Oscar MORALES, Petitioner-Appellant, v. Anthony HEDGPETH, Warden, Respondent-Appellee, 700 F. App'x 761

MEMORANDUM 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 unreasonable application of Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Davis held: “Statements are non-testimonial [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, 126 S.Ct. 2266.

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/non-testimonial 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.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.