in the car's still gonna go 25 years . . . and, and life. . . . Even if I say anything or if I don't, everybody, that they got on the list is gonna do 25 years in prison" (C.T. 259-60). When Heard asked whether it was someone in the car who did the shooting, Petitioner said "No, I don't wanna talk about this" (C.T. 260).
Petitioner admitted to Heard that there were three people in the car (C.T. 262). Petitioner told Heard that the cousin who was in the car with Petitioner was cousin Andy (C.T. 262-63). Petitioner said Andy was driving (C.T. 263). When asked whether the third person in the car was the shooter or whether Petitioner was the shooter, Petitioner said "I don't know. I won't talk about this." (C.T. 263). When asked "Okay, is that how you wanna leave it?" Petitioner responded "I don't know, yeah, I guess." (Id.) Heard continued to ask questions, and suggested to Petitioner that the truth might help him with the district attorney. Heard stated to Petitioner
Decent young man, wants to be a firefighter, dangerous job, and loves his mother, loves his family. Adrian, I can't tell you what's gonna happen because you know what? I don't know. I don't know what's gonna happen because you haven't told me what happened out there. You told me there's three in the car and, and then you kind a stop, and then you ask me, that you tell me I'm going to state prison for, I, I, said 25 to life or something like that. Fifteen year olds don't go to state prison, Adrian.
(C.T. 265-66). Petitioner then said "I know, but I've got a go to juvenile hall" (C.T. 265-66).
Heard told Petitioner, "And if you were the shooter and it was in self defense because he said something stupid coming at you, well that's, that's fine, they, they can work with that" (C.T. 267). Heard mentioned, apparently as the consequence of an alternative scenario, going "to state prison for 25 to life or something like that," but Heard said he did not have an answer to Petitioner's question: "So if I say who the shooter was, I'm still gonna go to jail?" (C.T. 268). Heard also said that he did not have the answer to Petitioner's question: "Well, if I say who it was then two of us are gonna just go home?" (C.T. 269).
Petitioner asked for some time. Heard offered to wait outside, but Petitioner said "No, it's alright" (C.T. 269). Heard asked Petitioner on what side of the car the shooting occurred, and Petitioner responded "Oh, not that I know, you know, so don't ask any question" (C.T. 270). Heard asked if Petitioner wanted to be alone, and Petitioner responded "No, it's just, just don't ask any questions." (Id.). When Heard said he was not just going to sit there and do nothing, Petitioner said "Can we just call the detectives?" (Id.).
Shortly thereafter, in the same room, Brandt and Medici questioned Petitioner. When Brandt asked whether Petitioner was "in the front passenger," Petitioner stated "No, I'll say nothing, man" (C.T. 273). Petitioner refused to identify the other person in the car and suggested that everybody "still got a go time in jail" (C.T. 272-73). Detective Brandt responded "No, but, I mean the time in jail thing, it may be minimal or it, it may be a lot, but like we told you yesterday, uh, people have, you have to tell the, the truth" (C.T. 273).
Petitioner said that his biggest concern was going to jail for a long time. The following exchange then occurred:
BRANDT: Okay. How long you think you would go to jail for?
PETITIONER: I don't know. Like it's a murder, probably ...