NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 12 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE MEZA, No. 19-15733

Petitioner-Appellant, D.C. No. 3:18-cv-00599-JD

v.

MEMORANDUM*

STUART SHERMAN, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding

Submitted February 10, 2021** Pasadena, California

Before: M. SMITH, MURGUIA, and OWENS, Circuit Judges.

Jose Meza appeals the district court’s denial of his petition for a writ of habeas

corpus. We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253.

Because the parties are familiar with the facts, we do not recount them here, except

as necessary to provide context to our ruling. We affirm the decision of the district

* 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). court.

The California appellate court’s determination that Crawford v. Washington,

541 U.S. 36 (2004), governs a Confrontation Clause analysis was not contrary to,

nor an unreasonable application of, Supreme Court authority. See 28 U.S.C. §

2254(d). The Confrontation Clause of the Sixth Amendment provides that in a

criminal case, the accused has the right to “be confronted with the witnesses against

him.” U.S. Const. amend. VI. In Bruton v. United States, 391 U.S. 123 (1968), the

Supreme Court “recognized that, in joint trials, when one nontestifying

codefendant’s confession is admitted only against that codefendant, there is

unavoidably a ‘substantial risk that the jury . . . [will] look[] to the incriminating

extrajudicial statements in determining [the other defendant’s] guilt.’” Lucero v.

Holland, 902 F.3d 979, 987 (9th Cir. 2018) (quoting Bruton, 391 U.S. at 126). The

Court, therefore, held that a defendant is deprived of his constitutional “right of

confrontation when the facially incriminating confession of a nontestifying

codefendant is introduced at their joint trial.” Id. (quoting Richardson v. Marsh, 481

U.S. 200, 207 (1987)).

The Supreme Court revisited the protections of the Confrontation Clause in

Crawford. See 541 U.S. at 50–51. In “establish[ing] a new general framework for

enforcing this confrontation right,” the Court in Crawford held that the

constitutionality of a statement entered at trial “hinge[s] on the ‘testimonial’

2 character of [that] statement.” Lucero, 902 F.3d at 896–97 (quoting Crawford, 541

U.S. at 50, 68). Thus, post-Crawford, “a statement of a nontestifying witness that is

testimonial and offered for its truth” cannot be admitted at trial, “absent

unavailability and a prior chance for cross-examination.” United States v. Brooks,

772 F.3d 1161, 1167 (9th Cir. 2014).

Here, the California appellate court rejected Meza’s argument that “the

Aranda-Bruton rule applies when the codefendant’s confession amounts to a non-

testimonial statement under Crawford,” holding that pursuant to Crawford, “the

Sixth Amendment applies only to testimonial statements.” Accordingly, the district

court properly held that the state appellate court did not err.

Furthermore, the California Court of Appeal’s conclusion that Meza’s co-

defendants’ out-of-court statements were nontestimonial is not contrary to, nor an

unreasonable application of, Supreme Court authority, and is not an unreasonable

determination of the facts. See 28 U.S.C. § 2254(d). We apply the “primary

purpose” test to determine whether a statement qualifies as testimonial. Davis v.

Washington, 547 U.S. 813, 822 (2006). “Under that test, statements are testimonial

when they result from questioning, ‘the primary purpose of [which was] to establish

or prove past events potentially relevant to later criminal prosecution.’” Lucero, 902

F.3d at 989 (quoting Davis, 547 U.S. at 822). In determining the “primary purpose”

of a statement, the court “objectively evaluate[s] the circumstances in which the

3 encounter occurs and the statements and actions of the parties.” Michigan v. Bryant,

562 U.S. 344, 359 (2011) (internal quotation marks omitted). Although “[f]ormality

is not the sole touchstone of [the] primary purpose inquiry,” it is a factor in the

analysis. Id. at 366, 377; see also Ohio v. Clark, 576 U.S. 237, 247 (2015) (noting

that the nontestimonial statements at issue were “informal and spontaneous” and

occurred in an “informal setting”).

The record reflects that Meza’s co-defendants’ out-of-court statements were

nontestimonial. The statements were spoken to fellow gang members, effectively

bragging about the shooting. The informality of the statements is further evinced by

the speakers’ use of nicknames and slang words, the discussion of things other than

the shooting, including buying guns and obtaining money from the gang, and the

location of the conversation: a co-defendant’s own home. See Clark, 576 U.S. at

247. Accordingly, the primary purpose of the pertinent conversations was not “to

establish or prove past events potentially relevant to later criminal prosecution.”

Davis, 547 U.S. at 822.

AFFIRMED.

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