Lionel RUBALCAVA, Petitioner-Appellant, v. Tom FELKER, Warden, Warden, High Desert State Prison, Susanville, California, Respondent-Appellee, 537 F. App'x 683

MEMORANDUM Petitioner Lionel Rubalcava appeals the district court’s denial of his petition for habeas corpus, brought pursuant to 28 U.S.C. § 2254. He argues that the California Court of Appeals unreasonably applied Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), by rejecting his challenge to testimony at his trial from the state’s expert witness. The state court did not unreasonably apply Crawford.

There, the court squarely stated that “[t]he [Confrontation] Clause [ ] does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n. 9, 124 S.Ct. 1354. Here, the statements recounted by the state’s expert were not for the purpose of establishing the truth of the matters asserted but rather were only admitted to explain the basis of the expert’s opinions— a fact which was explained to the jury at the time and in the jury instructions.

See, e.g., Fed.R.Evid. 703 (permitting experts to disclose otherwise inadmissible facts to explain the basis of their opinion if the probative value outweighs the prejudicial effect). Given his admission that he was a gang member, Rubalcava was not prejudiced to the extent that the witness may have repeated the opinions of others as to his membership. In the highly deferential posture demanded by AEDPA, this was not an unreasonable application of Crawford. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.