NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD LARA, No. 13-56908
Petitioner - Appellant, D.C. No. 2:11-cv-04067-RGK-
DTB
v.
KATHLEEN ALLISON, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted September 3, 2015**
Pasadena, California
Before: O’SCANNLAIN, FISHER, and BYBEE, Circuit Judges.
Richard Lara appeals the district court’s denial of his habeas corpus petition
filed under 28 U.S.C. § 2254. Lara was convicted of first degree murder,
attempted murder, and conspiracy to commit murder stemming from an altercation
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
in the parking lot of a market in 2004. At trial, the court admitted statements made
by Jessie Heredia, Lara’s co-defendant and an employee at the market, to Carlos
Chavez, Heredia’s coworker. Lara’s petition contends that these statements were
testimonial and that their admission violated the Confrontation Clause of the Sixth
Amendment. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Lara argues that the California Court of Appeal’s determination that
Heredia’s hearsay statements were nontestimonial was contrary to the United
States Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36 (2004),
and Davis v. Washington, 547 U.S. 813 (2006). We disagree.
The Supreme Court has never found a statement made outside of a law
enforcement context to be testimonial. See Davis, 541 U.S. at 823 n.2 (finding it
“unnecessary to consider whether and when statements made to someone other
than law enforcement personnel are ‘testimonial’”); Michigan v. Bryant, 562 U.S.
344, 357 n.3 (2011) (same). Thus, the California Court of Appeal’s decision was
not contrary to “clearly established Federal law.” 28 U.S.C. § 2254(d)(1); see also
Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014).
Furthermore, the Confrontation Clause is concerned with “testimonial”
hearsay like “formal statement[s] to government officers,” not “casual remark[s] to
an acquaintance.” Crawford, 541 U.S. at 51. Heredia’s statements to Chavez fall
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into the latter category. Heredia made the statements at issue during an
unprompted, informal conversation between coworkers at their place of
employment. Therefore, the California Court of Appeal’s conclusion that
Heredia’s statements to Chavez were nontestimonial was not “contrary to” or “an
unreasonable application” of Crawford. 28 U.S.C. § 2254(d)(1); see also
Delgadillo v. Woodford, 527 F.3d 919, 927 (9th Cir. 2008).
Additionally, we grant Lara’s motion to expand the certificate of
appealability as to his claim that the trial court’s dismissal of Juror Number Nine
violated his Sixth Amendment rights. The California Court of Appeal’s
determination that Juror Number Nine was unable to perform his duties as a juror
was not contrary to clearly established federal law. See United States v.
Christensen, __F.3d __ , 2015 WL 5010591, at *31–39 (9th Cir. Aug. 25, 2015).
We deny Lara’s motion to expand the certificate of appealability to include
any additional uncertified issues. See Doe v. Woodford, 508 F.3d 563, 567 (9th
Cir. 2007).
Accordingly, we conclude that the district court properly denied Lara’s
habeas petition.
AFFIRMED.
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