People v. GrayPeople v. Gray
We granted review in this matter to determine whether hearsay that qualifies as a spontaneous statement under
I. BACKGROUND
In September 2015, defendant Dontrae Renay Gray pleaded no contest to one count of assault with a deadly weapon (
A body-worn camera worn by one of the officers captured N.S.‘s statements regarding the incident. N.S. was recorded stating that she and defendant had been dating for approximately two months, and that she had called the police twice the previous day because defendant had refused to leave the residence, where N.S. cared for a disabled woman. N.S. reported that the police had responded to both calls and had told defendant to leave after the second call. N.S. said that when she awoke the next morning and checked her phone, she saw that defendant had been calling her. When N.S. was assisting the woman, N.S. heard defendant yelling at her from the back door. N.S. recounted that she had told defendant that she was not going to open the door and that he was “always hitting [her] and everything else.” N.S. told the officer that defendant then went to the front of the residence, opened the screen door with a key he had stolen, and kicked in the front door. N.S. relayed that defendant then entered the residence and started “punching [her] everywhere” and “stomping [her] out.” She stated that
Defendant was arrested and charged with inflicting corporal injury upon a person in a dating relationship (
N.S. subsequently recanted in part. A few days after the incident, N.S. informed a police detective that she had told police officers that defendant had hit her only because she was mad at defendant and wanted him out of her house. N.S. averred that she was injured by falling backward after defendant kicked the front door оpen, and not by defendant directly. N.S. also told the prosecutor that she had previously been “lying about some things.”
N.S. did not appear at defendant‘s criminal trial despite proper service of a subpoena and the court‘s issuance of a body attachment order. The prosecution sought to admit N.S.‘s statements as recorded on the body-worn camera video, but the trial court ruled that the statements were testimonial and therefore inadmissible under the confrontation clause of the Sixth Amendment to the United States Constitution (
The trial court held a probation revocation hearing several weeks later. Defendant again objected that the admission of the
Defendant appealed from the order revoking his probation, and the Court of Appeal affirmed. (People v. Gray (2021) 63 Cal.App.5th 947 (Gray).) The Court of Appeal acknowledged that N.S.‘s statements were testimonial under Crawford and therefore inadmissible at defendant‘s criminаl proceeding (id. at p. 949), but found that consideration irrelevant in determining whether the statements were admissible at defendant‘s probation revocation hearing (id. at pp. 956–957).1 The Court of Appeal held that hearsay that qualifies as a spontaneous statement under
As the Court of Appeal in this case recognized (Gray, supra, 63 Cal.App.5th at p. 949), there is a split of authority regarding the prerequisites for admitting spontaneous statements in probation revocation hearings. Specifically, courts are divided over whether an additional showing, beyond satisfaction of the criteria for spontaneous statements set out in
II. DISCUSSION
Defendant contends the Court of Appeal erred in holding that a hearsay statement that comes within the spontaneous statement exception to the hearsay rule automatically satisfies a probationer‘s constitutional due process right of confrontation and is automatically admissible at a probation revocation hearing. To resolve this issue, we first examine the due process-
A. The Due Process Right to Confrontation in Probation Revocation Hearings
In conducting a probation revocation hearing, a trial court exercises its discretion to “revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of their supervision, or has subsequently committed other offenses, regardless of whether the person has been prosecuted for those offenses.” (
It is well established that neither parole nor probation revocations are part of a criminal prosecution, and thus “the full panoply of rights due a defendant in [a criminal] proceeding does not apply.” (Morrissey v. Brewer (1972) 408 U.S. 471, 480 (Morrissey) [parole hearings]; see Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 (Gagnon) [probation hearings]; People v. Winson (1981) 29 Cal.3d 711, 716 (Winson) [citing Morrissey‘s holding that a parolee is not entitled to the same protections as a defendant in a criminal prosecution].)2 That said, “[p]robation
A defendant during a probation revocation hearing has no Sixth Amendment right to confront witnesses.3 (See
These due process rights are not absolute. The United States Supreme Court has explained that, in the revocation setting, “the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” (Morrissey, supra, 408 U.S. at p. 489; see also id. at p. 490 [“We have no thought to create an inflexible structure for parole revocation procedures“].) The high court reiterated in Gagnon: “While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey
While it is clear that due process protects a probationer‘s right to confront and cross-examine adverse witnesses absent a showing of good cause (Morrissey, supra, 408 U.S. at p. 489; Gagnon, supra, 411 U.S. at p. 786), the high court has not yet specified the showing necessary to establish good cause. Our case law provides some guidance, however.
This court first addressed the admissibility of hearsay evidence in a probation revocation hearing in Winson, supra, 29 Cal.3d 711. Relying on Morrissey and Gagnon, we held that the transcript of a witness‘s testimony from a preliminary hearing was improperly admitted at a revocation hearing in the absence of a showing of the witness‘s unavailability or other good cause. (Id. at pp. 713–714, 717.) We recognized that the right of confrontation in revocation hearings is not absolute and “may be denied if the trier-of-fact finds and expressеs good cause for doing so,” as may occur when the witness is “legally unavailable” or is at risk of harm if he or she were to appear. (Id. at p. 719.) Similarly, we added, there may be circumstances where it is ” ‘appropriate’ ” for witnesses to “give evidence by document, affidavit or deposition.” (Ibid.) We concluded that “[t]he issue of whether former testimony may be utilized in lieu of a witness‘[s] personal appearance is best resolved on a case-by-case basis.” (Ibid.) Applying these principles to the facts before us, we determined in Winson that the preliminary hearing transcript had been improperly admitted because “the testimony at issue was that of the sole percipient witness to the alleged [probation] violation, a finding of no legal unavailability
In People v. Maki (1985) 39 Cal.3d 707 (Maki), we considered whether the good cause requirement applied to documentary evidence submitted at a revocation hearing. (Id. at p. 709.) There, the prosecution offered copies of a car rental invoice with the defendant‘s name and signature, and a hotel receipt bearing his name, to establish that the defendant violated the terms of his probation by traveling out of state. (Id. at pp. 709, 716.) After concluding that no hearsay exception applied to the evidence in question, we examined “whether the court could nonetheless properly consider the documents in determining whether to revoke [the] defendant‘s probation” without making a finding of good cause. (Id. at pp. 713–714.)
We concludеd that “documentary hearsay evidence which does not fall within an exception to the hearsay rule may be admitted if there are sufficient indicia of reliability regarding the proffered material,” even if the trial court makes no finding of good cause to deny the right to confront and cross-examine witnesses. (Maki, supra, 39 Cal.3d at p. 709.) Applying this standard, we found that although the issue was “close” (id. at p. 716), the documentary evidence was sufficiently reliable to allow for its admission into evidence (id. at pp. 716–717). In concluding the car rental invoice was reliable, we explained: “If the invoice were simply printed and filled out by an unidentified hand and devoid of defendant‘s signature, our conclusion would be that it alone, or even accompanied by the hotel receipt [bearing the defendant‘s name], would be insufficient to find a
Most recently, in People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), we rejected the argument that Maki had impliedly overruled Winson. (Id. at pp. 1156–1157.) We reaffirmed that a transcript of a witness‘s preliminary hearing testimony is inadmissible at a revocation hearing absent a showing of good cause for dispensing with the requirement of live testimony. (Id. at pp. 1148, 1159.) We reiterated that a trial court must determine “on a case-by-case basis” whether former testimony is admissible at a revocation hearing, with the court ascertaining whether a “showing of good cause . . . has been made” and further considering “other circumstances relevant to the issue” of the statement‘s admission. (Id. at p. 1160.)
Our decision in Arreola provided a detailed description of the case-specific balancing process that governs a court‘s analysis. We stated that “[t]he broad standard of ‘good cause’ is mеt (1) when the declarant is ‘unavailable’ under the traditional hearsay standard [citation], (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant‘s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.” (Arreola, supra, 7 Cal.4th at pp. 1159–1160.) We further explained that the showing of good cause for dispensing with the requirement of live testimony must be evaluated in the context of “other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive
In reaching this result, we clarified that our holding in Maki pertained only to the admission of documentary evidence in revocation hearings. (Arreola, supra, 7 Cal.4th at pp. 1156–1157.) We pointed out the “evident distinction between a transcript of former live testimony and the type of traditional ‘documentary’ evidence involved in Maki that does not have, as its source, live testimony.” (Id. at p. 1157.) We also noted that, after Winson, “the United States Supreme Court has reaffirmеd, rather than retreated from, the Morrissey-Gagnon requirements and specifically the requirement that the probationer at a revocation hearing be ‘entitled to cross-examine adverse witnesses, unless the hearing body specifically finds good cause for not allowing confrontation.’ ” (Id. at p. 1158, quoting Black, supra, 471 U.S. at p. 612.)
A spontaneous statement is a statement that “[p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant” and “[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.” (
As previously noted, the Courts of Appeal are divided on the question of whether a showing of good cause for not allowing confrontation (Morrissey, supra, 408 U.S. at p. 489; Gagnon, supra, 411 U.S. at p. 786) and application of Arreola‘s balancing test (Arreola, supra, 7 Cal.4th at p. 1160) are required before statements that come within the spontaneous statement exception to the hearsay rule may be admitted at a probation revocation hearing.
In Stanphill, supra, 170 Cal.App.4th 61, the Court of Appeal considered whether Arreola‘s balancing test applies to the admission of spontaneous statements at a revocation hearing. There, the trial court revoked the defendant‘s probation following a hearing in which the court admitted the victim‘s hearsay statements made to law enforcement officers, identifying the defendant as one of his assailants. (Id. at pp. 65–67.) The Court of Appeal affirmed, holding that spontaneous declarations under
The Court of Appeal in Liggins, supra, 53 Cal.App.5th 55 disagreed with Stanphill‘s holding that spontaneous statements are categorically admissible at a revocation hearing. In Liggins, the victim told police officers that the defendant had physically attacked her during an argument. (Id. at p. 60.) After the defendant was apprehended nearby, the victim identified the defendant as the person who had assaulted her. (Ibid.) The victim subsequently recanted and failed to appear at the defendant‘s probation revocation hearing. (Ibid.) At that hearing, the trial court revoked the defendant‘s probation after admitting as spontaneous statements the victim‘s statements to the police officers recounting the defendant‘s conduct as well as her subsequent identification of the defendant. (Ibid.)
The Court of Appeal reversed. (Liggins, supra, 53 Cal.App.5th at p. 70.) Although it agreed that the victim‘s out-оf-court statements constituted spontaneous statements, the appellate court found it “contrary to the California Supreme Court‘s holding in Arreola . . . to treat
The Court of Appeal below sided with Stanphill and held that spontaneous statements categorically satisfy the minimum
C. We Reject a Categorical Approach Which Requires the Admission of All Spontaneous Statemеnts Without Any Further Showing
The Attorney General asserts that the particular reliability and unique nature of spontaneous statements make them categorically admissible under the due process clause, without requiring a further finding of good cause or a balancing of interests under Arreola. The Court of Appeal below likewise concluded that satisfaction of the criteria within
A categorical approach — which would allow even testimonial spontaneous statements to be admitted at probation revocation hearings without any case-by-case consideration of the reasons for not allowing confrontation — is inconsistent with this court‘s precedent and that of the United States Supreme Court. As we have explained, the high court has held that due process entitles parolees and probationers certain “minimum requirements,” including “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” (Morrissey, supra, 408 U.S. at p. 489; see Gagnon, supra, 411 U.S. at p. 782.) Consistent with these minimum due process protections, we have held that the transcript of a witness‘s preliminary hearing testimony cannot be introduced in lieu of
The balancing test we adopted allows trial courts to examine the government‘s showing of good сause, and to weigh a defendant‘s confrontation rights against the government‘s countervailing interests. It is a comprehensive, holistic approach and no single factor is dispositive.5
Fundamentally, trial courts must balance the defendant‘s interests in confronting a hearsay declarant against the government‘s showing of “good cause,” that is to say, the government‘s countervailing interests in presenting the evidence without the declarant‘s presence. (Arreola, supra, 7 Cal.4th at p. 1160.) Keeping with the flexible nature of due process, Arreola did not articulate fixed rules regarding what trial courts must consider in conducting this balancing. We did, however, identify several circumstances that should be taken into consideration when weighing a defendant‘s confrontation rights against the government‘s countervailing interests.
The Attorney General urges us to hold that “[t]he unique value of [spontaneous statements under
Moreover, this balancing framework is consistent with a due process-based right to confrontation in the probation context. The framework affords probationers a meaningful opportunity to confront and cross-examine witnesses in appropriate circumstances “to assure that the finding of a [probation] violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the [probationer‘s] behavior.” (Morrissey, supra, 408 U.S. at p. 484.) It is also consistent with the flexible character of the due process principles that give rise to a probationer‘s confrontation rights here. (See id. at p. 481 [“due process is flexible and calls for such procedural protections as the particular situation demands“].) The “touchstone of due process” is “fundamental fairness.” (See Gagnon, supra,
The remaining arguments advanced by the Attorney General and the Court of Appeal below also do not persuade us to abandon a balancing process in favor of a blanket rule of admissibility for testimonial spontaneous statements. Both reason that it would be incongruous to provide probationers greater confrontation rights than afforded to defendants in criminal trials. The Attorney General contends “confrontation rights at revocation hearings must be more flexible than at criminal trials and should yield particularly to permit the admission of highly trustworthy forms of evidence that would promote the reliability of factfinding.” The Court of Appeal below similarly noted that it “would make no sense” for the “standard for admitting hearsay in probation revocation hearings” to “be more onerous than the standard for admitting hearsay at trial.” (Gray, supra, 63 Cal.App.5th at p. 955.)
But the Arreola standard as applied here today does not give probationers greater rights than criminal defendants. Testimonial statements by a nontestifying declarant may be admitted against a defendant in a criminal trial only when the declarant is unavailable and was previously subject to cross-examination (Crawford, supra, 541 U.S. at pp. 55–56, 68), regardless of the existence of a hearsay exception. At a revocation hearing, however, it is possible that testimonial statements falling within a hearsay exception could nonetheless be admitted when the government‘s interests override the defendant‘s confrontation rights under the specific
We are also unpersuaded that we should not adopt a balancing test here because, as the Attorney General notes, Arreola was “a case in which no exception to the hearsay rule applied whatsoever,” whereas this case involves spontaneous statements under
Both the Court of Appeal and the parties before us have addressed whether the United States Supreme Court‘s Crawford opinion impacts our analysis here. As previously noted, in Crawford, the high court held that testimonial statements by a declarant who does not appear at trial are inadmissible against the defendant in a criminal prosecution unless the declarant is unavailable as a witness and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at pp. 68–69.) Crawford established a new framework for analyzing confrontation clause claims. (See Cage, supra, 40 Cal.4th at p. 969.) Before Crawford, hearsay evidence was admissible if the witness was unavailable and the statements had adequate ” ‘indicia of reliability,’ ” i.e., they fell within a “firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.” (Ohio v. Roberts (1980) 448 U.S. 56, 66, overruled in Crawford, supra, 541 U.S. 36.) After Crawford, the focus is no longer on whether the hearsay statement bears adequate indicia of reliability, but rather on whether the statement is considered testimonial in nature under Crawford and its progeny. (Crawford, at pp. 68–69 [“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation“]; see Cage, at p. 979.) In other words, generalized indicia of reliability cannot save a testimonial hearsay stаtement from being excluded under the Sixth Amendment right to confrontation. Any such
Although a defendant‘s right to confrontation at a probation revocation hearing stems from the due process clause rather than the Sixth Amendment‘s confrontation clause, we are not persuaded that Crawford and its progeny have no relevance here. Crawford underscores the importance of confrontation, as enshrined in the Sixth Amendment, when the People offer out-of-court testimonial statements against a defendant in a criminal trial. At probation revocation hearings, where a defendant‘s liberty interest is also at stake, courts similarly should consider the importance of a defendant‘s confrontation rights, albeit under the due process clause and the framework prescribed by Morrissey and its progeny, including our case law. Just as Crawford rejected a regime premised on the perceived reliability of the hearsay evidence in question, we see no persuasive reason to regard the fact that testimonial hearsay falls within a firmly rooted exception to the hearsay rule as the sole consideration relevant to the evidence‘s admissibility in a probation revocation hearing. When dealing with testimonial statements at a probation revocation hearing, it is appropriate to weigh the defendant‘s confrontation rights against the government‘s reasons for not producing the declarant. While a defendant‘s interest in confrontation may be diminished by the reliability of testimоnial hearsay evidence, reliability alone does not render such evidence admissible in revocation proceedings.
We emphasize that a defendant‘s due process right to confront testimonial witnesses against him is not absolute; a defendant‘s interests can be outweighed by the government‘s substantial showing of good cause for not making the witness available at the revocation hearing, by sufficient independent evidence corroborating the hearsay evidence, and by other indicia of reliability including the fact that the statements fall within a firmly rooted exception to the hearsay rule. What cannot be done, however, is reducing the analysis to a single determination that hinges solely on whether a statement qualifies as a spontaneous statement under
Because the Court of Appeal in this case did not evaluate whether N.S.‘s statements were admissible under Arreola, or, if the statements should not have been admitted, whether that error was prejudicial, we remand the matter to the Court of Appeal to decide those questions in the first instance.9
III. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to that court for further proceedings consistent with this opinion.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
At a probation revocation proceeding, a trial court must weigh the probationer‘s interest in confrontation against the government‘s good cause for not producing a witness. (See generally maj. opn., ante, at pp. 5–12; see also People v. Arreola (1994) 7 Cal.4th 1144, 1159–1160 (Arreola).) I write separately to emphasize that, as part of this balancing test set forth in Arreola, the potential for emotional or mental harm to the witness can be a relevant factor bearing on the state‘s demonstration of good cause. Arreola specifically provides that “[t]he broad standard of []‘good cause’ is met . . . when the declarant‘s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.” (Arreola, at pp. 1159–1160, italics added, citing Cohen et al., The Law of Probation and Parole (1983 ed.) § 9.32, pp. 466–467; see Cohen, at p. 467 [noting that “the term ‘harm’ ” includes not only physical harm, but may include “mental harm, such as emotional trauma to a rape victim“].)
Here, the People sought to revoke defendant Dontrae Renay Gray‘s probation based, in part, on an allegation that he inflicted corporal injury upon a person in a dating relationship. (See maj. opn., ante, at p. 3.) I express no view regarding the factual record underlying that allegation, nor do I have an opinion as to whether good cause can be established on remand. I note simply that, as a general matter, although not all alleged victims of domestic violence are similarly situated, there are
Domestic violence victims, by testifying, may be facilitating their partner or family member‘s incarceration. This, for some, may prove emotionally or mentally harmful. (See Brown, supra, 33 Cal.4th at p. 899 [” ‘A fundamental difference between family violence and other forms of violence (such as street violence) is that family violence occurs within ongoing relationships that are expected to be protective, supportive, and nurturing. The ties between victim and victimizer often are the strongest emotional bonds, and victims frequently feel a sense of loyalty to their abusers’ “].) Our prior case law and today‘s decision make clear that, “in appropriate
GROBAN, J.