FILED

NOT FOR PUBLICATION

APR 20 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATHANIEL MARCUS GANN, No. 17-55316

Petitioner-Appellant, D.C. No. 3:12-cv-01418-JAH-BLM v.

RALPH DIAZ, Secretary of the California MEMORANDUM* Department of Corrections and Rehabilitation,

Respondent-Appellee.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Submitted April 16, 2020** Pasadena, California

Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges.

State prisoner Nathaniel Gann petitions for review of the district court’s

denial of his habeas petition, arising out of his California conviction for first-

* 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). degree murder. We have jurisdiction under 28 U.S.C. § 2253(d), and we affirm.

Because the parties are familiar with the factual and procedural history of the case,

we need not recount it here.

1. The Sixth Amendment’s Confrontation Clause bars the admission of

statements that are both testimonial and offered for their truth if the declarant is

unavailable. Crawford v. Washington, 541 U.S. 36, 59 (2004). The California

Court of Appeal concluded that the state trial court’s admission of the transcript of

a 911 call from a co-defendant who was not available to testify at trial did not

violate the Confrontation Clause because it was not testimonial in nature. People

v. Gann, 123 Cal. Rptr. 3d. 208, 219 (Cal.Ct.App. 2011). The district court

properly concluded that the decision was not contrary to, or an unreasonable

application of, clearly established federal law. 28 U.S.C. § 2254(d).

The transcript of the co-defendant’s 911 call was properly admitted into

evidence because the objective circumstances indicate that it was made in the

course of an ongoing emergency with the purpose of protecting the public and

procuring aid; the co-defendant’s statements in the call were therefore non-

testimonial. See Davis v. Washington, 547 U.S. 813, 827 (2006) (“A 911 call . . . is

ordinarily not designed primarily to ‘establish or prove’ some past fact, but to

describe current circumstances requiring police assistance.”)

2 2. The district court also properly concluded that the California Court of

Appeal decision as to other alleged violations of the Confrontation Clause was not

an unreasonable application of clearly established federal law because, even

assuming such a violation, any error was harmless given the overwhelming

evidence of guilt. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Gann was

identified by an eyewitness fleeing the crime scene. Neighbors reported seeing a

truck like Gann’s parked near the crime scene. Police found Gann’s shirt and ski

mask discarded near the crime scene. Gann’s DNA was found on the discarded ski

mask.

After his arrest, he confessed what he had done to a fellow jail inmate.

Thus, even assuming co-defendant’s statements to the police were improperly

admitted–an issue we do not reach–any errors were harmless.

3. We need not, and do not, reach any other issue urged by the parties.

We decline to expand the Certificate of Appealability.

AFFIRMED.

3