                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MARCUS D. WINZER,                              No. 06-55327
             Petitioner-Appellant,                D.C. No.
               v.                            CV 04-07301-DSF-
JAMES E. HALL, Warden,                               RZ
            Respondent-Appellee.
                                                OPINION

         Appeal from the United States District Court
            for the Central District of California
               Dale S. Fischer, District Judge

                    Argued February 8, 2007
                    Submitted July 13, 2007
                      Pasadena, California

                       Filed July 23, 2007

Before: Alex Kozinski and Stephen S. Trott, Circuit Judges,
         and Donald W. Molloy,* District Judge.

                    Opinion by Judge Molloy




  *The Honorable Donald W. Molloy, Chief Judge, United States District
Court for the District of Montana, sitting by designation.

                                8879
8882                   WINZER v. HALL


                         COUNSEL

Carol K. Lysaght, Santa Monica, California, for the
petitioner-appellant.

Bill Lockyer, Attorney General of the State of California;
Mary Jo Graves, Chief Assistant Attorney General; Pamela C.
Hamanaka, Senior Assistant Attorney General, Kenneth C.
Byrne, Supervising Deputy Attorney General; Yun K. Lee,
Deputy Attorney General, Los Angeles, California, for the
respondent-appellee.


                         OPINION

MOLLOY, District Judge:

   Appellant/Petitioner Marcus Winzer appeals from the dis-
trict court’s denial of his petition for writ of habeas corpus
                        WINZER v. HALL                     8883
pursuant to 28 U.S.C. § 2254. He was convicted by a Los
Angeles County jury on two counts of making a terrorist
threat by saying “I’ll smoke you and your daughter” while
appearing to indicate that he had a gun in the waistband of his
pants. The statement and gesture were proved at trial through
the testimony of a police officer, who interviewed the two
victims at their home more than five and a half hours after
Winzer left it. Based on the officer’s testimony about the vic-
tims’ demeanor, and despite the trial court’s exclusion of their
911 call as “one of the calmest” it had ever heard, the Califor-
nia courts concluded that the victims’ statements to the officer
were spontaneous and therefore exceptions to hearsay. The
mother did not appear at trial. The daughter did not recall
Winzer making the threat and did not see the gesture. Winzer
contends that his Sixth Amendment right to confrontation was
violated.

  Crawford v. Washington, 541 U.S. 36 (2004), does not
apply because it was decided after Winzer’s trial and appeal.
See Whorton v. Bockting, ___ U.S. ___, 127 S. Ct. 1173
(2007). Even so, federal law that was clearly established
before Crawford mandates reversal.

I.   FACTUAL BACKGROUND

   Around 10:45 a.m. on December 2, 2001, Winzer and his
“on-again, off-again” girlfriend, declarant Parrish Harvey,
were strenuously arguing in her home. At the same time, Par-
rish’s daughter, nineteen-year-old Mercedes Hernandez, was
arguing on the phone with her boyfriend. At Parrish’s insis-
tence, Winzer left the house at about 11:00 a.m., ten or fifteen
minutes after the argument started.

  Later in the afternoon, having had several hours to think
about the argument, Parrish called 911. At about 4:40 p.m.,
Los Angeles police officer Michael Dickson arrived at her
house in response to her call. Based on Dickson’s interview
8884                        WINZER v. HALL
with Parrish and Mercedes, Winzer was charged with two
counts of making a terrorist threat. See Cal. Penal Code § 422.

   At trial, the State offered the tape of Parrish’s 911 call
under California’s “spontaneous statement” exception to hear-
say. The trial court found that “it’s got to be one of the calm-
est 911 tapes I think I have heard” and “I can’t say from what
I hear on the tape . . . that she is under the distress of the
excitement of the event. And the bulk of it actually, the bulk
of the tape is not talking about the event.” Consequently, the
911 tape was excluded. But the prosecution found another
way to skin the cat.

   When the State offered Dickson’s testimonial report of Par-
rish’s statement, the trial court found that “the court does have
to give some deference to the experienced officer who was
questioning the individuals.” It admitted Dickson’s report of
the victims’ statements to him as spontaneous statements
because Parrish and Mercedes appeared to Dickson to be “vis-
ibly upset, emotionally upset, almost to the point of shaking,
[and] fearful,” at the time he talked to them.

   Parrish was in custody the day before testimony began but
the State did not call her to testify.1 The other witness, Mer-
cedes, said she had memory problems due to a seizure disor-
der. She remembered several details of the incident, but she
testified that she did not recall overhearing Winzer say, “I’ll
smoke you and your daughter.” Parrish’s mother, Pauline, tes-
tified that she heard Mercedes tell the prosecutor the day
before trial that she remembered Winzer saying he would
“have her blown away.” Pauline also took the opportunity to
make several unsolicited remarks to and about Winzer in front
of the jury over the trial court’s objections.
  1
    There is a reference in the record suggesting that Parrish believed the
district attorney threatened her or was rude to her as well as a reference
to psychological medication. The record before us does not clarify the sit-
uation.
                       WINZER v. HALL                   8885
   Officer Dickson then testified that Parrish told him that
Winzer said, “I’ll smoke you and your daughter,” and that
Mercedes told him she overheard Winzer’s remark. Dickson
also testified that Parrish said Winzer “made a motion with
his hand toward his waistband” and that she saw something
shiny in his waistband that she thought was a gun, though she
did not see it clearly. There is no evidence that Mercedes or
anyone else either saw the gesture or told Dickson about it.
The evidence is the fulcrum of the state’s case and Winzer’s
conviction.

   Five days after making the threat, Winzer again turned up
at Parrish’s house and argued with her. Parrish showed offi-
cers two broken doors and two phone lines that had been
pulled out of the wall, but there was no evidence to show who
caused the damage. The State also introduced evidence show-
ing that Parrish had a protective order against Winzer.

   Winzer was convicted and sentenced to serve nine years in
prison.

II.    ANALYSIS

  We review a district court’s denial of a habeas petition de
novo. See Paradis v. Arave, 20 F.3d 950, 953 (9th Cir. 1994).
Alleged Confrontation Clause violations are also reviewed de
novo. Id. at 956.

  A.    AEDPA Standards

   The Anti-terrorism and Effective Death Penalty Act
(“AEDPA”) governs because Winzer filed his petition in the
district court on September 1, 2004. Lindh v. Murphy, 521
U.S. 320, 326 (1997); Barajas v. Wise, 481 F.3d 734, 738 (9th
Cir. 2007).

   On the merits, and under AEDPA, Winzer may obtain
relief only in one of two circumstances. First, he may obtain
8886                    WINZER v. HALL
relief if the state courts’ denial of his claim “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). “Clearly established Federal law” refers to the
holdings, as opposed to the dicta, of the Supreme Court’s
decisions. See Carey v. Musladin, ___ U.S. ___, ___, 127
S. Ct. 649, 653 (2006). A state-court decision is “contrary to”
clearly established Supreme Court precedent if the decision
“contradicts the governing law set forth in [the Supreme
Court’s] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state-court decision will be an “unreasonable application”
of federal law “if the state court identifies the correct govern-
ing legal rule from this Court’s cases but unreasonably applies
it to the facts of the particular state prisoner’s case.” Id. at
407.

   Second, Winzer may obtain relief if the state courts’ deci-
sion was “based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed-
ing.” 28 U.S.C. § 2254(d)(2). Federal courts must presume the
correctness of the state court’s factual findings, but Winzer
may rebut the presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).

   Finally, a federal court sitting in habeas jurisdiction must
be convinced that the state court’s decision is “more than
incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75
(2003). The state court’s decision must be “objectively unrea-
sonable.” Id.

  B.   Clearly Established Supreme Court Law on
       Hearsay Exceptions and the Confrontation Clause

   In 1965, the Sixth Amendment’s Confrontation Clause was
recognized as a component of the Fourteenth Amendment’s
Due Process Clause and applied to the States. At that time, the
Supreme Court noted:
                       WINZER v. HALL                         8887
    There are few subjects, perhaps, upon which this
    Court and other courts have been more nearly unani-
    mous than in their expressions of belief that the right
    of confrontation and cross-examination is an essen-
    tial and fundamental requirement for the kind of fair
    trial which is this country’s constitutional goal.

Pointer v. Texas, 380 U.S. 400, 405 (1965). “The Confronta-
tion Clause advances [this goal] by ensuring that convictions
will not be based on the charges of unseen and unknown —
and hence unchallengeable — individuals.” Lee v. Illinois,
476 U.S. 530, 540 (1986).

   [1] The Confrontation Clause provides that “[i]n all crimi-
nal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. am.
VI. Read literally, the Clause would amount to a blanket pro-
hibition on all hearsay testimony. It has never been construed
so broadly. But when the prosecution seeks to offer a hearsay
statement, courts must decide whether the statement is so reli-
able that the prosecution may safely “deny the accused his
usual right to force the declarant to submit to cross-
examination, the greatest legal engine ever invented for the
discovery of truth.” Lilly v. Virginia, 527 U.S. 116, 124
(1999) (internal citation omitted) (quoting California v.
Green, 399 U.S. 149, 158 (1970)). Courts must bear in mind
several possibilities:

    The declarant might be lying; he might have misper-
    ceived the events which he relates; he might have
    faulty memory; his words might be misunderstood or
    taken out of context by the listener. And the ways in
    which these dangers are minimized for in-court
    statements — the oath, the witness’ awareness of the
    gravity of the proceedings, the jury’s ability to
    observe the witness’ demeanor, and, most impor-
    tantly, the right of the opponent to cross-examine —
    are generally absent for things said out of court.
8888                      WINZER v. HALL
Williamson v. United States, 512 U.S. 594, 598 (1994). To
this list might be added the danger of law enforcement impri-
matur when testimony from a shaky witness is elicited from
a police officer.

    [2] In Ohio v. Roberts, 448 U.S. 56 (1980), the Court iden-
tified two situations in which a hearsay statement’s “veracity
. . . is sufficiently dependable to allow the untested admission
of such [a] statement[ ] against an accused,” Lilly, 527 U.S.
at 124. Under Roberts, admission of a hearsay statement does
not violate the Confrontation Clause if “the evidence falls
within a firmly rooted hearsay exception,” Roberts, 448 U.S.
at 66, or if there are other “particularized guarantees of trust-
worthiness such that adversarial testing would be expected to
add little, if anything, to the statements’ reliability,” Lilly, 527
U.S. at 125 (internal quotation marks omitted) (quoting Rob-
erts, 448 U.S. at 66). The “firmly rooted” hearsay exception
is “designed to allow the introduction of statements falling
within a category of hearsay whose conditions have proved
over time to remove all temptation to falsehood, and to
enforce as strict an adherence to the truth as would the obliga-
tion of an oath and cross-examination at trial.” Lilly, 527 U.S.
at 126 (internal quotation marks omitted).

   [3] The Supreme Court has held that hearsay statements
characterized as “excited utterances” or “spontaneous declara-
tions” are “firmly rooted” exceptions to hearsay. See Idaho v.
Wright, 497 U.S. 805, 820 (1990); White v. Illinois, 502 U.S.
346, 355-56 (1992). The reasoning for the exception is that
such statements are “given under circumstances that eliminate
the possibility of fabrication, coaching, or confabulation,” so
that “the circumstances surrounding the making of the state-
ment provide sufficient assurance that the statement is trust-
worthy and that cross-examination would be superfluous.”
Wright, 497 U.S. at 820.2 Again, in White, the Court described
  2
    The Wright Court cited two treatises and an advisory committee note
to the Federal Rules of Evidence — not Idaho state law — as support for
                             WINZER v. HALL                             8889
a spontaneous statement as one “that has been offered in a
moment of excitement — without the opportunity to reflect
on the consequences of one’s exclamation.” 502 U.S. at 356.
In other words, a statement made after the declarant has had
an opportunity to reflect or discuss the matter with others does
not carry “the weight accorded longstanding judicial and leg-
islative experience in assessing the trustworthiness of certain
types of out-of-court statements.” Wright, 497 U.S. at 817.

  C.    Effect of the California Courts’ Finding Parrish’s
        Statement Spontaneous

  In Winzer’s case, the California courts found that Parrish’s
report of his threat was admissible as a “spontaneous state-
ment,” see Cal. Evid. Code § 1240, and so did not violate
Winzer’s rights under the Confrontation Clause.

   [4] Of course, Winzer could not obtain federal habeas relief
on the grounds that the California courts wrongly found that
his statement fit within California’s spontaneous statement
exception to hearsay. State court rulings on the admissibility

this characterization. See id. (citing 6 Wigmore, Evidence §§ 1745-1764
(J. Chadbourn rev. 1974) at 251; 4 J. Weinstein & M. Berger, Weinstein’s
Evidence ¶ 803(2)[01] (1988); Fed. R. Evid. 803(2) advisory committee’s
note).
   In light of the Supreme Court’s recent decision in Carey v. Musladin,
___ U.S. ___, 127 S. Ct. 649 (2006), the quoted language in Wright might
conceivably be dicta. However, in White, the Court’s characterization of
the exception was central to the holding of the case. Because “the eviden-
tiary rationale for permitting hearsay testimony regarding spontaneous
declarations . . . is that such out-of-court declarations are made in contexts
that provide substantial guarantees of their trustworthiness,” the Court
held that nothing was to be gained by conditioning the admissibility of
such statements on the unavailability of the declarant. White, 502 U.S. at
355-56. Without a firm understanding of the nature of that context, the
Court would not have been able to conclude that the declarant’s availabil-
ity was immaterial. Thus, for purposes of the Confrontation Clause analy-
sis, what makes a spontaneous declaration an exception to hearsay is the
declarant’s lack of opportunity to reflect or fabricate.
8890                           WINZER v. HALL
of evidence generally fall outside the scope of federal habeas
relief, which is designed only to remedy violations of federal
law. See 28 U.S.C. § 2254(a); Burgett v. Texas, 389 U.S. 109,
113-14 (1967). The California Supreme Court is the highest
authority on the interpretation and application of California
law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“Today, we reemphasize that it is not the province of a fed-
eral habeas court to reexamine state court determinations on
state law questions.”); Wisconsin v. Mitchell, 508 U.S. 476,
483 (1993) (“There is no doubt that we are bound by a state
court’s construction of a state statute.”).

   [5] But where a Confrontation Clause violation is alleged,
federal courts can go beyond a state court’s characterization
and analyze whether a factual basis supports the state court’s
decision. In Paxton v. Ward, 199 F.3d 1197, 1207-11 (10th
Cir. 1999), the Tenth Circuit applied AEDPA and held that
the state court made an unreasonable determination of the
facts when it found that the statement in question was an
excited utterance for purposes of the Confrontation Clause.3
Paxton noted that “[t]he Supreme Court has rejected the argu-
ment that a state court determination admitting hearsay under
state law is dispositive of a petitioner’s habeas claim that his
constitutional confrontation rights were violated by the admis-
sion.” 199 F.3d at 1208 (citing Lee v. Illinois, 476 U.S. 530,
539 (1986)).4 Further, Paxton relied on the Lee decision not
  3
     Paxton was followed in Woodward v. Williams, 263 F.3d 1135 (10th
Cir. 2001) (holding that state court “correctly found that Deborah’s state-
ments to Butler and Maggart fall within the excited-utterance exception”).
   4
     The Paxton court was referring to the Lee Court’s characterization of
the issue before it:
      Illinois . . . correctly recognizes that the admissibility of the evi-
      dence as a matter of state law is not the issue in this case; rather,
      it properly identifies the question presented to be “whether that
      substantive use of the hearsay confession denied Petitioner rights
      guaranteed her under the Confrontation Clause. . . .” It contends,
      in essence, that Lee’s Sixth Amendment rights were not violated
                            WINZER v. HALL                            8891
merely to say that hearsay falling under the second prong of
Roberts must be supported by particularized guarantees of
trustworthiness, but to say that a federal habeas court must
consider whether a hearsay statement actually does fall within
a firmly rooted exception under the first prong of Roberts —
even if the state court has already determined that it does.

   [6] The question here does not end with the California
courts’ determination that Parrish’s report to Dickson was
“spontaneous.” The issue falls under the Confrontation
Clause: did the admission of Winzer’s threat to Parrish
through Dickson’s testimony violate Winzer’s right to con-
front Parrish?5 If the circumstances surrounding Parrish’s
report of the statement to Dickson fit the Supreme Court’s
descriptions of the excited utterance or spontaneous declara-
tion exception to hearsay, as set forth in Wright and White,
then the Confrontation Clause was not violated. If the circum-
stances do not fit those characterizations, then admission of
the statement violated the Confrontation Clause. Once content
is imputed to the category of spontaneous statements, it
becomes impossible to rely exclusively on the label the state
courts attach to the statement in question.

  In sum, even under AEDPA, we cannot avoid the question
of whether a hearsay statement falls within a firmly rooted

    because Thomas was unavailable and his statement was “reli-
    able” enough to warrant its untested admission into evidence
    against Lee. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531,
    65 L.Ed.2d 596 (1980).
Lee, 476 U.S. at 539 (internal citation to record omitted) (second omission
in original).
   5
     Thus, even if a state recognized no “spontaneous statement” or “ex-
cited utterance” exception to hearsay, a defendant against whom such a
statement was admitted would have no claim for federal habeas relief if
the statement was made with no opportunity to fabricate. See 28 U.S.C.
§ 2254(a) (authorizing federal courts to grant habeas relief only for viola-
tions of federal law).
8892                          WINZER v. HALL
exception to hearsay and so complies with the Confrontation
Clause.

  D.     Reasonableness of the State Courts’ Application of
         Clearly Established Federal Law

   [7] As we must on AEDPA review, we presume that the
state courts’ factual findings are correct. The trial court found
that Parrish’s statement to Dickson was spontaneous because
she was “visibly upset, emotionally upset, almost to the point
of shaking, [and] fearful” as she spoke. On this basis, the trial
court made a finding that Dickson’s testimony as to her state-
ments could be introduced because there were sufficient indi-
cia of reliability so that confrontation was unnecessary.6 Other
than Parrish’s demeanor, as reported by Dickson, the state
court recites, and the record contains, no evidence as to the
reliability of Parrish’s statement.

   [8] The mere fact that Parrish was upset as she spoke would
not make her utterance reliable. As the Supreme Court has
recognized, a spontaneous statement is reliable because it is
offered “without the opportunity to reflect on the conse-
quences of one’s exclamation.” White, 502 U.S. at 356. Just
because a subject is or appears to be upset offers no guarantee
that he has not taken time to consider the matter. The subject
may be upset precisely because he’s had time to reflect, or he
may feign emotional distress in a calculated effort to appear
more credible.

  The state appeals court explained that the statement was
spontaneous because “the declarants relived the experience
and recounted it unreflectively while under the stress of the
  6
    According to the transcript, the state trial judge stated that “there is suf-
ficient issue of liability for the admission of the statements.” The words
“issue of liability” make no sense in this context; we assume that the tran-
script must have meant “indicia of reliability,” and construe the trial
court’s statement as a factual finding owed deference under AEDPA.
                             WINZER v. HALL                             8893
original exciting event.” But the circumstances that leap from
the record before this Court do nothing to preclude, or even
diminish, the possibility of confabulation or coaching. Parrish
told Dickson about something that happened more than five
and a half hours earlier. The trial court determined that her
intervening 911 call was not a spontaneous response to an
exciting event and, in fact, that the “bulk” of her call did not
concern Winzer’s threat at all.

   [9] The fact that Parrish made a “calm” call to 911 several
hours after the exciting event7 demonstrates that not only did
she have the opportunity to reflect on the matter, she did so
reflect. If Parrish was able to calmly and coolly call 911 sev-
eral hours after the threat and discuss both the threat and other
circumstances, she must have weighed the costs of intrusion
against the benefit of obtaining help from the police.

   [10] Under these circumstances, Parrish’s later statement to
Dickson was not made under “conditions [that] have proved
over time to remove all temptation to falsehood and to enforce
as strict an adherence to the truth as would the obligation of
an oath and cross-examination at a trial,” Lilly, 527 U.S. at
126 (internal quotations omitted), or “in a moment of excite-
ment — without the opportunity to reflect on the conse-
quences of one’s exclamation,” White, 502 U.S. at 356.
Parrish had hours to reflect, to forget, to embellish, to be dis-
tracted, and to talk with her daughter, her mother, and perhaps
   7
     There was no evidence presented to the jury and none is in the record
before this Court as to when the 911 call was placed. However, at trial the
parties seemed to agree that the call was placed closer to the time of the
officers’ arrival than to the time of Winzer’s departure from Parrish’s
apartment. The prosecutor conceded that “I am not trying to say that they
called the police immediately, I admit that to you.” The prosecutor, in
closing argument, said there was no evidence as to when the call was
made but argued “I hear all the time that the police, takes them forever to
get here . . . [T]hey could have made [the call] an hour earlier.” Addition-
ally, of course, the trial court found that the “bulk” of the 911 call did not
concern the threat.
8894                        WINZER v. HALL
others before Dickson arrived. She had time and the mental
calmness, as the state court decided about the 911 call, to
choose what stance to take with the officers when they arrived
— whether to be calm and composed or excited and histri-
onic. The state court thus failed to apply the standard for reli-
ability set forth by the Supreme Court. See White, 502 U.S.
at 356. As such, in finding that Parrish’s report to Dickson
was a spontaneous declaration or excited utterance, the Cali-
fornia courts unreasonably applied federal law. No other
exception appearing, and with no other particularized guaran-
tee of the truthfulness of Parrish’s statement, its admission
against Winzer violated the Confrontation Clause. The Sixth
Amendment does not permit the “he said she said he said” lit-
any that convicted Winzer in this case.

  E.    Prejudice

   Violation of the Confrontation Clause is trial error subject
to harmless-error analysis, see Delaware v. Van Arsdall, 475
U.S. 673, 684 (1986), because its effect can be “quantitatively
assessed in the context of other evidence presented” to the
jury, Arizona v. Fulminante, 499 U.S. 279, 308 (1991). If the
error did not result in “actual prejudice,” the writ should not
issue. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)
(adopting standard of Kotteakos v. United States, 328 U.S.
750 (1946)). “Actual prejudice” is demonstrated if the error
in question had a “substantial and injurious effect or influence
in determining the jury’s verdict.” Id. at 623; Fry v. Pliler,
___ U.S. ___, ___, 127 S. Ct. 2321, 2327 (2007); Bains v.
Cambra, 204 F.3d 964, 977-78 (9th Cir. 2000).

   Parrish’s statement about what Winzer said as admitted
through Dickson was not the only evidence against Winzer.
Mercedes told Dickson that she overheard Winzer say, “I’ll
smoke you and your daughter.” Mercedes testified at trial that
she did not recall Winzer saying that, but she remembered
many other details of the incident,8 and it would have been
  8
   The complete trial transcript is not in this Court’s record.
                        WINZER v. HALL                      8895
reasonable for the jury to find that she claimed not to remem-
ber because she was unwilling to give testimony, whether true
or false, that could convict Winzer. Winzer returned to Par-
rish’s home a few days after the first incident, and the jury
could have reasoned by inference that he was responsible for
causing the damage to her home. When he went to Parrish’s
home, Winzer was violating a protective order. There was
overwhelming evidence that Winzer and Parrish had a violent
relationship.

   But Winzer’s potential violence could not have sufficed to
convict him under section 422. Parrish was the central witness
in the case. She reportedly heard the threat that is the basis of
Winzer’s conviction. Yet she did not testify and the proof
came in by hearsay within hearsay. If she had taken the stand
and testified that Dickson misunderstood her or put words in
her mouth, or simply denied altogether that Winzer made any
threat, he might have been acquitted.

   At the same time, the evidentiary picture presented to the
jury was materially distorted by the Confrontation Clause vio-
lation. Winzer was convicted of making a terrorist threat. The
trial court instructed the jury that it must find beyond a rea-
sonable doubt that:

    4. The threatening statement on its face, and under
    the circumstances in which it was made, was so
    unequivocal, unconditional, immediate, and specific
    as to convey to the person threatened, a gravity of
    purpose and an immediate prospect of execution of
    the threat; and

    5. The threatening statement caused the person
    threatened reasonably to be in sustained fear for her
    own safety or for her family’s safety.

See Cal. Jury Instr. Crim. 9.94 (2002).
8896                    WINZER v. HALL
   Dickson’s testimony that Parrish said Winzer gestured
toward a shiny object in the waistband of his pants was force-
ful evidence of “a gravity of purpose and an immediate pros-
pect of execution of the threat,” and Winzer had no
opportunity at all to cross-examine Parrish on that point.

   Only two witnesses testified that Winzer made any threat.
Dickson — a police officer, who could command the jury’s
respect — testified that Parrish told him Winzer had made a
threat. The only other witness who testified that Winzer made
a threat was Parrish’s mother — a witness who personally
accosted Winzer and referred to him as “a son of a bitch” in
front of the jury, even after being admonished by the judge.
Assuming the jury believed Parrish’s mother, a somewhat
dubious prospect, she did not testify that Winzer made a
motion toward a potential weapon at his waistband. Without
testimony as to that motion, there was no proof that Winzer
intended Parrish to fear for her safety.

  Dickson only had Parrish’s report of what she said Winzer
did. The trial court excluded the 911 call on the grounds that
Parrish was not sufficiently fearful at the time she made it.
Not only was Parrish “one of the calmest” 911 callers the
judge had ever heard, but “the bulk of the tape” apparently
had nothing to do with Winzer’s reported threat. The jury was
not permitted to hear and weigh that evidence for itself.

   [11] By contrast, Dickson’s description of Parrish’s and
Mercedes’s demeanor and fear gave the impression that the
only reason Parrish called the police was that she and Mer-
cedes feared Winzer would act on his threat and, further, that
they were still upset, shaking, and fearful more than five and
a half hours after Winzer left, even though the trial court
knew that was not the case because the 911 call was “one of
the calmest” it had ever heard. The erroneous impression cre-
ated for the jury was the inevitable result of the trial court’s
misapplication of the spontaneous declaration exception to
hearsay. The court’s rulings stacked the deck.
                              WINZER v. HALL                            8897
   [12] Significantly, because all the evidence before the jury
tended to show that Parrish was deeply afraid, defense coun-
sel had only the weakest means of dispelling the impression
that she was absent from trial because she was afraid of Win-
zer. She might, instead, have been afraid of testifying under
oath. She might have dreaded making a choice between tell-
ing the truth at trial and being accused of filing a false police
report, on the one hand, or committing perjury on the witness
stand and risking prosecution if the jury believed Mercedes
when she refused to support Parrish’s report to Dickson.
Defense counsel could say these things, but the distorted evi-
dentiary picture and common sense suggested otherwise.

   Domestic violence cases are exceedingly difficult — and
important — to prosecute. But the evidence in this case is
equivocal at best about the nature of the threat. While it is
understandable that a victim of domestic violence might not
report an incident or might retract a previous report of domes-
tic violence, it is less understandable that a victim of domestic
violence would wait several hours to report a genuine threat,
then report it in “one of the calmest 911 calls” in the trial
court’s experience — and in a call that primarily concerned
other matters. Maybe Winzer made the threat and meant it,
but all of the evidence produced at trial is also consistent with
a finding that he did not make it, or he did not mean it.

   [13] Only cross-examination of Parrish could flesh out the
testimony, and that was precluded by the trial court’s rulings.
Under such circumstances, it is especially important to toe the
constitutional line. Instead, the prosecutor took full advantage
of Winzer’s unconstitutional dilemma by converting Parrish’s
absence into substantive evidence of her fear of Winzer.9 She
argued in closing:
  9
   The prosecutor also emphasized the centrality of Dickson’s report of
Parrish’s statement:
      First of all I just want to go through the elements. Basically when
      [defense counsel] went through the elements and said that the ele-
8898                       WINZER v. HALL
       Now, I also want to bring up this whole issue
    about the victim not being here on the stand, it is not
    like that is not done all the time, it is not like it is
    unconstitutional. Believe me, if we dismissed or
    didn’t go forward on every case where someone
    didn’t come to court, we would never get convic-
    tions, and what message, you talk about the message
    we would be sending to the victim, what message
    would it be sending to people who commit crimes?
    Hey, if you scare them or get rid of them, no case.
    It is legal, it is fair, it is just that we are going for-
    ward without a victim because there are other things
    to corroborate what happened, there are other things
    besides her getting up here.

       And counsel tells you, well, if she got up here you
    would easily be able to tell that she was lying, so that
    infers [sic] that he is saying you can easily tell when
    someone is lying about being scared. And then he
    also tells you that Officer Dickson seems like a
    really fair, reasonable guy. Well, he was there that
    day so if [s]he was lying he would easily be able to
    tell that she was lying. He said he saw her and he
    said that she was scared. I don’t know, maybe you
    have secret powers that Officer Dickson doesn’t
    have but Officer Dickson believed them. . . .

       And domestic violence cases are a little different
    than most cases, for instance, it is not unusual to not
    hear from the victim, and I will be the first to tell
    you that I wished that Parrish Harvey walked

   ments weren’t made, his premise for every element that wasn’t
   made was that the threat wasn’t made, so what I want to say to
   you is that if you believe that that threat was made, “if you leave
   me I will smoke you,” then all of the elements of 422 have been
   met because it is clearly the type of threat that we are talking
   about.
                       WINZER v. HALL                       8899
    through that door and got on the stand and told you
    what happened to her on December 2nd, but some
    things are beyond my control, and I am sure that the
    defendant wished that we just didn’t go forward with
    our case, but that didn’t happen because this case is
    not about Parrish Harvey versus the defendant, this
    case is about the People of the State of California
    versus the defendant, and that is why I am here and
    that is why you are here.

  [14] Parrish’s hearsay report to Officer Dickson was why
Winzer was there. He was entitled to cross-examine her. Her
absence had a substantial and injurious influence on the jury’s
verdict. Habeas relief is required.

   The District Court is REVERSED and the case is
REMANDED with instructions to issue the writ and require
the state court either to grant a new trial or to dismiss the
charge of making a terrorist threat.
