IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
DONTRAE RENAY GRAY,
Defendant and Appellant.
S269237
Second Appellate District, Division Two
B302236
Los Angeles County Superior Court
MA065662
August 14, 2023
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
Evidence Code section 1240 is always admissible at a probation
revocation hearing without consideration of the balance of
relevant interests. The Court of Appeal in this case concluded
that, because the statements at issue fell within a firmly rooted
hearsay exception, they automatically satisfied the minimum
due process requirements necessary for their admission into
evidence. According to that court, it was not necessary to
balance defendant’s confrontation interests against any
countervailing interests of the government. We conclude that
the Court of Appeal erred. We therefore reverse the court’s
judgment and remand the matter for further proceedings
consistent with this opinion.
I. BACKGROUND
In September 2015, defendant Dontrae Renay Gray
pleaded no contest to one count of assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)) and admitted that he personally
inflicted great bodily injury in the commission of the offense (id.,
§ 12022.7, subd. (a)). The trial court imposed a seven-year
prison sentence, suspended execution of that sentence, and
placed defendant on formal probation for five years. As a
condition of probation, defendant was required to obey all laws.
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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 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
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Opinion of the Court by Guerrero, C. J.
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.
Defendant was arrested and charged with inflicting
corporal injury upon a person in a dating relationship (Pen.
Code, § 273.5, subd. (a)) and residential burglary (id., § 459).
The prosecution filed a motion requesting that defendant’s
probation be revoked based on the same incident.
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 (U.S.
Const., 6th Amend.) as construed in Crawford v. Washington
(2004) 541 U.S. 36 (Crawford). The prosecution then announced
that it was unable to proceed and the court granted defendant’s
motion to dismiss the criminal proceeding.
The trial court held a probation revocation hearing several
weeks later. Defendant again objected that the admission of the
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Opinion of the Court by Guerrero, C. J.
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 trial 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 Evidence Code section 1240. Without making an express
finding of good cause for not securing N.S.’s live testimony at the
revocation hearing, the court admitted N.S.’s recorded
statements. It then found that defendant violated his probation
and imposed the previously suspended sentence of seven years’
imprisonment.
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
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 Evidence Code
section 1240 automatically satisfies the minimum due process
1
The parties did not dispute that N.S.’s statements are
testimonial under Crawford. Accordingly, we accept the parties’
agreement on this point. We express no opinion on whether the
facts here establish the foundation for a spontaneous statement
under Evidence Code section 1240, or the circumstances under
which a spontaneous statement might qualify as testimonial for
Crawford purposes.
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Opinion of the Court by Guerrero, C. J.
requirements applicable at probation revocation hearings.
(Gray, at p. 949.) It rejected defendant’s argument that, before
such spontaneous statements may be admitted, the trial court
must make a finding of good cause to dispense with cross-
examination, and also find that this good cause outweighed
defendant’s need for confrontation. (Id. at pp. 953–955.
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
Evidence Code section 1240, is required to protect a
probationer’s due process rights in this context. (Compare
People v. Liggins (2020) 53 Cal.App.5th 55, 66 (Liggins
[requiring good cause for not allowing confrontation and
application of a balancing test that weighs probationer’s
confrontation rights against government’s countervailing
interests] with People v. Stanphill (2009) 170 Cal.App.4th 61, 81
(Stanphill) [finding spontaneous statements are automatically
admissible at probation revocation hearing without any further
showing of good cause or application of a balancing test].) We
granted review to resolve this conflict.
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-
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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.
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.” (Pen. Code,
§ 1203.2, subd. (a).) The facts supporting a probation revocation
must be proved by a preponderance of the evidence. (People v.
Rodriguez (1990) 51 Cal.3d 437, 447 (Rodriguez).
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
2
The Supreme Court extended the same due process
guarantees outlined in Morrissey to probation revocation
hearings in Gagnon, supra, 411 U.S. at page 782. Like parole,
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Opinion of the Court by Guerrero, C. J.
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 U.S. Const.,
6th Amend. [“In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him” (italics added)].) But due process principles protect a
defendant’s interests even at a revocation hearing, providing the
defendant “the right to confront and cross-examine adverse
probation “arises after the end of the criminal prosecution.”
(Morrissey, supra, 408 U.S. at p. 480.) Because the same rules
apply to both probationers and parolees (Winson, supra,
29 Cal.3d at p. 716), we refer to both types of revocation
hearings in this opinion. For ease of reference, we also refer at
times to the subject of a revocation hearing as a defendant.
3
The Sixth Amendment right to confrontation applies only
to testimonial statements. (Michigan v. Bryant (2011) 562 U.S.
344, 354, citing Crawford, supra, 541 U.S. at p. 68; People v.
Cage (2007) 40 Cal.4th 965, 981 (Cage).) A statement made in
the course of a police interrogation is testimonial “when the
circumstances objectively indicate that there is no . . . ongoing
emergency, and that the primary purpose of the interrogation is
to establish or prove past events potentially relevant to later
criminal prosecution.” (Davis v. Washington (2006) 547 U.S.
813, 822.
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Opinion of the Court by Guerrero, C. J.
witnesses (unless the hearing officer specifically finds good
cause for not allowing confrontation).” (Morrissey, supra,
408 U.S. at p. 489; see Black v. Romano (1985) 471 U.S. 606,
611–612 (Black) [reaffirming the minimum due process
procedures set forth in Morrissey and Gagnon].)4 These
minimum requirements of due process, the Morrissey court
concluded, would vindicate the shared “interest in not having
parole revoked because of erroneous information” and “a further
interest in treating the parolee with basic fairness.” (Morrissey,
at p. 484; see also id. at p. 484, fn. 12 [“ ‘the principles of
fundamental justice and fairness would [appear to] afford the
parolee a reasonable opportunity to explain away the accusation
of a parole violation’ ”].
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
4
The array of requirements compelled by due process for
probation revocation hearings include: “(1) written notice of
claimed violations, (2) disclosure of adverse evidence, (3) the
right to confront and cross-examine witnesses [unless the
hearing officer specifically finds good cause for not allowing
confrontation], (4) a neutral and detached hearing board, and
(5) a written statement by the fact finders as to the evidence
relied on and the reasons for revocation.” (Rodriguez, supra,
51 Cal.3d at p. 441, citing Morrissey, supra, 408 U.S. at p. 489.
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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 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 expresses 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
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was made in the underlying proceedings in which the charges
were then dismissed, no additional evidence was introduced
which established the witness’[s] unavailability, and the court
made no specific finding of good cause for denying the right to
confront and cross-examine.” (Ibid., italics omitted.
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 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 the defendant’s name], would be insufficient to find a
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Opinion of the Court by Guerrero, C. J.
violation of probation. However, the identification of
defendant’s signature on the printed invoice and the fact that it
is an invoice of the type relied upon by parties for billing and
payment of money, lead us to find it sufficient here.” (Id. at
p. 717, fn. omitted.
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
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Opinion of the Court by Guerrero, C. J.
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.” (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 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 reaffirmed,
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.
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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.” (Evid. Code, § 1240.) Absent another basis
for exclusion, a spontaneous statement may be considered as
evidence at a criminal or civil trial, notwithstanding its hearsay
character. (Ibid.
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 Evidence Code section 1240 “are a special
breed of hearsay exception which automatically satisfy a
probationer’s due process confrontation/cross-examination
rights without the court having to find good cause for the
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witness’s absence under Arreola or perform the [federal]
balancing test.” (Stanphill, at p. 81.
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-of-court statements constituted spontaneous statements,
the appellate court found it “contrary to the California Supreme
Court’s holding in Arreola . . . to treat Evidence Code
section 1240 as an automatically applicable proxy for
compliance with due process minima.” (Id. at p. 67.) The
Liggins court reasoned that the importance of a defendant’s due
process-based confrontation right in the context of probation
revocation will vary with the circumstances, and determining
when the state’s interest outweighs a defendant’s right to
confrontation can be determined only “by situational weighing
of the Arreola balancing factors.” (Id. at pp. 66–67.
The Court of Appeal below sided with Stanphill and held
that spontaneous statements categorically satisfy the minimum
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due process requirements applicable at revocation hearings
because of their inherent reliability. (Gray, supra,
63 Cal.App.5th at p. 949.
C. We Reject 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 Evidence Code
section 1240 “is enough by itself to achieve the purpose and
function of the due process guarantees applicable to probation
revocation hearings.” (Gray, supra, 63 Cal.App.5th at p. 954.
We reject this categorical approach, and instead reaffirm
Arreola’s case-by-case analysis as applicable here.
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
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the witness’s live testimony “ ‘in the absence of the declarant’s
unavailability or other good cause’ ” (Arreola, supra, 7 Cal.4th
at p. 1148; see also Winson, supra, 29 Cal.3d at p. 719), with the
presence or absence of good cause to be determined on a case-
by-case basis (Arreola, at p. 1160; Winson, at p. 719).
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.
5
We acknowledge that, in Arreola, we referred to “the
showing of good cause that has been made.” (Arreola, supra,
7 Cal.4th at p. 1160, italics added.) To the extent this phrasing
could be construed as requiring a threshold showing of good
cause before proceeding to a separate balancing of interests, the
question was not before us, and “ ‘[i]t is axiomatic that cases are
not authority for propositions not considered.’ ” (People v. Avila
(2006) 38 Cal.4th 491, 566; cf. Williams v. Chino Valley
Independent Fire Dist. (2015) 61 Cal. 4th 97, 107 [clarifying
prior decision to the extent it could be construed as speaking “too
broadly” on an issue that was not previously before the court].
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Among them, as “the significance 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 Evidence Code
section 1240] gives rise to ‘good cause’ per se for its admission,
regardless of the availability of the declarant.” We decline to do
so. This court has previously recognized that spontaneous
statements, “although not necessarily more reliable or accurate,
are more likely to represent ‘ “the unreflecting and sincere
expression of one’s actual impressions and belief.” ’ ” (People v.
Lucas (2014) 60 Cal.4th 153, 269.) Yet we have not previously
held that spontaneous statements are so reliable that they
categorically outweigh a defendant’s due process right to
confront and cross-examine a witness about such expressions of
belief. Nor is such a blanket rule necessary. Trial courts can
evaluate the reliability of the statements in applying Arreola’s
balancing test. (See Arreola, supra, 7 Cal.4th at p. 1157.)
Because our adopted framework already allows courts to give
due consideration to a spontaneous statement’s reliability, along
with other relevant circumstances, we reject the position of the
Attorney General and the Court of Appeal below that the
17
PEOPLE v. GRAY
Opinion of the Court by Guerrero, C. J.
admission of evidence under Evidence Code section 1240 always
comports with a defendant’s due process right to confront and
cross-examine witnesses at a probation revocation hearing.6
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,
6
We do not disagree that the reliability of evidence is an
important factor in determining the strength of a defendant’s
confrontation right at a probation revocation hearing. But we
decline to hold that it is dispositive in all cases. As the Oregon
Supreme Court stated when addressing a similar question:
“The presumed reliability of an ‘excited utterance’ is, certainly,
a factor that will weigh in favor of admission over a defendant’s
objection, and, even under [a] balancing [test], such evidence is
likely to be admitted in most cases. However, we do not see a
reason to completely eliminate consideration of other factors
that might lead to a different conclusion.” (State v. Martin
(2022) 370 Or. 653, 669–670 [522 P.3d 841, 853–854], fn.
omitted; accord, Liggins, supra, 53 Cal.App.5th at p. 69
[concluding that reliability “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”].
18
PEOPLE v. GRAY
Opinion of the Court by Guerrero, C. J.
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 denial is to be tested by an appraisal of the totality of
facts in a given case.’ ” (County of Sacramento v. Lewis (1998
523 U.S. 833, 850.
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
19
PEOPLE v. GRAY
Opinion of the Court by Guerrero, C. J.
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 Evidence Code section 1240. The Court of
Appeal below similarly attempted to distinguish Winson, Maki,
and Arreola on the ground that each case “involved statements
that were inadmissible under the rules of evidence.” (Gray,
supra, 63 Cal.App.5th at p. 954, italics added.) It is true that
we were not previously asked to apply a balancing test to
evidence that was otherwise admissible under a hearsay
exception. But it does not necessarily follow that we should
recognize a categorical exception to the balancing test whenever
a hearsay exception applies, regardless of all other
considerations. For the reasons outlined ante, we reject such a
categorical approach for spontaneous statements under
Evidence Code section 1240.7
7
As noted, we have accepted, without further analysis, the
parties’ agreement that the statements at issue here constitute
20
PEOPLE v. GRAY
Opinion of the Court by Guerrero, C. J.
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 statement from being excluded
under the Sixth Amendment right to confrontation. Any such
testimonial evidence that comes within the spontaneous
statement exception. We do not decide what due process-based
confrontation rights, if any, apply to the admission of
nontestimonial evidence that comes within a hearsay exception.
21
PEOPLE v. GRAY
Opinion of the Court by Guerrero, C. J.
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) ___
U.S. ___ [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, 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 testimonial hearsay evidence, reliability alone does
not render such evidence admissible in revocation proceedings.
22
PEOPLE v. GRAY
Opinion of the Court by Guerrero, C. J.
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 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 Evidence Code
section 1240.8
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
8
We disapprove People v. Stanphill, supra, 170 Cal.App.4th
61, to the extent it is inconsistent with this holding.
9
We note that the Court of Appeal apparently viewed the
prosecution’s unsuccessful attempts to secure N.S.’s presence as
“insufficient to establish ‘good cause.’ ” (Gray, supra,
63 Cal.App.5th at p. 951.) As we have explained, witness
unavailability as described in Arreola, supra, 7 Cal.4th at page
1160, is neither a threshold requirement nor a dispositive factor
in determining whether Morrissey’s “good cause for not allowing
23
PEOPLE v. GRAY
Opinion of the Court by Guerrero, C. J.
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.
confrontation” requirement has been met. (Morrissey, supra,
408 U.S. at p. 489.
24
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
1
PEOPLE v. GRAY
Groban, J., concurring
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 questions on why they
remained in a battering relationship’ ”]; see also Katirai,
Retraumatized in Court (2020) 62 Ariz. L.Rev. 81, 97 [“[C]ourts
still report that many survivors do not appear for criminal
hearings or refuse to cooperate with prosecutors”].
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
2
PEOPLE v. GRAY
Groban, J., concurring
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.
3
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
Opinion Information
| Date: | Docket Number: |
| Mon, 08/14/2023 | S269237 |
