Damen Rabb v. Stu Sherman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAMEN RABB,
Petitioner - Appellant,
v.
STU SHERMAN,
Respondent - Appellee.
No. 13-55057
D.C. No. 2:11-cv-05110-JAK-JPR
MEMORANDUM*
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
FILED
MAR 29 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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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