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In Ramos, the defendants, Daniel Ramos and Elias Ramos (no relation), were found guilty of a shooting that led to first degree murder, attempted murder, gang enhancements, and firearm enhancements.
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D074429
04-13-2023
The PEOPLE, Plaintiff and Respondent, v. Daniel Manuel RAMOS et al., Defendants and Appellants.
Cynthia A. Grimm, Cardiff By the Sea, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Manuel Ramos. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Elias Isai Ramos. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Daniel Rogers and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II.A-C, D.4-D.7, E-S of the Discussion.
Cynthia A. Grimm, Cardiff By the Sea, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Manuel Ramos.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Elias Isai Ramos.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Daniel Rogers and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
IRION, J. In a joint trial involving a gang shooting, a jury convicted Daniel Ramos (Daniel) and Elias Ramos (Elias) of first degree murder ( Pen. Code, § 187, subd. (a) ) (count 1); attempted first degree murder ( §§ 187, subd. (a), 189, 664 ) (count 2); and possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3). The jury also made true findings on firearm and gang enhancements. (§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1).) The court sentenced Daniel (the shooter) to an aggregate prison term of 92 years to life and Elias (the aider and abettor) to 84 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Daniel and Elias appealed, raising over 30 issues. Many involved the admissibility of a confession and incriminating statements Daniel made while in custody on unrelated charges to a confidential informant (CI) posing as a gang member. Defendants also asserted the trial court erred in admitting evidence of (1) rap videos performed by Elias, and (2) certain expert testimony regarding gangs. Both also asserted prosecutorial misconduct and sentencing errors, and they joined in each other's challenges.
We originally issued an opinion on December 28, 2020, addressing all of the issues raised by defendants and affirming the judgments. Our Supreme Court subsequently granted Daniel and Elias's petitions for review and held the matter pending its eventual decision in People v. Tirado (2022) 12 Cal.5th 688, 289 Cal.Rptr.3d 59, 502 P.3d 941 ( Tirado ). On April 20, 2022, after Tirado issued, the matter was transferred back to us with directions to vacate our decision and reconsider the cause in light of Tirado. After receiving supplemental briefing, we vacated our 2020 opinion, and we issued an opinion on October 20, 2022 which affirmed in part, reversed in part, and remanded for further proceedings. Daniel and Elias each filed a petition for review, and on December 28, 2022, our Supreme Court issued an order directing us to vacate our October 20, 2022 decision and to reconsider the cause in light of Assembly Bill No. 2799 (Stats. 2022, ch. 973), which enacted Evidence Code section 352.2. On January 5, 2023, we vacated our October 20, 2022 opinion. The parties have filed supplemental letter briefs addressing Evidence Code section 352.2. In their first round of supplemental briefing (filed after our Supreme Court's April 20, 2022 order), in addition to addressing the impact of Tirado, supra , 12 Cal.5th 688, 289 Cal.Rptr.3d 59, 502 P.3d 941, Daniel and Elias argued that they are entitled to relief based on several statutory enactments that took effect after our original opinion. Those statutory enactments consist of the following: (1) a change to the substantive requirements for finding a gang enhancement pursuant to section 186.22, subdivision (b) ; (2) the enactment of section 1109, which requires that a bifurcated trial be held regarding gang enhancements alleged under section 186.22 ; (3) amendments to the determinate sentencing law that constrain the trial court's discretion to impose an upper term sentence and create a presumption of a lower term sentence for youthful offenders ( § 1170, subd. (b) ); and (4) an enactment vacating the imposition of any unpaid criminal justice administration fee imposed pursuant to former Government Code section 29550.1 ( Gov. Code, § 6111, subd. (a) ). In their second round of supplemental briefing (filed after our Supreme Court's December 28, 2022 order), Daniel and Elias argued that Evidence Code section 352.2 should apply retroactively, and that under the new provision, the trial court erred in admitting evidence of videos depicting Elias singing rap lyrics.
With two exceptions, the People agree that the new enactments identified by Daniel and Elias apply retroactively because the convictions are not yet final. The People do not agree that section 1109, which requires the bifurcation of the trial of gang enhancements, is to be applied retroactively. As we will explain, we need not reach that issue. Any error in trying the gang enhancements together with the substantive offenses was harmless error because the vast majority of the gang evidence was admissible to prove motive, identity, and premeditation for the substantive offenses. Also, the People take the position that Evidence Code section 352.2 does not apply retroactively to cases that have already been tried. We agree with that assessment. Evidence Code section 352.2 does not apply and presents no reason for us to alter the disposition set forth in our now-vacated October 20, 2022 opinion.
As we explained in that opinion, as a result of statutory amendments to section 186.22, the true findings on the gang enhancement allegations as to both Daniel and Elias in counts 1, 2, and 3 must be reversed, as well as the true finding on the firearm enhancements for Elias in counts 1 and 2, which depend on the true finding on the gang enhancements. The People may choose to retry the gang enhancement allegations on remand. As a result of the new enactments identified in the supplemental appellate briefing, the following components of the sentences imposed by the trial court are not legally permissible based on the current record: (1) For Elias, (a) the 25-year-to-life sentence for the firearm enhancement in count 1; (b) the 20 year sentence for the firearm enhancement in count 2; (c) the four-year sentence for the gang enhancement in count 3; (d) the upper term three-year sentence on count 3; (e) the $154 fee imposed under former Government Code section 29550.1, to the extent it remains unpaid; and (2) for Daniel, (a) the 15-year-to-life sentence on count 2, which must be reduced to a sentence of seven years to life, absent a legally permissible finding on the gang enhancement for that count; (b) the four-year sentence for the gang enhancement in count 3; (c) the upper term three-year sentence on count 3; and (d) the $154 fee imposed under former Government Code section 29550.1, to the extent it remains unpaid. As part of a full resentencing hearing, the trial court may also consider with respect to the firearm enhancements imposed on Daniel in counts 1 and 2, whether to exercise its discretion, as described by Tirado, supra , 12 Cal.5th 688, 289 Cal.Rptr.3d 59, 502 P.3d 941 to impose lesser firearm enhancements.
In all other respects, the judgments are affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Center Street and Posole Gangs
Daniel and Elias (no relation) are members of Center Street, a criminal street gang in Oceanside. Daniel's gang moniker is Kieto. Elias's is Blue.
Center Street, which has about 70 members, engages in murder, assault with a deadly weapon, robbery, vandalism, and unlawful possession of firearms. Posole, with about 100 members, is a rival gang claiming other Oceanside territory.
A gang expert testified that murdering a gang rival achieves the highest form of respect within a gang, and even being present to provide backup and to corroborate what occurred bolsters a gang member's status "just the same."
In 2016, Annebell F. was 15 years old and lived in the Posole neighborhood. She often spent late hours at Balderrama Park (Park), the centerpiece of Posole territory. Annebell was not a gang member. However, her close friend, Julye R. was.
Dates are in 2016 unless otherwise specified.
B. The Shooting
About 2:00 a.m. on September 3, Julye went to the Park after a family argument. By coincidence, Annebell was already there. The two friends talked near the jungle gym. The Park is a five-minute walk from the area of Interstate 5 at the Mission Avenue on-ramp. On September 3 at about 2:00 a.m., a nearby resident heard rattling from a chain link fence. Looking out a window, he saw one person climbing the fence and another who was already on the other side. Both were wearing dark hoodies, and one wore a white bandanna covering his face.
Two people walked into the Park, standing side-by-side, each wearing a dark hoodie and a bandanna face covering. One of them began shooting. Julye ran for his life. Annebell hid in the jungle gym's crawl tube.
Another nearby resident heard about seven gunshots and saw two men running away. One wore a black hoodie and a white bandanna covering his face. The other wore a hoodie with a black bandanna. Because gunshots are so common in that neighborhood, he did not call the police.
At about 2:35 a.m., Oceanside police found Annebell dead inside the crawl tube, which had .22-caliber bullet holes. Unspent .22-caliber bullets were on the ground nearby.
C. Police Surreptitiously Record Julye Identifying Daniel as the Shooter
Julye refused to cooperate with law enforcement. However, on September 15, he was in custody on an unrelated matter. So was Jose "JoJo" F.—Annebell's brother. Police placed Julye and JoJo in the same cell and secretly recorded their conversation, which was played for the jury. Because JoJo was in custody when Annebell was killed, this was their first contact since the shooting.
Testifying against even a rival gang member violates gang norms.
Julye told JoJo that he was "targeted" by "Kiets," i.e., Kieto, Daniel—who was armed with a revolver and pulled down his bandanna before shooting so that Julye could see his face. Julye said that Daniel was with "the short fool," who wore a bandanna over his face.
Elias, at five feet four inches tall, is two inches shorter than Daniel.
At trial, Julye recanted these statements, testifying that he fabricated the story because Annebell's family was pressuring him to identify the shooter.
D. Cell Phone Records and Rap Videos
On September 15, police arrested Elias for violating probation in an unrelated matter and obtained his phone. On the day of the shooting, Elias's phone received a call at 1:23 a.m. and had no activity again until 3:11 a.m., when it received a call from Center Street gang member David R. At noon the same day, the user of Elias's phone searched Facebook for "Balderrama Park," and "Oceanside teen girl shot to death." At 8:42 p.m., Elias's phone was used to search for Annebell's Facebook account. Later that night, Elias's phone was used to search the internet for "teenager killed in Oceanside."
Elias's phone also contained a video of him singing rap. This led police to similar YouTube videos. In general, the rap videos, which the jury watched, identify Elias and Daniel as Center Street gang members who, among other things, were seeking to kill Posole rivals.
E. Daniel and Elias's Jail Conversation
On September 21, Daniel was also in custody on unrelated probation violations. With both Elias and Daniel in custody, police staged a ruse—a lineup in which two "witnesses" identified Elias and Daniel as the shooters. After the lineup, police placed Daniel and Elias in the same cell and surreptitiously videoed their conversation, which was played for the jury.
Elias detected the camera and pointed it out to Daniel. After whispering to each other for about 11 minutes, they began to speak audibly. Daniel told Elias that he "got down" (i.e., got in a fistfight) with "Boxer," who had heard that Daniel "pulled that and shit." "Boxer" is the gang moniker of Hector F., Jr., a Posole gang member and Annebell's cousin. Daniel said that Boxer confronted him stating, "That's my cousin" and asked, "Were you out there or what?" Daniel's reply, "Shit happens, fool," angered Boxer, who later assaulted Daniel in jail. Apparently concerned about the hidden camera, Elias said to Daniel, "Delete that shit, fool."
F. Daniel's Confession to the CI
1. Part 1 - Before Garcia Entered
Marko Garcia is a police officer with extensive gang experience. Investigating this case, Garcia worked with an ex-gang member, now a paid police informant, identified at trial only as the CI. The CI, dressed as an inmate and wearing a concealed audio recording device, was placed in a 28- by 28-foot holding or rebooking cell. Police moved Daniel to the same cell. Other inmates, not part of the operation, were in and out at various times. The encounter between Daniel and the CI spanned about five hours; a large part was played for the jury.
The CI portrayed himself as an older and experienced gang member who had spent the last 10 years in prison for killing. After Daniel introduced himself as "Kieto, Center Street Gang," the CI talked about several Center Street gang members. Daniel replied, "I've heard of ‘em." Daniel said little during the first hour. The CI reminisced about times past, when police mostly left rival gang members alone so long as they only assaulted each other. He lamented that "it's different now dog." Eventually, the CI said to Daniel, "Hey dog ... —your barrio—you guys are over there by Tri-City?" Daniel replied, "Oceanside."
2. Part 2 - Garcia's Entrance
After about 75 minutes, Detective Garcia, dressed as an inmate and posing as a gang member, entered. He and the CI pretended to be old friends. They talked about advice the CI gave to Garcia years ago to conceal evidence of a murder. This was all staged for Daniel's consumption.
3. Part 3 - Daniel and the CI
Garcia left the cell after about 41 minutes. The CI told Daniel that if Garcia followed his instructions about concealing the evidence, the police wouldn't be able to tie Garcia to the murder. The CI asked Daniel, "You got that little feeling that it's something bad?" Daniel replied, "I already know it is."
Daniel told the CI that he and his "homie" were identified in a lineup. After the CI replied that nighttime identifications can be easily discredited in court, Daniel stated, "It was at night."
Daniel told the CI that he and his homie did "a hot one," i.e., a murder that occurred around 2:00 a.m. at a park. The CI asked, "Did you guys use a revolver or was it a semi-automatic?" Daniel replied, "Revolver." He explained that they drove in "the homie's car," but "hopped off and walked it." Daniel was concerned that police might find the clothes he was wearing, which on the night of the murder he threw out of a car.
4. Part 4 - CI "Charged" with Murder
At this point, an officer removed the CI from the cell, stating he was being taken to meet with detectives regarding "an old murder from 2002." Returning later, the CI told Daniel, "They got me on a hot one ...." The CI and Daniel therefore had something else in common.
5. Part 5 - The Fake Grand Jury Indictment
Handing Daniel what appeared to be a grand jury indictment, detectives entered the cell and said he was being charged with Annebell's murder. The indictment was a ruse; there was no grand jury. After the detectives left, Daniel told the CI, "I'm charged for murder, dog." The CI read part of the indictment alleging that Daniel and Elias killed Annebell. The CI said, "Why a fuckin' jaina [girl]? You guys mercked [murdered] a jaina? You guys mercked a jaina?" Daniel replied that Annebell was "gay"—apparently meaning that she was dressed in clothing ordinarily worn by males and they mistook her for a Posole gang member.
Killing a girl violates gang norms.
In closing argument, the prosecutor explained, "[Daniel is] not saying that he killed her because she was actually gay. The way he articulates himself is I couldn't tell the difference between her being a guy or a girl."
Reading more of the fake indictment, the CI stated that Elias was also being charged. Daniel replied, "That's my ... homie." In response to the CI's question, "Who'd you guys get?" Daniel replied, "Posole." Daniel also told the CI that Elias was unarmed and was there "to ride with [him]." When the CI asked, "What kind of fusca [gun] did you have?" Daniel replied, "A fuckin' .22."
Before being removed from the cell, the CI asked, "What's your homeboy's name in case I run into him .... ?" Daniel replied, "Call him Blue."
G. Daniel and Elias Are Jointly Tried
An amended information charged both Daniel and Elias with three counts: (1) murder ( § 187, subd. (a) ); (2) attempted premeditated murder ( §§ 187, subd. (a), 189, 664 ); and (3) possession of a firearm by a felon ( § 29800, subd. (a)(1) ). As to all three counts, it was alleged that the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang, and with the specific intent to promote, further, and assist in criminal conduct by gang members. ( § 186.22, subds. (b)(1), (b)(5).) As to the murder and attempted murder counts, the amended information also alleged that Daniel and Elias had either intentionally and personally discharged a firearm or participated in an offense in which another principal personally and intentionally discharged a firearm, and in the case of the murder count, causing great bodily injury or death. ( § 12022.53, subds. (c), (d), (e)(1).)
Daniel and Elias were jointly tried before the same jury.
H. Defense Case
At trial, the defense rested without offering evidence. In closing argument, defense counsel emphasized the lack of forensic evidence and that the only eyewitness, Julye, lacked credibility. Counsel argued that Daniel's confession was not credible because Daniel was "mirroring" what the apparent elder gang member said. Elias's attorney argued that the CI was a "chatterbox" and the only way Daniel could silence him was to respond with incriminating statements. Counsel argued the rap lyrics depicted only fiction.
I. Conviction and Sentence
The jury found both Daniel and Elias guilty of first degree murder, attempted premeditated murder, and possession of a firearm by a felon. The jury also made true findings on the firearm and gang enhancements, as alleged in the amended information. The trial court imposed an aggregate prison sentence of 92 years to life for Daniel and 84 years to life for Elias.
In counts 1 and 2, with respect to both Elias and Daniel, the jury made true findings on firearm allegations pursuant to section 12022.53, subdivision (e)(1). An enhancement under subdivision (e)(1) requires a finding that the defendant was a principal in a crime, but not necessarily the shooter , and the jury must make a predicate true finding on the gang enhancement in section 186.22, subdivision (b). (§ 12022.53, subd. (e)(1).) With respect to Daniel, the jury also made true findings in counts 1 and 2 based on section 12022.53, subdivisions (c) and (d), premised on Daniel being the actual shooter. An actual shooter is subject to a firearm enhancement under subdivisions (c) or (d) without a true finding on a gang enhancement.
Daniel's prison term was comprised of (1) 25 years to life for the first degree murder count; (2) 25 years to life for the firearm enhancement for that count ( § 12022.53, subd. (d) ); (3) 15 years to life for the attempted murder count; (4) 20 years for the firearm enhancement for that count ( § 12022.53, subd. (c) ); (5) an upper term sentence of three years for the conviction of possession of a firearm by a felon; and (6) an upper term sentence of four years for the gang enhancement on that count.
The sentence on the attempted murder count for Daniel was increased from a term of seven years to life to a term of 15 years to life based on the gang enhancement in section 186.22, subdivision (b)(5), which provides that, with certain exceptions, "a person who violates this subdivision [i.e., section 186.22, subdivision (b) ] in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served."
Elias's prison term was comprised of (1) 25 years to life for the first degree murder count; (2) 25 years to life for the firearm enhancement for that count ( § 12022.53, subds. (d), (e)(1) ); (3) seven years to life for the attempted murder count; (4) 20 years for the firearm enhancement for that count ( § 12022.53, subds. (c), (e)(1) ); (5) an upper term sentence of three years for the conviction of possession of a firearm by a felon; and (6) an upper term sentence of four years for the gang enhancement on that count. II.
DISCUSSION
See footnote *, ante .
D. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Elias's Rap
1. Background
Police discovered recordings of Elias performing rap on his smartphone and on YouTube. Generally, the rap refers to Center Street gang culture and criminal activity. Before trial, Elias moved to exclude the rap "on hearsay and [ Evidence Code section] 352 grounds."
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Outside the jury's presence, the court conducted a hearing to address these points. The trial court ruled that the videos were admissible against Elias under the hearsay exception for a party admission and were relevant to show his gang affiliation, premeditation, and intent. The court also noted there was a similarity between events described in one of the songs, "Blue, Friday Summer Night ," and the charged offenses.
The trial court also ruled the rap was admissible under the hearsay exception for a declaration against interest because (1) the lyrics could subject Elias to criminal liability for participating in a criminal street gang under section 186.22 ; and (2) Elias was on probation with "gang conditions" and three of the rap videos either occurred or were posted after the court imposed those terms. The court found the videos were trustworthy because they were performed with no coercion, published on YouTube, did not shift blame to others, and were made prior to the charged crimes.
Nicholas Olsen, the People's gang expert, testified that rap lyrics identify the monikers of gang members and the individual performing the rap, their association with that gang, and depict the gang's territory. Only a gang member would make reference to such things in a rap video. He also testified that the gang rapper uses rap as a diary of gang events. The rap was played for the jurors, who were also given transcripts of the lyrics. For example, the jury heard these lyrics in "Blue, This One's for My Homies" :
The quotes that follow are verbatim from those transcripts, which contain inconsistent and incorrect spellings and punctuation.
"This one's for my homies, this one's for my homies.... [¶] New track, new estilo [style], new whip, new bitch, new strap, same hood, same homies, same nut, same rivals getting hit, can't stop ‘cause I won't—won't stop ‘cause I can't (stop), I am the mother fucken man when it comes to this. And I am a mother fucker G when it comes to that.... [Y]a know how we rolling, patrollin' .... [¶] ... [¶]
"I'll make your bitch wet every time she hears my voice, it's alright though let it be. I have her screaming out three letters in my bed, CST.... Kieto's my brother so if you hurt him I hurt you .... I'm a phone call away if it's time to ride. Let's ride.
"... Yeah, in loving memory of Javier Luna, also known as Crooks. Yeah. C's up baby."
Olsen testified that "whip" is a car, "strap" is a gun, and "same rivals getting hit" means rival gangs getting murdered and assaulted. When a gang member says "they're a G," that means they are a gangster. Gang members "rolling and patrolling" means they are in a vehicle trying to find rival gang members to assault.
"CST" is Center Street. "To ride" is to find rival gang members and assault them. Javier Luna was stabbed to death by Posole gang members. "C's up" is the gang's sign.
In "Blue, That's How We Do It ," the jury heard Elias sing:
"... I'm strapped now in the neighborhood so you better bow down .... I'm the first one to clack.... I swear I own my own glock and keep that shit G. I never hesitate when it's time to fuckin' squeeze.... Oceanside cops (fuck ‘em) so you know it don't stop .... Shout out to Kieto, ... really got enemies on the run doin't it for fun caught you on the run doin' it for fun, doin' it for fun, got you on the run just doin' it for fun motherfucker fucker. [¶] ... Let's go to the other side where all the fools they hidin' where the fuck you at?"
To "clack" is to shoot. To "squeeze" means to pull the trigger. "Getting enemies on the run" means assaulting rival gang members and causing them to flee. The "other side" refers to Posole territory.
In "Blue, Friday Summer Night ," the jury heard:
"In the land of panocheros so I crack them on [sight]. I gotta let ‘em know who the fuck runs the
city .... [¶] ... Still in the club holding guns not giving a fuck. In the hood, always trying to function. Give two fucks even though your name was on the gang injunction."
"Panocheros" is a derogatory term for Posole gang members. To "crack them on sight" means to shoot them on sight.
2. Defendants' Contentions
Daniel contends the trial court abused its discretion in admitting the rap as declarations against Elias's penal interest. He asserts that the songs could not have subjected Elias to "criminal liability for Annebell's murder because they were made several months before the crime occurred." He also contends that two of the five songs were recorded in 2015, and thus could not have subjected Elias to prosecution for violating gang-related probation conditions that were not imposed until 2016. Daniel further asserts there is no evidence showing when the videos were made or lyrics written and, therefore, the songs were inadmissible.
In related arguments directed to lack of trustworthiness, Daniel argues that the trial court "failed to consider Elias's motivation in making the songs, including fame, bragging, and puffery, and that he had reasons to exaggerate." Daniel further contends the rap is simply Elias "exercising his First Amendment right to artistic expression." Echoing that argument, Elias asserts that lyrics do not "always" reflect the author's true state of mind.
Defendants also contend the trial court abused its discretion in determining that the rap was not unduly prejudicial under Evidence Code section 352.
3. Newly Enacted Evidence Code Section 352.2 Does Not Apply Retroactively
Before discussing defendants' challenges to the admission of Elias's rap videos, we must address whether newly enacted Evidence Code section 352.2 is retroactively applicable to this case.
Effective January 1, 2023, newly enacted Evidence Code section 352.2 creates specific rules that the trial court must follow in deciding whether to admit evidence of "a form of creative expression" in a criminal trial. Evidence Code section 352.2 states in full:
"(a) In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court, while balancing the probative value of that evidence against the substantial danger of undue prejudice under
[Evidence Code] Section 352, shall consider, in addition to the factors listed in Section 352, that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will, in violation of [Evidence Code] Section 1101, treat the expression as evidence of the defendant's propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.
"(b) If proffered and relevant to the issues in the case, the court shall consider the following as well as any additional relevant evidence offered by either party:
"(1) Credible testimony on the genre of creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression.
"(2) Experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings.
"(3) Evidence to rebut such research or testimony.
"(c) For purposes of this section, ‘creative expression’ means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including, but not limited to, music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.
"(d) The question of the admissibility of a form of creative expression shall be heard in limine and determined by the court, outside the presence and hearing of the jury, pursuant to [Evidence Code] Section 402. The court shall state on the record its ruling and its reasons therefor." ( Evid. Code, § 352.2.)
In enacting the provision, the Legislature made the following findings and declarations, showing that a particular concern was the possible unfair prejudice stemming from the admission of rap lyrics:
"(a) Existing precedent allows artists' creative expression to be admitted as evidence in criminal proceedings without a sufficiently robust inquiry into whether such evidence introduces bias or prejudice into the proceedings. In
particular, a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence. Stuart P. Fischoff, ‘Gangsta’ Rap and a Murder in Bakersfield,' 29 J. Applied Soc. Psych. 795, 803 (1999); Carrie B. Fried, ‘Who's Afraid of Rap? Differential Reactions to Music Lyrics.’ J. Applied Soc. Psych. 29:705-721 (1999); Adam Dunbar and Charis E. Kubrin, ‘Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments,’ Journal of Experimental Criminology 14:507-528 (2018).
"(b) It is the intent of this Legislature to provide a framework by which courts can ensure that the use of an accused person's creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence; and to recognize that the use of rap lyrics and other creative expression as circumstantial evidence of motive or intent is not a sufficient justification to overcome substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair prejudice." (Stats. 2022, ch. 973, § 1.)
In its most recent order remanding this matter to us, our Supreme Court directed us to consider the applicability of Evidence Code section 352.2. In their supplemental briefing, defendants contend that Evidence Code section 352.2 applies retroactively to cases, like theirs, that are not yet final. On that basis, they seek reversal of the judgment and a remand so that the trial court may apply Evidence Code section 352.2 in deciding whether to admit Elias's rap videos. The People contend that Evidence Code section 352.2 is not retroactively applicable.
The general rule is that "when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively." ( In re Estrada (1965) 63 Cal.2d 740, 746, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) "Courts look to the Legislature's intent in order to determine if a law is meant to apply retroactively." ( People v. Frahs (2020) 9 Cal.5th 618, 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ).) Here, neither the text of Evidence Code section 352.2 itself, nor the Legislature's findings and declarations, give any express indication that the Legislature intended Evidence Code section 352.2 to apply retroactively to nonfinal cases. " In Estrada, supra , 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948, our Supreme Court] held that amendatory statutes that lessen the punishment for criminal conduct are ordinarily intended to apply retroactively." ( Frahs, supra , 9 Cal.5th at p. 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 [citing Estrada at pp. 744-745, 48 Cal.Rptr. 172, 408 P.2d 948 ].) " ‘ Estrada stands for the proposition that, "where the amendatory statute mitigates punishment and there is no saving[s] clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." ’ " ( Frahs , at p. 628, 264 Cal.Rptr.3d 292, 466 P.3d 844.) When Estrada 's retroactivity principle is applicable, it covers "all cases that are not yet final as of the legislation's effective date." ( People v. Esquivel (2021) 11 Cal.5th 671, 675, 279 Cal.Rptr.3d 659, 487 P.3d 974.)
Although some statutory codes contain an express provision setting forth a presumption of prospective application, the Evidence Code does not contain such a provision. (People v. Hayes (1989) 49 Cal.3d 1260, 1276, 265 Cal.Rptr. 132, 783 P.2d 719 (conc. & dis. opn. of Mosk, J.) ["With the exception of the Evidence Code, the basic California codes contain a provision declaring that ‘No part of [this code] is retroactive, unless expressly so declared.’ (Civ. Code, § 3 ; Code Civ. Proc., § 3 ; Pen. Code, § 3 ; see also Lab. Code, § 4"]; see also Evid. Code, § 12 [instead of stating that no part of the code is retroactive, providing that, with one exception, a trial commenced before the code's effective date of January 1, 1967, "shall not be governed by this code"].) The absence of an express provision on prospective application in the Evidence Code is not dispositive here, as the common law presumption of prospective application should nevertheless apply. (Estrada, supra , 63 Cal.2d at p. 746, 48 Cal.Rptr. 172, 408 P.2d 948.)
Frahs is one of our Supreme Court's most recent opinions concerning the retroactivity of a new ameliorative provision. ( Frahs, supra , 9 Cal.5th at pp. 627-637, 264 Cal.Rptr.3d 292, 466 P.3d 844.) In Frahs , our Supreme Court surveyed the situations in which Estrada 's retroactivity rule has been applied.
"We have applied Estrada 's inference of retroactivity to statutes governing penalty enhancements, as well as statutes governing substantive offenses. (E.g., People v. Wright (2006) 40 Cal.4th 81, 94-95, 51 Cal.Rptr.3d 80, 146 P.3d 531 [newly enacted affirmative defense to transporting marijuana applies retroactively]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434 [statute specifying that certain death-penalty qualifying special circumstances must be intentional applies retroactively]; In re Kirk (1965) 63 Cal.2d 761, 762-763, 48 Cal.Rptr. 186, 408 P.2d 962 [amendment increasing dollar amount concerning insufficient funds checks applies retroactively].)
"Significantly, we have also applied the Estrada rule to statutes that merely made a reduced punishment possible .... In [ People v. Francis (1969) 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591 ], we inferred that the Legislature intended retroactive application of an amendment that allowed a trial court to exercise its sentencing discretion more favorably for individual defendants....
"More recently, in [ People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( Lara )], we determined that the Estrada rule applied to an amendatory act that ‘ameliorated the possible punishment for a class of persons. ’ ... Lara concerned the retroactivity of Proposition 57 (approved by voters, Gen. Elec. (Nov. 8, 2016)) (Proposition 57), the relevant provisions of which prohibit prosecutors from directly filing charges against a
minor in ‘adult’ criminal court and give juvenile courts the sole discretion to determine, after conducting a transfer hearing, whether a minor can be prosecuted and sentenced as an adult.... We explained that although Proposition 57 did not mitigate punishment for any particular crime, the Estrada inference of retroactivity nevertheless applied because the law ‘reduces the possible punishment for a class of persons, namely juveniles.’ ... We concluded that the potential ameliorating benefit of remaining in the juvenile court system was analogous to the potential reduction in a criminal defendant's sentence in Estrada and Francis , and therefore the same inference of retroactivity should apply." ( Frahs, supra , 9 Cal.5th at pp. 628-629, 264 Cal.Rptr.3d 292, 466 P.3d 844.)
After surveying the case law, our Supreme Court in Frahs held that, in the absence of a contrary legislative indication, the newly enacted mental health diversion statute, section 1001.36, applies retroactively because it mitigates the possible punishment for a class of persons. ( Frahs, supra , 9 Cal.5th at pp. 630-637, 264 Cal.Rptr.3d 292, 466 P.3d 844.) Frahs explained that "the possibility of being granted mental health diversion rather than being tried and sentenced ‘can result in dramatically different and more lenient treatment.’ " ( Id. at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.) Specifically, "[o]n its face, the diversion statute states the legislative purpose ‘to promote ... [¶] [i]ncreased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety' (§ 1001.35, subd. (a)), and the procedures instituted by the enactment carry the potential of substantial reductions in punishment for the aforementioned parties." ( Frahs , at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844.) Thus, "the ameliorative nature of the diversion program places it squarely within the spirit of the Estrada rule." ( Ibid. ; see also People v. Stamps (2020) 9 Cal.5th 685, 699, 264 Cal.Rptr.3d 769, 467 P.3d 168 ["Eliminating the prior restriction on the court's ability to strike a serious felony enhancement in furtherance of justice constitutes an ameliorative change within the meaning of Estrada. "].)
Because the mental health diversion statute at issue in Frahs, supra , 9 Cal.5th at page 631, 264 Cal.Rptr.3d 292, 466 P.3d 844 could result in the ultimate dismissal of a criminal charge, one court has interpreted Frahs as standing for the rule that "[a] possible reduction in the extent of punishment and the possibility of avoiding any punishment whatsoever are both ‘potentially ameliorative benefit[s].’ " (People v. Montano (2022) 80 Cal.App.5th 82, 106, 295 Cal.Rptr.3d 437, italics added (Montano ).)
As our Supreme Court has recently summarized the applicable rule, "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation's effective date." ( People v. Gentile (2020) 10 Cal.5th 830, 852, 272 Cal.Rptr.3d 814, 477 P.3d 539, italics added ( Gentile ); see also People v. Tran (2022) 13 Cal.5th 1169, 1207, 298 Cal.Rptr.3d 150, 515 P.3d 1210 ( Tran ) [" Estrada applies to statutory amendments ‘which redefine, to the benefit of defendants, conduct subject to criminal sanctions.’ "].) Put another way, "In the Estrada context, an ameliorative law is one that mitigates the legal effect, or consequences, of criminal conduct." ( People v. Ramirez (2022) 79 Cal.App.5th 48, 66, 294 Cal.Rptr.3d 472 (conc. opn. of Bamattre-Manoukian, J.), review granted Aug. 17, 2022, S275341 ( Ramirez ).) No case from our Supreme Court "has ever applied the Estrada rule to a statute ... that does not alter the punishment for an offense, make a lesser punishment possible, or change the elements of an offense or a defense." ( People v. Burgos (2022) 77 Cal.App.5th 550, 572, 292 Cal.Rptr.3d 587 (dis. opn. of Elia, J.), review granted July 13, 2022, S274743 ( Burgos ); see also People v. Perez (2022) 78 Cal.App.5th 192, 207, 293 Cal.Rptr.3d 358, review granted Aug. 17, 2022, S275090 ( Perez ) [newly enacted § 1109 requiring bifurcation of gang enhancements on defendant's request was not retroactive because it "does not reduce the punishment or narrow the scope of the application of the gang statute."].) "The Estrada rule applies only where the new law is ‘ameliorative’ of criminal liability or punishment." ( Burgos , at p. 573, 292 Cal.Rptr.3d 587 (dis. opn. of Elia, J.).) As one court has concluded, "our high court has declined to extend the reach of Estrada to legislative action that does not alter or reduce criminal punishment or treatment for past criminal conduct." ( People v. Cervantes (2020) 55 Cal.App.5th 927, 939, 269 Cal.Rptr.3d 815 [citing People v. Brown (2012) 54 Cal.4th 314, 317-318, 142 Cal.Rptr.3d 824, 278 P.3d 1182 ].)
Burgos, supra , 77 Cal.App.5th 550, 292 Cal.Rptr.3d 587, review granted, Ramirez, supra , 79 Cal.App.5th 48, 294 Cal.Rptr.3d 472, review granted, and Perez, supra , 78 Cal.App.5th 192, 293 Cal.Rptr.3d 358, review granted, discussed the issue of retroactivity in the context of a different newly-enacted statutory provision, section 1109, which provides that, upon a defendant's request, the trial of gang enhancements must be bifurcated from the trial of substantive offenses. (§ 1109, subds. (a) & (b).) As we will discuss in section II.P, post , appellate opinions are divided on whether section 1109 retroactively applies to nonfinal cases, and that issue is currently pending before our Supreme Court.
Thus, in the absence of any legislative indication to the contrary, to decide whether Evidence Code section 352.2 is retroactively applicable to nonfinal cases, we must determine whether it is either legislation "lessening criminal punishment" or legislation "reducing criminal liability." ( Gentile, supra , 10 Cal. 5th at p. 852, 272 Cal.Rptr.3d 814, 477 P.3d 539.) The answer to both questions is clearly no. Even though Evidence Code section 352.2 may, in many instances, end up being beneficial to a criminal defendant in that it may result in the exclusion of evidence favorable to the People, it is not a statute that creates the possibility of lesser punishment or any other type of more lenient treatment. It is also not a statute that reduces criminal liability , such as by altering the substantive requirements for a conviction or expanding a defense. Instead, the Legislature's findings and declarations show that Evidence Code section 352.2 was enacted to prevent the admission of unfairly prejudicial evidence when not warranted in the circumstances of a particular case. ( Stats. 2022, ch. 973, § 1.)
Moreover, as the People point out in supplemental briefing, Evidence Code section 352.2 may also, in certain instances, work against the interests of a criminal defendant. As the People explain, "prosecutors are a party to criminal actions and may oppose under Evidence Code section 352.2 a defendant's proffer of rap-lyric evidence as, for example, third-party culpability evidence. If a prosecution-requested exclusion occurs, the new rule will harm some criminal defendants just as much as it helps many others."
Citing Lara, supra , 4 Cal.5th at pages 307-311, 228 Cal.Rptr.3d 394, 410 P.3d 22, and Frahs, supra , 9 Cal.5th at page 624, 264 Cal.Rptr.3d 292, 466 P.3d 844, Daniel argues, "Retroactivity is not limited to laws that decrease punishment or give courts discretion to consider different sentencing outcomes. The Estrada presumption also applies where a new law creates a potential ameliorative benefit to defendants." However, in Lara the potential ameliorative benefit to the defendant concerned "the possible punishment for a class of persons, namely juveniles" ( Lara , at p. 308, 228 Cal.Rptr.3d 394, 410 P.3d 22, italics added), and in Frahs the potential ameliorative benefit was the "potential of substantial reductions in punishment " due to mental health diversion, including the possible ultimate dismissal of criminal charges ( Frahs , at p. 631, 264 Cal.Rptr.3d 292, 466 P.3d 844, italics added). Here, as we have explained, Evidence Code section 352.2 does not enact a lesser punishment, potential or otherwise, and does not give rise to more lenient treatment of a defendant. It also does not alter criminal liability. It is therefore not an ameliorative enactment within the meaning of Estrada.
Elias makes a similar argument, focusing on what he identifies as the ameliorative effect of Evidence Code section 352.2. "The logic in In re Estrada, supra , applies here. The changes set forth in the new statute, although not directly reducing punishment, are ameliorative to criminal defendants in the sense that they are intended to benefit criminal defendants by the exclusion of harmful and prejudicial evidence in the form of creative expressions. This potentially results in the defendant not being convicted, or convicted of a lesser crime."
We are aware that People v. Venable (2023) 88 Cal.App.5th 445, 304 Cal.Rptr.3d 731 recently came to a different conclusion about the retroactivity of Evidence Code section 352.2. We respectfully disagree with our colleagues in Division Two. Venable concludes that our Supreme Court's opinions in Lara, supra , 4 Cal.5th 299, 228 Cal.Rptr.3d 394, 410 P.3d 22 and Frahs, supra , 9 Cal. 5th 618, 264 Cal.Rptr.3d 292, 466 P.3d 844 support the retroactive application of Evidence Code section 352.2. ( Venable , at pp. 456-457, 304 Cal.Rptr.3d 731.) But as we have explained, we do not believe those authorities control because those two cases concern statutory enactments resulting in potentially more lenient punishment for defendants, which is not the effect of Evidence Code section 352.2.
Current precedent from our Supreme Court does not support an extension of the Estrada rule to a statutory change that may possibly benefit a criminal defendant but that does not redefine the conduct subject to criminal sanctions or, at least potentially, reduce or eliminate the applicable punishment. Therefore we conclude Evidence Code section 352.2 does not apply retroactively. 4.-7.
See footnote *, ante .
See footnote *, ante .
DISPOSITION
We reverse the true findings on the gang enhancement allegations ( § 186.22, subd. (b) ) for both Elias and Daniel in counts 1, 2, and 3, along with the corresponding four-year sentences for both of them in count 3. The People may choose to retry those allegations on remand. As to Elias, we reverse the true finding on the firearm enhancements and the corresponding sentence of 25 years to life in count 1 and 20 years in count 2. On remand, if the People retry the gang allegations as to Elias on counts 1 and 2 and obtain a true finding on those allegations, the trial court may reimpose the firearm enhancements on Elias pursuant to section 12022.53, subdivision (e)(1) in counts 1 and 2.
Daniel and Elias's sentences are vacated and this matter is remanded for a full resentencing. In addition to the gang enhancements for both Daniel and Elias in counts 1, 2, and 3, and the firearm enhancements for Elias in counts 1 and 2, as stated above (along with the corresponding sentences), the following components of the trial court's sentence are not legally permissible based on the current record: (1) For both Daniel and Elias: (a) the upper term three-year sentence on count 3; and (b) the $154 fee imposed under former Government Code section 29550.1, to the extent it remains unpaid; and (2) for Daniel: the 15-year-to-life sentence on count 2, which must be reduced to a sentence of seven years to life, absent a legally permissible finding on the gang enhancement allegation as to Daniel in count 2 on remand. As part of a full resentencing hearing, the trial court may also consider with respect to the firearm enhancements, whether to exercise its discretion to impose lesser firearm enhancements. In all other respects, the judgments are affirmed.
WE CONCUR:
HUFFMAN, Acting P. J.
BUCHANAN, J.