FILED

NOT FOR PUBLICATION MAY 20 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

PAUL WARD, as next friend of Crystal No. 08-56856 M., a minor, D.C. No. 5:02-cv-01022-MMM- Petitioner - Appellant, FMO

v.

MEMORANDUM *

EUGENIA ORTEGA, Superintendent,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding

Argued and Submitted February 2, 2010 Pasadena, California

Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.

Paul Ward, as next friend of Crystal M., a minor at the time of her

conviction, appeals the district court's denial of the habeas corpus petition, alleging

that Crystal's confession was obtained in violation of Miranda v. Arizona, 384

U.S. 436 (1966). We have jurisdiction under 28 U.S.C. y 2253 and we reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Crystal was convicted in juvenile court of two counts of murder, one count

of residential burglary, two counts of robbery, two counts of unlawfully driving or

taµing a vehicle, and two counts of receiving stolen property. Crystal was a 12-

year-old runaway at the time of the crimes. The state stipulated that no physical

evidence linµed her to the murders or indicated her presence in the house where the

robbery and murders tooµ place. Rather, only Crystal's own inculpatory

statements, made during a five-hour long interrogation in which she maintained her

innocence of the murders, put her at the scene of the murders.

During her interrogation, Crystal admitted to entering the victims' home

with 19-year-old Jesse Crespin ('Crespin'), taµing toiletries and several items of

jewelry, and guarding the female victim. Crystal stated that she left the house

because she was scared. At the time she left, both of the victims were alive. The

female victim was sitting on the toilet in the bathroom with her hands tied and the

male victim was sitting in the µitchen. Crystal stated that she did not see Crespin

µill either of the victims, but admitted she thought that he may have µilled them.

Crystal moved to have her inculpatory custodial interrogation statements

suppressed in the proceedings in juvenile court. After an evidentiary hearing, the

court denied the motion in an oral ruling. On appeal, the California Court of

Appeal affirmed the juvenile court, ruling that Crystal µnowingly and voluntarily

2 waived her Fifth Amendment rights.1 The state appellate court held that

'[a]lthough Crystal was undeniably, and tragically, a young girl, nothing in the

record demonstrates she was confused or uncertain about her rights.' The

California Supreme Court denied the appeal without comment.

We review a district court's decision to grant or deny a writ of habeas corpus

de novo and the district court's findings of fact for clear error. Richter v. Hicµman,

578 F.3d 944, 951 (9th Cir. 2009) (en banc). We also assess the prejudicial impact

of any constitutional error by asµing whether the error 'had substantial and

injurious effect or influence in determining the jury's verdict.' Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 121-

22 (2007) (holding that the Brecht standard applies whether or not the state court

recognized the error and reviewed it for harmlessness).

To succeed on a petition for habeas corpus after the enactment of the

Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner must show

that the last reasoned state court decision was (1) 'contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

1 The California Court of Appeal also held that Crystal did not invoµe her right to remain silent and that her confession was not coerced. Because we hold that Crystal did not give a µnowing and voluntary waiver, we need not reach the California Court of Appeal's alternate holdings.

3 Supreme Court of the United States'; or (2) 'based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.' 28 U.S.C. y 2254(d). 'A state court decision is an 'unreasonable

application of' clearly established federal law 'if the state court identifie[d] the

correct governing legal rule . . . but unreasonably applie[d] it to the facts' at hand.'

Richter, 578 F.3d at 951 (quoting Williams v. Taylor, 529 U.S. 362, 407 (2000)).

We hold that the state appellate court's decision that Crystal µnowingly

waived her Miranda rights is an unreasonable application of clearly established

federal law. Although the state appellate court correctly identified the 'totality of

the circumstances' test as the proper standard for evaluating whether Crystal's

waiver was µnowing and voluntary, the court did not reasonably apply that test

because it failed to weigh the relevant factors. See Doody v. Schriro, 596 F.3d 620,

645 (9th Cir. 2010) (en banc) ('[T]he Arizona Court of Appeals' voluntariness

ruling unreasonably applied clearly established federal law because it analyzed the

individual circumstances of the interrogation without weighing the totality of the

circumstances.'); see also Moran v. Burbine, 475 U.S. 412, 421-22 (1986); Taylor

v. Maddox, 366 F.3d 992, 1014-16 (9th Cir. 2004).

The government was required to demonstrate that Crystal waived her

Miranda rights 'with a full awareness of both the nature of the right being

4 abandoned and the consequences of the decision to abandon it.' See Moran, 475

U.S. at 421; Miranda, 384 U.S. at 475 ('[A] heavy burden rests on the government

to demonstrate that the defendant µnowingly and intelligently waived his privilege

against self-incrimination and his right to retained or appointed counsel.'). The

Supreme Court long has recognized that, in the interrogation of a minor, 'the

greatest care must be taµen to assure that the admission was voluntary.' In re

Gault, 387 U.S. 1, 45, 55 (1967) ('This court has emphasized that admissions and

confessions of juveniles require special caution.'); see also Doody, 596 F.3d at

638-39. Thus, the totality of the circumstances test requires consideration of 'the

juvenile's age, experience, education, bacµground, and intelligence, and [inquiry]

into whether he has the capacity to understand the warnings given him, the nature

of his Fifth Amendment rights, and the consequences of waiving those rights.'

Fare v. Michael C., 442 U.S. 707, 725 (1979).

Here, the court considered Crystal's age and the circumstances of the

interrogation, but did not consider her experience, education, bacµground, or

intelligence. At the time of the interrogation, Crystal was 12 years old and had

completed sixth grade. She had no similar experiences with law enforcement prior

to this interrogation and she did not have a parent or other friendly adult present.

The detective who had interrogated Crystal testified that Crystal 'was not very

5 articulate,' and the interrogation transcript reveals that Crystal 'forgot' what the

word 'intimidated' meant.

Most significantly, the state appellate court erroneously concluded that

'nothing in the record demonstrates [Crystal] was confused or uncertain about her

rights.' The record contradicts this conclusion. The detective who interrogated

Crystal testified that Crystal was confused about her right to an appointed attorney.

Nothing in the record shows how the detective clarified that right. The state

appellate court's 'unreasonable determination of [this] pivotal fact[]' provides

persuasive support for our holding that its decision was unreasonable. See Doody,

596 F.3d at 642 (holding that the state appellate court's ruling that the juvenile's

confession was voluntary was unreasonable because pivotal factual determinations

were not supported by the record); see also Wiggins v. Smith, 539 U.S. 510, 528

(2003) (noting that 'partial reliance on an erroneous factual finding further

highlights the unreasonableness of the state court's decision').

Finally, although Crystal agreed to talµ to the detective after hearing the

standard recitation of Miranda rights, this fact alone does not show that she

µnowingly waived those rights. See Murray v. Earle, 405 F.3d 278, 289 (5th Cir.

2005) (holding that an 11-year-old girl 'cannot be held to have µnowingly and

voluntarily waived her rights to be represented by counsel and to remain silent'

6 because '[o]ther than having [her] sign a Miranda card, and briefly explaining her

rights to her at the outset of the interrogation, the police tooµ no precautions to

ensure the voluntariness of her statement, let alone 'special care''). The state,

therefore, did not meet its 'heavy burden' of establishing that Crystal gave a

µnowing and voluntary waiver. See Miranda, 384 U.S. at 475.

Because the appellate court failed to consider the totality of the

circumstances and made an erroneous factual determination regarding a pivotal

fact, we conclude that Crystal did not µnowingly waive her Miranda rights. The

state appellate court unreasonably applied clearly established federal law by

holding otherwise. This error was not harmless because the parties stipulated in

the juvenile court proceedings that no physical evidence linµed Crystal to the crime

scene. Only Crystal's own admissions connected Crystal to the murders.

Accordingly, we reverse the district court's denial of the writ of habeas corpus and

remand to the district court with instructions to issue a writ of habeas corpus,

subject to possible retrial after consideration of Crystal's age and release date.

REVERSED AND REMANDED.

7

FILED

Ward v. Ortega, No. 08-56856 MAY 20 2010

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting: U.S . CO UR T OF AP PE A LS

I respectfully dissent. Under the strict standard of review mandated by the

Antiterrorism and Effective Death Penalty Act of 1996 (þAEDPAþ), 28 U.S.C.

y 2254(d), I would affirm the district court's denial of the habeas petition brought

on behalf of Crystal M.

In a detailed opinion, the state appellate court determined that, under the

totality of the circumstances, Crystal waived her Miranda1 rights. That

determination was not an þunreasonable application of[] clearly established Federal

law,þ 28 U.S.C. y 2254(d)(1), simply because of Crystal's age and some evidence

of initial confusion about one of the rights. The detective explained Crystal's

Miranda rights to her initially in the car on the way to the police station. Once at

the police station and under audio recording, the detective carefully ensured that

Crystal understood her rights before she began questioning:

Ï. [by the detective]: . . . .

Crystal, when we were in the car on the way here, do you remember me reading you those rightsá Oµay. I'm gonna . . . read them to you again and I'll asµ you each time if you understand.

A. [by Crystal]: Oµay. A. Yeah.

Ï. You have the right to remain silentá Oµayá Anything you say can be used against you in court. You have the right to an attorney before and during questioning. Oµayá

A. Oµay.

Ï. This is the one we talµed about in the car if you cannot afford an attorney, one will be appointed for you by the court free of charge before questioning.

Do you understand the rights I have just explained to youá

A. Yes.

Ï. Do you need me to explain that one againá

A. No.

Ï. Oµay. With these rights in mind, are you willing to talµ to meá

A. Yeah.

Ï. Oµay. Is that yes or µnow [sic] [no]á

A. Yes.

The fact that the detective already had explained to Crystal her rights further

strengthens, rather than undermines, the state court's holding.

The Fifth Circuit's decision in Murray v. Earle, 405 F.3d 278 (5th Cir.

2 2005), is not to the contrary. First, many factual differences distinguish Murray

from this case: the child in Murray was younger than Crystal, id. at 288; she þhad

been held in the custody of the State for three days,þ id.; she þwas found to have

below-normal intelligence by the court-appointed psychiatrist,þ id.; and the police

officers þhad represented to [the child] that they had already talµed to everyone in

her family, that everyone 'µnew' what happened, and that she could help her

family only by telling the truth,þ id. at 289. Perhaps more importantly, Murray was

a civil case filed under y 1983 and decided de novo; the very demanding AEDPA

standards simply did not apply.

The majority does not reach the next issue, whether Crystal invoµed her

right to silence partway through the interview. On that issue, I would hold that the

state court's determination that Crystal did not invoµe her right to silence was an

unreasonable application of clearly established federal law. In context, Crystal's

statement that þI just don't want to talµ about it [the murders],þ was a clear

invocation of her right to silence. See Anderson v. Terhune, 516 F.3d 781, 787

(9th Cir. 2008) (en banc) (þAs the Supreme Court has observed, in invoµing a

constitutional right, 'a suspect need not speaµ with the discrimination of an Oxford

don.'þ (quoting Davis v. United States, 512 U.S. 452, 459 (1994))); Arnold v.

Runnels, 421 F.3d 859, 865 (9th Cir. 2005) (þ[N]either the Supreme Court nor this

3 court has required that a suspect seeµing to invoµe his right to silence provide any

statement more explicit or more technically-worded than 'I have nothing to say.'þ).

Although all statements made after Crystal invoµed her right to silence should have

been suppressed, her earlier statements implicated her in the crimes. The error

therefore was harmless. See Arizona v. Fulminante, 499 U.S. 279, 310 (1991)

(holding that courts must review for harmless error the failure to suppress a

confession).

4