People v. Liggins ( 2020 )


Menu:
  • Filed 8/6/20
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,
    Plaintiff and Respondent,         A156843
    v.                      (City & County of San Francisco
    Super. Ct. Nos. 226811,
    BRANDON LIGGINS,                            16020127)
    Defendant and Appellant.
    Brandon Liggins appeals the trial court’s determination that he violated
    his probation by assaulting Precious Roy.
    There are two primary bases for the appeal. Liggins argues, first, that
    the trial court abused its discretion by admitting out-of-court statements from
    Roy at his probation revocation hearing under the spontaneous statement
    exception to the hearsay rule, and second, that as a result, he was deprived of
    his due process right to confront an adverse witness.
    We conclude that, while the trial court was within its discretion to
    admit the challenged statements under the spontaneous statement exception,
    their admission in the absence of a showing of Roy’s unavailability or other
    good cause to present hearsay in lieu of live testimony from her violated
    Liggins’s due process right of confrontation.
    We must therefore reverse.1
    1Liggins raises a third issue—whether the trial court erred in failing to
    hold a hearing on Liggins’s claimed lack of ability to pay certain fines that the
    1
    I. BACKGROUND
    On December 1, 2016, Liggins pleaded guilty to willfully inflicting
    corporal injury on Roy, his former girlfriend. For this offense, he received
    three years’ probation. Liggins violated the terms of his probation multiple
    times, and each time it was reinstated with modified terms.
    The violation in the current case arises from an alleged altercation
    between Liggins and Roy in the early hours of September 10, 2018. Around
    4:00 o’clock in the morning, police responded to a silent hold-up alarm
    activated at a San Francisco convenience store. Roy was found outside the
    store crying and yelling. She told officers Liggins was arguing with her when
    he started punching, kicking, and choking her. After the fight, Liggins
    apparently rode away on his bicycle.
    When Officer Brandon Smith responded to the scene and began
    collecting information from Roy about the incident, her behavior was hot-
    tempered and unruly. When she approached her car, she found its windows
    broken and began to scream. She angrily berated the person who had
    accompanied her to the store for sleeping in the car and not waking up during
    the fight. She then cursed at the police for not doing enough, and asked for a
    police badge and gun so she could shoot Liggins herself. A man then rode up
    to the scene on Liggins’s bicycle, giving Roy her car keys. Liggins, she told
    Officer Smith, “is going to jail.”
    Eventually, Officer Serhiy Kryvoruka joined Officer Smith on scene.
    The two officers asked Roy to calm down so they could make an accurate
    report, and at first, she seemed to comply. Not far from the convenience store,
    court imposed in connection with its revocation of Liggins’s probation.
    Because we reverse the revocation order (and thus the associated fines as
    well) on the grounds discussed in the text, we need not address Liggins’s lack-
    of-ability-to-pay argument.
    2
    Officer Kryvoruka arrested Liggins. They walked Roy over to where Liggins
    was being held and asked her to identify him as part of a “cold show.” Roy
    identified Liggins, becoming upset again at that point. She told officers,
    “ ‘That person in front of me is Brandon Liggins, the same person who just
    committed a crime against me.’ ” Officer Kryvoruka testified that Roy
    sounded angry and upset, and was speaking so fast at points that he had
    trouble writing information down.
    Months later, by the time of Liggins’s preliminary hearing, his former
    attorney Erica Franklin stated that Roy had recanted her accusations against
    Liggins. Franklin claimed Roy told her Liggins never struck or even
    threatened to harm her. According to Franklin, Roy said that when Roy came
    outside of the store, she found belongings from inside her car on the sidewalk,
    but did not know if Liggins was the one who put them there. She was also not
    sure how she received the cuts and bruises that she originally told police were
    inflicted by Liggins. Her erratic behavior and anger at the scene of Liggins’s
    arrest, Roy told Franklin, resulted from a combination of her being under the
    influence of a controlled substance and her failure to take prescribed
    medication for manic-depression.
    At the probation revocation hearing, Liggins’s attorney asserted hearsay
    objections to the admission of (1) Officer Smith’s body camera footage, which
    captured Roy making statements to him about Liggins’s conduct, and
    (2) Officer Kryvoruka’s testimony to Roy’s statement identifying Liggins. The
    objections were overruled. Relying in part on these challenged hearsay
    statements, the trial court revoked Liggins’s probation and sentenced him to
    three years in prison, awarding him 234 days of earned presentence credit.
    This appeal followed.
    3
    II. DISCUSSION
    A. The trial court correctly determined Roy’s statements in the body
    camera footage and at the cold show to be admissible under
    Evidence Code section 1240.
    The body camera footage showed Roy making statements to Officer
    Smith about Liggins assaulting her. And in his testimony, Officer Kryvoruka
    told the court that, at the cold show, Roy identified Liggins as the perpetrator.
    All of these out-of-court statements by Roy, Liggins contends, should have
    been excluded as hearsay. (Evid. Code, § 1200, subd. (b); see People v.
    DeHoyos (2013) 
    57 Cal. 4th 79
    , 132.)
    The trial court found the challenged statements admissible under
    Evidence Code section 1240, the hearsay exception for spontaneous
    statements. To be admissible under Evidence Code section 1240, “ ‘(1) there
    must be some occurrence startling enough to produce . . . nervous excitement
    and render the utterance spontaneous and unreflecting; (2) the utterance
    must have been before there has been time to contrive and misrepresent, i.e.,
    while the nervous excitement may be supposed still to dominate and the
    reflective powers to be yet in abeyance; and (3) the utterance must relate to
    the circumstance of the occurrence preceding it.’ ” (People v. Washington
    (1969) 
    71 Cal. 2d 1170
    , 1176; Evid. Code, § 1240.)
    We review the trial court’s rulings on hearsay objections for abuse of
    discretion. (People v. Merriman (2014) 
    60 Cal. 4th 1
    , 65; People v. Phillips
    (2000) 
    22 Cal. 4th 226
    , 236.) Any preliminary factfinding undertaken to
    determine whether the requisite elements of the spontaneous statement
    exception have been met will be upheld if supported by substantial evidence.
    (People v. Riccardi (2012) 
    54 Cal. 4th 758
    , 831, overruled on other grounds in
    People v. Rangel (2016) 
    62 Cal. 4th 1192
    , 1216.)
    4
    In attacking each piece of challenged hearsay here—the body camera
    footage capturing Roy’s statements to Officer Smith, as well as Officer
    Kryvoruka’s testimony describing Roy’s identification at the cold show—
    Liggins makes the same argument: According to him, Roy was sufficiently
    calm when she spoke to Officers Smith and Kryvoruka that her statements
    cannot be considered excited utterances, and thus do not qualify for admission
    under the spontaneous statement exception.
    We do not agree. The Evidence Code section 1240 analysis in People v.
    Stanphill (2009) 
    170 Cal. App. 4th 61
    (Stanphill) applies here. Stanphill, a
    probation revocation case, involved a defendant who, while in jail as a
    condition of probation, allegedly took part in the beating of a fellow inmate by
    a group of gang members. (Id. at pp. 65–66.) As a basis for probation
    revocation, the defendant was charged with gang-related battery. (Ibid.) The
    only evidence tying him to the attack was the victim’s statement to a
    correctional officer, Deputy Pottorff, while in the jail’s medical office shortly
    after the attack, identifying the defendant in a photo lineup. (Id. at pp. 65–
    67.)
    Citing People v. Morrison (2004) 
    34 Cal. 4th 698
    (Morrison), the
    Stanphill court rejected an argument that the victim was calm and had an
    opportunity to reflect by the time he was shown the photo lineup in the jail
    infirmary. 
    (Stanphill, supra
    , 170 Cal.App.4th at pp. 72–75.) Morrison, the
    court observed, “upheld admissibility of a police officer’s testimony that he
    responded to a crime scene, saw a victim with apparent gunshot wounds who
    looked like she might lapse into unconsciousness or even die on the spot, and
    asked her who did it. She responded by identifying three persons [by name.]
    [Citation.] The Supreme Court said: ‘[S]tatements purporting to name or
    otherwise identify the perpetrator of a crime may be admissible [under section
    5
    1240] where the declarant was the victim of the crime and made the
    identifying remarks while under the stress of excitement caused by
    experiencing the crime.’ ”2 (Stanphill, at p. 73.) However, Morrison also said,
    “ ‘Moreover, where the spontaneous declarant is available as a witness, as [the
    victim] was here, “the existence and truth of the declaration may be explored
    in an examination under oath.” ’ ” (Stanphill, at p. 74.)
    Applying Morrison to the probation revocation setting, the Stanphill
    court held that, although the victim who pronounced himself ready to view the
    photo lineup was not excited while doing so, the circumstances nonetheless
    indicated the “physical attack on the victim was an event likely to induce
    stress and excitement” in light of Deputy Pottorff’s testimony that he “was
    upset, breathing heavily and was not calm as he made the identifications.”
    
    (Stanphill, supra
    , 170 Cal.App.4th at p. 74.) We see no reason why a victim’s
    statements about the commission of a recently committed crime against her
    should be analyzed any differently than an identification, so long as the record
    supports a finding that the challenged hearsay statements may be deemed
    2  People v. Farmer (1989) 
    47 Cal. 3d 888
    , 904–905 (statements of
    shooting victim in response to questioning of police dispatcher and officer at
    the scene helped describe the crime by identifying the perpetrator),
    disapproved on other grounds in People v. Waidla (2000) 
    22 Cal. 4th 690
    , 724,
    footnote 6; People v. Anthony O. (1992) 
    5 Cal. App. 4th 428
    , 433 (seconds after
    shooting, victim stated to police officer, “ ‘ “I just been shot. You got the wrong
    car. It was Sharky from El Sereno.” ’ ”); In re Damon H. (1985)
    
    165 Cal. App. 3d 471
    , 474, 476 (in response to his mother’s question why his
    buttocks hurt, crying minor stated, “ ‘[b]ecause Damon put his weenie in my
    butt’ ”); People v. Jones (1984) 
    155 Cal. App. 3d 653
    , 659–662 (when a treating
    physician asked a burn victim, 30 to 40 minutes after his injury, what had
    happened, victim responded that “ ‘[t]he [person] I live with threw gasoline on
    me’ ”).
    6
    reliable based on circumstantial indicators of trustworthiness.3 “ ‘The crucial
    element in determining whether a declaration is sufficiently reliable to be
    admissible under [the spontaneous statement] exception to the hearsay rule is
    . . . not the nature of the statement but the mental state of the speaker.’ ”
    
    (Stanphill, supra
    , at p. 74.)
    Here, as in Stanphill, there were such circumstantial indicators of
    trustworthiness based on the evidence of Roy’s mental state when she made
    the challenged statements. First, there was evidence that Roy was extremely
    upset and speaking very rapidly. Second, the statements she made described
    events Roy had perceived first-hand immediately before the cold show and the
    recorded interview with Officer Smith. Third, several corroborating
    circumstances tend to support the trial court’s determination that these
    statements were made excitedly, while Roy was feeling stress. There is, for
    example, video evidence showing Roy’s demeanor just minutes prior to the
    cold show. The statements made to Officer Smith—and the manner in which
    Roy made them—were also consistent with things the arresting officers
    themselves could observe and verify, such as Roy’s display of umbrage at what
    Liggins had done and the damage to her car.
    To be sure, some of the circumstances here are also consistent with
    Roy’s having calmed down when she spoke, or having failed to take needed
    medication, or—if her reported later recantation were credited—being in a
    3 While the court’s focus in Stanphill is on the victim’s identification of
    the defendant in a photo lineup, Deputy Pottorff’s testimony also included
    statements about how the offense was committed. 
    (Stanphill, supra
    ,
    170 Cal.App.4th at p. 71 [“The trial court heard further testimony from
    Deputy Pottorff, including that the victim said the Northerners called him
    over to a corner of the pod, where they knocked him down and started kicking
    him and punching him (wearing socks on their hands). The victim identified
    defendant as one of his attackers.”].)
    7
    state of intoxication and generally vulnerable to suggestive questioning by
    police due to her unstable mental state.4 Liggins also points out that an out-
    of-court declarant merely being angry and upset does not satisfy Evidence
    Code section 1240 because the test is whether she had the ability to
    deliberate. (People v. Ramirez (2006) 
    143 Cal. App. 4th 1512
    , 1524–1527;
    People v. Raley (1992) 
    2 Cal. 4th 870
    , 892–893.) Faced with two competing
    interpretations of the record, the standard of review decides the issue. On
    appeal, we cannot second-guess the trial court’s assessment of the evidence in
    determining Roy’s state of mind.
    The court was within its discretion to rule as it did. Because Liggins
    does not dispute that the challenged out-of-court statements “narrate[d],
    describe[d], or explain[ed] an act, condition, or event perceived by” Roy, and
    because there is substantial evidence in the record to support the court’s
    finding that the statements were “made spontaneously while [Roy] was under
    the stress of excitement caused by such perception,” we see no error. (Evid.
    Code, § 1240; People v. Brown (2003) 
    31 Cal. 4th 518
    , 540; People v. 
    Saracoglu, supra
    , 152 Cal.App.4th at pp. 1587–1590.)
    B. The admission of Roy’s hearsay statements violated Liggins’s
    due process rights.
    In this case, as in Stanphill, the victim who made the challenged out-of-
    court statements later recanted, did not testify, and there was no finding of
    unavailability. 
    (Stanphill, supra
    , 170 Cal.App.4th at pp. 67–68, 71.) There
    was no showing in Stanphill, or in this case, that the state had good cause for
    the admission of such statements in the absence of an unavailability finding.
    4 We see no evidence that the questions put to Roy were leading, self-
    serving, or otherwise suggestive. In the absence of such evidence, the fact
    that Roy’s statements were made under questioning does not deprive them of
    their spontaneity. (People v. Saracoglu (2007) 
    152 Cal. App. 4th 1584
    , 1590.)
    8
    (Id. at p. 69.) And there, as here, an objection was made and overruled that
    the defendant was deprived of his right to confront a witness against him. (Id.
    at pp. 68–70.) Thus, “[t]hat the admission of the evidence complies with state
    evidentiary law does not end the inquiry.” (Id. at p. 77.) There is a second
    step to the analysis, one posed by the underlying constitutional objection, just
    as there was in Stanphill. (Id. at pp. 78–81.) We now turn to that
    constitutional question. Our review is de novo. (Id. at p. 78.)
    1. Applicable Principles
    “Although probation violation hearings involve the criminal justice
    system, they are not governed by all the procedural safeguards of a criminal
    trial. (People v. Winson (1981) 
    29 Cal. 3d 711
    , 716 (Winson), citing Gagnon v.
    Scarpelli (1973) 
    411 U.S. 778
    , and Morrissey v. Brewer (1972) 
    408 U.S. 471
    ;
    see also People v. Shepherd (2007) 
    151 Cal. App. 4th 1193
    , 1198.) Specifically,
    the Sixth Amendment’s right of confrontation does not apply to probation
    violation hearings. (People v. Johnson (2004) 
    121 Cal. App. 4th 1409
    , 1411
    (Johnson).) A defendant’s right to cross-examine and confront witnesses at a
    violation hearing stems, rather, from the due process clause of the Fourteenth
    Amendment. 
    (Johnson, supra
    , at p. 1411, citing Black v. Romano (1985)
    
    471 U.S. 606
    .) [Fn. omitted.] Those confrontation rights, however, are not
    absolute, and where appropriate, witnesses may give evidence by ‘ “affidavits,
    depositions, and documentary evidence.” ’ 
    (Winson, supra
    , at p. 716; see also
    Morrissey v. 
    Brewer, supra
    , at p. 489 [the parole revocation ‘process should be
    flexible enough to consider evidence including letters, affidavits, and other
    material that would not be admissible in an adversary criminal trial’].)”
    (People v. Abrams (2007) 
    158 Cal. App. 4th 396
    , 400.)
    Our Supreme Court held in People v. Arreola (1994) 
    7 Cal. 4th 1144
    ,
    1159–1160 (Arreola) that, to determine whether transcripts of prior testimony
    may be admitted in probation revocation proceedings consistent with due
    9
    process, a balancing test must be employed in which the strength of the
    defendant’s interest in confrontation is weighed against the state’s
    countervailing interests as measured by a broad standard of good cause. The
    good cause standard “is met (1) when the declarant is ‘unavailable’ under the
    traditional hearsay standard (see Evid. Code, § 240), (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.” (Id. at p. 1160.)
    Once this showing is made, Arreola and Winson call for a case-by-case
    balancing of interests to determine whether the proffered hearsay may be
    admitted. “[I]n determining the admissibility of the evidence on a case-by-
    case basis,” the Arreola court explained, “the showing of good cause that has
    been made must be considered together with other circumstances relevant to
    the issue, including the purpose for which the evidence is offered (e.g., as
    substantive evidence of an alleged probation violation, rather than, for
    example, simply a reference to the defendant’s character); the significance of
    the particular evidence to a factual determination relevant to a finding of
    violation of probation; and whether other admissible evidence, including, for
    example, any admissions made by the probationer, corroborates the former
    testimony, or whether, instead the former testimony constitutes the sole
    evidence establishing a violation of probation.” 
    (Arreola, supra
    , 7 Cal.4th at
    p. 1160; see also 
    Winson, supra
    , 29 Cal.3d at p. 719 [“The issue of whether
    10
    former testimony may be utilized in lieu of a witness’ personal appearance is
    best resolved on a case-by-case basis.”].)5
    2. To Determine Whether There Is a Due Process Right to
    Confrontation, a Case-by-case Balancing of Interests Analysis
    Is Required
    Stanphill saw no need for any showing of good cause or balancing of
    interests. Disagreeing with an “apparent concession” from the People to the
    contrary, the Stanphill court held that, where a proffered hearsay statement
    qualifies for admission under Evidence Code section 1240 as an excited
    utterance, the defendant’s due process rights are “automatically satisf[ied].”
    
    (Stanphill, supra
    , 170 Cal.App.4th at p. 81.) Arreola, it concluded, was
    distinguishable because neither that case nor any of the others requiring a
    balancing of interests involved evidence admissible under a hearsay
    exception. (Id. at p. 79.) It considered the question an open one, and
    answered it in favor of the People where the hearsay exception at issue is the
    one for spontaneous statements. (Id. at pp. 79–80.) Respectfully, we do not
    agree with that reading of the law. In our view, Arreola is controlling.
    Although documentary evidence may be admitted at a probationary
    hearing consonant with due process so long as there is a showing of reliability
    5 The Ninth Circuit requires the application of a nearly identical due
    process balancing test when evaluating claimed deprivation of the right to
    confrontation when testimonial hearsay is proffered in final hearings to
    revoke supervised release. (United States v. Comito (9th Cir. 1999) 
    177 F.3d 1166
    , 1171 [“The weight to be given the right to confrontation in a particular
    case depends on two primary factors: the importance of the hearsay evidence
    to the court’s ultimate finding and the nature of the facts to be proven by the
    hearsay evidence. . . . ‘[T]he more significant particular evidence is to a
    finding, the more important it is that the releasee be given an opportunity to
    demonstrate that the proffered evidence does not reflect “verified fact.” ’ . . .
    So, too, the more subject to question the accuracy and reliability of the
    proffered evidence, the greater the releasee’s interest in testing it by
    exercising his right to confrontation.”].)
    11
    (People v. Maki (1985) 
    39 Cal. 3d 707
    , 709 [allowing admission of printed
    invoice signed by the defendant]), that rule is limited in its application. In
    Arreola the Supreme Court rejected the contention that there is a generally
    applicable rule of admissibility for prior testimony upon a showing of
    “sufficient indicia of reliability.” 
    (Arreola, supra
    , 7 Cal.4th at p. 1156.) While
    it is possible to say categorically that there is no significant utility to a
    defendant’s confrontation right when a document that simply records data is
    involved—since a document cannot be cross-examined or its demeanor
    observed—the same cannot be said of former testimony (e.g., 
    Winson, supra
    ,
    29 Cal.3d at p. 717; 
    Arreola, supra
    , at pp. 1156–1157) or other evidence
    offered as a substitute for live testimony (e.g., 
    Shepherd, supra
    ,
    151 Cal.App.4th at pp. 1197, 1201–1202 [testimony of probation officer
    recounting statements by program administrator about defendant’s alcohol
    use]).
    That is why case-by-case consideration is necessary. Under a due
    process analysis, the importance of a defendant’s confrontation right will vary
    with the circumstances. Because any determination of minimum due process
    requirements in the context of probation revocation must be flexible, there
    will be cases where the confrontation right must give way to the state’s
    countervailing interests in presenting hearsay. But it is contrary to the
    California Supreme Court’s holding in Arreola, in our view, to treat Evidence
    Code section 1240 as an automatically applicable proxy for compliance with
    due process minima. Where the prosecution offers an out-of-court statement
    as a substitute for live testimony, there will always be some value to the
    defendant’s right to confront the speaker. Whether, in the circumstances, that
    right is so essential as to overcome the state’s showing of good cause for
    12
    offering hearsay can only be determined by situational weighing of the Arreola
    balancing factors.
    3. Reliability Is But One Factor To Be Considered in Arreola
    Balancing
    The Stanphill court grounds its rule of per se constitutionality for
    excited utterances on what it describes as the unique reliability of such
    evidence.
    “We believe spontaneous statements under section 1240 are a special
    breed of hearsay exception,” Stanphill explains. 
    (Stanphill, supra
    ,
    170 Cal.App.4th at p. 81.) According to the Stanphill court, “ ‘[t]he theory of
    the spontaneous statement exception to the hearsay rule is that since the
    statement is made spontaneously, while under the stress of excitement and
    with no opportunity to contrive or reflect, it is particularly likely to be
    truthful. . . . Unlike other hearsay exceptions in which the unavailability of a
    witness makes it “necessary” to resort to hearsay as a weaker substitute for
    live testimony (5 Wigmore, Evidence (Chadbourn ed. 1974) § 1420, p. 251), the
    spontaneous statement exception involves a “necessity” of a different sort:
    “[T]hat we cannot expect, again, or at this time, to get evidence of the same
    value from the same or other sources” (id. at § 1421, p. 253, italics in original)
    and “[t]he extrajudicial assertion being better than is likely to be obtained
    from the same person upon the stand, a necessity or expediency arises for
    resorting to it.” (6 Wigmore, Evidence, op. cit. supra, § 1748, p. 199.)’ ” (Ibid.)
    As an exegesis on a point of hearsay law, what the Stanphill court says
    here cannot be gainsaid. But as a matter of due process analysis, we do not
    find it persuasive. It conflates the backstop reliability screening that
    ultimately determines the admissibility of evidence offered under Evidence
    Code section 1240 with the constitutional question whether a defendant is
    entitled to subject such evidence to the ultimate test of reliability—the
    13
    crucible of cross-examination and face-to-face confrontation in the courtroom.
    There can be no better illustration of the importance of this, we think, than in
    cases where the out-of-court declarant is alleged to have recanted, which is
    what we have here. We do not doubt there are compelling reasons that what
    Roy told Officers Kryvoruka and Smith ought to be accepted as the truth, but
    before suffering a loss of his liberty on the strength of these statements,
    Liggins was entitled to confront her with evidence that she made
    contradictory statements on a later occasion.
    It is undisputed that the out-of-court statements from Roy on the body
    camera footage and at the cold show were admitted for their truth in lieu of
    live testimony. Had the issue presented here arisen at a criminal trial, these
    hearsay statements likely would be considered testimonial. (Davis v.
    Washington (2006) 
    547 U.S. 813
    , 829–831 [domestic violence victim’s
    statements during interrogation by officers responding to the scene of the
    offense where there was no ongoing emergency].) This case is no different.
    (People v. 
    Shepherd, supra
    , 151 Cal.App.4th at p. 1201 [out-of-court
    statements made by program administrator that defendant violated his
    probation by consuming alcohol admitted in violation of Arreola and Winson].)
    While the federal due process clause does not “command” that testimonial
    hearsay must always be subjected to adversarial testing by cross-examination
    and face-to-face confrontation, as the Sixth Amendment does in the context of
    evidence presented at trial (Crawford v. Washington (2004) 
    541 U.S. 36
    (Crawford)), the paradigm shift brought about by Crawford is relevant to the
    treatment of testimonial hearsay wherever a constitutionally protected right
    of confrontation is at stake.
    14
    Crawford, it will be recalled, overruled Ohio v. Roberts (1980) 
    448 U.S. 56
    (Roberts). Before Crawford was decided, state hearsay law often drove the
    Sixth Amendment analysis in confrontation clause cases involving testimonial
    hearsay, and Roberts was the avatar of that approach. Under Roberts, the
    availability of the Sixth Amendment right of confrontation was, in effect,
    dictated by the evidence concept of reliability. 
    (Roberts, supra
    , at p. 66
    [hearsay from an unavailable witness is admissible over a Sixth Amendment
    objection only if it bears adequate “ ‘indicia of reliability’ ”; “[r]eliability can be
    inferred without more in a case where the evidence falls within a firmly rooted
    hearsay exception”].) But “[r]eliability is an amorphous, if not entirely
    subjective, concept,” the Crawford court explained. 
    (Crawford, supra
    ,
    541 U.S. at p. 63.) And because “[t]here are countless factors bearing on
    whether a statement is reliable” (ibid.), Crawford held that the Roberts
    framework of analysis “is so unpredictable that it fails to provide meaningful
    protection from even core confrontation violations.” (Ibid.)
    In cases involving testimonial hearsay, we think there is no better
    justification for tying the availability of the due process right of confrontation
    to hearsay law than there is for the Sixth Amendment right. By doing so,
    Stanphill adopts the analytical framework of cases dating from the era when
    
    Roberts, supra
    , 
    448 U.S. 56
    held sway.6 But the foundation for that approach
    was fundamentally undermined in Crawford. Arguably, we recognize,
    application of the Arreola balancing of interests test to spontaneous statement
    hearsay in the context of probation revocation is itself inconsistent with
    6 See White v. Illinois (1992) 
    502 U.S. 346
    (hearsay admissible under the
    excited utterance exception automatically complies with Sixth Amendment);
    United States v. Inadi (1986) 
    475 U.S. 387
    (statement admissible under the
    co-conspirator exemption automatically complies with the Sixth Amendment).
    15
    Crawford’s rationale because it simply trades one form of uncertainty for
    another. But even if that is so at some level, it is a form of uncertainty our
    Supreme Court chose in Winson and Arreola by establishing a case-by-case
    balancing test for the admissibility of hearsay offered in lieu of live testimony.
    Because reliability bears directly upon the “significance of the particular
    evidence [proffered] to a factual determination relevant to a finding of
    violation of probation” 
    (Arreola, supra
    , 7 Cal.4th at p. 1160), it certainly has a
    place in the case-by-case weighing of interests required by Arreola. But it is
    only one of several factors to be weighed, and it must not be assigned
    dispositive weight in all cases to the exclusion of other factors—which is what
    Stanphill does by creating a categorical test that turns solely on Evidence
    Code section 1240. While, unquestionably, excited utterances may be
    uniquely valuable as a form of hearsay, that does not mean they must be
    treated as effectively irrebuttable. “Dispensing with confrontation because
    testimony is obviously reliable is akin to dispensing with jury trial because a
    defendant is obviously guilty.” 
    (Crawford, supra
    , 541 U.S. at p. 62.)
    At the revocation hearing in this case, there was no showing of Roy’s
    unavailability or of good cause for the admission of hearsay from her in lieu of
    live testimony. Here on appeal, the Attorney General does not argue that a
    showing of good cause could have been made; nor does he contend that, had
    there been such a showing, it would have outweighed Liggins’s right to
    confront Roy. And he makes no attempt to argue lack of prejudice, under any
    standard. Because prejudice is uncontested, the error in admitting the
    challenged statements requires reversal.
    16
    III. DISPOSITION
    The trial court’s finding of a probation violation is reversed. The case is
    remanded for further proceedings consistent with this opinion.
    STREETER, J.
    WE CONCUR:
    POLLAK, P. J.
    TUCHER, J.
    17
    Trial Court:            City & County of San Francisco Superior Court
    Trial Judge:            Honorable Donna Little
    Counsel for Defendant   Elizabeth Richardson-Royer,
    and Appellant:          by appointment of the First District Court of Appeal
    under the First District Appellate Project
    Counsel for Plaintiff   Xavier Becerra, Attorney General
    and Respondent:         Lance E. Winters, Chief Asst. Attorney General
    Jeffrey M. Laurence, Sr. Asst. Attorney General
    Linda M. Murphy, Deputy Attorney General
    Nanette Winaker, Deputy Attorney General
    A156843
    18