CASE LAW ALERT
By Ray Hill
Professor Emeritus, Santa Rosa Junior College

Ruling and Issue
Retroactivity – A 2000 murder case is remanded for retrial to reevaluate the introduction of creative expression evidence (352.2 E.C.).
People v. Venable (2023) 88 Cal. App. 5th 445.

A 2023 Evidence Code statute (352.2 E.C) and a recent case decision have created a new twist in the introduction of “creative expression” as evidence in court. In this case, the introduction of a rap video posted on the video sharing platform “YouTube” in a murder prosecution.

Case Background

Evidence Code 352 permits a judge to disallow the introduction of  evidence if it is deemed too prejudicial, inflammatory, repetitive, or time-consuming for the jury to hear. 

Examples:

Exceptionally gruesome or misleading photographs may be excluded because of their potentially inflammatory nature (352 E.C.)

• The defendant was charged with possessing a machine gun. At trial, a photograph was introduced showing this weapon along with a dozen other legal guns and knives that were recovered. The photograph misled the jury by displaying weapons not relevant to the case (U.S. v. Hitt (1992) 981 F. 2nd 427)

• In a second-degree murder DUI trial, the introduction of two graphic videos showing the emotional impact of DUI collisions on victims and their families was deemed prejudicial. The videos depicted other events irrelevant to the case (Peo. v. Diaz (2014) 227 Cal App. 4th 362)

New section 352.2 E.C. requires a judge to consider the probative (proof) value against the prejudicial or inflammatory impact of “creative expression” before admitting it as evidence. “Creative expression” is defined as imagery such as forms, sounds, words, movements, or symbols including, music, dance, performing arts, poetry, literature, film, or other such objects or media (352.2 (c) E.C.). 

The legislative intent behind this statute was to eliminate racial stereotyping and bias in the improper consideration of propensity evidence implying guilt (1101 E.C.). A judge hears arguments on “creative expression” evidence outside the presence of a jury (352.2(d) E.C.).

Case at Issue

In 1998 in Los Angeles County, Venable (defendant/driver) and an associate (defendant/shooter) were involved in a drive-by resulting in the death of one person and wounding of another. A semi-automatic .22 rifle was used in the crimes. The defendant was a member of the California Gardens Crips street gang and the victims were members of the Westside Projects street gang. 

Amongst the “totality” of evidence presented at trial was a “YouTube” rap video that included the defendant along with other California Gardens Crips gang members flashing gang signs, displaying guns, money, drugs, using racial slurs and profanity, and describing gang acts of violence. The video included the defendant holding a rifle with an extended magazine. One lyric, not sung by the defendant,  stated: “Got word from a bird that they did that (racial slur) dead wrong…Slid up Medical (the street of the crime) and left that (racial slur) head gone.”

The prosecution argued the video was probative in “claiming ownership of the shooting and bragging about it.” The video was played twice for the jury in the district attorney’s case-in-chief and once during closing arguments. In 2000, based upon the totality of evidence, including the rap video, the defendant was convicted of murder and attempted murder with a gang enhancement and a gang-related firearm enhancement. He was sentenced to 129 years in the California Department of Corrections and Rehabilitation.

Appellate and Supreme Court Rulings

The Fourth District Court of Appeal had consistently ruled the conviction stands. The case was remanded back to the Superior Court only for sentencing recalculation and other motions. The defendant has been sitting in a Level 4 prison since his conviction. Now, 22-plus years later, the California Supreme Court directed the 4th District Court of Appeals to re-review the case in light of 352.2 E.C. 

But wait, 352.2 E.C. came into effect on January 1, 2023, two decades after the defendant’s conviction. Was the trial judge held to know something that hadn’t gone into effect? Regretfully, yes. 

The high court ruled the statute applies to any case still under trial or appellate consideration (non-final judgments). In its re-review, the 4th District Court of Appeals ruled the defendant’s conviction must be overturned, and remanded the case back for retrial. The new trial judge will now have to balance the probative value of the video against any prejudicial impact on the jury implied by race.

California statute law is not subject to the same “good faith” rule that the U.S. Supreme Court has established under the Fourth Amendment. Under that rule, if an officer conducts a search that was lawful at the time under existing case law, but then the case law is subsequently changed by an appellate decision, the search is still lawful and evidence is admissible. The new precedent is prospective (going forward), not retroactive (going back) (Davis v. U.S. (2011) 564 U.S. 229). See also LUPC #CAB #00180, California v. Lange (2022) 579 U.S. 486; “Good Faith Applied When an Officer Relies On Pre-Existing Precedent That is Changed.”

Under California law, retroactivity (or not) is within the interpretation purview of the California appellate courts. In the Venable decision, the court, in its infinite wisdom, has decided to make 352.2 E.C. retroactive (at least as to cases that do not have a final disposition). 

This Could Open the Floodgates

Standby. This opens the floodgates for any case currently under trial or appellate review in which there was a “rap video” or similar presented as evidence in a gang-related case, or for that matter, any other form of “creative expression,” to be opened for retrial.

What Does This Mean for You?

So, what does this mean for forms of so-defined “creative expression” and gathering of evidence in your case? Initially nothing. You are the “hunter-gatherer.” Your job is to recognize, collect, document, and preserve what is there during your investigation. You then turn this evidence over the legal eagles to argue in court. 

Based upon 352.2 E.C., expect more reliance on law enforcement gang experts to provide an evidentiary link between “creative expression” and the motive, opportunity, and means for committing the crime. In the words of this statute, this type of evidence could be created near in time to the charged crime or crimes, bear a sufficient level of similarity to the charged crime or crimes, and include factual details not otherwise publicly available (352.2(a) E.C.).

Expect there to be a new line of defense experts offering their opinions that the “creative expression” is based upon the “social or cultural context, rules, conventions, and artistic techniques of the expression” (352.2 (b)(1) E.C.) and/or “experimental or social science research demonstrates that the introduction of the ‘creative expression’ explicitly or implicitly introduce racial bias into the proceedings” (352.2 (b)(2) E.C.).

I have a hard time believing that a rap video showing California Gardens Crips gang members, including the defendant, flashing gang signs, displaying guns, money, and drugs, uttering racial slurs and profanity, and describing gang acts of violence is not probative in a Street Terrorism and Enforcement Act (186.22 P.C.) gang prosecution. 

But then I’m just an “OG” ex-law enforcement officer, ex-firefighter and current college teacher. The defendant is not going anyplace for now. The district attorney will file a new criminal complaint, Venable will be transferred from prison back to Los Angeles County, and remain in custody pending his new trial. 

And the taxpayers will bear the expense of a retrial because a judge not doing what he/she didn’t know had to be done 20-plus years earlier! The video may or may not come in as evidence during retrial, depending on how the new judge balances the probative versus prejudicial effect of the “creative expression.” Crimes and punishments may change.

Hill’s Rule #2 – “The Law is Not Always Logical. It Just Is.”

– Stay Safe, RH