FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT ANDREW LUCERO,

Petitioner-Appellant,

v.

KIM HOLLAND, Warden,

Respondent-Appellee.

No. 15-16111

D.C. No.

1:10-cv-01714-AWI-SKO

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 gangmemo 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 crossexamination.” 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, Iforwarded 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-courtstatements—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 onlytestimonial 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 primarypurpose of “transfer[ring]information from personto-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 codefendants 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 codefendant’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.