                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              AUG 07 2013

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

LIONEL RUBALCAVA,                                 No. 10-15791

              Petitioner - Appellant,             D.C. No. 4:07-cv-05379-SBA

  v.
                                                  MEMORANDUM*
TOM FELKER, Warden, Warden, High
Desert State Prison, Susanville, California,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                        Argued and Submitted June 10, 2013
                             San Francisco, California

Before: O’SCANNLAIN and HURWITZ, Circuit Judges, and PIERSOL, Senior
District Judge.**

       Petitioner Lionel Rubalcava appeals the district court’s denial of his petition

for habeas corpus, brought pursuant to 28 U.S.C. § 2254. He argues that the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
California Court of Appeals unreasonably applied Crawford v. Washington, 541

U.S. 36 (2004), by rejecting his challenge to testimony at his trial from the state’s

expert witness.

      The state court did not unreasonably apply Crawford. There, the court

squarely stated that “[t]he [Confrontation] Clause [] does not bar the use of

testimonial statements for purposes other than establishing the truth of the matter

asserted.” Crawford, 541 U.S. at 59 n.9. Here, the statements recounted by the

state’s expert were not for the purpose of establishing the truth of the matters

asserted but rather were only admitted to explain the basis of the expert’s

opinions—a fact which was explained to the jury at the time and in the jury

instructions. See, e.g., Fed. R. Evid. 703 (permitting experts to disclose otherwise

inadmissible facts to explain the basis of their opinion if the probative value

outweighs the prejudicial effect). Given his admission that he was a gang member,

Rubalcava was not prejudiced to the extent that the witness may have repeated the

opinions of others as to his membership. In the highly deferential posture

demanded by AEDPA, this was not an unreasonable application of Crawford.

      AFFIRMED.
