Trial counsel rendered ineffective assistance by failing to preserve issue concerning police eliciting a confession from a defendant who had invoked his right to remain silent. Police interrogated Bichara regarding a murder. During the interrogation Birchara told police that he refused to talk to them anymore and wanted to go back to bed. Despite his invocation, the interrogation continued and police ultimately obtained a confession as to the murder. The trial court denied Bichara’s suppression motion and, when the prosecutor moved to introduce the confession into evidence, defense counsel said that he was withdrawing whatever objections he had previously made. The jury convicted Bichara of first degree murder and the kidnapping of a different person. He appealed, challenging, the admission of his confession. Held: Reversed in part. Interrogation must cease if, at any point, the suspect unambiguously invokes the right to remain silent. (Berghuis v. Thompkins (2010) 560 U.S. 370, 380-381.) A confession obtained in violation of that command is inadmissible to establish guilt in a criminal case. (People v. Jackson (2016) 1 Cal.5th 269, 339.) Here, Bichara’s confession should have been suppressed because it was elicited after he unambiguously invoked his right to remain silent. While trial counsel forfeited the issue by failing to make more than a generic Miranda objection and by withdrawing all objections to the confession, that forfeiture amounts to constitutionally deficient performance that was also prejudicial. Bichara’s murder conviction must be reversed. However, there was no prejudice with respect to the kidnapping conviction. Bichara did not mention the kidnapping during the confession and independent evidence supported the kidnapping conviction.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B270653.PDF