P. v. Gray

Filed 4/30/21; REVIEW GRANTED. See Cal. Rules of Court, rules 8.1105 and 8.1115
(and corresponding Comment, par. 2, concerning rule 8.1115(e)(3)).
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
DONTRAE GRAY,
Defendant and Appellant.
B302236
(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.
* * * * * *

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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 at 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 violation 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.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In September 2015, Dontrae Gray (defendant) pled no
contest to a single count of assault with a deadly weapon (Pen.

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Code, § 245, subd. (a)(1))1 and admitted that he personally
inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court
imposed a seven-year prison sentence, but suspended its
execution and placed defendant on formal probation for five
years. As a condition of probation, defendant was to “obey all
laws.”
On March 30, 2018, defendant was arrested for assaulting
his girlfriend 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 scratch 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 prosecutor that she was “lying about some things.”
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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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 (§
273.5, subd. (a)), and (2) residential burglary (§ 459). Second, the
People filed a petition alleging that the same conduct constituted
a violation of probation in defendant’s 2015 case.
The new prosecution 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 that the girlfriend’s
statement on the bodycam video was inadmissible under the
Confrontation Clause; the People then announced that they were
unable to proceed; and the trial court granted defendant’s motion
to dismiss.
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 Evidence Code section 1240.
The court also ruled that a defendant’s right to cross-examination
in probation violation hearings was governed by due process
(rather than the Confrontation Clause), and that the girlfriend’s
excited utterance constituted “competent evidence that avoids
due process concerns.” On the basis of the bodycam video and
corroborative testimony of the responding officers, the trial court
found defendant in violation of his probation and imposed the
previously suspended seven-year prison sentence.
Defendant filed this timely appeal.

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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.)
I. The Standards Governing Probation Revocation
Hearings, Generally
When a criminal defendant is placed on probation rather
than sentenced to a term of incarceration, a trial court is

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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].” (§ 1203.2, subd. (a).) Despite coming after a
criminal prosecution, the revocation of probation is itself “not
part of [the] criminal prosecution.” (Morrissey v. Brewer (1972)
408 U.S. 471, 480 (Morrissey), italics added; People v. Rodriguez
(1990) 51 Cal.3d 437, 441 (Rodriguez); Stanphill, supra, 170
Cal.App.4th at p. 72.)
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 applies 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
preliminary revocation hearing and (2) a final revocation hearing.
(Gagnon, at pp. 782-783, 786; Vickers, at p. 460.) And at the final

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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] the 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 Evid. Code, § 240), (2) when the declarant, although not
2 A criminal defendant also has the right to (1) receive
“‘written notice of the claimed violations’” of probation, (2)
“‘disclosure . . . of [the] evidence against him,’” (3) an
“‘opportunity to be heard in person and to present witnesses and
documentary evidence,’” (4) “‘a “neutral and detached” hearing
body,’” and (5) “‘a written statement by the factfinders as to the
evidence relied on and [the] reasons for revoking’” probation.
(Gagnon, supra, 411 U.S. at p. 786.) The defendant is
automatically entitled to the assistance of counsel in California
(Vickers, supra, 8 Cal.3d at pp. 461-462), but only on a case-by-
case basis under the federal Constitution (Gagnon, at pp. 788-
790).

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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 . . . to the declarant.” (Ibid.) Factors
relevant to the defendant’s need for confrontation include (1) “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),” (2)
“the significance of the particular evidence to a factual
determination relevant to a finding of [a] violation of probation,”
and (3) “whether other admissible evidence . . . corroborates” the
statement “or whether instead the former testimony constitutes
the sole evidence establishing a violation of probation.” (Id. at p.
1160.)
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
two 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

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subject to governmental action . . . in the accurate determination
of the matters before the court”].) This is why due process
mandates that guilt be established beyond a reasonable doubt.
(In re Winship (1970) 397 U.S. 358, 367.) And it is why due
process mandates the exclusion of unreliable evidence (e.g.,
Sexton v. Beaudreaux (2018) 138 S.Ct. 2555, 2559 [“‘[R]eliability
[of an eyewitness identification] is the linchpin’ of” due process
analysis]) and mandates the admission of reliable evidence even
when the rules of evidence might not (e.g., People v. Loker (2008)
44 Cal.4th 691, 729; People v. Williams (2016) 1 Cal.5th 1166,
1190). Indeed, the purpose of applying due process protections to
probation revocation hearings in the first place is to vindicate
and protect a criminal defendant’s cognizable interest “‘in not
having [probation] revoked because of erroneous information or
because of an erroneous evaluation of the need to revoke
[probation.]’” (Arreola, supra, 7 Cal.4th at p. 1152, quoting
Morrissey, supra, 408 U.S. at p. 484, italics added.) In sum, due
process ensures reliable verdicts by mandating procedures that
assure the reliability of the evidence considered by the trier of
fact. Because out-of-court statements that fall within a firmly
rooted hearsay exception are, by definition, reliable (Ohio v.
Roberts (1980) 448 U.S. 56, 66 (Roberts), overruled on other
grounds by Crawford, supra, 541 U.S. 36), the fact that a
statement falls within such an exception is enough by itself to
achieve the purpose and function of the due process guarantees
applicable to probation revocation hearings.
Second, a rule that the applicability of a firmly rooted
hearsay exception is sufficient to satisfy due process is also most

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consonant with California precedent.3 The cases that hinge
admissibility of out-of-court statements upon the existence of
good cause 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 legally unavailable];
Winson, supra, 29 Cal.3d at p. 719 [same]; People v. Maki (1985)
39 Cal.3d 707, 709, 713-714 (Maki) [documentary evidence did
not fall under business records exception to hearsay rule].)4
3 The federal courts have adopted a different rule, but that is
chiefly because Federal Rule of Criminal Procedure 32.1(b)(2)(C)
provides that a person subject to a revocation hearing “is entitled
to” “question any adverse witness unless the court determines
that the interest of justice does not require the witness to
appear,” and the Advisory Committee Note to that provision
specifies that the court, “when considering the . . . right to cross-
examine adverse witnesses,” “should” “balance the person’s
interest in the constitutionally guaranteed right to confrontation
against the government’s good cause for denying it.” (Fed. R.
Crim. P. 32.1, Adv. Com. Note.) The federal circuit courts have
uniformly read this provision to require a showing of good cause
and balancing, even though several circuits had previously held
that due process was satisfied by the applicability of a firmly
rooted hearsay exception. (United States v. Jones (10th Cir.
2016) 818 F.3d 1091, 1099-1100; Curtis v. Chester (10th Cir.
2010) 626 F.3d 540, 545.)
4 Thus, the distinction those cases draw between
“documentary evidence” and “live testimony” becomes relevant
only if no hearsay exception applies. (Arreola, supra, 7 Cal.4th at
pp. 1152-1153; Maki, supra, 39 Cal.3d at p. 709.)

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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 does 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 hearing.

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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].” (U.S. Const., 6th Amend.) For obvious reasons, the
Clause is implicated whenever a court admits an out-of-court
declaration for its truth when the declarant is not available for
cross-examination. (Crawford, at p. 59, fn. 9.) Prior to Crawford,
the U.S. Supreme Court held in Roberts, supra, 448 U.S. 56 that
the Clause reached all out-of-court statements, but conditioned
their admissibility on whether they fell into a firmly rooted
hearsay exception or bore other “particularized guarantees of
trustworthiness.” (Roberts, at p. 66.) In its 2004 Crawford
decision, the court jettisoned Roberts’s framework and redefined
the scope and effect of the Clause. Under Crawford, the Clause
reaches only “testimonial” statements (that is, those out-of-court
statements made for the “‘primary purpose’” of “‘establish[ing] or
prov[ing] past events potentially relevant to later criminal
prosecution’”), but excludes them unless there was a prior
opportunity for cross-examination and unless the declarant is
legally unavailable (Crawford, at pp. 55-56, 68; Michigan v.
Bryant (2011) 562 U.S. 344, 356, quoting Davis v. Washington
(2006) 547 U.S. 813, 822). Does Crawford’s redefining of the
Confrontation Clause justify a change to the due process-based
right of cross-examination applicable during probation revocation
hearings?
Liggins thought the standard for admitting out-of-court
statements under due process was, on some level, tethered to the
standard for doing so under the Clause. (Liggins, supra, 53
Cal.App.5th at p. 68 [finding that the “paradigm shift brought

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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 criminal cases.”
(Whorton v. Bockting (2007) 549 U.S. 406, 420.) Because due
process remains focused on the reliability of evidence and the

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accuracy of the resulting verdicts, Crawford’s shift away from
reliability makes it less relevant as a bellwether and hence less
useful as a tether. (Accord, United States v. Hall (9th Cir. 2005)
419 F.3d 980, 985 [“In Crawford, the Supreme Court addressed
the Sixth Amendment rights of the accused in criminal
prosecutions; it did not address the due process rights attendant
to post-conviction proceedings for violations of conditions of
release”].)
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 her contemporaneous and spontaneous report over her
later statements.

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DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ

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