                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 25 2010

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DWIGHT KRIZMAN,                                  No. 08-56016

              Petitioner - Appellant,            D.C. No. 2:06-CV-05064-ODW
                                                 (PLA)
  v.

BOB HOREL, WARDEN,                               MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
              Otis D. Wright, II, United State District Judge, Presiding

                             Submitted June 7, 2010 **
                               Pasadena, California

Before: NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.***




        *
             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).
        ***
             The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
      Dwight Krizman (“Petitioner”) appeals the denial of his petition for a writ of

habeas corpus relating to his California state conviction for the murder of his wife.

The state trial included testimony from a treating doctor and nurse disclosing that

shortly prior to her death, the Petitioner’s wife reported having been the victim of

domestic abuse by her husband.

      The sole issue advanced by the Petitioner is the claim that the testimony of

the doctor and nurse relating to his wife’s inculpatory statements regarding prior

domestic abuse violated the teachings of Crawford v. Washington, 541 U.S. 36

(2004).

      The physical altercation that led to the Petitioner’s wife’s death occurred at

the couple’s residence on November 22, 2002. On December 17, 2002, the

Petitioner’s wife died of complications related to the injuries she sustained on

November 22, 2002.

      The Petitioner was convicted following a jury trial of the offense of second

degree murder and sentenced to a term of 15 years to life for the murder

conviction. The California Court of Appeals affirmed the Petitioner’s conviction

in an unpublished opinion and the Petitioner’s petition for review by the California

Supreme Court was denied. The petition for a writ of habeas corpus filed in United




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States District Court for the Central District of California was denied on June 10,

2008.

        The sole question before this Court is whether the testimony by the treating

doctor and nurse reporting claims of domestic violence by the Petitioner’s spouse

violated the teachings of Crawford v. Washington and the subsequent

pronouncements in Davis v. Washington, 547 U.S. 813 (2006).

        The narrow issue is whether the statements by the treating doctor and nurse

are “non-testimonial” or “testimonial.”

        In affirming the Petitioner’s conviction, the California Court of Appeals

declared:

              Here, Mrs. Krizman’s hearsay declarations were not
              made under circumstances which would lead an
              “objective witness reasonably to believe that the
              statement” would be available for use during a trial
              (Crawford v. Washington, supra, 541 U.S. at p. 52.)
              Rather, they were made in response to the questions of
              medical personnel for purposes of diagnosis and
              treatment. The statements were properly admitted
              pursuant to Evidence Code section 1370 and did not
              violate the Confrontation Clause (emphasis added).

        The issue of the admissibility of hearsay declarations by domestic abuse

victims in a habeas setting was subsequently addressed by this Circuit in Moses v.




                                           3
Payne, 555 F.3d 742 (9 th Cir. 2009) in the context of habeas review governed by

the Antiterrorism and Effective Death Penalty Act of 1996.

      The Payne panel concluded that the murder victim’s statements to her doctor

reporting domestic abuse by her husband “were non-testimonial because they were

made for purposes of diagnosis and treatment, rather than to inculpate Moses ...

[and] not an unreasonable application of the legal principle established by

Crawford.”

      We hold that the relevant ruling in Moses v. Payne is controlling. The

judgment of the district court is AFFIRMED.




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