United States v. 2020-11-30 | 18-56680 | DAVID LARA V. CHARLES CALLAHAN | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID GONZALES LARA,
Petitioner-Appellant,
v.
CHARLES CALLAHAN,
Respondent-Appellee.
No. 18-56680
D.C. No.
5:17-cv-01286-AG-RAO
MEMORANDUM
*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted November 16, 2020
**
Pasadena, California
Before: RAWLINSON and HUNSAKER, Circuit Judges, and ENGLAND,
***
District Judge.

FILED
NOV 30 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

* 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 Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.

David Gonzales Lara (Lara) appeals the denial of his habeas petition, in
which he argued that the California appellate court
1
erred in holding that the
admission at trial of two jailhouse calls made by his brother James Lara (James), a
non-testifying co-defendant, did not violate the Confrontation Clause. We affirm.
Our review of a district court’s order denying an application for habeas relief
is de novo. See Castellanos v. Small, 766 F.3d 1137, 1145 (9th Cir. 2014). The
deference required by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), however, limits this Court’s review. See id. Under the AEDPA, habeas
relief is warranted only if the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d).
The Sixth Amendment Confrontation Clause covers only “testimonial
1
When, as here, a state supreme court summarily denies discretionary
review, we “‘look through’ that unexplained decision to the last state court to have
provided a ‘reasoned’ decision.” Castellanos v. Small, 766 F.3d 1137, 1145 (9th
Cir. 2014). In this case, the parties agree that the California appellate court
provided the last reasoned decision.
2

codefendant statements.” Lucero v. Holland, 902 F.3d 979, 988 (9th Cir. 2018).
In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court
did not define “testimonial,” but outlined a “core class of testimonial statements.”
Lucero, 902 F.3d at 988–89. Pertinent here are those “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 989 (citation
omitted).
The Supreme Court further elucidated the borders of testimonial evidence
through application of the “primary purpose” test. Id. (citing Ohio v. Clark, 576
U.S. 237, 244 (2015)). Specifically, “a statement cannot fall within the
Confrontation Clause unless its primary purpose was testimonial.” Ohio, 576 U.S.
at 245. The central question under that test “is whether, in light of all the
circumstances, viewed objectively, the ‘primary purpose’ of the conversation was
to ‘create an out-of-court substitute for trial testimony.’” Id. (citation and
alteration omitted).
The California appellate court’s conclusion that James’s statements were not
testimonial was not “objectively unreasonable.” Cook v. Kernan, 948 F.3d 952,
965 (9th Cir. 2020) (citation omitted). Crawford drew a distinction between “[a]n
accuser who makes a formal statement to government officers” and “a person who
3

makes a casual remark to an acquaintance.” Delgadillo v. Woodford, 527 F.3d
919, 927 (9th Cir. 2008) (quoting Crawford, 541 U.S. at 51). The former bears
testimony; the latter does not. See id.
James’ statements were made during telephone conversations with his
mother and with an acquaintance, unprompted by police. The conversations were
casual and for purposes other than providing testimony. More specifically, the call
between James and his mother was primarily to discuss Lara’s mental health and
address the mother’s accusations that James was leading Lara down the wrong
path. James openly implicated himself as a participant in the event at issue, making
it unlikely that he anticipated the statements would be introduced at trial.
Similarly, the conversation with the friend was primarily about summarizing the
charges against both brothers, and James again incriminated himself in the process.
Finally, any error by the California appellate court was harmless. See United
States v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005) (citation omitted)
(“Confrontation Clause violations are also subject to harmless error analysis.”). As
the California appellate court explained, the victim identified Lara at trial and
testified that James was Lara’s aider and abettor, which James admitted in both
calls. See People v. Lara, No. G048951, 2016 WL 7439031, at *4 (Cal. Ct. App.
4

Dec. 27, 2016). This overwhelming evidence of guilt negated any prejudice to
Lara from admission of the challenged evidence. See Allen, 425 F.3d at 1235.
AFFIRMED.
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