Albert Lucero v. Kim Holland , 902 F.3d 979 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT ANDREW LUCERO, No. 15-16111
Petitioner-Appellant,
D.C. No.
v. 1:10-cv-01714-AWI-SKO
KIM HOLLAND, Warden,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted March 14, 2018
San Francisco, California
Filed August 31, 2018
Before: Marsha S. Berzon and Carlos T. Bea, Circuit
Judges, and Terrence Berg,* District Judge.
Opinion by Judge Berzon
*
The Honorable Terrence Berg, United States District Judge for the
Eastern District of Michigan, sitting by designation.
2 LUCERO V. HOLLAND
SUMMARY**
Habeas Corpus
The panel affirmed in part and reversed in part the district
court’s denial of Albert Lucero’s 28 U.S.C. § 2254 habeas
corpus petition challenging his California conviction for
premeditated attempted murder, possession of a shank in jail,
and participation in a criminal street gang.
The panel held that in light of the framework set forth in
Crawford v. Washington, 541 U.S. 36 (2004), the Sixth
Amendment Confrontation Clause protections established in
Bruton v. United States, 391 U.S. 123 (1968), concerning the
introduction of statements by non-testifying codefendants, do
not apply to statements that are nontestimonial. The panel
held that a huila—a tiny handwritten gang memo detailing the
underlying attack—was not testimonial, and thus could not
violate Lucero’s constitutional right to confront the witnesses
against him. The panel therefore affirmed the district court’s
denial of Lucero’s habeas petition as to his Bruton claim.
The panel reversed the district court’s denial of Lucero’s
habeas petition as to his claim under Jackson v. Virginia, 443
U.S. 307 (1979), that there was insufficient evidence to
support his conviction for possession of a “dirk or dagger or
sharp instrument in jail” in violation of Cal. Penal
Code § 4502(a). Applying the Jackson standards with an
additional layer of AEDPA deference, and viewing the
evidence in the light most favorable to the prosecution, the
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LUCERO V. HOLLAND 3
panel concluded that there was no evidence that any
reasonable juror could view as directly or circumstantially
proving, beyond a reasonable doubt, Lucero’s conviction for
possession of, custody of, or control of a shank in jail; and
that any conclusion to the contrary was so clearly without
support in the record as to be unreasonable. The panel
remanded so that the district court may grant the habeas
petition as to that conviction.
COUNSEL
Johanna S. Schiavoni (argued), Law Office of Johanna S.
Schiavoni, San Diego, California, for Petitioner-Appellant.
Lewis A. Martinez (argued), Deputy Attorney General; Tami
Krenzin, Supervising Deputy Attorney General; Michael P.
Farrell, Senior Assistant Attorney General; Gerald A. Engler,
Chief Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, Fresno, California;
for Respondent-Appellee.
4 LUCERO V. HOLLAND
OPINION
BERZON, Circuit Judge:
We consider principally whether the Sixth Amendment
Confrontation Clause rights protected in Bruton v. United
States, 391 U.S. 123 (1968), extend to statements that are
nontestimonial, see Crawford v. Washington, 541 U.S. 36, 68
(2004).
Bruton established that in joint criminal trials, the
introduction of “powerfully incriminating extrajudicial
statements of a codefendant, who stands accused side-by-side
with the defendant,” but who does not testify, violates the
defendant’s Sixth Amendment right to confront the witnesses
against him. 391 U.S. at 135–36. “The unreliability of such
evidence is intolerably compounded when the alleged
accomplice . . . does not testify and cannot be tested by cross-
examination.” Id. at 136; see also Richardson v. Marsh,
481 U.S. 200 (1987); Gray v. Maryland, 523 U.S. 185 (1998).
After Bruton, Crawford added a new layer to Sixth
Amendment analysis—that the Amendment’s Confrontation
Clause right attaches only as to “testimonial statements.”
541 U.S. at 68.
We conclude that because the codefendant statement at
issue here was nontestimonial and so not within the
Confrontation Clause’s protection under Crawford, the
Bruton protections concerning the introduction of statements
by non-testifying codefendants do not apply. We therefore
affirm the district court’s denial of Albert Lucero’s habeas
petition as to his Bruton claim. For reasons explained below,
however, we reverse the district court’s denial of Lucero’s
habeas petition as to the sufficiency of the evidence under
LUCERO V. HOLLAND 5
Jackson v. Virginia, 443 U.S. 307 (1979), on one of the three
offenses for which he was convicted, possession of a “dirk or
dagger or sharp instrument” in jail, Cal. Penal Code
§ 4502(a).
I.
In 2007, Albert Lucero was tried and convicted in a
California court of premeditated attempted murder,
possession of a shank in jail, and participation in a criminal
street gang. See Cal. Penal Code §§ 187, 4502(a), 186.22(a).
The attack underlying Lucero’s convictions took place in
Stanislaus County Jail, in a unit housing members of the
Norteño gang. Lucero, also known as “Lil Man” and
“Manos,” shared a twelve-person cell with two codefendants,
Armando Lopez, also known as “Soldier,” and Paul Lopez.
Another one of Lucero’s cellmates was the victim and key
witness in this case, Kenneth Lindsay, also known as
“Psycho” and “Psychs.”
On the day of the attack, Lindsay found and sold balloons
containing heroin. According to Lindsay’s testimony at trial,
Lucero approached Lindsay in the evening and invited him to
play cards. After a group began to play, Armando Lopez,
Paul Lopez, and Lucero assaulted Lindsay. Armando Lopez
hit him in the chest, Paul Lopez punched him in the face, and
Lucero kicked him from behind; Lindsay felt a number of
other kicks and hits. Several custodial deputies heard
Lindsay yell and came to the cell. When they arrived,
Lindsay was nonresponsive, and there was blood on the floor
and the wall.
6 LUCERO V. HOLLAND
The next day, Paul Teso, a sheriff’s deputy in a gang unit
in Stanislaus County, investigated the attack. When
interviewing one inmate, Teso, after directing the inmate to
“lift his trouser legs,” uncovered a tiny handwritten gang
memo inside the inmate’s sock. The memo, as later
explained by the California Court of Appeal, “detailed the
assault on Lindsay and named those who participated in the
attack and provided the motive for the attack—Lindsay’s
failure to follow the gang’s code of conduct.” The parties
referred to this memo and others like it as “huilas.”1
At the joint trial for Lucero, Armando Lopez, Paul Lopez,
and one other codefendant, the huila found in the inmate’s
sock was entered into evidence in a zoomed-in and redacted
form. It was admitted only against its author, Armando
Lopez.2 Teso read the huila out:
Okay. It says, “To Manos from Soldier: RE,”
or reason, “IR,” incident report. Date is 10-
20-06. Says: “Buenos dia[s]. Following will
consist of removal that occurred yesterday
night, 10-19-6, that I assisted in. Kenneth
Lindsay, booking No. 1168261, was removed
for degenerate acts, use of drugs, heroin,
promoting it, and spreading negativity
amongst our people. It has been said that
1
Lindsay testified that “huila” is a Nahuatl word for “kite,” used to
describe small notes written in jail.
2
The jury was instructed: “You have heard evidence that defendant
Armando Lopez made a statement in the form of a huila . . . . You may
consider that evidence only against him, not against any other defendant.”
LUCERO V. HOLLAND 7
Kenneth, Psychs, Lindsay has numerous
priors for violation of RN conduct.”
“I arrived here on Thursday, 10-12-06, from
DVI, Tracy.” It’s blurry, but I think it says,
“RO, reception.” I’m not sure what it stands
for. I think it’s “RO.”
“Since I’ve been here, I’ve seen Psych’s
negativity towards our program and negative
attitude towards our people.
“On 10-19, buenos tardes time, me and
my—my cellees were placed in a holding cell.
During this time, we found three balloons of
heroin in the interview room. Psychs found
two fat bindles. I found one.
“After returning from the M tanks back to our
cell, I forwarded heroin balloons to my proper
channels. Psychs didn’t forward the two
balloons he found. Instead, he took it upon
himself to sell it to the whites on our tier
without the permission to do so for his own
personal gain.
“I seen him dip his finger into both balloons
more than necessary to find out if the heroin
was chafa, was good, I mean real. Also
another”—it says, “another”—I can’t read
what it says, “see him indulging on it some
more by sniffing it up his nose. I said that
Psychs tried to get him to do it.
8 LUCERO V. HOLLAND
“During this time, around 9:30, Psychs was
showering, was showing symptoms of being
high on heroin and admitted it to me before
program shut down.” Then it’s blocked out.
It says, “I was the hitter. After I hit psychs a
few times, in the chest area, I went for the
neck. I then noticed my piece broke, and I
flushed it.a
“Psychs called, ‘man down,’ and then the K9's
arrived. Gracias. Now with that said, excuse
me. I excuse myself with strength and
honor. . . .”
After reading out the huila, Teso explained that the huila was
written by Armando Lopez, or “Soldier,” to Lucero, or
“Manos.”
Further, Teso noted that gang unit investigators find
huilas “quite often,” and explained:
Huilas, they use huilas for a bunch or a couple
different reasons. The main reason is [to]
transfer information from person-to-person
from facility-to-facility, from the prisons to
the streets, from the streets to the jail, from
the jails to the prisons back and forth . . . .
They’re also used as a form of discipline. If
somebody violates one of the bonds, one of
the rules . . . they might have to write an essay
on the rule that they broke . . . . Say they
violated one of the rules about security, they
LUCERO V. HOLLAND 9
might have to write a 1500 word essay in
huila form on security.
With regard to huilas, Lindsay, the victim, testified:
Q: How is it written?
A: Usually with hand, pen, pencils. . . . Mini
writing, usually really small, trying to say a
lot in a little piece of paper, try to make it
small to secure it so it’s more, it’s more easy
to get from point A to point B.
Q: Now, these—the writings on these huilas,
is this shared with the guards?
A: In Stanislaus County?
Q: Yeah.
A: More often than not guards do get it.
That’s not the point, not supposed to be
caught by the guards. It’s supposed to be
interoffice. . . . .
After Lucero and his codefendants Armando and Paul
Lopez were convicted, they filed a joint appeal. Among other
claims, they challenged the introduction of the huila on
various state and federal grounds. The California Court of
Appeal affirmed the judgment as to all three defendants in
2009.
The Court of Appeal held that the huila’s introduction
violated Lucero’s confrontation rights under Bruton and its
10 LUCERO V. HOLLAND
progeny, at least as to Lucero’s conviction for active
participation in a criminal street gang, Cal. Penal Code
§ 186.22(a), “because [the huila] established ‘Manos,’ whom
the jury understood to be Lucero, as a gang member of status,
to whom other gang members would report.” Even so, the
court found the constitutional error harmless under Chapman
v. California, 386 U.S. 18 (1967), in light of the “significant
amount of independent evidence that” Lucero and his
codefendants assaulted Lindsay and the fact that “[t]he jury
obviously found Lindsay to be believable.” The California
Supreme Court denied Lucero’s petition for review.
Lucero then filed a habeas petition in federal court. The
district court denied the petition, and Lucero timely appealed.
II.
A.
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), we may grant Lucero relief on his
Bruton claim only if the “last reasoned state-court opinion,”
Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991)—here, the
opinion on direct appeal to the California Court of
Appeal—was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or was “based on
an unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d)(1), (d)(2).
As we explain, on de novo review, Lucero’s claim would
fail. Because the Court of Appeal’s decision was “correct
under de novo review,” it was “therefore necessarily
LUCERO V. HOLLAND 11
reasonable under the more deferential AEDPA standard of
review.” Berghuis v. Thompkins, 560 U.S. 370, 389 (2010).3
B.
To decide whether the introduction of the huila authored
by Lucero’s codefendant was unconstitutional, we consider
the relationship between the general confrontation rights
protected under Crawford and its progeny and the specific
joint trial confrontation rights protected by the Bruton line of
cases.
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. In 2004, Crawford v. Washington
established a new general framework for enforcing this
confrontation right. Looking to “the principal evil at which
the Confrontation Clause was directed,” “the civil-law mode
of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused,” Crawford
held that the Confrontation Clause’s protections hinge on the
“testimonial” character of a statement. 541 U.S. at 50, 68.
Under Crawford, “absent unavailability and a prior chance
for cross-examination, the Confrontation Clause forbids a
statement of a nontestifying witness that is testimonial and
offered for its truth.” United States v. Brooks, 772 F.3d 1161,
1167 (9th Cir. 2014). By contrast, “[w]here nontestimonial
3
We note that if the California Court of Appeal’s decision was
contrary to clearly established Supreme Court law—as we believe it may
well have been, as there is no tenable basis for treating a Bruton issue as
outside of the Crawford “testimonial” limitation—its error favored the
petitioner, not the government. Precisely how § 2254(d)(1) applies in
those circumstances is an issue we need not address, as we reach the same
result as did the state court applying de novo review.
12 LUCERO V. HOLLAND
hearsay is at issue, it is wholly consistent with the Framers’
design to afford the States flexibility in their development of
hearsay law.” Crawford, 541 U.S. at 68.
Decades before Crawford, Bruton derived a more
specialized principle from the Confrontation Clause. Bruton
recognized that, in joint trials, when one nontestifying
codefendant’s confession is admitted only against that
codefendant, there is unavoidably a “substantial risk that the
jury, despite instructions to the contrary, [will] look[] to the
incriminating extrajudicial statements in determining [the
other defendant’s] guilt.” 391 U.S. at 126. Bruton went on
to note that “a major reason underlying the constitutional
confrontation rule is to give a defendant charged with crime
an opportunity to cross-examine the witnesses against him.”
Id. at 126 (internal quotation marks omitted). That
opportunity is absent as to “powerfully incriminating
extrajudicial statements of a codefendant” admitted in a joint
trial when, as is most usual, the codefendant does not testify.
Id. at 135.
Thus Bruton (and its progeny Richardson v. Marsh,
481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185(1998)), held that “[a] defendant is deprived of his Sixth
Amendment right of confrontation when the facially
incriminating confession of a nontestifying codefendant is
introduced at their joint trial, even if the jury is instructed to
consider the confession only against the codefendant.”
Richardson, 481 U.S. at 207. By contrast, “no Confrontation
Clause violation occurs when ‘the confession is redacted to
eliminate not only the defendant’s name, but any reference to
his or her existence.’” United States v. Parks, 285 F.3d 1133,
1138 (9th Cir. 2002) (quoting Richardson, 481 U.S. at 211).
LUCERO V. HOLLAND 13
The specialized rules of Bruton fit comfortably within the
Crawford umbrella. As the Third Circuit has reasoned,
“because Bruton is no more than a by-product of the
Confrontation Clause, the Court’s holdings in . . . Crawford
likewise limit Bruton to testimonial statements.” United
States v. Berrios, 676 F.3d 118, 128 (3d Cir. 2012).
More specifically, both Bruton and Crawford have the
same origins—the importance placed on cross-examination
in the Confrontation Clause, and the prejudice defendants
face when they are unable to cross-examine “powerfully
incriminating” statements. Bruton, 391 U.S. at 136.
Crawford concluded after a historical analysis that the
Confrontation Clause was concerned only with certain kinds
of out-of-court statements—those derived from interrogations
and other forms of “the civil-law mode of criminal
procedure.” Crawford, 541 U.S. at 50. Bruton’s narrower
focus was on whether statements that would otherwise violate
the Confrontation Clause may be introduced in a joint trial.
Its holding—essentially, that such statements may not be
introduced if the defendant is identifiable—does not define,
or redefine, the basic scope of the Confrontation Clause’s
protections. Ergo, the Bruton limitation on the introduction
of codefendants’ out-of-court statements is necessarily
subject to Crawford’s holding that the Confrontation Clause
is concerned only with testimonial out-of-court statements.
Crawford confirms this straightforward conclusion. It
includes as one of its alternate definitions of “testimonial” the
“extrajudicial statements . . . contained in formalized
testimonial materials, such as . . . confessions.” 541 U.S. at
52 (internal quotation marks omitted).
14 LUCERO V. HOLLAND
Every circuit court to consider the issue—most circuit
courts in the federal system, but, until today, not ours—has
concluded that Bruton’s rule now applies only to testimonial
out-of-court codefendant statements. See United States v.
Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010);
Berrios, 676 F.3d at 128; United States v. Dargan, 738 F.3d
643, 651 (4th Cir. 2013); United States v. Vasquez, 766 F.3d
373, 378–79 (5th Cir. 2014); United States v. Johnson,
581 F.3d 320, 326 (6th Cir. 2009); United States v. Avila
Vargas, 570 F.3d 1004, 1008–09 (8th Cir. 2009); United
States v. Clark, 717 F.3d 790, 813–17 (10th Cir. 2013);
United States v. Wilson, 605 F.3d 985, 1016–17 (D.C. Cir.
2010).
We agree, and conclude that only testimonial codefendant
statements are subject to the federal Confrontation Clause
limits established in Bruton.
C.
Our question, then, is whether the huila was testimonial
in the Crawford sense. It was not.
First, a preliminary issue: Lucero maintains that we
should not reach whether the huila was a testimonial
statement. He posits that the government did not argue in the
state courts or in the district court that the huila was
nontestimonial, and so either has forfeited, or should be
judicially estopped from making, any argument as to that
question.
The government did argue in the district court that the
huila was not testimonial. The district court acknowledged
LUCERO V. HOLLAND 15
the argument but found it unnecessary to resolve. There was
no forfeiture in the federal habeas proceedings.
The government did not address the testimonial nature of
the huila in state court proceedings. But judicial estoppel
against the government with regard to arguments it now
makes concerning the Confrontation Clause’s inapplicability
is not appropriate. One factor in considering whether judicial
estoppel applies is whether “the party seeking to assert an
inconsistent position would derive an unfair advantage or
impose an unfair detriment.” New Hampshire v. Maine,
532 U.S. 742, 751 (2001) (internal quotation marks omitted).
In this case, by assuming in the state court that the
Confrontation Clause applied, the government did not gain
any advantage or impose a detriment on Lucero. Instead, the
government made its case more challenging. As no other
equitable considerations support the application of judicial
estoppel here, there is no impediment to considering whether
the contested huila is testimonial. See generally Ah Quin v.
Cty. of Kauai Dep’t of Transp., 733 F.3d 267, 270–71 (9th
Cir. 2013).4 The question whether the huila was or was not
testimonial under Crawford is therefore properly before us.
“While Crawford declined to provide a comprehensive
definition of testimonial, the Court stated various
formulations of the core class of testimonial statements.”
United States v. Esparza, 791 F.3d 1067, 1071 (9th Cir. 2015)
4
Lucero does not maintain that there is a state court exhaustion
requirement applicable to the government in federal court habeas cases.
Cf. Dixon v. Baker, 847 F.3d 714, 718–19 (9th Cir. 2017) (describing
exhaustion principles for federal court habeas petitioners under 28 U.S.C.
§ 2254(b)(1)(A)).
16 LUCERO V. HOLLAND
(alterations and internal quotation marks omitted). Included
within that class are:
ex parte in-court testimony or its functional
equivalent—that is, material such as
affidavits, custodial examinations, prior
testimony that the defendant was unable to
cross-examine, or similar pretrial statements
that declarants would reasonably expect to be
used prosecutorially; extrajudicial statements
contained in formalized testimonial materials,
such as affidavits, depositions, prior
testimony, or confessions; statements that
were made under circumstances which would
lead an objective witness reasonably to
believe that the statement would be available
for use at a later trial.
Id. at 1071–72 (quoting Crawford, 541 U.S. at 51–52).
The Court has further explained the boundaries of
testimonial evidence through “what has come to be known as
the ‘primary purpose’ test.” Ohio v. Clark, 135 S. Ct. 2173,
2179 (2015). Under that test, statements are testimonial when
they result from questioning, “the primary purpose of [which
was] to establish or prove past events potentially relevant to
later criminal prosecution,” Davis v. Washington, 547 U.S.
813, 822 (2006), and when written statements are
“functionally identical to live, in-court testimony,” “made for
the purpose of establishing or proving some fact” at trial,
Melendez-Diaz v. Massachussetts, 557 U.S. 305, 310–11
(2009) (internal quotation marks omitted). “To determine . . .
the primary purpose” of a statement, “we objectively evaluate
the circumstances in which the encounter occurs and the
LUCERO V. HOLLAND 17
statements and actions of the parties.” Michigan v. Bryant,
562 U.S. 344, 359 (2011) (internal quotation marks omitted).
The written huila introduced against Lucero was not
“testimonial” under any plausible understanding of that term.
The huila was not “functionally identical to live, in-court
testimony,” Melendez-Diaz, 557 U.S. at 310–11, and it did
not “ha[ve] the primary purpose of assisting in [the
defendant’s] prosecution,” Clark, 135 S. Ct. at 2177. Rather,
the huila was a gang memo designed not to fall into the hands
of government officials; it was purposely “ma[d]e . . . small
to secure it so it’s . . . more easy to get from point A to point
B,” that is, to avoid detection. The huila had, by all accounts,
a primary purpose of “transfer[ring] information from person-
to-person from facility-to-facility” among gang members,
and, occasionally, serving “as a form of discipline” within the
gang. Even though, as the victim admitted, “[m]ore often
than not guards do get it[,] [t]hat’s not the point . . . . It’s
supposed to be interoffice.”
Lucero notes that, “[w]hen the huila was written, the co-
defendants were aware the prison was investigating the
offenses.” He compares the huila to the statement found to be
testimonial in Esparza, 791 F.3d at 1073–74—a “Notice of
Transfer/Release of Liability” sent to the state Department of
Motor Vehicles (“DMV”) by an individual “not . . . for the
routine administration of the DMV’s affairs,” but instead as
a “statement” in the face of “potential criminal exposure” and
in response to an “ongoing investigation.” Id.; see also
United States v. Macias, 789 F.3d 1011, 1018 (9th Cir. 2015)
(holding testimonial an affidavit made “at the behest of the
prosecutor”).
18 LUCERO V. HOLLAND
Lucero’s contention misses the point. Unlike in Esparza,
there is no evidence here that the huila was intended, as a
“primary purpose” or otherwise, to impact a trial or other
criminal proceeding through, for example, a district attorney,
defense attorney, police, other witnesses, or any other person
even possibly connected to the potential criminal
proceedings.5 The only evidence concerning huilas indicated
that they are specifically not meant to fall into the hands of
guards or police or prosecutors, or to be used in a courtroom.
Instead, huilas are supposed to serve exclusively as internal
gang communications. And the evidence concerning the
purpose of huilas matches up with the characteristics of the
huila admitted in this case. The huila was a tiny document,
written in tiny lettering, filled with gang jargon.
True, the huila itself is somewhat formal in places,
simulating an official document—it includes the victim’s full
name and booking number, and it provides a full factual
accounting of the events. But those characteristics “do[] not
necessarily render . . . the statements contained therein
‘testimonial’ for purposes of the Confrontation Clause.”
United States v. Fryberg, 854 F.3d 1126, 1136 (9th Cir.
2017). Rather, the huila was a “document owing its existence
primarily to . . . administrative needs,” id.—here, unusually,
to the administrative needs of a gang—and was created for
reasons unrelated to a future prosecution. Because the huila
5
As the Supreme Court has noted, although statements to private
individuals “are much less likely to be testimonial than statements to law
enforcement officers,” “at least some statements to individuals who are
not law enforcement officers could conceivably raise confrontation
concerns.” Clark, 135 S. Ct. at 2181. In other words, to determine the
testimonial intent of a speaker, “[c]ourts must evaluate challenged
statements in context, and part of that context is the questioner’s identity,”
id. at 2182, or, as more relevant here, the written document’s audience.
LUCERO V. HOLLAND 19
was “created for the administration of an entity’s affairs and
not for the purpose of establishing or proving some fact at
trial,” the huila was “not testimonial.” Melendez-Diaz,
557 U.S. at 324.
Under any standard of review, as the huila was not
testimonial, its introduction could not violate Bruton, and
Lucero’s constitutional right to confront the witnesses against
him was not violated.
III.
Lucero’s second argument is that his conviction for
possession of a shank while in custody, Cal. Penal Code
§ 4502(a), violated Jackson v. Virginia, 443 U.S. 307 (1979).
Under Jackson, “the relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
Id. at 319. Lucero contends that the stringent standard was
met with regard to his conviction for using or having control
over the shank used during the jailhouse attack against
Lindsay, and that the state Court of Appeal’s conclusion to
the contrary was unreasonable under the doubly deferential
standard applicable to Jackson claims under AEDPA, see
28 U.S.C. § 2254(d); Coleman v. Johnson, 566 U.S. 650, 651
(2012) (per curiam).
A.
Under AEDPA, the determinative question as to Lucero’s
Jackson claim is whether the Court of Appeal’s reasoning
was “an unreasonable application of . . . clearly established
Federal law,” 28 U.S.C. § 2254(d)(1). In addressing that
20 LUCERO V. HOLLAND
question, we must be careful to distinguish “an unreasonable
application of federal law . . . from an incorrect application
of federal law” and to give the state court’s decision “the
benefit of the doubt,” Renico v. Lett, 559 U.S. 766, 773
(2010) (internal quotation marks omitted). A federal court
“may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the
federal court disagrees . . . . [but] only if the state court
decision was objectively unreasonable.” Coleman, 566 U.S.
at 651 (internal quotation marks omitted). Cognizant of these
admonitions and others like it, we tread very cautiously as to
this claim, recognizing that the deferential standard under
AEDPA “is difficult to meet because it was meant to be.”
Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018) (per
curiam).
We conduct our doubly deferential inquiry under the
established principle that “[u]nder Jackson, federal courts
must look to state law for the substantive elements of the
criminal offense, but the minimum amount of evidence that
the Due Process Clause requires to prove the offense is purely
a matter of federal law.” Coleman, 566 U.S. at 655 (citation
and internal quotation marks omitted). The California law
underlying Lucero’s relevant conviction applies to “[e]very
person who, while at or confined in any penal institution . . . ,
possesses or carries upon his or her person or has under his or
her custody or control any instrument or weapon of the kind
commonly known as a . . . dirk or dagger or sharp
instrument.” Cal. Penal Code § 4502(a). “Possession may be
actual or constructive. . . . A defendant has actual possession
when he himself has the weapon. Constructive possession
means the object is not in the defendant’s physical
possession, but the defendant knowingly exercises control or
the right to control the object.” In re Daniel G., 120 Cal.
LUCERO V. HOLLAND 21
App. 4th 824, 831 (2004). “[E]xclusive possession or control
is not necessary.” People v. Rice, 59 Cal. App. 3d 998, 1003
(1976). What is necessary, absent physical possession, is “a
knowing exercise of dominion and control over an item.”
People v. Mejia, 72 Cal. App. 4th 1269, 1272 (1999).
B.
In the last reasoned state court decision in Lucero’s case,
see Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018), the
California Court of Appeal concluded on direct appeal that
there was sufficient evidence that Lucero constructively
possessed a shank. It reasoned as follows:
Other than the huila, there is evidence that a
shank was used in the attack. Lindsay[, the
victim,] heard whispering while he was in the
shower, and [Lucero’s] card game invitation
was obviously a ruse requiring more than one
participant. P. Lopez[, one of Lucero’s
codefendants,] was grinning and told Lindsay,
in essence, to die. The circumstances and
context of the attack are sufficient to support
a finding that all three defendants had
constructive possession of a weapon, were
working together, and intended to kill
Lindsay.
“[A]pplying the standards of Jackson with an additional
layer of [AEDPA] deference,” Juan H. v. Allen, 408 F.3d
1262, 1274 (9th Cir. 2005), and “view[ing] the evidence in
the light most favorable to the prosecution,” Long v. Johnson,
736 F.3d 891, 896 (9th Cir. 2013) (internal quotation marks
omitted), we conclude there was no evidence that any
22 LUCERO V. HOLLAND
reasonable juror could view as directly or circumstantially
proving, beyond a reasonable doubt, Lucero’s conviction for
possession of, custody of, or control of a shank in jail, and
that any conclusion to the contrary was so clearly without
support in the record as to be unreasonable.
As noted by the California Court of Appeal, the relevant
evidence admitted against Lucero, viewed most favorably to
the prosecution, consisted of the following: Lindsay’s
testimony that he suffered scrapes on his neck and a
“puncture wound” on his chest that “scabbed over . . . [and]
fell off”; Lindsay’s testimony that Lucero’s codefendant,
“Armando Lopez[,] hit me in the chest”; pictures of Lindsay
after the assault indicating there was a mark on his chest;
Lindsay’s testimony that Lucero invited him to the card game
ruse, and then kicked and hit him; and the gang expert’s
testimony that “[o]ne of the hostile policies for the Norte[ñ]o
is [it is] mandatory for them to have access to weapons at all
times.”6
This evidence, viewed most favorably to the prosecution,
indicated that Lucero generally “ha[d] access to weapons at
all times,” and that Lucero’s codefendant Armando Lopez,
who also generally “ha[d] access to weapons at all times,”
“hit” Lindsay in the chest and left a “puncture wound.” The
evidence also indicated that Lucero coordinated the attack
against Lindsay with Armando Lopez. Further, we defer to
the state Court of Appeal’s conclusion that because Lindsay
testified that he received scrapes and a “puncture wound,”
6
The expert repeated that testimony again on cross-examination: “Q:
And you also stated that each individual in a cell must have access to a
weapon? A: Part of their household policies, you’re supposed to have
access to a weapon at all times.”
LUCERO V. HOLLAND 23
there was sufficient evidence even without the huila for a jury
to conclude that Armando Lopez attacked Lindsay with a
shank, and so possessed and controlled it.
Yet, there were no facts from which to infer that Lucero,
personally, had “under his control” the shank Armando Lopez
used to stab Lindsay. Daniel G., 120 Cal. App. 4th at 831
(finding sufficient evidence of constructive possession when
a minor had a “weapon . . . passed back to [him], . . . then
passed it in turn to the others, creat[ing] a reasonable
inference that the weapon was under his control”). No gang
expert testimony or other evidence indicated that Lucero had
the right to control or share another gang member’s shank.7
There was no indication that there were shared shanks in the
cell in general, no indication that any shank used in the attack
was shared or stored in a jointly accessible location, and no
indication that Lucero had or used his own shank during the
coordinated attack against Lindsay.8
7
The huila Armando Lopez authored affirmatively indicated
otherwise. It read, “I was the hitter. After I hit psychs a few times, in the
chest area, I went for the neck. I then noticed my piece broke, and I
flushed it.” Of course, this huila was not admitted against Lucero under
California evidence law. So we mention it only to note that, as Lucero
feared, if the jury improperly considered the huila as evidence against
him—something we would not assume in light of the fact that they were
properly instructed to not do so—the huila provided evidence that
Armando Lopez had sole control of the shank. Lopez called himself “the
hitter” and referred to the shank as “my piece” over which he made
unilateral decisions, including the decision to “flush[]” the shank to avoid
its detection.
8
We mention only the most obvious sorts of evidence that one might
look for in cases of this kind, as suggested by California case law. We do
not mean to suggest that any particular form of evidence is required to
support the Court of Appeal’s reasoning or the jury’s verdict. Our job
24 LUCERO V. HOLLAND
So the only admitted evidence possibly pertinent to
Lucero’s own possession, custody over, or control of the
shank was the gang expert’s testimony that, as a gang
member, Lucero was “supposed to have access to a weapon
at all times.” But sole reliance on that testimony to establish
that Lucero had the right to control the shank used in the
attack, or any shank, would be unreasonable, for two
compelling reasons.
First, under California law, “[a]ccess to an item, but with
unspecified restrictions, is not the same as having the right to
control it.” People v. Sifuentes, 195 Cal. App. 4th 1410, 1419
n.6 (2011), disapproved on other grounds in People v.
Farwell, 5 Cal. 5th 295, 304 n.6 (2018). “For example, an
employee may have access to another coworker’s desk, but it
does not logically follow that the employee gains the right to
exercise control over the items on the desk, such as keys or a
wallet.” Id.California courts have found sufficient evidence of
constructive possession when a shared piece of contraband is
found in a location jointly accessible to defendants, and when
one defendant has directed another to use the shared piece of
contraband. See People v. Miranda, 192 Cal. App. 4th 398,
410–411 (2011); People v. Showers, 68 Cal. 2d 639, 644
(1968). But the critical factors in those cases were missing
here: There was no evidence in this case as to where the
under AEDPA is to avoid a “type of fine-grained factual parsing” that
does not accord deference to either jurors or state courts, and instead to
survey any possible fact in the record that could support, directly or
circumstantially, the jury’s conviction. Coleman, 566 U.S. at 655. There
may be many other forms of circumstantial evidence from which a jury
could infer non-exclusive control over a weapon, but there was no such
evidence here.
LUCERO V. HOLLAND 25
shank was stored, much less whether Lucero had access to it
there (or any place else). And the gang expert stated only that
gang members were supposed to have some access to a
weapon, not that the required access had to be unrestricted
and so tantamount to control. In short, the gang expert’s
testimony provided no evidence that Lucero personally had
any control at any point of a shank. Concluding otherwise
would not be reasonable.
Second, the gang expert’s testimony was that gang
members were supposed to have access to a weapon at all
times, but not to the sort of weapon Lucero was charged with
having control over—a “dirk or dagger or sharp instrument.”
Cal. Penal Code § 4502(a). No reasonable jurist could
conclude that evidence concerning access to some weapon
was sufficient to establish that Lucero was guilty of the crime
with which he was charged. See In re Winship, 397 U.S. 358,
364 (1970) (“[T]he Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged.” (emphasis added)).
In sum, there was certainly sufficient evidence, as the
Court of Appeal held, to infer that Lucero participated in and
helped coordinate the attempted murder of Lindsay, who,
after being severely hit and kicked by three men, was found
bleeding and nonresponsive on the floor of the jail. And it
was reasonable to regard the evidence as sufficient to
conclude that a sharp instrument was used in the attack. But,
as California courts have made clear, constructive possession,
custody, or control is distinct from aiding and abetting a co-
defendant’s control and possession. That Lucero helped set
up the attack against Lindsay does not support an inference
that passes “the threshold of bare rationality,” Coleman,
26 LUCERO V. HOLLAND
566 U.S. at 656, that he personally possessed, or had physical
custody of or non-physical control over, the shank someone
else used in that attack.
In most AEDPA cases concerning Jackson claims, we are
“faced with a record of historical facts . . . support[ing]
conflicting inferences,” resolution of which we must avoid at
all costs “even if [resolution of the conflict] does not
affirmatively appear in the record.” Cavazos, 565 U.S. at 7
(internal quotation marks omitted). In Lucero’s case, there
are no facts, direct or circumstantial, to support Lucero’s own
possession of, custody of, or control over the shank.
“Jackson leaves juries broad discretion in deciding what
inferences to draw from the evidence presented at trial,
requiring only that jurors ‘draw reasonable inferences from
basic facts to ultimate facts.’” Coleman, 566 U.S. at 655.
But, here, it would be unreasonable to conclude that a
reasonable juror could find adequate evidence of the essential
element—possession or custody or control over a “dirk or
dagger or sharp instrument,” Cal. Penal Code § 4502(a)—to
meet the beyond-a-reasonable-doubt standard. To infer that
Lucero himself did have any of those connections to the
shank would be sheer speculation.
We reverse the district court’s holding as to Lucero’s
conviction for possession of a shank in custody and remand
with directions to grant Lucero’s habeas petition as to that
conviction.
IV.
We affirm the district court’s denial of Lucero’s habeas
petition as to his Bruton claim. We reverse the district
LUCERO V. HOLLAND 27
court’s denial of Lucero’s habeas petition as to his Jackson
claim on the Cal. Penal Code § 4502(a) conviction, and
remand so that the court may grant Lucero’s habeas petition
as to that conviction.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.