NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK ZAVALA, 

Petitioner-Appellant, 

 v. 

KIM HOLLAND, Warden, and MARTIN 

BITER, Warden, 

Respondents-Appellees.

No. 16-15984

D.C. No. 3:15-cv-02247-CRB

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted March 3, 2020

San Francisco, California

Before: SILER,** WARDLAW, and M. SMITH, Circuit Judges.

Mark Zavala appeals the district court’s denial of his petition for a writ of 

habeas corpus under 28 U.S.C. § 2254. We affirm. 

We review the district court’s denial de novo and review the district court’s 

factual findings for clear error. See Lopez v. Thompson, 202 F.3d 1110, 1116 (9th 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3. 

** The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

APR 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-15984

Cir. 2000) (en banc). We can grant habeas relief only if the state court’s ruling was 

(1) “contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States;” or (2) 

“based on an unreasonable determination of the facts in light of the evidence 

presented.” 28 U.S.C. § 2254(d); see also Lopez v. Smith, 574 U.S. 1, 2 (2014) (per 

curiam). Additionally, we cannot grant habeas relief for an error unless the error 

had a “substantial and injurious effect or influence” on the verdict. Ocampo v. Vail, 

649 F.3d 1098, 1114 (9th Cir. 2011) (quoting Brecht v. Abrahamson, 507 U.S. 619, 

623 (1993)).

Zavala was convicted of three counts of robbery and one count of assault 

with a firearm. The jury also found that Zavala discharged a firearm and acted in 

furtherance of a criminal street gang. We granted a certificate of appealability on 

one issue: “whether the testimony of the prosecution’s gang expert violated 

appellant’s Sixth Amendment right to confrontation.” Zavala argues that the 

testimony of the prosecution’s gang expert, Police Sergeant Dan Livingston, 

included numerous out-of-court statements made by declarants to police officers, 

which he contends amount to impermissible and prejudicial testimonial hearsay.

The Confrontation Clause states that in criminal cases, the accused has the 

right “to be confronted with the witnesses against him.” U.S. Const. amend. VI. 

This right applies to the states through the Fourteenth Amendment. See Pointer v. 
3 16-15984

Texas, 380 U.S. 400, 403 (1965). Under presently controlling federal precedent, 

the Confrontation Clause “does not bar the use of testimonial statements for 

purposes other than establishing the truth of the matter asserted.” Crawford v. 

Washington, 541 U.S. 36, 59 n.9 (2004). Circuit courts have generally interpreted 

Crawford to allow the introduction of testimonial out-of-court statements offered 

as the basis of an expert’s opinion, so long as the expert is not allowed “simply to 

parrot” those statements. United States v. Gomez, 725 F.3d 1121, 1129 (9th Cir. 

2013) (quoting United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)) 

(collecting cases from the First, Second, Fourth, Seventh, and Tenth Circuits); see 

also id. (“The question is whether the expert is, in essence, giving an independent 

judgment or merely acting as a transmitter for testimonial hearsay. As long as he is 

applying his training and experience to the sources before him and reaching an 

independent judgment, there will typically be no Crawford problem.”) (quoting 

Johnson, 587 F.3d at 635). 

Zavala relies on People v. Sanchez, 374 P.3d 320, 332–33 (Cal. 2016)

(holding that case-specific out-of-court statements offered by an expert and not 

otherwise admissible are necessarily offered for their truth, in violation of the 

Confrontation Clause) (citing Williams v. Illinois, 567 U.S. 50, 108 (2012) 

(Thomas, J., concurring); id. at 128 (Kagan, J., dissenting)). However, Sanchez is 

not a U.S. Supreme Court decision and Zavala does not cite any U.S. Supreme 
4 16-15984

Court decision that has applied Crawford in the same way as Sanchez. Cf. 

Williams, 567 U.S. at 86, 103 (fracturing over whether hearsay used as the basis of 

an expert’s opinion can violate the Confrontation Clause); id. at 141 (Kagan, J., 

dissenting) (“What comes out [of Williams] . . . is—to be frank—who knows 

what.”). 

We decline to opine on whether the trial court’s admission of any number of 

the out-of-court statements offered by Sergeant Livingston “involved an 

unreasonable application of . . . clearly established federal law,” 28 U.S.C. § 

2254(d), whether because they clearly involved mere parroting and/or in light of 

the court’s instruction that the jury “decide whether information on which the 

expert relied was true and accurate.” Even assuming that the state appellate court’s 

conclusion that no Confrontation Clause violation occurred was error, we conclude 

that the error did not have a “substantial and injurious effect” on the outcome. 

Ocampo, 649 F.3d at 1114. 

Even if the challenged hearsay statements were excluded, Sergeant 

Livingston’s opinion that the robbery was gang-related was primarily supported by 

other evidence. Sergeant Livingston’s opinion was based in part on his extensive 

and personal experience as a gang officer. He testified about his personal 

observation of evidence of the defendants’ gang membership during various 

searches of their residences, such as firearm ammunition and Shalu Gardens gang 
5 16-15984

graffiti throughout Zavala’s residence. He also based his opinion on Zavala’s

tattoos, which he testified he believed confirmed his gang membership.

Sergeant Livingston’s opinion was also based on how the robbery was 

committed. He testified that gang members often commit violent crimes to earn 

money for the gang and to deter victims and witnesses. He further explained that 

drug dealers are particularly common robbery targets for gangs because they have 

money and drugs and often won’t notify the police when they are robbed.

The government also presented evidence to support the gang-related 

enhancement beyond just Sergeant Livingston’s testimony. For example, one of 

Zavala’s co-defendants testified, implicated his codefendants, and identified 

Zavala and another co-defendant as affiliated with a gang. Therefore, even if the 

trial court’s Confrontation Clause ruling was error, we are unable to conclude that 

the error had a “substantial and injurious effect or influence” such that habeas 

relief would be appropriate. Id.1

Zavala also raised two uncertified issues in his brief. Under Ninth Circuit 

Rule 22-1(e) “[u]ncertified issues raised and designated in this manner will be 

construed as a motion to expand the [certificate of appealability] and will be 

addressed by the merits panel to such extent as it deems appropriate.” 

1 Because we affirm the denial of habeas relief on this basis, we do not address the 

state appellate court’s alternative holding that Zavala failed to preserve his 

Confrontation Clause challenge. 
6 16-15984

First, Zavala argues that his Fourteenth Amendment right to a fair trial was 

violated when the trial court denied his motion to bifurcate the trial of his robbery 

from the gang enhancement. Yet no clearly established federal law creates a right 

to bifurcate a trial. See Spencer v. Texas, 385 U.S. 554, 567–68 (1967).

Second, Zavala argues that his Sixth Amendment right to trial by an 

unbiased jury was violated when the court failed to dismiss jurors exposed to 

mouthing words and gesturing by a prosecution witness. “[P]rivate 

communications, possibly prejudicial, between jurors and . . . witnesses . . . are 

absolutely forbidden.” Mattox v. United States, 146 U.S. 140, 150 (1892). 

Here, a witness was on the stand and under oath when he faced the jury and 

mouthed “they did it” while pointing to the defendants and making an obscene 

gesture at them. Counsel and the judge were having a discussion while this 

occurred and did not see it. The lower courts held that the witness’s unprompted 

gesture while on the witness stand was not private and is akin to testimony of a 

witness that is not responsive to any question. Zavala does not cite any controlling 

federal authority to the contrary. 

Even if the gesture on the stand did amount to a private communication, the 

court alleviated any prejudice caused by the gesture through examining the impact 

of the gesture on the two jurors that read the witness’s lips. Only one of these 

jurors said that she could not consider the witness’s testimony without considering 
7 16-15984

the gesture. This juror was excused. Accordingly, the witness’s gesture and 

mothing words were harmless because the trial court released the only juror who 

read the witness’s lips and was affected by the communication. 

In sum, Zavala fails to make a substantial showing of the denial of a 

constitutional right for either of the uncertified issues. Therefore, we decline to 

expand the certificate of appealability.

AFFIRMED.