                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 29 2016

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



                            FOR THE NINTH CIRCUIT


DAMEN RABB,                                      No. 13-55057

              Petitioner - Appellant,            D.C. No. 2:11-cv-05110-JAK-JPR

 v.
                                                 MEMORANDUM*
STU SHERMAN,

              Respondent - Appellee.


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

                            Submitted March 7, 2016**
                               Pasadena, California

Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.

      Damen Rabb appeals from the district court’s order denying his habeas

corpus petition after he was convicted of two counts of carjacking and two counts




        *
             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).
of second degree robbery. We have jurisdiction under 28 U.S.C. § 2253, and we

affirm.

      Rabb claims that the state trial court violated his right to confront two

witnesses by improperly allowing them to assert the privilege against self-

incrimination. The California Court of Appeal denied this claim, determining that

one witness’s invocation of the privilege was adequately supported by concerns

over an unrelated murder case, and that the other’s invocation of the privilege,

although inadequately supported by the record, was nonetheless harmless given the

strength of the evidence against Rabb. In both instances, the California Court of

Appeal reasonably applied clearly established law. 28 U.S.C. § 2254(d). As for

the first witness, it was reasonable for the Court of Appeal to uphold the trial

court’s decision on the grounds that the witness’s testimony could be used against

him in the penalty phase of his murder trial. See Hoffman v. United States, 341

U.S. 479, 486 (1951). As for the second witness, there was ample evidence against

Rabb such that any error in allowing the witness to invoke the privilege did not

have a “substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). This evidence

included a statement by a co-perpetrator implicating Rabb, an officer’s testimony

identifying Rabb as a suspect who fled from him after he pulled over the vehicle


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used to commit the crime, and a statement from Rabb’s girlfriend that Rabb had

borrowed the car used to commit the crime.

      The California Court of Appeal also reasonably concluded that Sergeant

Banuelos’s testimony about statements made by the two witnesses did not violate

Rabb’s Confrontation Clause rights. The right to confront non-testifying witnesses

is triggered when the court admits hearsay statements that are testimonial in nature.

Crawford v. Washington, 541 U.S. 36, 68 (2004). Here, the trial court admitted

statements made by the victims just fifteen minutes after the carjacking, while

some perpetrators were still potentially armed and fleeing in a stolen car. The

California Court of Appeal reasonably determined that the statements were

directed to an ongoing emergency, not to a future prosecution, and thus they were

nontestimonial. See, e.g., Michigan v. Bryant, 562 U.S. 344, 377-78 (2011).

Because the Confrontation Clause only guarantees defendants the right to confront

witnesses when testimonial hearsay is introduced, Rabb’s claim fails.

      We decline to address the two uncertified questions presented in Rabb’s

opening brief as Rabb has not shown that those issues were properly raised below.

Ninth Circuit Rule 22-1(e).

      AFFIRMED.




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