By: Ray Hill, Professor Emeritus, Santa Rosa Junior College
Special Attention: Judicial Officers, Prosecutors, Private Counsel and Law Enforcement Investigators.
Evidence Code Section 352.2 Requiring a Magistrate to Weigh the Proof Value of Rap Videos and Other Related Media Versus the Prejudicial Effect of “Creative Expression” is not retroactive (Peo. v. Ramos (2023) 2023 WL 2926302, 2023 Cal Lexis 284.
On March 25, 2023, we reported where the 2DCA ruled the newly enacted 352.2 E.C. applied retroactively to a 2000 Los Angeles County murder case (Peo. v. Venable (2023) 88 Cal. App. 5th 445 – LUPC CAB00202). This decision had the potential for opening up the floodgates for retroactive appeals.
In the Ramos decision, defendant’s (who were members of the Center Street gang) were charged with the murder of a 15-year old girl during a drive-by attack against a rival gang member in an Oceanside public park. Expert testimony and a rap video where one defendant identified himself and his co-defendant by their gang monikers and described how they “cracked” rivals on sight was introduced as evidence. On appeal, defendant sought re-review of his case based upon 352.2 E.C. and the Venable decision relating to review of “creative expression”.
Good news. The Fourth District Court of Appeals rejected this argument ruling that 352.2 E.C. is not retroactive to prior convictions before it’s enactment date of January 1, 2023.
So, now you have two District Courts of Appeal in conflict with one another. Not the first time! The California Supreme will eventually have to resolve this conflict and set precedent statewide.
In the meantime, continue to recognize, collect, preserve and document evidence in the manner that you have always done. Let the “legal eagles” hammer out the conflict!
Click here to review the full text of the case decision: