and Submitted March 14, 2018 San Francisco, California
from the United States District Court No.
1:10-cv-01714-AWI-SKO for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Johanna S. Schiavoni (argued), Law Office of Johanna S.
Schiavoni, San Diego, California, for Petitioner-Appellant.
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
Before: Marsha S. Berzon and Carlos T. Bea, Circuit Judges,
and Terrence Berg, [*] District Judge.
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.
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
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 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
BERZON, CIRCUIT JUDGE.
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).
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.
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 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).
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),
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
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.
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."
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. 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 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
"Since I've been here, I've seen Psych's
negativity towards our program and negative attitude towards
"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.
"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. . . ."
reading out the huila, Teso explained that the huila was
written by Armando Lopez, or "Soldier," to Lucero,
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, ...