To be legally sufficient, a Miranda invocation, when it follows a previous waiver, must be clear and unequivocal. 

• Miranda v. Arizona 
• Legally effective invocation of Miranda after a previous waiver 
• Defense counsel’s ineffective assistance 

An attempt to invoke one’s Miranda rights after a previous wavier of those rights must be clear and unequivocal to be legally sufficient. 

Defendant Lucio Villegas lived with his wife and their two daughters (“Jane Doe Three” and another daughter) in a house in Napa Valley in 2018 and 2019. “Jane Does One” and “Two” lived with their parents in a garage on the same property. The families were close and Villegas was Jane Doe One’s godfather. Villegas had many opportunities to be alone with each of the victims. As for Jane Doe One, she complained that when she was 11 years old, Villegas would use his hand to touch her breasts and vagina over her clothes, done in a rubbing motion. On one occasion, Villegas put his hand under her shirt, on top of her bra, and moved it around. When this case eventually came to trial, she testified that she wanted Villegas to stop, but she did not tell anyone because she was scared. Jane Doe One’s mother, “L.R.,” observed Villegas touching Jane Doe One’s outer clothing on one occasion in May of 2018, and threatened to call the police. Villegas, however, threatened in return to call immigration on her, which (apparently being in the country illegally) frightened her. A year later, in May 2019, L.R. became suspicious that the molestations were continuing because each day, upon coming home from work, Villegas wanted the girls to come out and play. So she asked both her daughters, Jane Does One and Two. Both said that Villegas had been touching them inappropriately for some time. All of this was then reported to the police.  

Jane Doe Two was subsequently interviewed by city of Napa Detective Dustin Dodd, an experienced forensic interviewer of alleged victims of child molestations. Although unable to remember any of this by the time of trial, as she was 10 years old at the time, Jane Doe Two told Detective Dodd that between the previous Christmas and her birthday, Villegas “tickled her and dragged his hand across her chest over her clothes.” She also told Detective Dodd that on another occasion, when she was playing outside by herself, Villegas had “tickled” her and then touched her vaginal area over her clothes.  

With this information, Detective Dodd interviewed Villegas at the police station shortly thereafter, on May 22, 2019. Villegas waived his Miranda rights and agreed to talk with the detective. During this interview, Villegas admitted that on one occasion he had hugged Jane Doe One and that in the process, her “boobie did get grabbed.” Villegas also admitted to “squeez[ing] a little boob” two times, acknowledging that he had made a mistake. After Villegas was charged with molesting Jane Does One and Two, it came to light that defendant’s own daughter (Jane Doe Three) had been subjected to numerous sexual assaults by Villegas beginning when she was 14 years old, 11 years before the trial. This was discovered on May 23, 2019, after Jane Doe Three (then 23) told her fiancé, who reported it to the police.  

In the subsequent trial, Jane Doe Three testified to numerous incidents of molestation, rape, forced oral copulation and rape by a foreign object (his finger), all occurring over an extended time. As a result of this abuse, Jane Doe Three testified to feeling depressed, experiencing PTSD, couldn’t “really think because [she was] constantly scared that [she] might get hurt” and that she tried to take her own life “a few” times.  

Before trial, however, as a result of this new information from Jane Doe Three, Detective Dodd interviewed Villegas a second time. This interview took place two days after Jane Does One and Two were interviewed. Villegas was readvised of his Miranda rights. Again waiving his rights, Villegas agreed to talk to the detective. When told of his daughter’s (Jane Doe Three’s) accusations, Villegas initially said that he did not remember what had happened between him and his daughter. He then questioned whether the detective was lying to him about talking to her. When assured that Jane Doe Three had been interviewed, Villegas responded: “Well that was just one mistake, I won’t say anything else. It was a mistake and whatever she says, I won’t say more things anymore.”  

When the detective continued with the questioning, attempting to elicit from him what it was that he considered a mistake, Villegas repeated only that: “I will tell you that it was a mistake and that’s it,” and “That’s the only thing I’ll say.” After a few more questions, Villegas ended the conversation with this: “That...that you said – say – what she said, it happened. ...She’s telling the truth. She – that’s the truth.” The statements were all admitted into evidence without objection from Villegas’ attorney. He was convicted of all counts and ultimately, after a sentence reduction by the appellate court, sentenced to 170 years to life, plus a bunch of fines. Villegas appealed, arguing incompetency of counsel for failing to object to the admission of his incriminating statement. 

The First District Court of Appeal (Div. 1) affirmed. The central issue on appeal was the admissibility of Villegas’ incriminating statements to the investigator.  

This issue was litigated via a back door, so to speak, in that Villegas’ attorney forfeited the defendant’s right to challenge this issue by not objecting to it at trial. So, what the court discussed was whether Villegas’ conviction should be reversed due to the “incompetence of counsel,” a Sixth Amendment issue, as opposed to Fifth Amendment. (Also litigated, but not discussed here, was Villegas’ ultimate sentence and the fines imposed.)  

The question decided on appeal was whether Villegas had invoked his right to silence when he told the detective: “I won’t say anything else,” “I won’t say more things anymore” and “(T)hat’s the only thing I’ll say.” The basic rule under Miranda is simple and well-settled: “If a defendant invokes his [or her] Miranda rights, questioning must cease.” (People v. Sanchez (2019) 7 Cal.5th 14, 49.)  However, what constitutes an invocation of one’s Miranda rights is different depending upon whether that attempt to invoke occurs at the initiation of questioning or after a prior waiver of those rights.  

If, upon the initial administration of one’s Miranda rights, the suspect’s response can be interpreted by any words or conduct as reasonably inconsistent with a present willingness to discuss the case freely and completely, then he or she has invoked. Questioning must cease. (People v. Crittenden (1994) 9 Cal.4th 83, 129.)  

If, however, as in this case, the defendant has previously waived his Miranda rights and agreed to talk with police, any subsequent invocation of the right to counsel or the right to remain silent must be unequivocal and unambiguous. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381; People v. Henderson(2020) 9 Cal.5th 1013, 1022.)   The test in this second situation is whether the invocation was “articulated sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of such rights.” (People v. Nelson (2012) 53 Cal.4th 367, 380.)  The prosecution in either situation bears the burden of proof by a preponderance of the evidence to show that the statements were admissible.  In this case, the Court had no trouble finding that after having previously waived his Miranda rights (twice, as a matter of fact), he failed to subsequently make a “clear assertion” of the right to silence or counsel.  To the contrary, the Court found defendant’s statements to be more akin to him telling the detective; “[t]hat's my story, and I'll stick with it.” Prior similar cases have consistently held that such statements are insufficient to clearly invoke a defendant’s Miranda rights  (See People v. Ramirez (2022) 13 Cal.5th 997, 1104; People v. Martinez (2010) 47 Cal.4th 911, 944; In re Joe R. (1980) 27 Cal.3rd 496, 515–516.) As such, the Court found that defendant’s attorney was not incompetent for having failed to object to the admission of his incriminating statements in that it would have done him no good to do so.   1013, 1022.)  

The test in this second situation is whether the invocation was “articulated sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be an invocation of such rights.” (People v. Nelson (2012) 53 Cal.4th 367, 380.) The prosecution in either situation bears the burden of proof by a preponderance of the evidence to show that the statements were admissible. In this case, the court had no trouble finding that after having previously waived his Miranda rights (twice, as a matter of fact), he failed to subsequently make a “clear assertion” of the right to silence or counsel. To the contrary, the court found that Villegas’ statements to be more akin to him telling the detective “That’s my story, and I’ll stick with it.”  

Prior similar cases have held consistently that such statements are insufficient to clearly invoke a defendant’s Miranda rights (See People v. Ramirez (2022) 13 Cal.5th 997, 1104; People v. Martinez (2010) 47 Cal.4th 911, 944; In re Joe R. (1980) 27 Cal.3rd 496, 515–516.) As such, the court found that Villegas’ attorney was not incompetent for having failed to object to the admission of his incriminating statements in that it would have done him no good to do so.  

I, as an ardent student of Miranda case law, have found prior cases all somewhat confusing when it comes to a logical explanation as to why different cases imposed seemingly totally different standards, finding some Miranda invocations legally sufficient and others not. I suspect that it has to do when the timing of the admonition (upon an initial interrogation vs. after a prior wavier) but couldn’t find a case that specifically spelled this out for me. Now we have such a case