Evidence Code § 352.2 Not Retroactively Effective

Daniel Ramos (Daniel) and Elias Ramos (Elias) (no relation) are members of Center Street, a criminal street gang in Oceanside.  Center Steet has about 70 members.  Posole, another street gang in Oceanside, has about 100 members.  Center Street and Posole are rival gangs.

In 2016, Annebell F. was 15 years old and lived in the Posole neighborhood.  Annebell was not a gang member, but she was close friends with Julye R., a male, who was. 

At about 2:00 a.m. on September 3, 2016, Julye R. went to Balderrama Park, which is considered the centerpiece of Posole territory after a family argument.  By coincidence, Annebell was there and the two talked near the jungle gym.

 

At about that time, two people wearing dark hoodies and white bandanas over their faces stood side by side in front of Annebell and Julye R.  The two people opened fire on Julye R. and Annebell.  Julye R. ran for his life and Annebell hid in the jungle gym’s crawl tube.

A nearby resident later told police that he heard about seven shots and saw two men running away. 

At about 2:35 a.m., Oceanside police arrived at the scene and found Annebell F. dead inside the crawl tube, which had .22-caliber bullet holes. 

Julye R. refused to cooperate with law enforcement.  However, about two weeks later he was in custody on an unrelated matter with Jolo F., Annebell’s brother, in the same cell,  Police recorded their conversation.  Julye R. told Jolo that he was targeted by Daniel.  Daniel pulled down his bandana before shooting so Julye R. could see his face.  Julye said Daniel was with “the short fool,” which referred to Elias, who was only about five feet, two inches tall.

The same day, police arrested Elias on an unrelated charge and obtained his phone and saw he had searched Facebook for Balderrama Park before the shooting and after the shooting, had searched for “teenager killed in Oceanside.”  Elias’ phone also contained a video of him singing rap, wherein he identifies Daniel and himself as Center Street gang members who were seeking to kill Posole rivals.

Police later arrested Daniel on an unrelated charge and put him and Elias in the same cell.  Police then recorded their conversation, where they refused to talk above a whisper because of a camera in the cell.

In a joint trial in San Diego County Superior Court involving a gang shooting, a jury convicted Daniel and Elias of first degree murder (Penal Code § 187(a)), attempted first degree murder (Penal Code §§ 187(a), 189, 664) and possession of a firearm by a felon (Penal Code § 29800(a)(1)).

The jury also made true findings on firearm and gang enhancements (Penal Code §§ 12022.53(c), (d), and (e)(1), 186.22(b)(1)). 

Judge Sim von Kalinowski sentenced Daniel, the shooter, to an aggregate term of 92 years to life and Elias (the aider and abettor) to 84 years to life. 

Both defendants appealed, raising over 30 issues.  Many involved the admission of a confession and incriminating statements Daniel made while in custody on unrelated charges to a confidential informant posing as a gang member.

The defendants also asserted that Judge von Kalinowski erred in admitting evidence of rap videos performed by Elias and posted on YouTube and whether the judge erred by not bifurcating the trial so that there is a separate trial on gang enhancements.

The scope of this article will be limited only to whether the judge erred by admitting the videos of Daniel singing rap and whether the judge should have bifurcated the trial on the gang enhancements.

The Second Appellate District was assigned the case, not the Fourth Appellate District.

In a forty page opinion that addresses all issues raised, the Second Appellate District found no 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.

The Second Appellate District also found that Evidence Code § 352.2, codified from Assembly Bill 2799 regarding inadmissibility of rap videos to prove a crime took place, is not effective retroactively to cases that have been tried.  This clearly conflicts with a recent Fourth Appellate District case holding otherwise and means due to a conflict among the appellate districts, the California Supreme Court may rule on the issue to resolve the issue.

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