United States District Court, N.D. California
ORDER GRANTING PETITION FOR A WRIT OF HABEAS CORPUS,
RE: DKT. NO. 1
CHHABRIA, UNITED STATES DISTRICT JUDGE
habeas petitioner in this case, Primitivo Campos, was
convicted in state court of molesting a child at the day care
his wife ran in their home. Aside from the child victim's
testimony (which suffered from inconsistencies, was at times
controverted by third party witnesses, and may have been
influenced by a similar allegation her friend had recently
made against a different person), the only evidence against
Campos was an incriminating series of statements that
investigators extracted from him during a custodial
interrogation. The investigators, in their attempt to get
Campos to confess, performed fake fingerprint and DNA tests
on him. They insisted repeatedly and forcefully, but falsely,
that the fake tests demonstrated to a certainty that Campos
had touched the child's genitals. When Campos continued
trying to deny ever touching the child's genitals or
molesting her in any way, the investigators repeatedly
interrupted him and insisted that this could not possibly be
the truth in light of the fingerprint and DNA evidence. They
yelled "no, no, no!", insisted their evidence
"doesn't lie, " and said things like:
"Okay, so you're lying to us. You have to tell us
the truth." They emphasized that if Campos continued to
deny the "truth" of the fingerprint and DNA
evidence, the district attorney would not like it.
Accordingly, the investigators repeatedly and forcefully
exhorted Campos to at least allow for the possibility that
his hand might have touched the victim's genitals
accidentally. They refused to accept any statement from
Campos that did not allow for this possibility.
a more sophisticated person would have continued to insist he
never touched the victim's genitals, either accidentally
or on purpose. But Campos had a third grade education from
Mexico. He had no prior experience with the criminal justice
system, and clearly had difficulty understanding the
evidentiary concepts the officers introduced to him. It's
no wonder, in light of the officers' exhortations, that
Campos eventually felt compelled to allow for the possibility
of an accidental touching. Many people in the same position
would react this way - particularly people as unsophisticated
as Campos - whether they were guilty or innocent.
the remainder of the interrogation, Campos continued to
insist he never intended to touch the victim inappropriately.
Indeed, at times he seemed to try to back away from the
possibility that an accidental touching might have occurred,
only to be steamrolled by the officers. Eventually, Campos
ended the interview and asked for a lawyer.
trial, during closing argument, the prosecutor made effective
use of Campos' statements, insisting that no innocent
person would ever have allowed for the possibility of even an
accidental touching. And the jury convicted Campos of some
counts, likely in reliance on Campos' statements and on
the prosecutor's assertions about those statements.
trial judge should never have allowed Campos' statements
to be admitted. And the two-justice majority on
California's Sixth District Court of Appeal should never
have voted to affirm the conviction on direct appeal. In
fact, the majority's ruling hinged on an objectively
"unreasonable determination of the facts" within
the meaning of the federal habeas statute. 28 U.S.C. §
2254(d)(2). In particular, the majority unreasonably
determined that the officers were merely "urging the
defendant to tell the truth, " when in reality they were
insisting that Campos allow for the possibility of an
accidental touching regardless of what the real truth was,
and insisting that the district attorney would not like it if
Campos refused to make a statement consistent with their fake
scientific evidence. The majority's mischaracterization
of what happened during the interrogation reflects a plain
misapprehension of the record, going to a material factual
issue that was central to the defendant's claim. See
Sharp v. Rohling, 793 F.3d 1216, 1229 (10th Cir. 2015)
(quoting Byrd v. Workman, 645 F.3d 1159, 1171-72
(10th Cir. 2011)); Taylor v. Maddox, 366 F.3d 992,
1001 (9th Cir. 2004) (citing Wiggins v. Smith, 539
U.S. 510, 526 (2003); Hall v. Dir. of Corr., 343
F.3d 976, 983 (9th Cir. 2003) (per curiam)). As the opinion
of the dissenting justice shows, once this misapprehension is
eliminated, and once the facts and the law are considered
objectively, it is clear that that Campos' statements to
the interrogators were obtained in violation of his due
process rights. And because the admission of these statements
was not harmless under Brecht v. Abrahamson, 507
U.S. 619 (1993), the petition for a writ of habeas corpus is
the time of his arrest in December 2010, Campos regularly
helped out at his wife's home day care facility. His wife
had been operating the facility for many years, and Campos
had assisted her since 2000. 12 RT, Dkt. No. 16-3, at 3437;
11 RT, Dkt. No. 16-1, at 3055, 3071.Campos sometimes watched
children while his wife was in another room, and he regularly
drove children by himself from the day care to school and
back again. 12 RT, Dkt. Nos. 16-3 and 16-4, at 3438-41, 3485;
11 RT, Dkt. No. 16-1, at 3070. On December 22, 2010, a child
at the day care, whose initials are K.M. and who was five
years old at the time, told her mother that Campos had
touched her genitals under her clothes. Cal.Ct.App. Opinion,
Dkt. No. 17-4, at 2. The details of her accusation are
discussed more fully in Section V.
K.M.'s mother called the police, they arrested Campos,
brought him to the station, took his fingerprints and a blood
sample, put him in an interrogation room, and cuffed one of
his hands to a table. Cal.Ct.App. Opinion, Dkt. No. 17-4, at
2; 3 CT, Dkt. No. 14-5, at 482, 490. They advised Campos of
his Miranda rights. Cal.Ct.App. Opinion, Dkt. No.
17-4, at 3.
the interrogation began, Detective Emilio Perez entered the
interrogation room wearing blue rubber gloves, carrying a
manila envelope and a cotton swab. Perez proceeded to swab
Campos' fingers and hands, then placed the swab in the
envelope and left the room. Several minutes later, Perez and
another detective, Matthew DeLorenzo, returned and began
interrogating Campos. During the interrogation, the
investigators reminded Campos they had taken his
fingerprints, told him they'd collected DNA from his
blood and his hands, and told him they'd also collected
DNA and fingerprint evidence from K.M.'s genitals. 3 CT,
Dkt. No. 14-5, at 490, 494. They told Campos that the results
of the DNA and fingerprint tests were "going to tell us
the truth, " and that if there was a match, they'd
know he touched K.M.'s genitals inside her pants.
Id. at 496, 500. DeLorenzo was the primary
interrogator and asked questions in English; Perez attempted
to translate to Spanish for Campos.
and fingerprint tests were a ruse, and as the Court of Appeal
majority noted, that ruse "was a major theme of the
interrogation." Cal.Ct.App. Opinion, Dkt. No. 17-4, at
3. While the officers were waiting for the supposed
"results" of their tests, they told Campos that the
technology was "very advanced, " that their tests
could detect a person's fingerprints on a child's
body for up to a month after an incident, and that their
tests could even tell which part of a person's body a
particular DNA sample came from: from the head, the face, or
the hands. 3 CT, Dkt. No. 14-5, at 493, 492, 491. At one
point, the investigators also pretended to go to the
laboratory to retrieve the results of the DNA and fingerprint
tests, only to return several minutes later and explain they
had to wait a little longer for the results to be complete.
Id. at 493-94. Eventually, another officer brought
the interrogators an envelope containing the fake test
results. Id. at 497. Before opening the envelope,
the officers said K.M. had told them that Campos touched her
"inside her vagina, " and also "on her
butt." Id. Campos denied that he did so.
Id. at 498. The officers said: "You need to
speak with the truth. This is your last opportunity. Because
the D.A. makes the decision. But if you lie to us and that
evidence, we're going . . . we're going to send it
and the other thing that you don't say, will look real
bad for you." Id. at 501-02. The officers told
Campos they were confident that "your DNA, your finger
prints - your normal finger prints and the ones that have
your DNA - are going to be on the body of that girl."
Id. at 503-04. Campos nevertheless continued to deny
touching K.M. in an inappropriate place. Id. at
502-03. The officers then told him that if the results inside
the envelope were blue, this would mean the results were
positive. Id. at 504.
the officers opened the enveloped and announced:
"They're blue. Okay, so you're lying to us. You
have to tell us the, the truth." Id. at 505.
Campos continued strenuously to deny touching K.M.'s
genitals. Id. at 505. They said to Campos: "But
this is here, it doesn't lie. This doesn't tell us
lies, okay. What motive - this is the truth. So you're
going to tell me that you didn't do anything and the D.A.
is going to see this, what's he going to say?
That it's - you're lying." Id. at 506.
continued to insist he did not touch K.M.'s genitals.
Id. at 507. In an effort to get Campos to reconcile
the allegedly irrefutable proof that he'd touched
K.M.'s genitals with his story that he did not molest
her, the officers introduced the possibility that he'd
touched her there by accident: "So . . . possibly [it]
was an accident that you touched her down there?"
Id. at 508; see also Id . at 505 ("Or
. . . maybe it was something that was [an] accident.").
When Campos continued to resist the idea that he touched
K.M.'s genitals, even accidentally, the officers said:
"The scientists already have your DNA. If you lie to me,
the D.A. isn't going to like that you're lying to me,
okay." Id. at 508-09. Nevertheless, when the
officers again inquired whether Campos touched K.M. "in
her intimate part, " Campos repeatedly responded,
"no, no." Id. at 511; see also Id
. at 507, 508, 513, 515.
point it bears noting that the written transcript does not
tell the full story of the interrogation. The transcript
itself is jumbled, but the video and audio show just how much
confusion reigned during the interrogation. The officers were
speaking to Campos quickly and loudly. They were often
speaking over one another - one in English and the other in
Spanish. Some of DeLorenzo's English questions and
statements were translated to Spanish by Perez; others were
not. When Campos speaks, it is difficult to determine which
question or comment he is responding to, because the
questions and comments come in such rapid fire succession,
with people talking over one another, in different languages.
And often when Campos tried to deny touching K.M.'s
genitals, the officers often did not let him speak, quickly
interrupting him to insist that his response was inconsistent
with the scientific evidence and would create problems with
the district attorney.
event, Campos eventually began to struggle to reconcile the
irrefutable scientific evidence (which he clearly believed
existed) with his insistence that he did not touch K.M.'s
genitals. He began (at the officers' invitation) to
discuss the concept of accidentally touching K.M.'s skin,
while continuing to deny touching her on or near her genitals
under her clothes. Id. at 508. For example, at one
point Campos said, "maybe I accidentally put my hands
inside, " but seconds later it became clear he was
trying to say that perhaps he touched K.M.'s back
underneath her clothes as he was pushing her away from a baby
he was holding and that K.M was trying to kiss. 3 CT, Dkt.
No. 14-6, at 520. All the while, Campos referred back to the
evidence that the officers continued to insist was
irrefutable, saying things like, "that's why my hand
evidence comes up, " and "You've already found
my finger prints." Id. at 514, 523. The
officers were not satisfied with Campos' answers,
however, and when he continued to deny he had touched her
inappropriately, the officers forcefully responded, "No,
no, no. We want to know the truth." Id. at 516;
see also Id . at 519. Eventually, in response to the
officers' continued insistence that the evidence was
irrefutable and that he must tell a "truth"
consistent with that evidence, Campos appeared (although
it's difficult to know for sure, given the chaotic nature
of the interrogation) to allow for the possibility that he
could have accidentally touched K.M.'s genitals under her
clothes. Id. at 521. At one point the officers
asked, "is that possible that when you pushed her it
entered from above?" "Maybe, " Campos
responded. Id. at 536. They asked, "could it
possibly have been just like that?" Campos responded,
"Maybe, I don't [k]now." Id. at 537.
They asked, "But it was an accident[?]" Campos
responded, "Maybe yes." Id.
thereafter, Campos stated he needed an attorney, and the
officers terminated the interrogation. Id. at 539.
He was charged with two counts of sexual penetration with a
child ten years of age or younger, in violation of California
Penal Code § 288.7(b), and five counts of committing a
lewd or lascivious act on a child under 14 years of age, in
violation of California Penal Code § 288(a). 1 CT, Dkt.
No. 14-1, at 72-76.
moved to suppress the statements he made during the
interrogation on the ground that they were involuntarily
made. He argued that he was unsophisticated and that he had
no prior experience with law enforcement. 2 CT, Dkt. No.
14-2, at 137. He contended that, in light of his personal
characteristics and in response to the interrogation tactics
used against him, he was unable to resist allowing for the
possibility that he could have accidentally touched K.M. in
an inappropriate place. Id. at 147.
trial judge denied the motion. Noting that Campos was 60
years old, she said: "Being that age myself, I don't
see this as impairment. So I don't see
that as a characteristic that is a detriment to him." 6
RT, Dkt. No. 15-6, at 1531. The trial judge also noted that
Campos had "been in the workforce for 17 years, "
and had "raised five children." Id. In
light of this, she appeared to conclude that Campos was not
so unsophisticated as to warrant a change in the way she
would normally analyze an interrogation: "So in looking
at the characteristics of the accused himself, I don't
think that there is anything of detriment that - that could
overcome his will looking at only that factor or those set of
factors separately." Id. at 1531-32.
trial judge then turned to the details of the interrogation
itself. She concluded that the officers' repeated
insistence that the district attorney would react badly
unless Campos told "the truth" was not problematic,
because Campos never indicated, during the interrogation,
that his statements were motivated by a desire to avoid
upsetting the district attorney. Id. at 1533-34.
Nor, the trial judge reasoned, is it improper for police
officers to use "loud, aggressive, accusatory"
interrogation tactics. Id. at 1534.
jury convicted Campos of one count of committing a lewd or
lascivious act on a child under fourteen, in violation of
California Penal Code § 288(a), and one count of
misdemeanor battery, in violation of California Penal Code
§ 242 and § 243(a), a lesser-included offense of
one of the sexual battery charges. 3 CT, Dkt. No. 14-6, at
570-87. The jury acquitted him of all other counts and
lesser-included offenses. Id.
Sixth District Court of Appeal upheld Campos' convictions
in a 2:1 decision. On the admissibility of Campos'
statements, the majority began by reciting the correct
standard - namely, that a suspect's statement is
involuntary if, considering the totality of the circumstances
(including his personal characteristics and the details of
the interrogation), his will was overborne. Cal.Ct.App.
Opinion, Dkt. No. 17-4, at 11-12. Then the majority reached
the following conclusion about Campos' personal
Regarding defendant, at 60 years old he was neither so old
nor so young as to make him particularly susceptible to
coercion. There was also no evidence defendant suffered from
any mental or physical disability that might make him more
susceptible to coercive influence. Defendant's level of
sophistication is inconclusive because while he had no prior
history with police, he raised five children and was a member
of the workforce for a number of years. Finally, we agree
with the trial court that defendant did not appear fearful
during the interrogation ...