People v. Gray CA2/2 ( 2023 )

Filed 10/27/23 P. v. Gray CA2/2
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302236
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA065662)
v.
DONTRAE GRAY, OPINION ON REMAND
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Renee F. Korn, Judge. Conditionally reversed
and remanded with directions.
William J. Capriola, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Paul M. Roadarmel,
Jr., Michael Katz, Scott A. Taryle, Teresa A. Reed Dippo and
Michael R. Johnsen, Supervising Deputy Attorneys General, for
Plaintiff and Respondent.
******
The trial court found Dontrae Gray (defendant) in violation
of his probation, in part based on a bodycam video in which
defendant’s girlfriend recounted how he had assaulted her.
Defendant appealed, arguing that the trial court’s admission of
the video, absent an opportunity to cross-examine the girlfriend,
violated his due process right of confrontation. We originally
affirmed the trial court’s judgment (People v. Gray (April 30,
2021, B302236), previously published at People v. Gray (2021) 63
Cal.App.5th 947), but our Supreme Court granted review and
reversed, holding that the admissibility of the bodycam video
turns on a weighing of “the government’s showing of good cause”
(and other considerations) against “a defendant’s confrontation
rights.” (People v. Gray (2023) 15 Cal.5th 152, 169 (Gray).)
Because the trial court did not have the opportunity to engage in
this weighing, and because the parties did not have the incentive
to introduce evidence pertinent to this weighing, we remand to
the trial court to apply Gray’s weighing test in the first instance.
FACTS AND PROCEDURAL BACKGROUND
On March 30, 2019, defendant’s girlfriend called 911 to
report that “some[one]” was “trying to break” and “kick” in her
door; the call also captured the girlfriend telling defendant—
using his nickname—to “stop.” When the police arrived mere
minutes after the call, the girlfriend was “upset,” “visibly crying”
and “breathing heavily,” and “scared to talk.” While in this
agitated state, she told police that defendant had shown up at her
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front door, screamed, “Bitch, open the door,” proceeded to “kick[
in] the door,” and then tried to punch her 20 times. The
girlfriend’s entire statement was captured on a bodycam worn by
one of the responding officers. The officers observed that the
front door, door frame, and doorjamb were “broken” and “pretty
trashed,” and that the girlfriend had several bruises and a small
scratch on her cheek consistent with being in an altercation.
The girlfriend later recanted in part. A few days after the
incident, she told a police detective that she had been “mad” and
merely “wanted [defendant] out of her house,” and that the
source of her injuries was a fall she took when she fell backwards
after defendant kicked her door open. She later told the
prosecutor she was “lying about some things.”
The People charged defendant with (1) inflicting corporal
injury upon a person in a dating relationship (Pen. Code, § 273.5,
subd. (a));1 and (2) residential burglary (§ 459). The People
subpoenaed the girlfriend, but she did not appear. The trial court
ruled that the confrontation clause of the United Sates
Constitution barred admission of the bodycam video at trial
because the girlfriend was unavailable for cross-examination;
after the People indicated they could not proceed without the
video, the court dismissed the case.
The People also charged the March 2019 incident as a
probation violation. At the time of the incident, defendant was on
probation for a 2015 conviction for assault with a deadly weapon.
The trial court ruled that the first seven minutes of the bodycam
video—the minutes in which the girlfriend described what
happened—constituted an excited utterance under Evidence
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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Code section 1240. Following our Supreme Court’s decision in
People v. Arreola (1994) 7 Cal.4th 1144 (Arreola), the trial court
ruled that (1) due process governs a defendant’s right to cross-
examine a witness at a probation violation hearing; and (2) this
due process right of confrontation is honored as long as (a) a
hearsay statement falls into a firmly rooted hearsay exception, or
(b) there is otherwise “good cause” for dispensing with
confrontation that, on balance in a particular case, outweighs the
defendant’s need for confrontation. The court found that
defendant had violated his probation, and imposed a previously
suspended sentence.
Defendant then filed this timely appeal.
DISCUSSION
In Gray, our Supreme Court reaffirmed Arreola’s holding
that due process governs a defendant’s right to cross-examine
witnesses at a probation violation hearing, but extended Arreola
to require courts, when evaluating whether this right has been
honored, to engage in a “comprehensive, holistic” and “case-
specific balancing process”—and, critically, to do so whether or
not the hearsay statement at issue falls into a firmly rooted
hearsay exception. (Gray, supra, 15 Cal.5th at pp. 163-164, 166,
169.) More specifically, the court held that trial courts must
“weigh” the government’s interests in using the statement
without producing the hearsay declarant for cross-examination
against a “defendant’s interests in confronting a hearsay
declarant.” (Id. at pp. 169, 173.) Factors relevant to the
government’s interests include (1) whether the People have
established “good cause” for the witness’s absence; and (2)
whether there are “other indicia” of the statement’s reliability,
“including the fact that the statements fall within a firmly rooted
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exception to the hearsay rule.” (Ibid.) The People establish “good
cause” for not producing a hearsay declarant for cross-
examination “‘(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.’” (Id. at p. 166, quoting Arreola, supra, 7 Cal.4th at
pp. 1159-1160.) Factors relevant to a defendant’s interests in
confronting a declarant include (1) how “‘significan[t] . . . the
particular evidence [is] to [the] factual determination’” of the
probation violation in the case in terms of (a) the purpose for
which the evidence is offered and (b) the centrality of that
evidence to proving up the violation; and (2) whether any “‘other
admissible evidence’ corroborates the statements at issue” (or
whether, instead, the statement is the “sole evidence establishing
a violation of probation”). (Id. at p. 169, quoting Arreola, at p.
1160.)
At the time the trial court issued its ruling on the
admissibility of the girlfriend’s statement at the probation
violation hearing here, the Supreme Court’s 2023 decision in
Gray had (obviously) not been decided. Thus, the trial court had
no occasion to apply Gray’s balancing test or, as part of that test,
to consider whether the People had demonstrated “good cause.”
“Good cause” is typically a fact-driven inquiry. (E.g., Kirchmeyer
v. Helios Psychiatry Inc. (2023) 89 Cal.App.5th 352, 362 [“good
cause” in discovery turns on “‘factual justification’”]; Estate of
Kerkorian (2018) 19 Cal.App.5th 709, 721 [“good cause” in
probate action “‘“calls for a factual exposition”’”]; People v. Gatlin
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(1989) 209 Cal.App.3d 31, 40 [“good cause” for continuances in
criminal cases is a factual question to be determined by the trial
court].) Because, until Gray, “good cause” was not relevant to the
admission of a hearsay statement falling within a firmly rooted
hearsay exception, the parties also had no incentive to introduce
facts pertinent to good cause2—including whether defendant’s
girlfriend was “unavailable” under the traditional hearsay rule
(which typically involves an inquiry into the People’s diligence in
securing her attendance), the difficulty and expense of bringing
the girlfriend to the hearing, and whether she would be mentally
or emotionally harmed by having to appear and testify. Because
“[a]s an appellate court, it is not our role to resolve factual issues
and exercise discretion in the first instance” (People v. Asghedom
(2015) 243 Cal.App.4th 718, 728), we remand the matter to the
trial court to permit the parties to introduce evidence bearing on
the factors to be balanced under Gray and to exercise its
discretion in balancing those factors. If the trial court determines
that its balancing favors admission of the girlfriend’s statement,
the probation violation shall remain valid; if the court determines
that its balance favors exclusion, the court should vacate the
judgment finding defendant in violation of his probation (because
the People have conceded in supplemental briefing that if the
girlfriend’s statements were erroneously admitted, that error
would not be harmless beyond a reasonable doubt). (Accord,
People v. Wycoff (2021) 12 Cal.5th 58, 92-96 [discussing
retrospective competency hearings following a similar
procedure].)
2 Our observation in our now-vacated opinion that the record
did not contain facts establishing “good cause” is unhelpful—and
not binding—for that very reason.
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DISPOSITION
The judgment finding defendant in violation of probation is
conditionally reversed and remanded to the trial court to
determine whether the statement by defendant’s girlfriend
recorded on the officer’s bodycam is admissible under Gray’s
balancing test.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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