An inmate’s handwritten note intended for fellow inmates was not testimonial and its introduction at trial was not a violation of defendant’s right to confront witnesses against him. In 2007, Lucero and two codefendants were tried and convicted of attempted murder, possession of a shank in jail, and participation in a criminal street gang for an assault on an inmate at the Stanislaus County Jail. At their joint trial, the prosecution introduced evidence of a huila, a tiny piece of paper containing a handwritten memo, authored by Lucero’s codefendant. The huila detailed the assault on the victim and named the participants in the attack. It was admitted only against the author. Lucero and his codefendants appealed, challenging the introduction of the huila as a violation of the confrontation clause. The Court of Appeal affirmed, holding the evidence violated Lucero’s confrontation rights but the error was harmless. The California Supreme Court denied review, and Lucero’s federal habeas petition was denied. He appealed. Held: Affirmed in part. Under Bruton v. United States (1968) 391 U.S. 123 and its progeny, a defendant is deprived of his Sixth Amendment right to confrontation when the incriminating confession of a nontestifying codefendant is introduced at their joint trial. Crawford v. Washington (2004) 541 U.S. 36 added a new layer to this analysis: the confrontation clause right attaches only as to “testimonial statements.” (Id. at 68.) To determine whether a statement is testimonial, the court must analyze whether the primary purpose of the statement was to establish or prove past events potentially relevant to later criminal prosecution. Here, the written huila was not testimonial as it was a gang memo designed not to fall into the hands of government officials, and was purposely made small to avoid detection by authorities. Because the huila was not testimonial, its introduction could not violate Bruton, and Lucero’s right to confrontation was not violated.
Gang expert’s testimony that defendant was expected to have access to a weapon at all times was insufficient to sustain a conviction for possessing a shank while in custody during attack on another inmate. Lucero argued that there was insufficient evidence under Jackson v. Virginia (1979) 443 U.S. 307 to support his conviction for possessing a shank while in custody (Pen. Code, § 4502, subd. (a)). Applying the doubly deferential standard applicable to Jackson claims under AEDPA, the court agreed. There was sufficient evidence for a jury to conclude that the codefendant attacked the victim with a shank, and so possessed and controlled it. However, there were no facts from which to infer that Lucero personally had under his control the shank his codefendant used to stab the victim. No gang expert testimony or other evidence indicated that Lucero had the right to control or share another gang member’s shank, there were no 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 used his own shank during the coordinated attack. The only admitted evidence possibly pertinent to Lucero’s own possession was the gang expert’s testimony that, as a gang member, Lucero was “supposed to have access to a weapon at all times.” On this record, “it would be unreasonable to conclude that a reasonable juror could find adequate evidence of the essential elementpossession or control over a ‘dirk or dagger or sharp instrument’ . . . to meet the beyond-a-reasonable-doubt standard.” The court reversed the district court’s holding as to Lucero’s conviction for possession of a shank in custody and remanded with directions to grant Lucero’s habeas petition as to that conviction.
The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/15-16111.pdf
