THE PEOPLE,
S269237
IN THE SUPREME COURT OF CALIFORNIA
August 14, 2023
Second Appellate District, Division Two B302236; Los Angeles County Superior Court MA065662
Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred.
Justice Groban filed a concurring opinion.
PEOPLE v. GRAY
S269237
Opinion of the Court by Guerrero, C. J.
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 (
At approximately 8:00 a.m. on March 30, 2019, while defendant was still on probation, police officers received a 911 call from a woman reporting that someone was “trying to break” and “kick. . . in” the door of a residence. Police arrived at the residence approximately four minutes later and encountered the caller, N.S., at the front of the residence. Officers observed damage to the wooden front door. Two officers went to the rear of the residence, located defendant, and detained him there. After the officers had taken defendant into custody, another officer entered the residence and spoke with N.S. in the living room. N.S. appeared frightened and was breathing heavily. She had several bruises or red marks on her arms and a small scratch on her cheek.
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 рolice 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 tried to punch her approximately 20 times, mainly on her arms, and that she fell to the ground. She had visible injuries from defendant‘s assault and reported that she was in pain.
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 open, 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 video containing N.S.‘s statements violated his Sixth Amendment rights under Crawford as well as his due process rights under the Fourteenth Amendment. The triаl court ruled that the Sixth Amendment applied only in criminal proceedings and therefore did not apply at a probation violation hearing. The court then ruled that N.S.‘s statements within the first seven minutes of the video qualified as spontaneous statements under
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 criminal proceeding (id. at p. 949), but found that consideration
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-based right to confrontation in revocation hearings recognized by the United States Supreme Court and this court, and the conflicting decisions of the Courts of Appeal that have addressed this question.
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 revocation, like parole revocation, . . . does result in a loss of liberty.” (Gagnon, at p. 782.) Therefore, “[i]t is fundamental that both the People and the probationer or parolee have a continued post-conviction interest in accurate fact-finding and the informed use of discretion by the trial court. The probationer or parolee‘s concern is ‘to insure that his liberty is not unjustifiably taken away and the [People‘s] to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.‘” (Winson, at p. 715.)
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 еmphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.” (Gagnon, supra, 411 U.S. at p. 783, fn. 5.)
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
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 dеtermining whether to revoke [the] defendant‘s probation” without making a finding of good cause. (Id. at pp. 713-714.)
We concluded 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 thе defendant‘s name], would be insufficient to find a violation of probation.
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 met (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 evidence of an alleged probation violation, rather than, for example, simply а reference to the defendant‘s character); the significance of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony, or whether instead the former testimony constitutes the sole evidence establishing a violation of probation.” (Id. at p. 1160.) We noted that “[s]everal federal circuit courts have adopted a similar approach, balancing the defendant‘s need for confrontation against the prosecution‘s showing of good cause for dispensing with confrontation.” (Id. at p. 1160, citing U.S. v. Martin (9th Cir. 1993) 984 F.2d 308, 311, U.S. v. Bell (8th Cir. 1986) 785 F.2d 640, 643.)
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
B. Case Law Concerning the Due Process Right to Confrontation as Pertaining to Spontaneous Statements
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 Court of Appeal reversed. (Liggins, supra, 53 Cal.App.5th at p. 70.) Although it agreed that the victim‘s out-of-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 due process requirements applicable at revocation hearings because of their inherent reliability. (Gray, supra, 63 Cal.App.5th at p. 949.)
C. We Rеject a Categorical Approach Which Requires the Admission of All Spontaneous Statements 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 revоcation 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 balancing test we adopted allows trial courts to examine the government‘s showing of good cause, 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.
Among them, as “the significancе of the particular evidence to a factual determination” needed to make a violation determination increases, so does the importance of the probationer‘s confrontation right. (Ibid.) Similarly, if no “other admissible evidence” corroborates the statements at issue and the statements the government seeks to introduce instead “constitute[] the sole evidence establishing a violation of probation,” a defendant‘s right to confrontation is heightened. (Ibid.) Applying this framework, it follows that the reliability of a particular statement could — but not necessarily must — defeat a defendant‘s right to confront and cross-examine a declarant at a revocation hearing.
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 рrobationer‘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, 411 U.S. at p. 790.) As the United States Supreme Court has noted of due process, ” ’ [i]ts application is less a matter of rule. Asserted
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 circumstances of the case. In other words, the right to confront witnesses exists as a procedural due process safeguard at a probation revocation hearing, but it may give way to a showing of good cause (Morrissey, supra, 408 U.S. at p. 489) and a balancing of all relevant facts in a given case (Arreola, supra, 7 Cal.4th at pp. 1159-1160). No such balancing process applies to testimonial statements against a defendant in a criminal trial. In short, our decision here does not conflict with Morrissey, or this court‘s precedent, by providing probationers with greater rights than those afforded to criminal defendants.
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 stаtements 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. 68-69Crawford 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 statement from being excluded under the Sixth Amendment right to confrontation. Any such testimonial statement by a witness is inadmissible unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statement is deemed reliable by the court. In sum, a reliability-based approach is no longer the touchstone of a confrontation clause analysis. (Hemphill v. New York (2022) 595 U.S. 70, 82 [142 S.Ct. 681, 690].)
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, аs enshrined in the Sixth Amendment, when the People offer out-of-court testimonial statements against a defendant in a criminal trial. At
We therefore decline to require trial courts to rely solely on the consideration of reliability in determining whether a defendant‘s due process right to confrontation at a revocation proceeding is protected.
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 indepеndent 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
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.
PEOPLE v. GRAY
S269237
Concurring Opinion by Justice Groban
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 often unique challenges associated with procuring victim testimony in domestic violence cases. (See Lininger, Prosecuting Batterers After Crawford (2005) 91 Va. L.Rev. 747, 768 [“Victims of domestic violence are more prone than other crime victims to recant or refuse to cooperate after initially providing information to police. Recent evidence suggests that 80 to 85 percent of battered women will recant at some point“]; Beloof & Shapiro, Let the Truth Be Told: Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of Court Statements As Substantive Evidence (2002) 11 Colum. J. Gender & L. 1, 3 [“Non-cooperation by recantation or failure to appear at trial is an epidemic in domestic violence cases“]; People v. Brown (2004) 33 Cal.4th 892, 899 (Brown) [describing the complications presented in domestic violence cases, including ” ‘victims who refuse to testify, who recant previous statements, or whose credibility is attacked by defense
Domestic violence victims, by testifying, may bе 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 circumstances” (Arreola, supra, 7 Cal.4th at p. 1160), trial courts may consider the potential emotional and mental harm that alleged victims may suffer if they are compelled to testify.
GROBAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Gray
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 63 Cal.App.5th 947
Review Granted (unpublished)
Rehearing Granted
Opinion No. S269237
Date Filed: August 14, 2023
Court: Superior
County: Los Angeles
Judge: Renée F. Korn
Counsel:
William J. Capriola, under appointment by the Supreme Court, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., Michael Katz, Scott A. Taryle and Teresa A. Reed Dippo, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William J. Capriola
Attorney at Law
P.O. Box 1536
Sebastopol, CA 95473
(707) 829-9490
Teresa A. Reed Dippo
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3896