Lucero v. Holland

• Decision Date: 31 August 2018
• Docket Number: No. 15-16111,15-16111
• Citation: 902 F.3d 979
• Parties: Albert Andrew LUCERO, Petitioner-Appellant, v. Kim HOLLAND, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

902 F.3d 979

Albert Andrew LUCERO, Petitioner-Appellant,

v.Kim HOLLAND, Warden, Respondent-Appellee.

No. 15-16111

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 14, 2018, San Francisco, California

Filed August 31, 2018

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.

Before: Marsha S. Berzon and Carlos T. Bea, Circuit Judges, and Terrence Berg,^* District Judge.

BERZON, Circuit Judge:

We consider principally whether the Sixth Amendment Confrontation Clause rights protected in Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), extend to statements that are nontestimonial, see Crawford v. Washington , 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, 88 S.Ct. 1620. "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, 88 S.Ct. 1620 ; see also Richardson v. Marsh , 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ; Gray v. Maryland , 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (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, 124 S.Ct. 1354.

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 Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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.

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 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.

"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 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 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, 87 S.Ct. 824, 17 L.Ed.2d 705 (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, 111 S.Ct. 2590, 115 L.Ed.2d 706 (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 revi...