People v. Liggins

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