
    Oscar MORALES, Petitioner-Appellant, v. Anthony HEDGPETH, Warden, Respondent-Appellee.
    No. 16-16537
    United States Court of Appeals, Ninth Circuit.
    Submitted October 11, 2017  San Francisco, California
    Filed November 6, 2017
    Heather E. Williams, Federal Public Defender, FPDCA—Federal Public Defender’s Office (Sacramento), Sacramento, CA, for Petitioner-Appellant
    Galen Neale Farris, Clara Maben Levers, Esquire, Deputy Assistant Attorney General, AGCA-Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee
    Before: THOMAS, Chief Judge, and REINHARDT and O’MALLEY, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
    
    
      
       The Honorable Kathleen M. O'Malley, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation.
    
   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.
     