People v. Gray CA2/2

Filed 10/27/23 P. v. Gray CA2/2 Opinion on remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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