THE PEOPLE, Plаintiff and Respondent, v. BRANDON LIGGINS, Defendant and Appellant.
A156843
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
Filed 8/6/20
CERTIFIED FOR PUBLICATION; (City & County of San Francisco Super. Ct. Nos. 226811, 16020127)
There are two primary bases for the appeal. Liggins argues, first, that the trial court abused its discretion by admitting out-of-court statements from Roy at his probation revocation hearing under the spontaneous statement exception to the hearsay rule, and second, that as a result, he was deprived of his due process right to confront an adverse witness.
We conclude that, while the trial court was within its discretion to admit the challenged statements under the spontaneous statement exception, their admission in the absence of a showing of Roy‘s unavailability or other good cause to present hearsay in lieu of live testimony from her violated Liggins‘s due process right of confrontation.
We must therefore reverse.1
I. BACKGROUND
On December 1, 2016, Liggins pleaded guilty to willfully inflicting corporal injury on Roy, his former girlfriend. For this offense, he received three years’ probation. Liggins violated the terms of his probation multiple timеs, and each time it was reinstated with modified terms.
The violation in the current case arises from an alleged altercation between Liggins and Roy in the early hours of September 10, 2018. Around 4:00 o‘clock in the morning, police responded to a silent hold-up alarm activated at
When Officer Brandon Smith responded to the scene and began collecting information from Roy about the incident, her behavior was hot-tempered and unruly. When she approached her car, she found its windows broken and began to scream. She angrily berated the person who had accompanied her to the store for sleeping in the car and not waking up during the fight. She then cursed at the police for not doing enough, and asked for a police badge and gun so she could shoot Liggins herself. A man then rode up to the scene on Liggins‘s bicycle, giving Roy her car keys. Liggins, she told Officer Smith, “is going to jail.”
Eventually, Officer Serhiy Kryvoruka joined Officer Smith on scene. The two officers asked Roy to calm down so they could make an accurate report, and at first, she seemed to comply. Not far from the convenience store, Officer Kryvoruka arrested Liggins. They walked Roy over to where Liggins was being held and asked her to identify him as part of a “cold show.” Roy identified Liggins, becoming upset again at that point. She told officers, ” ‘That person in front of me is Brandon Liggins, the same person who just committed a crime against me.’ ” Officer Kryvoruka testified that Roy sounded angry and upset, and was speaking so fast at points that he had trouble writing information down.
Months later, by the time of Liggins‘s preliminary hearing, his former attorney Erica Franklin stated that Roy had recanted her accusations against Liggins. Franklin claimed Roy told her Liggins never struck or even threatened to harm her. According to Franklin, Roy said that when Roy came outside of the store, she found belongings from inside her car on the sidewalk, but did not know if Liggins was the one who put them thеre. She was also not sure how she received the cuts and bruises that she originally told police were inflicted by Liggins. Her erratic behavior and anger at the scene of Liggins‘s arrest, Roy told Franklin, resulted from a combination of her being under the influence of a controlled substance and her failure to take prescribed medication for manic-depression.
At the probation revocation hearing, Liggins‘s attorney asserted hearsay objections to the admission of (1) Officer Smith‘s body camera footage, which cаptured Roy making statements to him about Liggins‘s conduct, and (2) Officer Kryvoruka‘s testimony to Roy‘s statement identifying Liggins. The objections were overruled. Relying in part on these challenged hearsay statements, the trial court revoked Liggins‘s probation and sentenced him to three years in prison, awarding him 234 days of earned presentence credit.
II. DISCUSSION
A. The trial court correctly determined Roy‘s statements in the body camera footage and at the cold show to be admissible under Evidence Code section 1240 .
The body camera footage showed Roy making statements to Officer Smith about Liggins assaulting her. And in his testimony, Officer Kryvoruka told the court that, at the cold show, Roy identified Liggins as the perpetrator. All of these out-of-court statements by Roy, Liggins contends, should have been excluded as hearsay. (
The trial court found the challenged statements admissible under
We review the trial court‘s rulings on hearsay objections for abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 65; People v. Phillips (2000) 22 Cal.4th 226, 236.) Any preliminary factfinding undertaken to determine whether the requisite elements of the spontaneous stаtement exception have been met will be upheld if supported by substantial evidence. (People v. Riccardi (2012) 54 Cal.4th 758, 831, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
In attacking each piece of challenged hearsay here—the body camera footage capturing Roy‘s statements to Officer Smith, as well as Officer Kryvoruka‘s testimony describing Roy‘s identification at the cold show—Liggins makes the same argument: According to him, Roy was sufficiently calm when she spoke to Officers Smith and Kryvoruka that her statements cannot be considered excited utterances, and thus do not qualify for admission undеr the spontaneous statement exception.
Citing People v. Morrison (2004) 34 Cal.4th 698 (Morrison), the Stanphill court rejected an argument that the victim was calm and had an opportunity to reflect by the time he was shown the photo lineup in the jail infirmary. (Stanphill, supra, 170 Cal.App.4th at pp. 72–75.) Morrison, the court observed, “upheld admissibility of a police officer‘s testimony that he responded to a crime scene, saw a victim with apparent gunshot wounds who looked like she might lapse into unconsciousness or even die on the spot, and asked her who did it. She responded by identifying three persons [by name.] [Citation.] The Supremе Court said: ‘[S]tatements purporting to name or otherwise identify the perpetrator of a crime may be admissible [under section 1240] where the declarant was the victim of the crime and made the identifying remarks while under the stress of excitement caused by experiencing the crime.’ ”2 (Stanphill, at p. 73.) However, Morrison also said, ” ‘Moreover, where the spontaneous declarant is available as a witness, as [the victim] was here, “the existence and truth of the declaration may be explored in an examination under oath.” ’ ” (Stanphill, at p. 74.)
Applying Morrison to the probation revocation setting, the Stanphill court held that, although thе victim who pronounced himself ready to view the photo lineup was not excited while doing so, the circumstances nonetheless indicated the “physical attack on the victim was an event likely to induce stress and excitement” in light of Deputy Pottorff‘s testimony that he “was upset, breathing heavily and was not calm as he made the identifications.”
Here, as in Stanphill, there were such circumstantial indicators of trustworthiness based on the evidence of Roy‘s mental state when she made the challenged statements. First, there was evidence that Roy was extremely upset and speaking very rapidly. Second, the statements she made described events Roy had perceived first-hand immediately before the cold show and the recorded interview with Officer Smith. Third, several corroborating circumstances tend to support the trial court‘s determination that these statements were made excitedly, while Roy was feeling stress. There is, for example, video evidence showing Roy‘s demeanor just minutes prior to the cold show. The statements made to Officer Smith—and the manner in which Roy made them—were also consistent with things the arresting officers themselves could observe and verify, such as Roy‘s display of umbrage at what Liggins had done and the damage to her car.
To be sure, some of the circumstances here are also consistent with Roy‘s having calmed down when she spoke, or having failed to take needed medication, or—if her reported later recantation were credited—being in a state of intoxication and generally vulnerable to suggestive questioning by police due to her unstable mental state.4 Liggins also points out that an out-of-court declarant merely being angry and upset does not satisfy
The court was within its discretion to rule as it did. Because Liggins does not dispute that the challenged out-of-court statements “narrate[d], describe[d], or explain[ed] an act, conditiоn, or event perceived by” Roy, and because there is substantial evidence in the record to support the court‘s finding that the statements were “made spontaneously while [Roy] was under the stress of excitement caused by such perception,” we see no error. (
B. The admission of Roy‘s hearsay statements violated Liggins‘s due process rights.
In this case, as in Stanphill, the victim who made the challenged out-of-court statements later recanted, did not testify, and there was no finding of unavailability. (Stanphill, supra, 170 Cal.App.4th at pp. 67–68, 71.) There was no showing in Stanphill, or in this case, that the state had good cause for the admission of such statements in the absence of an unavailability finding. (Id. at p. 69.) And there, as here, an objection was made and overruled that the defendant was deprived of his right to confront a witness against him. (Id. at pp. 68–70.) Thus, “[t]hat the admission of the evidence complies with state evidentiary law does not end the inquiry.” (Id. at p. 77.) There is a second step to the analysis, one posed by the underlying constitutional objection, just as there was in Stanphill. (Id. at pp. 78–81.) We now turn to that constitutional question. Our review is de novo. (Id. at p. 78.)
1. Applicable Principles
“Although probation violation hearings involve the criminal justice system, they are not governed by all the procedural safeguards of a criminal trial. (People v. Winson (1981) 29 Cal.3d 711, 716 (Winson), citing Gagnon v. Scarpelli (1973) 411 U.S. 778, and Morrissey v. Brewer (1972) 408 U.S. 471; see also People v. Shepherd (2007) 151 Cal.App.4th 1193, 1198.) Specifically, the Sixth Amendment‘s right of confrontation does not apply to probation violation hearings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 (Johnson).) A defendant‘s right to cross-examine and confront witnesses at a violation hearing stems, rather, from the due process clause of the Fourteenth Amendment. (Johnson, supra, at p. 1411, citing Black v. Romano (1985) 471 U.S. 606.) [Fn. omitted.] Those confrontation rights, however, are not absolute, and where appropriate, witnesses may give evidence by ’ “affidavits, depositions, and documentary evidence.” ’ (Winson, supra, at p. 716; see also Morrissey v. Brewer, supra, at p. 489 [the parole revocation ‘process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial‘].)” (People v. Abrams (2007) 158 Cal.App.4th 396, 400.)
Our Supreme Court held in People v. Arreola (1994) 7 Cal.4th 1144, 1159–1160 (Arreola) that, to determine whether transcripts of prior testimony may be admitted in probation revocation proceedings consistent with due process, a balancing test must be employed in which the strength of the defendant‘s interest in confrontation is weighed against the state‘s countervailing interests as measured by a broad standard of good cause. The good cause standard “is met (1) when the declarant is ‘unavailable’ under the traditional hearsay standard (see
Once this showing is made, Arreola and Winson call for a case-by-case balancing of interests to determine whether the proffered hearsay may be admitted. “[I]n determining the admissibility of the evidence on a case-by-case basis,” the Arreola court explained, “the showing of good cause that has been made must be considered together with 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 a 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.” (Arreola, supra, 7 Cal.4th at p. 1160; see also Winson, supra, 29 Cal.3d at p. 719 [“The issue of whether former testimony may be utilized in lieu of a witness’ personal appearance is best resolved on a case-by-case basis.“].)5
Stanphill saw no need for any showing of good cause or balancing of interests. Disagreeing with an “apparent concession” from the People to the contrary, the Stanphill court held that, where a proffered hearsay statement qualifies for admission under
Although documentary evidence may be admitted at a probationary hearing consonant with due process so long as there is a showing of reliability (People v. Maki (1985) 39 Cal.3d 707, 709 [allowing admission of printed invoice signed by the defendant]), that rule is limited in its application. In Arreola the Supreme Court rejected the contention that there is a generally applicable rule of admissibility for prior testimony upon a showing of “sufficient indicia оf reliability.” (Arreola, supra, 7 Cal.4th at p. 1156.) While it is possible to say categorically that there is no significant utility to a defendant‘s confrontation right when a document that simply records data is involved—since a document cannot be cross-examined or its demeanor observed—the same cannot be said of former testimony (e.g., Winson, supra, 29 Cal.3d at p. 717; Arreola, supra, at pp. 1156–1157) or other evidence offered as a substitute for live testimony (e.g., Shepherd, supra, 151 Cal.App.4th at pp. 1197, 1201–1202 [testimony of probation officer recounting statements by program administrator about defendant‘s alcohol use]).
That is why case-by-case consideration is necessary. Under a due process analysis, the importance of a defendant‘s confrontation right will vary with the circumstances. Because any determination of minimum due process requirements in the context of probation revocation must be flexible, there will be cases where the confrontation right must give way to the state‘s
3. Reliability Is But One Factor To Be Considered in Arreola Balancing
The Stanphill court grounds its rule of per se constitutionality for excited utterances on what it describes as the unique reliability of such evidence.
“We believe spоntaneous statements under section 1240 are a special breed of hearsay exception,” Stanphill explains. (Stanphill, supra, 170 Cal.App.4th at p. 81Stanphill court, ” ’ [t]he theory of the spontaneous statement exception to the hearsay rule is that since the statement is made spontaneously, while under the stress of excitement and with no opportunity to contrive or reflect, it is particularly likely to be truthful. . . . Unlike other hearsay exceptions in which the unavailability of a witness makes it “necessary” to resort to hearsay as a weaker substitute for live testimony (5 Wigmore, Evidence (Chadbourn ed. 1974) § 1420, p. 251), the spontaneous statement exception involves a “necessity” of a different sort: “[T]hat we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources” (id. at § 1421, p. 253, italics in original) and “[t]he extrajudicial assertion being better than is likely to be obtained from the same person upon the stand, a necessity or expediency arises for resorting to it.” (6 Wigmore, Evidence, op. cit. supra, § 1748, p. 199.)’ ” (Ibid.)
As an exegesis on a point of hearsay law, what the Stanphill court says here cannot be gаinsaid. But as a matter of due process analysis, we do not find it persuasive. It conflates the backstop reliability screening that ultimately determines the admissibility of evidence offered under
It is undisputed that the out-of-court statements from Roy on the body camera footage and at the cold show were admitted for their truth in lieu of live testimony. Had the issue presented here arisen at a criminal trial, these hearsay statements likely would be considered testimonial. (Davis v. Washington (2006) 547 U.S. 813, 829–831 [domestic violence victim‘s statements during interrogation by officers responding to the scene of the offense where there was no ongoing emergency].) This case is no different. (People v. Shepherd, supra, 151 Cal.App.4th at p. 1201 [out-of-court statements made by program administrator that defendant violated his probation by consuming alcohol admitted in violation of Arreola and Winson].) While the federal due process clause does not “сommand” that testimonial hearsay must always be subjected to adversarial testing by cross-examination and face-to-face confrontation, as the Sixth Amendment does in the context of evidence presented at trial (Crawford v. Washington (2004) 541 U.S. 36 (Crawford)), the paradigm shift brought about by Crawford is relevant to the treatment of testimonial hearsay wherever a constitutionally protected right of confrontation is at stake.
Crawford, it will be recalled, overruled Ohio v. Roberts (1980) 448 U.S. 56 (Roberts). Before Crawford was decided, state hearsay law often drove the Sixth Amendment analysis in confrontation clause cases involving testimonial hearsay, and Roberts was the avatar of that approach. Under Roberts, the availability of the Sixth Amendmеnt right of confrontation was, in effect, dictated by the evidence concept of reliability. (Roberts, supra, at p. 66 [hearsay from an unavailable witness is admissible over a Sixth Amendment objection only if it bears adequate ” ‘indicia of reliability’ “; “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception“].) But “[r]eliability is an amorphous, if not entirely subjective, concept,” the Crawford court explained. (Crawford, supra, 541 U.S. at p. 63ibid.), Crawford held that the Roberts framework of analysis “is so unpredictable that it fails to provide meaningful protection from even cоre confrontation violations.” (Ibid.)
Because reliability bears directly upon the “significance of the particular evidence [proffered] to a factual determination relevant to a finding of violation of probation” (Arreola, supra, 7 Cal.4th at p. 1160), it certainly has a place in the case-by-case weighing of interests required by Arreola. But it is only one of several factors to be weighed, and it must not be assigned dispositive weight in all cases to the exclusion of other factors—which is what Stanphill does by creating a categorical test that turns solely on