88 Cal.App.5th 445
Cal. Ct. App.2023Background
- March 5, 2014 drive-by shooting: two victims (one killed, one wounded) in Projects gang territory; shooter in rear passenger window of a small white car; nine .22 casings recovered.
- Prosecution linked defendant Travon Venable (a California Gardens Crips member) to the crime largely through a paid informant ("Doe") who gave inconsistent statements and identified Venable as the driver; Doe later claimed police coercion but testified against Venable at trial after a plea deal.
- Police located a rap video on YouTube featuring Venable and other Gardens members; the video showed gang signs, weapons (one held by Venable), and lyrics referencing a shooting on Medical Center; prosecution heavily emphasized the video at trial.
- Jury convicted Venable of first-degree murder and attempted murder, found gang and §12022.53 firearm enhancements true; judge found one prior serious felony and one strike; total sentence 129 years to life.
- After Venable’s trial, the Legislature enacted Evidence Code §352.2 (AB 2799) requiring courts to consider additional factors before admitting creative expression (including rap) to guard against racial bias and propensity inference; trial court did not apply §352.2.
- The Court of Appeal held §352.2 is ameliorative and retroactive to nonfinal cases, found the rap-video admission without §352.2 consideration likely prejudicial given weak non-rap evidence, and reversed for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Evidence Code §352.2 applies retroactively to nonfinal cases | §352.2 is not ameliorative because it governs evidence procedure, not punishment | §352.2 is ameliorative; it reduces bias and increases chance of acquittal for affected classes | §352.2 is ameliorative and applies retroactively under Estrada and Frahs; therefore it applies to Venable's nonfinal case |
| Admissibility of rap video without §352.2 analysis | Prior law allowed relevant creative expression unless unduly prejudicial under §352 | Admission violated §352.2’s additional safeguards; video risked racialized character evidence and propensity inference | Trial court erred by admitting the rap video without the §352.2 analysis; admission likely prejudiced the outcome |
| Prejudice from rap video given other evidence strength | Informant ID and gang evidence sufficed to support verdict regardless of video | Informant was unreliable; alibi and weak corroboration made video pivotal and prejudicial | Remaining evidence was weak; prosecution’s emphasis of the video likely affected the verdict, supporting reversal |
| Other trial and sentencing issues (speedy trial, gang/firearm enhancements, remands under newly enacted laws) | Some issues raised; People conceded several sentencing and enhancement errors | Venable sought reversal/remand on multiple grounds | Court’s ruling on §352.2 made many issues moot; several sentencing/enhancement matters were conceded by the People and will be addressed on remand as appropriate |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (presumption that ameliorative criminal-law changes apply retroactively)
- People v. Frahs, 9 Cal.5th 618 (applies Estrada to procedural statutes that provide an ameliorative benefit)
- People v. Lara, 4 Cal.5th 299 (changes that reduce possible punishment for a class of defendants apply retroactively)
- People v. Burgos, 77 Cal.App.5th 550 (bifurcation statute treated as ameliorative; supports retroactivity for evidence-rule reforms)
- People v. Ramos, 77 Cal.App.5th 1116 (discusses legislative intent and ameliorative effect of gang-evidence reforms)