Lucero v. Holland, 083118 FED9, 15-16111

Docket Nº:15-16111
Opinion Judge:BERZON, CIRCUIT JUDGE.
Party Name:Albert Andrew Lucero, Petitioner-Appellant, v. Kim Holland, Warden, Respondent-Appellee.
Attorney: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, Chie...
Judge Panel:Before: Marsha S. Berzon and Carlos T. Bea, Circuit Judges, and Terrence Berg, District Judge.
Case Date:August 31, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
SUMMARY

Sixth Amendment Confrontation Clause rights protected in Bruton v. United States, 391 U.S. 123 (1968), do not extend to statements that are nontestimonial. Petitioner appealed the denial of his 28 U.S.C. 2254 petition for habeas relief, challenging his California conviction for premeditated attempted murder, possession of a shank in jail, and participation in a criminal street gang. The panel... (see full summary)

 
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Albert Andrew Lucero, Petitioner-Appellant,

v.

Kim Holland, Warden, Respondent-Appellee.

No. 15-16111

United States Court of Appeals, Ninth Circuit

August 31, 2018

Argued and Submitted March 14, 2018 San Francisco, California

Appeal 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.

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.

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 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.

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 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.

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...

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