THE PEOPLE, Plaintiff and Respondent, v. DONTRAE GRAY, Defendant and Appellant.
B302236
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Filed 4/30/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. MA065662)
APPEAL from a judgment of the Superior Court of Los Angeles County, Renee F. Korn, Judge. Affirmed.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.
On video recorded by a bodycam worn by a police officer, a visibly distraught woman reported that her boyfriend had beat her up. Although her statement qualifies as an “excited utterance” admissible under the hearsay rule, it is inadmissible at trial under the Sixth Amendment‘s Confrontation Clause (Confrontation Clause or Clause), as construed in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), if she is unavailable as a witness. But is it inadmissible аt a probation violation hearing alleging the same assault if she is still unavailable as a witness? The right to cross-examination at a probation violation hearing is governed—not by the Confrontation Clause—but by due process. (People v. Vickers (1972) 8 Cal.3d 451, 458 (Vickers); Gagnon v. Scarpelli (1973) 411 U.S. 778, 786 (Gagnon).) Does the admissibility of the bodycam video under the excited utterance exception satisfy the minimum requirements of due process applicable at probation violatiоn hearings? The courts are split: People v. Stanphill (2009) 170 Cal.App.4th 61, 78 (Stanphill) says “yes,” while People v. Liggins (2020) 53 Cal.App.5th 55, 66 (Liggins) says “no.” We side with Stanphill. Due process is about reliability; the Confrontation Clause, confrontation. Because the bodycam video is reliable enough to fall within the firmly rooted hearsay exception for excited utterances, the dictates of due process are satisfied. We accordingly affirm the judgment finding a probation violation in this case.
I. Facts
In September 2015, Dontrae Gray (defendant) pled no contest to a single count of assault with a deadly weapon (
On March 30, 2018, defendant was arrested for assaulting his girlfriеnd in her home. Four minutes before the police arrived at the home, the girlfriend had called 911, reporting that “some[one]” was “trying to break” and “kick” in her door; the call also captured the girlfriend telling defendant—using his nickname—to “stop.” When the police arrived mere minutes after the call, the girlfriend was “upset,” “visibly crying” and “breathing heavily,” and “scared to talk.” While in this agitated state, she told police that defendant had shown up at her front door, screamed “Bitch, open the door,” proceeded to “kick[ in] the door,” and then tried to punch her 20 times. The girlfriend‘s entire statement was captured on a bodycam worn by one of the responding officers. The officers observed that the front door, door frame and doorjamb were “broken” and “pretty trashed,” and that the girlfriend had several bruises and a small sсratch on her cheek consistent with being in an altercation.
The girlfriend later recanted in part. A few days after the incident, she told a police detective that she had been “mad” and merely “wanted [defendant] out of her house,” and that the source of her injuries was a fall she took when she fell backwards after defendant kicked her door open. Nearly a year later, she told the prоsecutor that she was “lying about some things.”
II. Procedural Background
The People proceeded along two tracks. First, the People initiated a new prosecution by charging defendant with (1) inflicting corporal injury upon a person in a dating relationship (
The new prosecutiоn was dismissed. When the girlfriend did not appear for trial despite proper service of a subpoena, the People sought to admit the bodycam video of her statement in lieu of her testimony. The trial court ruled
The probation violation proceeded to an evidentiary hearing. The trial court ruled that the girlfriend‘s statements on the first seven minutes of the bodycam video constituted an excited utterance admissible under
Defendant filed this timely appeal.
DISCUSSION
Citing People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), defendant argues that the trial court erred in admitting his girlfriend‘s statement on the bodycam video because the admissibility of that statement under the excited utterance exception is not enough to satisfy due process. Instead, defendant continues, due process also requires (1) the People to demonstrate “good cause” by showing that the girlfriend was “legally” “unavailable” or, failing that, that there were other good reasons why she could not be brought into court to testify, and (2) the trial court to “balanc[e] the defendant‘s need for confrontation against” the need to “dispens[e] with confrontation.” (Id. at pp. 1159-1160.) Although the People contend on appeal that there was “good cause” to admit the girlfriend‘s statement, the record shows only that the People unsuccessfully sought to secure her presence as she was released from custody on an unrelated matter, and that the People served her with a subpoena that she ignored; this is insufficient to establish “good cause.” As a result, this appeal squarely presents the question: Does the admissibility of a hearsay statement under the excited utterance exception satisfy the due process minima applicable in probation revocation hearings, or is a further showing of good cause and a finding that a balance of factors favor admission also required? Answering this question requires us to determine the meaning of the constitutional guarantee of due process, a determination we make independently. (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
When a criminal defendant is placed on probation rather than sentenced to a term оf incarceration, a trial court is empowered to revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe ... that [defendant] has violated any of the conditions of ... [probation].” (
As a result, a defendant facing a probation revocation is not entitled to the “‘full panoply of rights‘” accorded to defendants “in a criminal [trial].” (Rodriguez, at p. 441.) The constitutional imperative of proof beyond a reasonable doubt applies at trial, but a violation of probation need only be established by a preponderance of the evidence. (Id. at p. 447.) In a similar vein, the Confrontation Clause apрlies with full force at trial (Barber v. Page (1968) 390 U.S. 719, 725 [“The right to confrontation is basically a trial right“]; Correa v. Superior Court (2002) 27 Cal.4th 444, 464-465 [same]), but the Clause does not apply at all to probation violation hearings (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411; Liggins, supra, 53 Cal.App.5th at p. 64).
Absent additional rights conferred by statute or rule, the sole constitutional rights applicable to a defendant facing revocation of probation are those found in the “minimum requirements of due process.” (Gagnon, supra, 411 U.S. at p. 786; Vickers, supra, 8 Cal.3d at p. 457.) These minimum requirements entitle a defendant to two hearings—namely, (1) a preliminаry revocation hearing and (2) a final revocation hearing. (Gagnon, at pp. 782-783, 786; Vickers, at p. 460.) And at the final revocation hearing, due process requires, among other things,2 “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” (Gagnon, at p. 786; Black v. Romano (1985) 471 U.S. 606, 612; People v. Winson (1981) 29 Cal.3d 711, 716 (Winson); Vickers, at p. 457; Arreola, supra, 7 Cal.4th at pp. 1147, 1152-1153.)
In Arreola, our Supreme Court further elaborated on when a trial court may dispense with the due process-based “right to confront and cross-examine adverse witnesses” at the final probation revocation hearing. Specifically, Arreola held that a trial court may admit an out-of-court statement despite the absence of any opportunity to cross-examine the declarant if, “on a case-by-case basis,” the court (1) determines there is “good cause” to admit the statement, and (2) “balanc[es] thе defendant‘s need for confrontation against the prosecution‘s showing of good cause for dispensing with confrontation.” (Arreola, supra, 7 Cal.4th at p. 1159-1160.) “Good cause” exists “(1) when the declarant is ‘unavailable’ under the traditional hearsay standard (see
II. Analysis
Is the due process-based “right to confront and cross-examine adverse witnesses” at a final probation revocation hearing satisfied when the People establish that an out-of-court statement falls within a firmly rooted hearsay exception, or must the People also show “good cause” to dispense with cross-examination and that this good cause outweighs the defendant‘s need for confrontation? We conclude that that the applicability of a firmly rooted hearsay exception is sufficient, and we do so for twо reasons.
First and foremost, this is the rule most consonant with the purpose and function of due process as a constitutional guarantee. In criminal cases, due process mandates the procedural protections necessary to guarantee “an accurate determination of innocence or guilt.” (Graham v. Collins (1993) 506 U.S. 461, 478; accord, Heller v. Doe (1993) 509 U.S. 312, 332 [“the Due Process Clause” “protect[s]” “the interest of a person subject to governmental
Second, a rule that the applicability of a firmly rooted hearsay exception is sufficient to satisfy due process is also most consonant with California precedent.3 The cases that hinge admissibility of out-of-court statements upon the existence of good сause and the balancing of that cause against the defendant‘s interest in confrontation each involved statements that were inadmissible under the rules of evidence. (Arreola, supra, 7 Cal.4th at pp. 1160-1161 [preliminary hearing testimony did not fall under former testimony exception to hearsay rule because declarant was never shown to be
Many of them suggested that the inquiry into good cause and consequent balancing would have been unnecessary had a hearsay exception applied. (E.g., Maki, at p. 710 [urging trial courts to “first consider whether” any “pertinent exceptions to the hearsay rule” “applied” before “inquir[ing] as to whether and what flexible [due process] standards may be applied“]; In re Eddie M. (2003) 31 Cal.4th 480, 501-502 [so suggesting].) Indeed, reading these cases to mandate an inquiry into “good cause” and balancing when a hearsay exception applied would make no sense. At the time these cases were decided, the Confrontation Clause applicable at trial did not bar the admission of hearsay falling into a firmly rooted hearsay exception and, as to such hearsay, did not require any showing of unavailability of the hearsay declarant. (Roberts, supra, 448 U.S. at p. 66; United States v. Inadi (1986) 475 U.S. 387, 400 [Clause doеs not require showing of “unavailability” for coconspirator exception to hearsay rule]; White v. Illinois (1992) 502 U.S. 346, 358 (White) [same, for excited utterance exception].) If, as defendant suggests, Arreola and its kin held that admissibility under a hearsay exception was not enough by itself to satisfy due process, then the standard for admitting hearsay in probation revocation hearings would be more onerous than the standard for admitting hearsay at trial. This has it completely backwards, given that due process is meant to be more flexible than the Confrontation Clause (e.g., Maki, at p. 715), not less.
Thus, both the purpose and function of due process generally, as well as the California precedent addressing the issue, strongly suggest that out-of-court statements falling within a firmly rooted hearsay exception are properly admitted at a probation revocation hеaring.
Of course, Arreola and its kin were all decided before Crawford, supra, 541 U.S. 36. Crawford changed the meaning of the Confrontation Clause. The Clause secures “the accused ... the right ... to be confronted with the witnesses against him [or her].” (
Liggins thought the standard for admitting out-of-court statements under due process was, on some level, tethеred to the standard for doing so under the Clause. (Liggins, supra, 53 Cal.App.5th at p. 68 [finding that the “paradigm shift brought about by Crawford is relevant” to the due process analysis applicable during probation revocation hearings].)
We do not.
In redefining the Confrontation Clause, Crawford rejected Roberts‘s view of the Clause. Under Roberts and its progeny, the “very mission” of the Clause was “to advance ‘the accuracy of the truth-determining process in criminal trials‘” (Tennessee v. Street (1985) 471 U.S. 409, 415) and to “promot[e] ... the ‘integrity of the factfinding process‘” (White, supra, 502 U.S. at pp. 356-357, quoting Coy v. Iowa (1988) 487 U.S. 1012, 1020). Roberts viewed the Clause as adopting a “preference” for cross-examination in service of its mission of achieving accurate and reliable verdicts. (Roberts, supra, 448 U.S. at p. 63.) In rejecting Roberts, Crawford construed the Clause as having a different mission—namely, “command[ing], not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” (Crawford, supra, 541 U.S. at p. 61.) In other words, Crawford changed the Clause‘s marquee from “RELIABILITY featuring Confrontation” to “CONFRONTATION.” In changing the focus of the Clause from reliability to confrontation, Crawford rendered the Clause less suitable as a screen for reliable evidence. Indeed, the U.S. Supreme Court subsequently declined to declare Crawford fully retroactive to cases on collateral review precisely because it was “unclear whether Crawford, on the whole, decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials” or otherwise “resulted in [a] net improvement in the accuracy of fact finding in
Applying the rule we adopt today, the bodycam video containing the girlfriend‘s statement was properly admitted. The excited utterance exception to the hearsay rule is a firmly rooted exception. (White, supra, 502 U.S. at p. 355, fn. 8.) And it is so considered for good reason—namely, because statements made while the declarant is excited are “particularly likely to be truthful” “since [such a] statement is made spontaneously, while under the stress of excitement and with no opportunity to contrive or reflect ....” (People v. Hughey (1987) 194 Cal.App.3d 1383, 1392-1393, italics omitted; Stanphill, supra, 170 Cal.App.4th at p. 81.) This conclusion does not, as Liggins suggests, make an excited utterance “effectively irrebuttable” (Liggins, supra, 53 Cal.App.5th at p. 69), as the trial court in this case considered the girlfriend‘s partial recantations and elected to credit hеr contemporaneous and spontaneous report over her later statements.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
HOFFSTADT
J.
We concur:
LUI
P. J.
CHAVEZ
J.