F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A L B E R T A N D R E W L U C E R

O , Petitioner-Appellant
,

v.

K I M H O L L

A N D , W arden, R espondent-Appellee. No. 15-16111

D.C. No. 1:10-cv-01714-AW I -SKO

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Anthony W . I shii, Senior District J udg e, Presiding

Arg ued and Submitted March 14, 2018 San F rancisco, California

F iled Aug ust 31, 2018

B efore: Marsha S. B erz on and Carlos T. B ea, Circuit J udg es, and Terrence B erg , * District J udg e

. Opinion by J udg e B e rz on

* T h e H o n orab le T erren ce Berg
, Un ited States District J u d g e f o r th e Eastern District o f

Mich ig an , sittin g b y

d esig n atio n

.L U C E R O V

. H O L L

A N D 2

SUMMARY * *

Habeas Corpus

The panel affirmed in part and reversed in part the district court’s denial of Albert L ucero’s 28 U.S.C. § 2254 h abeas corpus petition challeng ing his Ca l i f o rnia conviction for premeditated attempted murder, possession of a shank in jail, and participation in a criminal street g ang

. The panel held that in lig ht of the framework set forth in Crawfor d v. W

ashington
, 541 U.S. 36 (2004), the Six th Amendment Confrontation Clause protections established in Bruton v

. United States
, 3 91 U.S. 1 23 (1968), concerning the introduction of statements b y non-testify ing codefendants, do not apply to statements that are nontestimonial. The p a n el held that a huila—a tiny handwritten g ang memo detailing the underly ing attack—was not testimonial, and th u s could not violate L ucero’s constitutional rig ht to confront the w itnesses ag ainst him. The panel therefore affirmed the district court’s denial of L

ucero’s habeas petition as to his Bruton claim.

The panel reversed the district court’s denial of L ucero’s habeas p etition as to his claim u nder Jackson v. Virginia
, 443 U.S. 307 (1 9 7 9 )
, that there was insufficient evidence to support his conviction for possession of a “dirk or dag g er or sharp instrum e n t in jail” in violation of Cal. Penal Code § 4502(a). Apply ing the Jackson standa r d s with an additional lay er of AEDPA deference
, a n d viewing the evidence in the lig ht most favorable to the p rosecution, the

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L U C E R O V

. H O L L

A N D 3
panel concluded that there was no evidence t h a t any reasonable juror could view as dir e c tly or circumstantially proving
, bey ond a reasonable doubt, L ucero’s conviction for possession of, custody of, or control o f a shank in jail; a nd that any conclusion to the contrary was so clearly wi t h o u t support in the record as to be u n re a s o n a ble. The panel

rem anded so that the district court may g rant the h abeas petition as to that conviction.

COUNSEL

J ohanna S. Schiavon i ( a rg ued), L aw O ffice of J o hanna S. Schiavoni, San Dieg o, California, for Petitioner-Appellant.

L ewis A

. Martinez (arg

ued), Deputy Attorney General; Tami Krenz in, Supervising D eputy Attorney Gen eral; Michael P. F arrell, Senior Assistant Attorney General; Gerald A. Eng ler, Chief Assistant Attorney General; Xavier B ecer r a , Attorney General; Office of the Attorney General, F resno, California; for Respondent-Appellee.L U C E R O V

. H O L L

A N D 4

OP INION

B ERZ ON, Circuit J udg e :

W e consider principally whether the Six th Ame ndment Confrontation Clause rig h t s p r otected in Bruton v. United States
, 391 U.S. 123 (1968), ex tend to statements t h a t a re nontestimonial, see Crawford v. W a shington
, 541 U.S. 36, 68 (2004).

Bruton established that in joint cr i minal trials, the introdu c t ion of “powerfully incriminating ex trajudicial statements of a codefendant, w ho stands accused side-by -side

w i t h the defendant,” but who does not testify
, violates t h e defendant’s Six th Amendment rig ht to confront the w itnesses ag ainst him. 391 U .S. at 135–36. “The unreliability of such evidence is intolerably compounded when the alleg ed accomplice

. . . does not testify and cannot be tested by crossex a mination.” Id. at 136; see also R ic h a r d s o n v. Marsh
, 481 U.S. 200 (1987); Gray v

. Maryland
, 523 U.S. 185 (1998). After Bruton
, Crawford added a new lay e r to Six th Amendment a

naly sis—that the Amendment’s Confrontation Clause rig ht attaches only a s to “t e stimonial statements.” 541 U.S. at 68.

W e c onclude t h a t because the codefendant statement at issue here was n ontestimo n i a l and so not w ithin the Confrontation Clause’s protec tion under Crawford
, the Bruton p rotections concerning the introduction of statements by non-testify ing codefendan t s do not apply

. W e therefore affirm the district court’s d enial of Albert L u c e r o ’s h abeas petition a s to his Bruton claim. F or reasons ex p lained below, however, we reverse the district court’s denial of L u cero’s h a b e a s petition as to the sufficiency of the evidence un d e rL U C E R O V

. H O L L

A N D 5

Jackson v. Virginia
, 443 U.S. 3 07 (1979), on one of the three offenses for w hich h e was convicted, possession of a “dirk o r dag g er or sharp instrument” in jail, Cal. P e n a l Code § 4502(a).

I.

I n 2007, Albert L u cero was tried a n d convicted in a California court of p remeditated atte m p t ed murder, possession of a shan k i n j ail, and participation in a criminal street g ang

. S

e e Cal. Penal Code §§ 187, 4502(a), 186.22(a).

The a ttack underly ing L ucero’s convictions took place in Stanislaus County J ail, i n a unit h o using members of the Norteño g ang

. L ucero, also known as “L il Man” a nd “Manos,” shared a twelve-person cell with two codefendants, Armando L opez , also known as “So l d i er,” and Paul L opez

. Another one of L

ucero’s cellmates wa s the v ictim and key witness in t h i s case, K enneth L indsay
, also known a s “Psy cho” and “Psy

chs.”

On the day of the attack, L indsay found and sold balloons containing h eroin. According to L indsay ’s testimony at trial, L ucero approached L indsay in the e vening and invited him to p lay cards. After a g roup beg an to play
, Armando L opez , Paul L opez , and L ucero a ssaulted L indsay

. Armando L opez hit him in the chest, Paul L opez punched him in the face, a nd L ucero kicked him f

r om behind; L i n d s a y f

elt a number o f other kicks and hits. Several custodial deputies heard L indsay y e ll and c am e t o the cell. W hen they arrived, L indsay w as nonresponsive, and there was blood on the floor and the wall.L U C E R O V

. H O L L

A N D 6

The nex t d ay , Paul Teso, a sheriff’s deputy in a g ang unit in Stanislaus County
, investig a t e d the attack. W h en intervi e w i ng one inmate, Teso, after directing the inmate to

“ l i ft his trouser leg s,” uncovered a tiny handwritten g an g
memo inside the inmate’s so c k

. T he memo, as later

ex p lained by the California Court of Appeal, “detail ed the assault on L indsay and named those who participated i n the attack and provided the motive for the att a c k —L indsay ’s failure to fo l l o w t h e g ang ’ s code of conduct.” The parties referred to this memo and others like it as “huilas.” 1

At the joint trial for L ucero, Armando L opez , Paul L opez , and o ne other codefendant, the huila found in t h e i n mate’s sock was entered into e vidence in a z oomed-in and redacted form. I t w as admitted o nly ag ainst its author, Armando L opez

. 2 Teso read the huila out:

Okay

. I t say s, “To Manos from Soldier: RE,”

or r e ason, “I R,” incident report. Date is 10- 20-06. Say s: “B uenos dia[ s]

. F ollowing will consist of removal that occurred y e st er day nig ht, 10-19-6, t hat I assisted in. Kenneth L indsay
, booking No. 1168261, was removed for d e g enerate acts, use of drug s, heroin, promoting it, and spreading neg ativity among st our people. I t h a s b een said that

1 L in d say testif

ied th at “ h u ila” is a N ah u atl w o rd fo r “k i t e , ” u sed to d escrib e sm all n o tes w

ritten in j ail.

2 T h e j u ry w as i n stru cted : “ Yo u h av e h eard ev id en ce th at d ef en d an t A rm an d o L o p ez m ad e a s t a t e m en t in t h e f orm of a h u ila

. . . . Yo u m ay
co n sid er t h at ev i d en ce o n ly ag ain st h im
, n o t ag ain st an y o th er d ef en d an t.”L U C E R O V

. H O L L

A N D 7

Kenneth, Psy chs, L indsay has numerous priors for violation of RN conduct.”

“I arrived her e on Thursday
, 1 0-12-06, f rom DVI
, Tracy .” I t’s blurry
, but I think it say s, “RO, reception.” I ’m not sure what it stands for. I think it’s “RO.”

“Since I ’ve b een here, I ’ve seen Psy ch’s neg ativity towa r d s our prog ram and neg a tive attitude towards our people.

“On 10- 1 9
, buenos tardes time, me a nd my —my cellees were placed in a holding cell. Dur i n g this time, we found three balloons o f heroin in the interview room. Psy chs found two fat bindles. I

found one.

“After returning from the M tanks back to our cell, I forwarded heroin b a lloons to my proper channels. Psy chs didn’t forward the two balloons he foun d

. I nstead, he took it upon h i m self to sell it to the whites on our tie r without the permission to do so fo r h i s own personal g ain.

“I seen him dip h is fi n ge r into both balloons

more than necessary to find out i f the heroin

was chafa, was g ood, I mean real. Also another”—it s ay s, “another”—I can’t read what it say s, “see him indulg ing on it some
m o re by sniffing it u

p his nose. I said t h at Psy c hs tried to g et him to do it.L U C E R O V

. H O L L

A N D 8
“During this time, around 9:30, Psy chs was showering
, was showing sy mptoms o f being hig h on heroin and admitted it to me before prog r am shut down.” Then it’s blocked out. I t say s, “I w as t h e hitter. A fter I hit psy chs a few times, in the chest area, I w ent for the neck. I then n o t iced my piece broke, and I flushed it.a

“Psy chs called, ‘man down,’ and then the K9' s arrived. G racias. Now with that said, ex cuse
me. I e x c u se my self with streng th a nd honor. . . .”

After reading out the huila, Teso ex plained that the huila was written by Armando L opez , o r “Soldier,” to L ucero, o r “Manos.”

Fu rt h er, Teso noted that g a n g unit investig ators find huilas “quite often,” and ex plained:

Huilas, they use huilas for a bunch or a couple diffe re n t reasons. The main reason is [ to] tran sfer information from person-to-person f r o m facility -to-facility
, from the prisons t o the streets, from the streets to the jail, f rom the jails to the prisons back and forth . . . .

They ’re also used as a form of d iscipline. I f somebody violates one o f the bonds, one o f the rules

. . . they mig h t have to write an essay
o n the rule that they broke

. . . . Say t h e y

v i olated o ne o f the rules about security
, the yL U C E R O V

. H O L L

A N D 9

m ig ht have to write a 1 500 word essay i n huila form on security

.

W ith reg ard to huilas, L indsay , the victim, testified:

Q: How is it written?

A: Usually with h and, pen, pencils.

. . . Mini

w riting
, usually r eally small, try ing to say a lot in a little piece of p a p er, try to make it small to secure it so it’s more, it ’ s m o r e easy to g et from point A to point B

. Q: Now, these—the writing s on these huilas, is this shared with the g uards?

A: I n Stanislaus County ?

Q: Yeah.

A: More o ften than not g u ards d o ge t it. That’s not the point, not supposed to be caug ht by the gu a r d s

. I t’s supposed to be interoffice. . . . .

After L ucero and h is codefendants Armando and Paul L opez were convicted, they filed a joint a ppeal. Among other claims, th ey ch a lleng e d the introduction of the huila on various stat e a n d f

ederal g rounds. The California Court o f Appeal affirmed the judg ment as to all three defendants in 2009.

The Court of Appeal held that the hui l a ’s introduction violated L ucero’s confrontation rig hts under Bruton a nd itsL U C E R O V

. H O L L

A N D 10

prog e ny , at least as to L ucer o ’ s conviction for active participation in a criminal street g ang , Cal

. Penal Code § 186.22(a), “because [ the huila] established ‘ Manos,’ whom the jury understood to be L u cero, as a g ang member of status, to whom other g ang members would report.” Even so, the court f ound the constitutional error harmless under Chapman

v. California
, 386 U .S. 18 (1967), in lig ht of the “sig nificant amount of independent evidence th at ” L ucero and his codefendants assaulted L indsay and th e fact that “ [ t] he jury obviously found L indsay to b e b elievable.” The C a l i f o rnia Supreme Court denied L

u cero’s petition for review.

L ucero then filed a habeas petition in federal court. The district court denied the petition, and L ucero timely appealed.

II.

A.

Under the A ntiterrorism a nd Effective Death Penalty A ct of 1996 ( “AEDPA”), we may g rant L u c e ro relief on his Bruton c laim only if the “last re asoned state-court opinion,” Y lst v. Nunnemaker
, 5 0 1 U.S. 797, 804 (1991)—here, the opinion o n direct appeal to the Calif o r n i a Court o f Appeal—was “contrary to, o r involved an unreasonable application of, clearly established F ederal law, as determined by the Supreme Court of the U nited States,” or was “based on
an unreasonable determination o f t h e facts in lig ht of the evidence presented.” 28 U.S.C. § 2254(d)(1), (d)(2).

As we ex p lain, on de novo r eview, L ucero’s c laim would fail. B e cause the Court o f A ppeal’s decision was “correct under d e novo review,” it was “therefore necessarilyL U C E R O V

. H O L L

A N D 11

reasona b le under the more deferential A EDPA standard o f review.” Berghuis v. Thompkins
, 5 60 U.S. 370, 389 (2010). 3

B.

To decide whether the introduction of the huila authored by L ucero’s codefendant wa s u n constitutional, we consider the relationship between th e g eneral confrontation rig hts protected under Crawford a nd its prog eny a

nd the specific joint trial confrontation rig hts p rotected by the Bruton line o f

cases.

“I n all criminal prosecutions, the accused shall enjoy the rig ht

. . . to be confronted with the witnesses ag a inst him.” U.S. Const. amend. VI

. I n 2004, Crawford v. W ashington established a new g eneral f r a mework for enforcing this confron t a t i on r ig ht. L o oking to “the principal e vil at which the Confrontation Clause w as d irected,” “the civil-law mode of criminal procedure, and particularly it s u s e o f ex parte

ex a minations as evidence ag ainst the accused,” C r a w ford held that the Confrontation Clause’s protections hing e on the “testimonial” c haracter o f a sta t e m e n t

. 541 U.S. at 50, 68. Under Crawford
, “absent unavailability and a prior chance for cross-ex a mination, the Confrontation Cl a u s e forbids a statement of a no n t e stify ing witness that is testimonial a nd offered for its truth.” United States v. Brooks
, 772 F .3d 1161, 1167 (9th Cir. 2014). B y c ontrast, “[ w] here n ontestimonial

3 W e n o te th at if th e Calif o rn ia C o u r t o f Ap p eal’ s d ecisio n w as
co n trary to clearly estab lish ed Su p rem e Co u rt law

—as w e b eliev e it m ay

w ell h av e b een , as th ere is n o ten ab le b asis f o r treatin g a Bru t o n issu e as
o u tsid e o f th e Cra wfo rd “ testim o n i al ” lim itatio n —its erro r f

av o red th e p etitio n er, n o t th e g o v ern m en t. Precisely h o w § 2 2 5 4 (d )(1 ) ap p l i e s in th o se circu m stan ces is an issu e w e n eed n ot ad d ress, as w e reach th e sam e
resu lt as d id th e state co u rt ap p ly in g d e n o vo rev iew

.L U C E R O V

. H O L L

A N D 12
hearsay is at issue, it is wholly c onsi s t e n t w ith the F ramers’ desig n to afford the States flex ibility in their development o f hearsay law.” Crawford , 541 U.S. at 68.

Decades before Crawfo r d
, Bruton derived a more specializ ed principle from the Confrontation Clause. Bruton

rec o gn iz ed that, in joint trials, when one nontestify ing codefendant’s confession is admitted only ag ainst that codefendant, there is unavoidably a “ substantial risk that the jury
, despite instructions to the contrary , [ will] look[ ] to the incriminating ex trajudicial statements in deter m i n ing [ the other defendant’s] g u ilt.” 391 U.S. at 126. Bruton went on to note that “a major reason underly ing the c o n stitutional confrontatio n rule is to g ive a defendant charg ed with crime an opportunity

to cross-ex a mine the witnesses ag ainst him.” Id. at 1 26 (internal quotation m a rks omitted). That opportunity is absent as to “powerfu l l y incriminating

ex trajudicial statements o f a codefendant” admitted in a joint trial when, a s is most usual, the c odefendant does not testify

. Id. at 135.

Thus Br u t on ( and its prog e n y R ichardson v. Marsh
, 481 U.S

. 2 0 0 (1987), and Gray v. Maryland
, 523 U .S. 185 (1998)), held that “[ a] defendant i s d e p rived of his Six th Amendment rig ht of confront ation when the facially incriminating confession of a no n testify ing codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only ag a inst the codefendant.” Richardson
, 481 U.S. at 207. B y contrast, “no Confrontation Clause violation occurs when ‘the confession is r e dacted to eliminate not only the defendant’s name, but any reference to his or her ex istence.’” U

nited States v. Parks
, 285 F

. 3d 1133, 1138 (9th Cir. 2002) (quoting Richardson , 481 U.S. at 211)

.L U C E R O V

. H O L L

A N D 13

The specializ ed rules of Bruton fit c omfortably within the Crawford umbrella. As the Third Cir cuit has reasoned, “because Bruton is n o more than a by -product of the Confrontation Clause, the Court’s holding s in

. . . Crawford likewise limit Bruton to t e s timonial statements.” United States v. Berrios , 676 F .3d 118, 128 (3d Cir. 2012).

More specifically
, both Bruton and Crawford h ave the

same orig ins—the importance placed on cross-ex a m i n ation in the Confrontation Clause, and the prejudice defendants face when they are unable to cross-ex amine “powerfully incriminating ” statements. Bruton
, 39 1 U.S. at 136. Crawford c on c l u d ed after a historical a naly sis that the Confrontation Clause was c o ncerned only with certain kinds of o ut- o f

- c o u r t s t a t e m e n t s

— those derived from interrog ations and o ther forms of “the civil-law mode of criminal procedure.” Crawford
, 541 U.S. a t 5 0

. Bruton ’s n arrower focus was on whether statements that would otherwise violate the Confrontation Clause may b e introduced in a joint trial. I ts holding —essentially
, that such stateme n t s m ay not be introduced if the defendant is identi fiable—does not define,

or redefine, the basic scope of the C o n f r ontation Clause’s protections. Erg o, the Br u t o n limitation on the introduction of codefenda

n ts’ out-of-court statements is necessarily subject to Crawford ’s h olding that the Confrontation Clause is concerned only

with testimonial out-of-court statements.

Cr a wford confirms this straig htforward conclusion. I t includes as one of its alternate definitions of “testimonial” the “ex trajudicial statements

. . . contained i n formaliz ed testi m onial materials, such as

. . . confessions.” 541 U.S. at 52 (internal quotation marks omitted).L U C E R O V

. H O L L

A N D 14

Every circuit court to consid er the issue—most circuit courts in th e f

e deral sy stem, but, until today
, not ours—has concluded that Bruton ’ s rule now applies only to testimonial out-of-court codefendant statements. See United S tates v

. Figueroa-Cart a g ena , 612 F .3d 69, 85 (1st Cir. 2 010); 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. 20 1 4 ); United States v. Johnson
, 581 F .3d 320, 326 (6th Cir. 2 0 0 9 ) ; U nited States v. Avila Vargas
, 570 F .3d 1004, 1008–09 (8th Ci r

. 2 0 09); United St a t e s v. Clark
, 717 F .3d 790, 813–17 (10th Cir. 2 013); United S tates v. W

ilson
, 605 F

. 3d 985, 1016–17 ( D.C. Cir. 2010).

W e ag ree, and conclude that only testimonial codefendant statements are subject to the federal Conf r o n t a tion Clause limits established in B ruton

.
C.

Our question, then, is whether the huila was testimonial in the Crawford sense. I t was not.

F irst, a preli minary issue: L u cero maintains that we should not reach whether t h e h u ila was a testimonial statement. H e posits that the g overnment did n o t arg ue in the state courts or in the district court that the huila was nontestimonial, and so either h as forfeited, or s h o u l d be judicially es t o p ped f

rom making
, any arg ument as to that question.

The g overnment did arg u e in the district court that the h uila was n ot testimonial. The d istrict c ourt acknowledg edL U C E R O V

. H O L L

A N D 15

the arg u ment but found it u nnecessary to resolve. There was no forfeiture in the federal habeas proceeding s.

The g overnment did not address the testimonial nature o f t h e huila in state court proceeding s. B ut judicial e stop p el ag ainst the g o vernment with reg ard to arg uments it n ow makes concerning the Confrontation Clause’s inapplicability is not appropriate. One factor in c onsidering whether judicial estoppel appl ies is whether “the p arty seeking to assert an inconsistent position would d e rive an unfair advantag e o r impose an unfair d etriment.” New Ha m p shire v. Maine
, 532 U .S. 7 42, 751 (2001) (internal quotation marks omitted). I n this case, by assuming in the state court that the Confrontation Clause applied, the go v ernment did not g ain any advantag e or impose a detriment on L ucero. I nstead, the g overnment made its case mo r e c h a l leng ing

. As no other

e quitable c onsiderations support the application o f judic i al estoppel here, there is no impediment to considering whether t h e contested huila is testimonial. See generally Ah Q u i n v. Cty. of Kauai Dep’t of Transp.
, 733 F .3 d 2 6 7
, 270–71 (9th Cir. 2013). 4 T he question whether the h u ila was o r was not testimonial under Crawford is therefore properly before us.

“W hile Crawford declined to provide a c o mprehensive d e f i nition o f testimonial, the Court stated v ariou s formulations of the core class o f t e s timonial statements.” United States v. Esparza
, 791 F .3d 1067, 1071 (9th Cir. 2 015)

4 L u cero d o es n o t m ai n t a i n t h at th ere is a state co u rt ex h au stio n req u irem en t ap p licab le to t h e g o v ern m en t in f

ed eral co u rt h ab eas cases. Cf. Dixo n v. Ba ker
, 8 4 7 F.3 d 7 1 4
, 71 8 –1 9 (9 th Cir. 2 0 1 7 ) (d escri b i ng
ex h au stio n prin cip les f

o r f ed eral co u rt h ab eas p etitio n ers u n d er 2 8 U.S.C. § 2 2 5 4(b )(1 )(A )).L U C E R O V

. H O L L

A N D 16
(alterations and internal quotation marks omitted). I ncluded within that class are:

ex parte in-court testimony or i t s f unctional

e q u i v a l e n t

— t h a t i s , m a t e r i a l s u c h a s
a ffidavits, custodial ex aminations, p r ior testimony that the defe n d ant was unable to

cross-ex amine, or similar p re trial statements that declarants would reasonably ex pect to be used prosecutorially ; ex trajudicial statements contained in formaliz ed testimonial materials,

s u c h a s a f

f i d a v i t s , d e p o s i t i o n s , p r i o r t estimony
, or confessions; statements tha t

were made u nder circumstances which would lead an objective witness reasonably to believe that the statement w ould be available for use at a later trial.

Id. at 1071–72 (quoting Crawford
, 541 U.S. at 51–52).

The Court has further ex p lained the bo u n d a ries o f testimonial evidence throug h “what has come to be known a s 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. W ashington
, 547 U.S. 81 3
, 8 22 (2006), and when written statements a re “functionally identical to live, in-court testimony ,” “made for the purpo s e o f e stablishing or p roving some fact” at trial, Mel endez-Diaz v. Massachussetts
, 557 U.S. 305, 310–11 (2009) (internal quotation marks omitted). “To determine

. . . the p r imary purpose” of a statement, “we objectively e valuate the cir c u m s t ances in which the encounter occurs and theL U C E R O V

. H O L L

A N D 17

statements and ac tions of the parties.” Michigan v. Bryant
, 562 U .S. 344, 3 59 (2011) (internal quotation marks omitted).

The written huila introduced a g a i n s t L ucero was not “testimonial” under any plausible understanding of that term. The h u ila was not “fun ct i o nally 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 g ang memo desig ned not to fall into the h ands of g overnment officials; it was purposely “ma[ d] e

. . . small to secure it so it’s

. . . more e asy to g et from point A to point B ,” that is, to avoid detection. The huila had, by a ll accounts,

a primary purpose of “transf e r[ r ing ] information f

rom personto-person from facility -to- f acility ” among g ang members, and, occasionally
, serving “as a form of discipline” within the g ang

. Even thoug h, as the victim ad m i tted, “ [ m] ore often than not g u ards do g et it[ ,] [ t] hat’s not the point

. . . . I t’s supposed to be interoffice.”

L ucero notes that, “[ w ] hen the huila was written, the codefendants wer e a

ware the prison was investig ating the offenses.” He compares the h uila to the statement found to be t estimonial in Esparza
, 7 91 F .3d at 1073–74—a “Notice o f Transfer/Release of L iability ” sent to the state Department o f Motor Vehicles ( “DMV”) by a n ind i vidual “not

. . . for the routine a d ministration of the DMV’s affairs,” but instead a s
a “statement” in the face o f “potential c riminal ex posure” a nd in response to an “ong o ing investig a tion.” Id. ; see also United S tates v. Macias
, 7 89 F

. 3d 1011, 1018 (9th Cir. 2 015) (holding testimonial an affidavit made “at the b ehest of the prosecutor”).L U C E R O V

. H O L L

A N D 18

L ucero’s contention misses the point. Unlike in Esparza
, there is no evidence here that the h uila was intended
, a s a “primary p urpose” or otherwise, to impact a trial or ot h er criminal proceeding throug h, for ex ample, a district attorney , defense attorney , police, other witnesses, or any other person
even possibly connected to the potential criminal proceeding s. 5 The only evidence c oncerning huilas indicated that they are specifically not meant t o f a l l into the h a

nds o f g uards or police or prosecutors, or to be used in a courtroom. I nstead, h uilas are supposed to serve ex clusively a s int e r n al g ang communications. And the evide n ce concerning the purpose of huilas matc h e s u p with the c haracteristics o f the huila admitted in t h i s c ase. The huila was a tiny document, written in tiny lettering , filled with g ang jarg on.

True, the huila itself is some what formal in places, simulating an official document—it includes the victim’s full

name and booking number, and it provi d e s a full f actual accounting of the events. B ut those characteristics “do[ ] not necessarily render

. . . the statements c o n t ained therein ‘testimonial’ for purposes of the Confrontati o n C lause.” Un i t ed States v. F

ryberg
, 854 F .3d 1126, 1136 (9th Cir. 2017). Rather, the huila was a “document owing its ex istence primarily to . . . administrative needs,” id. —here, unusually
, to the administrative n e e ds of a g ang —and wa s c reated for reasons unrelated to a future prosecution. B ecause the huila

5 A s t h e Su p rem e Co u rt h as n o ted
, alth o u g h statem en ts to p riv a te in d iv i d u als “ are m

u ch less lik ely to be testim on ial th an statem en ts to law

en f o rcem en t o f

f icers,” “ at least so m e s tatem en t s to in d iv i d u a l s w h o are

n o t law en f

o rce m e n t o f

f icers co u l d co n ceiv ab ly raise co n f ro n tatio n
co n cern s .” C

la rk
, 1 3 5 S. Ct. at 2 1 8 1

. In o th er w o rd s, to d eterm in e th e t e s t i m o n i al i n ten t o f a sp eak er, “ [c]o u rts m u st ev alu ate ch allen g ed statem en ts in co n tex t, an d p art o f th at co n tex t i s th e q u estio n er’ s id en tity ,” id

. at 2 1 8 2 , o r, as m o re relev an t h ere, th e w ritten d o cu m en t ’ s au d ien ce.L U C E R O V

. H O L L

A N D 19

was “created for the administration of an entity ’ s affairs and not for the purpose o f establishin g or p roving some fact at trial,” the huila was “not testimonial.” Melendez-Diaz
, 557 U.S. at 324.

Under any standard of review, as the huila wa s not testimonial, its in t ro duction could not violate Bruton
, a nd L ucero’s constitutional rig h t to confront the witnesses ag ainst him was not violated.

III.

L ucero’s second arg ument is that his conviction for possession o f a s h a n k while in c ustody
, Cal. Penal Code § 4502(a), violated Jackson v

. V irginia , 443 U.S. 307 (1979). Under Jackson
, “the relevan t q u e stion is whether, a fter viewing the evidence in the lig h t m o s t favorable to the prosecution, any rational trier of fact could have found the essential elements o f the crime bey o nd a r e a sonable doubt.” Id. at 319. L ucero contends that the st r i n ge n t standard was met with reg ard to his conviction f or using or having control

ov er t h e shank used during the jailhouse attack ag ainst L indsay
, a

nd that the state Co u r t o f Appeal’s conclusion to the contrary was unreasonable unde r 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 L ucero’s Jackson claim is wheth er the Court of Appeal’s r easoning

was “an unreasona

b l e a pplication of

. . . clearly e stablished F ederal law,” 28 U .S.C. § 2254(d)(1). I n addressing t hatL U C E R O V

. H O L L

A N D 20
question, we must be careful to disting uish “an unreasonable application of federal law

. . . from a n incorrect a

pplication of federal law” and to g ive the s t a t e c ourt’s decision “the benefit of the doubt,” Renico v

. Lett
, 559 U.S. 7 6 6, 773 (2010) ( internal quotatio n marks omitted). A federal court “may not overturn a stat e court decision rejecting a suf f i c i ency o f the evidence challeng e simply because the federal c o u rt disag rees

. . . . [ but] only if the state court decision was objectively unreasonable.” Coleman
, 566 U.S. at 651 ( internal quotation marks omitted). Cog niz a nt of these admonitions and others like it, we tread very cautiously as to this claim, recog niz ing that the deferential standard under AEDPA “is difficult t o meet because it was meant to be.” Sexton v. B eaudre a u x , 1 38 S. Ct. 2555, 2558 (2018) (per curiam).

W e conduct our d oubly deferential inquiry under t h e established principle that “[ u] nder Jackson
, federal courts must look to state law for the substant i v e elements of the criminal offense, but the minimum a moun t o f evidence that the D ue Process Clause requires to prove the o ffense is purely

a matter of federal law.” Coleman
, 5 66 U.S. at 655 (citation and internal quotation marks omitte d )

. The California law underly ing L ucero’s relevan t c o nviction 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 h is o r her custody

or control any

instrument or weapon of the kind commonly k n o wn a s a

. . . dirk or dag g er or sharp instrument.” Cal. Penal Code § 4502(a). “Possession may be actual or constructive.

. . . A defendant has actual possession when he himself has t h e weapon. Constructive possession

means the o bject is not in the defendan t ’ s phy sical possession, but the defendant knowing ly ex ercises c ontrol o r the rig ht to control the object.” I n re Daniel G.
, 120 Cal.L U C E R O V

. H O L L

A N D 21

App. 4 th 824, 831 ( 2004). “ [ E] x clusive possession or control is not necessary .” People v. R ice , 59 Cal. App. 3 d 9 98, 1003 (1976). W hat is necessary , absent phy sical possession, is “a knowing ex ercise of dominion and c ontrol over an item.” People v. Mejia , 72 Cal. App. 4th 1269, 1272 (1999).

B.

I n the last reasoned state court decision in L ucero’s c ase,

see W ilson v

. Sellers
, 138 S. Ct. 1188, 1192 ( 2018), the California Court of A ppeal c oncluded o n direct appeal that there was sufficie n t e vidence that L ucero constructively possessed a shank. It reasoned as follows:

Other than the huila, there is evidence that a shank was used in the attack. L i ndsay [
, the victim,] heard whispering while he was in the shower, and [ L ucero’s] card g ame i nvitation

was obviously a r

use requiring more than o ne participant. P. L opez [
, one of L ucero’s codefendants,] was g rinning a nd told L indsay
, in essence, to die. The c i rcumstances a nd conte x t of the a ttack are sufficient to support

a finding that all three def e n d a nts h ad constructive p o s session of a weapon, were working tog ether, and i ntended to k ill L indsay

. “[ A] pply ing the standards of Jackson with an additional lay er of [ AEDPA] deference,” J u an H. v. A l l e n , 408 F .3d 1262, 1274 (9th Cir. 2005), and “view[ ing ] the evidence in the lig h t most favorable to the prosecution,” Long v

. Johnson
, 7 3 6 F .3d 891, 896 (9th Cir. 2 013) (internal quotation marks omitted), we conclud e t h ere was n o evidence that anyL U C E R O V

. H O L L

A N D 22

reasonable juror could view as direct l y or circumstantially proving
, bey ond a reasonable doubt, L ucero’s conviction for possession of, custody of, or control of a s h a n k in jail, a nd t hat any conclusion to the contrary was so clearly wit h o u t support in the record as to be unreasonable.

As noted by

the California Court of Appeal, the relevant evidence admitted ag ainst L ucero, viewed most favorably to the p rosecution, consisted of t h e following : L indsay ’s testimony that h e suffered scrapes on his neck and a “puncture wound” on his che s t that “scabbed over

. . . [ and] fell off”; L indsay ’s testimony t hat L ucero’s codefendant, “Armando L opez [
, ] hit me in the chest”; pictures of L indsay after the assault indicating there was a mark on his ches t ; L indsay ’s testimony that L ucero invited him to the card g ame ruse, and then kicked and hit h i m; and the g ang e x pert’s testimony that “[ o] ne of the hostile policies for the Norte[ ñ ] o is [ it is] mandatory for them to h a v e access to w eapons a t all times.” 6

This evidence, viewed most favorably to the prosecution, indicated that L ucero g enerally “ h a [ d] access to weapons at all times,” and that L ucero’s codefendant Armando L opez , who also g e nerally “ha[ d ] access t o we a p o n s at all times,” “hit” L indsay

in the chest and left a “puncture wound.” The evidence also indicated that L uc e r o coordinated the attack ag ainst L indsay with Armando L opez

. F urther, w e d efer to the state Court of A ppeal’s c onclusion that b ecause L indsay testified that he received sc r apes and a “puncture wound,”

6 T h e ex p ert rep eated th at testim on y ag ain o n cro ss- ex am in atio n : “ Q : An d y o u also s tated th at each in d iv id u al in a cell m u st h av e access t o a

w eap o n ? A : P art o f t h eir h o u seh o ld p o licies, y o u ’ re su p p o sed to h av e access to a w eap on

at all tim es.”L U C E R O V

. H O L L

A N D 23

there w as sufficient evidence even without the huila for a jury to conclude that Armando L opez attac k e d L indsay w ith a shank, and so possessed and controlled it.

Yet, there were no facts from which to infer that L ucero, personally
, had “under his control” the shank Armando L opez

u s ed to stab L indsay

. Daniel G.
, 120 Cal. App. 4th a t 8 3 1 (finding sufficient evidence of constructive possession when

a minor h a d a “weapon

. . . passed ba ck t o [ him]
, . . . then passed it in t u r n t o the others, creat[ ing ] a reasonable inference that the weapon was under his control”). No g ang
ex p ert testimony or other evidence indicated that L u cero h ad the rig ht to control or share anoth e r ga ng member’s shank. 7 There was no indication that there were shared shanks in the cell in g eneral, no indication that any shank used in the attack

was shared or s tored in a jointly accessible location, and no indication that L ucero had or used his own shank during the coordinated attack ag ainst L indsay

. 8

7 T h e h u ila A rm an d o L o p ez au th ored af f irm ativ ely in d icated

o th erw i se. It read
, “ I w as th e h itter. A f ter I h i t p sy ch s a f

ew tim es, in th e ch est area, I w en t f

o r th e n eck

. I th en n o ticed m y p i ece b ro k e, an d I f lu sh ed it.” O f co u rse, th is h u ila w as n o t ad m itted ag ain st L u cero u n der Calif o rn ia ev id en ce law

. S o w e m en tio n it o n ly to n o te th at, as L u cero f eared
, if th e j u ry im

pro p erly co n sid ered th e h u ila a s ev id en ce ag ain st h im —so m eth i n g w e w o u l d n o t assu m e in lig h t of th e f

act th at th ey w ere p ro p erly i n stru cted to n o t d o so —th e h u ila p ro v id ed ev id en c e th at A rm an d o L o p ez h ad so le co n tro l o f th e sh an k

. L o p ez called h im self “ th e h itter” an d ref

erred to th e sh an k as “ m y p i ece” o v er w

h ich h e m ad e

u n ilateral d ecisio n s, in clu d i n g th e d ecisio n to “ f lu sh []” th e sh an k to av oid its d etectio n

.

8 W e m en tio n o n ly th e m o st o b v i o u s so rts o f ev id en ce th at o n e m ig h t lo o k f o r in cases o f th is k in d
, as su g g ested b y Calif o rn i a case law

. W e d o
n o t m ean to su g g e s t t ha t an y p articu lar f o rm o f ev id en ce is req u ired to

su p p o rt th e Co u rt o f A

p peal’ s reaso n in g o r t he j u ry ’ s v erd ict. Ou r j o bL U C E R O V

. H O L L

A N D 24

So the only admitted evidence possibly perti n e n t to L ucero’s own possession, custody over, or co n t r o l o f the shank was the g an g ex pert’s testimony that, as a g ang member, L

ucero was “su p p osed to have access to a weapon at a ll times.” B ut sole reliance on that testimony to establish t h a t L ucero had the rig ht to control the shank used i n t h e attack, or any shank, would be unre a s o n a ble, for two compelling reasons.

F irst, under California law, “[ a] ccess to an item, but with unspecified restrictions, is not the same as having the rig ht 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. 5 th 295, 304 n .6 ( 2018). “Fo r e x ample, an employ e e may have access to a nother coworker’s d esk, but it does not log ically follow that the employ ee g ains the rig ht to

ex e r cise control over the items o n the d esk, such as key s or a wallet.” Id.

California courts have found sufficient evidence o f 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 o f contraband. See People v. Miranda
, 1 92 Cal. App. 4th 398, 410–411 (2011); People v. Showers
, 6 8 C a l. 2d 639, 644 (1968 )

. B ut the critical factors in those cases were missing here: There was no evidence in this case a s to where the

u n d er A EDP A is to av o id a “t y p e o f f in e- g rain ed f

actu al p arsin g ” th at d o es n ot acco rd d e fe ren ce t o eith er j u ro rs or state co u rts, an d in stead to

su rv ey a n y p o ss i b le f

act in t h e reco rd th at co u ld su

p p o rt, d irectly or circu m s tan tially
, th e j u ry ’ s co n v ictio n

. Co lema n , 5 6 6 U.S. at 6 5 5

. T h ere

m ay b e m an

y o t h er f o rm s o f circu m stan t ial ev id en ce f ro m w h ich a j u ry
co u ld in f er n o n

- ex clu siv e co n tro l o v er a w eap o n , b u t th ere w as n o su ch

ev id en ce h ere.L U C E R O V

. H O L L

A N D 25

shank w as stored, much less whether L ucero had access to it there (or any place else). And the g ang ex pert stated only that g ang members w ere s upposed to have some access to a weapon, n ot that the require d a ccess had to be unrestricted

a n d so tantamount to control. I n short, the g a ng ex p e r t ’s testimony provided n o evi d ence that L ucero personally h ad
any control at any point of a shank. Concluding ot h e rw i se would not be reasonable.

Second, the g ang e x pert’s testimony was that g ang
me m b e rs w e re supposed to have access to a weapon at all times, b ut not to the sort of weapon L ucero was charg ed with having control over—a “dirk or dag g er or sharp instrument.” Cal. Penal C ode § 4502(a). No reasonable jurist could conclude that evidence c o n cerning access to some weapon
was sufficient to establish that L ucero was g uilty of the crime with which he was charg ed. S ee In re W inship
, 397 U.S. 358, 364 (1970) (“[ T] he Due Process Clause protects the accused ag ainst conviction ex cept upon proof be y o n d a reasonable doubt of every fact necessary to const i tute the crime with which he is charged

. ” (emphasis added)).

I n sum, t h ere was certainly sufficient evidence, as the Court of Appeal held, to infer that L ucero participated in a nd helped coordinate the attempted murder of L indsay
, who, after being severely h it and kicked by three men, was f ound bleedin g a nd n onresponsive on the f loor of the jail. And it

wa s r easonable to reg a rd the evidence as sufficient to conclude that a sharp instrument was used in the attack. B ut,

as California courts have made clear, constructive possession, custody
, or control is distinct from aiding and abetting a codef e n d a n t ’s control a

nd possession. T hat L ucero helped set

u p t he attack a g ainst L indsay d oes not support a n inference that passes “the threshold of bare rationality ,” Cole m a n ,L U C E R O V

. H O L L

A N D 26

566 U.S. a t 656, that h e personally possessed, o r had phy sical custody of or non-phy sical control over, the shank someo n e else used in that attack.

I n most AEDPA cases concerning Jackson claims, we a re “faced w ith a record o f historical facts

. . . support[ ing ] conflicting inferences,” resolution of which we must avoid at all co s t s “even if [resolution of the conflict] does not affirmatively a

ppear in the record.” Ca va z os , 565 U.S. at 7 (internal quotation marks o mitted). I n L ucero’s case, there

are n o f acts, d irect or circumstantial, to support L ucero’s o wn possession of, custody of, or control over the shank.

“ Jackson leaves juries broad d iscretion in deciding what inferences to draw from the e v idence presented a t trial, requiring o nly that jurors ‘draw reasonable inferen c e s from basic facts to ultimate facts.’” Coleman
, 566 U.S. at 655. B ut, h ere, it would be unreasonable to conclude that a reasonable juror could f

ind adequate evidence o f the essential element—possession or custody or control o v er a “dirk o r dag g er or sharp instrument,” Cal. Penal Code § 4502(a)—to meet the bey ond-a-reasonable-doub t standard. To infer that L ucero h i m s e lf did have any o f those connections to the shank would be sheer speculation.

W e reverse the d istrict c o urt’s holding as to L ucero’s conviction for possession of a s h ank in custody and remand with directions to g rant L ucero’s habeas petition as to that conviction.

IV.

W e affirm the district co u r t’s denial of L ucero’s h abeas p etition as to his Bruton claim. W e reverse the dist r i ctL U C E R O V

. H O L L

A N D 27

court’s denial of L u c e ro’s habeas petition as to his Jackson claim on the Cal. Penal Code § 4502( a ) c o n v iction, a nd remand so that the court may g rant L ucero’s habeas petition as to that conviction.

AF F IRMED IN P ART, R EVERSED IN P ART, a nd REMANDED.