Oscar Morales v. ANTHONY HEDGPETH, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR MORALES,
Petitioner-Appellant,
v.
ANTHONY HEDGPETH, Warden,
Respondent-Appellee.
No. 16-16537
D.C. No.
2:12-cv-00544-TLN-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted October 11, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and O’MALLEY,*** Circuit
Judges.
1. The California Court of Appeal’s decision regarding the trial court’s
exclusion of hearsay statements made by a 911 caller was not contrary to or an
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kathleen M. O'Malley, United States Circuit Judge for
the U.S. Court of Appeals for the Federal Circuit, sitting by designation.
FILED
NOV 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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unreasonable application of Davis v. Washington, 547 U.S. 813 (2006). Davis held:
“Statements are nontestimonial [for the purposes of the Confrontation Clause]
when made in the course of police interrogation under circumstances objectively
indicating that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency.” Id. at 822. Here, the defense sought to
introduce the 911 call, and thus there was no Confrontation Clause issue. Davis is
inapposite.
2. The state court did not unreasonably determine the facts. For the reasons
stated above, the state court did not need to make findings regarding an “ongoing
emergency” because the testimonial/nontestimonial distinction is only relevant to a
Confrontation Clause analysis. Moreover, the state court did not need to determine
the identity of the 911 caller to conclude that the caller’s statements were
inadmissible hearsay.
AFFIRMED.

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