Excluding Prejudicial Rap Video, Evidence Code § 352.2

On March 5, 2014, at about 12:15 p.m. (just past noon), Kiyon “Kiki” Drake and his friend Enon “Bubba” Edwards were at the intersection of Medical Center Drive and Union Street in San Bernardino.  As they were walking across the street, someone in a small, older white car going north on Medial Center Drive started shooting at them. 

Mr. Drake and Mr. Edwards ran away from the white car, but a bullet hit Mr. Drake in the back and came out of his chest.  After he rounded a building, he looked back and saw Mr. Edwards lying on the ground.  Mr. Drake suffered a collapsed lung and Mr. Edwards died from a single gunshot blast to the back of his head.

Police came to the scene and Mr. Drake told police that both the driver and a passenger in the back seat shot at them.  Both shooters were Black males in their mid-20’s.

Police found a total of nine .22-caliber shell casings at the scene.  All had been fired from the same gun.

Three months after the shooting, Officer Sims and Officer Plummer conducted a traffic stop of a person referred to at trial as John Doe.  

Officer had previously used Mr. Doe as a paid informant.  Police searched Mr. Doe’s car and found a gun.  Mr. Doe then indicated he had information about the shooting.  Officers then took Mr. Doe to the station, where he was interviewed.

Mr. Doe said he was at the intersection and saw the shooting.  He identified Travon Rashad Venable as the driver and Elgin Johnson as the shooter.  He described Johnson as being in the backseat on his knees, pointing a .22-caliber rifle with a “long clip” out the window.

Both Mr. Venable and Mr. Johnson were members of California Gardens, a criminal street gang in San Bernardino.  Mr. Drake was a member and Mr. Edwards was an associate of the Projects, another criminal street gang in San Bernardino.  The California Gardens gang and the Projects are rivals.

After the shooting, Mr. Doe communicated with Mr. Johnson on Facebook.  Mr. Johnson bragged, “Yeah, I shot him.  So what.”  Mr. Johnson then deactivated his Facebook account.  Later, Mr. Doe asked him why he did it and Mr. Johnson said he was “putting in work” for California Gardens.

On YouTube, police found a rap video featuring Mr. Venable’s younger brother, “Young Troce.”  Mr. Venable and other California Gardens members were also in the video.  They could be seen flashing gang signs and displayed guns, drugs and money.  At one point, Mr. Venable held a rifle with an extended magazine.  At one point in the video, the lyrics state that a California Gardens member shot someone else in the head on Medical Center. 

At trial, a gang expert testified that this was California Gardens’ way of “claiming ownership” of the shooting and bragging about it.

At trial, the jury found Mr. Venable guilty of first-degree murder and attempted murder.  The jury also found true a gang enhancement and a gang-related firearms enhancement.  Mr. Venable had one prior serious felony and prior “strike.”   The judge sentenced Venable to 129 years in state prison.

On appeal to the Fourth Appellate District in Riverside, Mr. Venable argued his conviction should be reversed on many grounds, but the scope of this article will be limited just to his argument that the judge erred by admitting the rap video in which Mr. Venable appeared.

In 2022, the California Legislature passed and the Governor signed Assembly Bill 2799, which adds section 352.2 to the Evidence Code.  The new law took effect January 1, 2023. 

It provides: “(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 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 charge crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice include, but is not limited to, the possibility that the trier of fact will, in violation of Section 1101, treat the expression as evidence of 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.”

The Fourth District found that the trial court judge did not consider these factors before admitting the video, but the bigger issue was whether these requirements apply retroactively to cases pending on appeal at the time 2799 (and Evidence Code § 352.2) became effective under principles enunciated in In re Estrada (1965) 63 Cal. 2d 740.

The Fourth Appellate District concluded the requirements of 352.2 do apply, so the Fourth Appellate District reversed the judgement and remanded the case for a new trial.

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