Error and/or relief
[Gary note: Grabba cuppa. This case rivaled Fort Knox for gold.]
We agree with the parties that the gang offense must be reversed and the gang-related allegations must be vacated, and that the sentences on several witness dissuasion counts may be readdressed upon remand. We further agree with the defendant that the prosecution should not have been permitted to play and introduce two rap music videos under Evidence Code section 352, although we conclude that the error was harmless given our reversal of the gang offense and the vacation of the gang-related allegations. In addition, we find that the defendant has established a prima facie case that the prosecution violated the California Racial Justice Act by playing and using the rap music videos at trial, and we remand this matter to the trial court to conduct a hearing to determine if a violation of the California Racial Justice Act has been proven by a preponderance of the evidence.
First Holding:
AB 333 made the following changes: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206
Second Holding:
Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206
Third Holding:
AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206
Fourth Holding:
Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.
Authority:
People v. Tran (2022) 13 Cal.5th 1169, 1206
Fifth Holding:
We determine whether substantial evidence supports a jury’s finding by inquiring whether evidence was presented from which a reasonable trier of fact could conclude, beyond a reasonable doubt, that the prosecution sustained its burden of proof. Although we assess whether the evidence is inherently credible and of solid value, we must also view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence.
Authority:
People v. Mora and Rangel (2018) 5 Cal.5th 442, 488
Sixth Holding:
Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.
Authority:
People v. Soriano (2021) 65 Cal.App.5th 278, 288
People v. Renteria (2022) 13 Cal.5th 951, 964 [Where there is no proof the defendant acted in association with or at the direction of the gang, the prosecution cannot rely on the joint nature of the offense to establish either the requisite benefit to the gang or the specific intent to promote the criminal activity of gang members]
Seventh Holding:
We also will vacate the gang-related firearm allegations under section 12022.53(b) and (e)(1).
Authority:
People v. Cooper (2023) 14 Cal.5th 735, 746 [reversing affirmance of firearm enhancement because the firearm enhancement alleged under section 12022.53(e)(1) is contingent on a true finding on the gang enhancement under section 186.22]
People v. Campbell (2023) 98 Cal.App.5th 350, 376 [the amendments AB 333 made apply retroactively to the gang-related gun use enhancement under section 12022.53(e)]
Eighth Holding:
Because we conclude that substantial evidence does not support the conviction on the gang offense and the true findings on the gang-related allegations under the law at the time of the defendant’s trial, the defendant may not be retried concerning these matters.
Authority:
United States v. DiFrancesco (1980) 449 U.S. 117, 131
Ninth Holding:
The California Supreme Court recently held that Evidence Code section 352.2 [rap video evidence] does not apply retroactively to cases not yet final on appeal. Evidence Code section 352.2 has at best an attenuated and inconsistent connection to reduced punishment and there is good reason why the Legislature might not have intended for its approach toward the admissibility of creative expressions to apply retroactively, and thus the inference of retroactive application does not attach to the statute. However, the court noted that Evidence Code section 352.2, by providing additional direction for evaluating the admissibility of creative expressions, sets forth several factors that trial courts already might have folded into an evaluation of whether this type of material was admissible under Evidence Code sections 352 and 1101.
Authority:
People v. Aguirre (2025) 18 Cal.5th 629, 692, 693
Tenth Holding:
While the Supreme Court’s decision in Aguirre dictates that Evidence Code section 352.2 does not apply retroactively to the defendant’s case, we conclude that the trial court abused its discretion under Evidence Code section 352 by permitting the prosecutor to play the videos in his opening statement and by admitting evidence of the videos. A Racial Justice Act [RJA] violation occurs when an attorney in the case exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, among other circumstances. A central premise of the RJA is that bias can be unconscious and implied as well as conscious and express.
Authority:
PEN 745
Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 824
Eleventh Holding:
To forestall the defendant’s claim of ineffective assistance of counsel, we exercise our discretion to reach the merits of his’s RJA claim. This approach is particularly appropriate here, where we can discern no rational tactical reason for the defendant’s counsel not raising the RJA issue when counsel already filed a motion for a new trial concerning the playing and use of the rap music videos.
Authority:
People v. Torres (2025) 113 Cal.App.5th 88, 92 [reviewing court may reach forfeited claim where ineffective assistance of counsel claimed]
People v. Quintero (2024) 107 Cal.App.5th 1060, 1074 [addressing merits of forfeited RJA claim because defendant alleged he received ineffective assistance of counsel by failing to object]
Twelfth Holding:
The fact that the prosecutor did not utter the words in the video does not foreclose an RJA claim. The RJA expressly includes in its description of qualifying acts an attorney using racially discriminatory language, but it also includes an attorney otherwise exhibiting bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.
Authority:
PEN 745(a)(2)
Thirteenth Holding:
The RJA does not define racial bias or animus, but it specifies that the moving party is not required to prove intentional discrimination. Indeed, the statement of Legislative intent behind the RJA’s enactment states that the act was aimed at addressing the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials. Based on the lack of probative value the videos had, the danger of racial bias that the “A Day in the Life” video particularly presented, and the manner in which the prosecutor used the videos at trial, we conclude that the defendant has satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation.
Authority:
PEN 745(c)(2)
People v. Howard (2024) 104 Cal.App.5th 625, 656
Fourteenth Holding:
Challenges for cause are constitutionally guaranteed under the Sixth Amendment. Our state Constitution provides the same general right to a fair trial and an impartial jury. In California, criminal defendants are allowed an unlimited number of challenges to prospective jurors for cause, which the defendants must use before exercising any peremptory challenges.
Authority:
People v. Black (2014) 58 Cal.4th 912, 916
Fifteenth Holding:
On forfeiture of jury challenge because defendant still had peremptory challenges available, the defense was afforded 30 total peremptory challenges, with 20 of the challenges being joint challenges and the remaining 10 split between the two defendants. The defense had peremptory challenges available when it accepted the jury as seated. The California Supreme Court has repeatedly rejected requests to abandon the forfeiture rule concerning denials of juror challenges for cause in analogous situations where the three requirements to preserve the issue for appeal were not met.
Authority:
People v. Suarez (2020) 10 Cal.5th 116, 143
People v. Winbush (2017) 2 Cal.5th 402, 425-426
People v. Rangel (2016) 62 Cal.4th 1192, 1209-1210
People v. Manibusan (2013) 58 Cal.4th 40, 61
People v. Jones (2012) 54 Cal.4th 1, 45-46
People v. Mills (2010) 48 Cal.4th 158, 186
People v. Carasi (2008) 44 Cal.4th 1263, 1290
Sixteenth Holding:
Evidence is substantially more prejudicial than probative if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. In applying this statute we evaluate the risk of undue prejudice, that is, evidence that uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues, not the prejudice that naturally flows from relevant, highly probative evidence.
Authority:
People v. Waidla (2000) 22 Cal.4th 690, 724
People v. Salcido (2008) 44 Cal.4th 93, 148
Seventeenth Holding:
A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.
Authority:
People v. Lewis (2001) 26 Cal.4th 334, 372-373
People v. Rodrigues (1994) 8 Cal.4th 1060, 1124
Eighteenth Holding:
The weighing process under Evidence Code section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. The record must affirmatively show that the trial judge did in fact weigh prejudice against probative value, but no more is required. We review the trial court’s exercise of discretion in admitting evidence under Evidence Code section 352 for abuse and will not disturb the court’s ruling except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.
Authority:
People v. Megown (2018) 28 Cal.App.5th 157, 164
Nineteenth Holding:
A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion.
Authority:
People v. Coneal (2019) 41 Cal.App.5th 951, 964
Twentieth Holding:
When evaluating the admission of rap music, courts have recognized it has minimal probative value to the extent that it depends on construing the lyrics as literal statements of fact or intent without a persuasive basis to do so. We have also held that the relevance of rap lyrics is further diminished when they lack foundation. These foundational components include whether the defendant authored the lyrics. Thus, absent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal.
Authority:
People v. Hin (2025) 17 Cal.5th 401, 477, 478
Twenty-first Holding:
We do not mean to suggest that lyrics are never probative of their literal truth. For example, where lyrics are written within a reasonable period of time before or after the charged crime and bear a sufficient level of similarity to the charged crime, their probative value as a statement of fact is increased. It may also be that lyrics with sufficient corroboration from other evidence will have increased probative value. However, corroborating evidence may also render the lyrics cumulative.
Authority:
People v. Coneal (2019) 41 Cal.App.5th 951, 96
Twenty-second Holding:
Section 29800(a)(1) states that any person who has been convicted of a felony, who has been convicted of an enumerated offense, or who is addicted to the use of any narcotic drug and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. As relevant here: This offense has three elements: (1) the defendant possessed a firearm, (2) the defendant knew that he possessed the firearm, and (3) the defendant had previously been convicted of a felony.
Authority:
People v. Clark (2021) 62 Cal.App.5th 939, 958
Twenty-third Holding:
Where a defendant will stipulate to ex-felon status, evidence of the nature of his prior convictions still may and should be withheld from the jury, since such evidence is irrelevant to the ex-felon issue. Thus, to prove the third element of a violation of section 29800(a)(1), one of two alternatives may be used: (1) The prosecution can prove the conviction in open court, and that proof can include both the fact that the defendant has previously been convicted of a felony offense as well as the nature of the felony involved; or (2) the defendant can stipulate to having a felony conviction and thereby keep from the jury the nature of the particular felony. When the defendant stipulates to a prior conviction, “the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.
Authority:
People v. Valentine (1986) 42 Cal.3d 170, 173
People v. Sapp (2003) 31 Cal.4th 240, 261, 262
