People v. Gray

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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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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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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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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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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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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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

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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

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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