I'm going to have you read today's Court of Appeal opinion exactly the way I read it, even though that'll take slightly more time.
Here's how the opinion begins:
"Bullets fired from a small white car killed one victim and wounded another. Both victims were members or associates of the Westside Projects (Projects) gang. Months later, when the police arrested a known informant for an unrelated offense, he offered to give them information about the shooting. He told the police—and eventually testified— defendant and appellant Travon Rashad Venable, Sr. drove the car used in the shooting and Elgin Johnson was the shooter. Both Venable and Johnson were members of the California Gardens Crips (California Gardens) gang, a rival of the Projects.
A jury found Venable guilty of first degree murder (Pen. Code, § 187, unlabeled statutory citations refer to this code) and attempted murder (§§ 187, 664, subd. (a)). 2 The jury also found true, on each count, a gang enhancement (§ 186.22, subd. (b)) and a gang-related firearm enhancement (§ 12022.53, subds. (d), (e)). In a bifurcated proceeding, after defendant waived a jury trial, the judge found Venable had one prior serious felony conviction (§ 667, subd. (a)) and one “strike” prior (§§ 667, subds. (b)-(i), 1170.12). The judge sentenced Venable to a total of 129 years to life.
On appeal, Venable argued: (1) The trial judge violated his speedy trial rights by repeatedly continuing the trial to accommodate counsel for his then-codefendant Johnson. (2) The trial judge erred by admitting a rap video in which Venable appeared. (3) The trial judge erred by giving CALCRIM No. 315, which required the jury to consider a witness’s level of certainty when evaluating an identification by that witness. (4) The jury found Venable guilty of attempted murder, not willful, deliberate, and premeditated attempted murder. The People conceded this point. (5) The trial judge erred by sentencing Venable on both the firearm enhancements and the gang enhancements. The People conceded this point. (6) Venable is entitled to a remand so the trial judge can consider striking the prior serious felony conviction enhancement under newly enacted legislation. The People conceded this point. (7) Venable is entitled to a retrial for the gang allegations to be tried separately under newly enacted legislation. (8) The gang enhancements and the gang-related firearm enhancements must be reversed because the jury was not instructed in accordance with newly enacted legislation. The People conceded this point. (9) Venable is entitled to a remand for the trial judge to consider reducing the firearm enhancements under newly enacted legislation. The People conceded this point.
We initially found no errors other than those conceded by the People. (People v. Venable (Aug. 22, 2022, E071681) [nonpub. opn].) However, the Supreme Court granted review, transferred the matter back to us, and directed us to vacate our opinion and reconsider the cause in light of the newly effective Evidence Code section 352.2, enacted by Assembly Bill No. 2799 (Stats. 2022, ch. 973) (AB 2799).
Evidence Code section 352.2 requires trial judges to consider specific factors before admitting evidence of a form of creative expression—which explicitly includes rap—in a criminal proceeding to avoid injecting racial bias and improper consideration of criminal propensity. It’s uncontested the trial judge did not consider those additional factors before admitting a rap video in Venable’s trial and that the trial, as a result, didn’t comply with the new requirements for admission. The question is whether these new requirements apply retroactively to cases like Venable’s, which are pending on appeal at the time of their enactment. (In re Estrada (1965) 63 Cal.2d 740 (Estrada).) We conclude . . . "
Given this description, I was supremely confident of how the Court of Appeal would come out. The conviction was affirmed to begin with. It's a gang murder case. The Supreme Court granted review and transferred, but only to see whether a change in evidence rules is retroactive. I was sure that the Court of Appeal was going to hold that evidentiary changes are not retroactive and hence, once again, affirm.
I was wrong.
The Court of Appeal instead unanimously holds that the evidence changes are retroactive and, on that basis, reverses and remand for a new trial.
I'm super surprised. Super. Maybe there are some other cases that hold that changes in evidentiary rules are retroactive. But if there are, I can tell you this much: I don't know about 'em. I'd have thought that the rules of evidence at trial are the relevant rules of evidence, and that if evidence was admissible at the time, then it doesn't become inadmissible simply because the rules of evidence changed after the trial was over.
But the Court of Appeal says here that that's precisely what happens.
It's weird to me. Mind you, I understand the reasoning. As well as the politics and atmospherics. Here, the Legislature changed the Evidence Code to make it harder to introduce rap lyrics at trial. For various reasons: to protect free speech, to avoid prejudice, etc. That's all fine and good; the Legislature can make that call.
But the evidence here was properly admitted under the old rules, which just balanced probative value versus prejudice. Sure, that might come out the other way under the new rules. And it's certainly true that the trial court here didn't evaluate the evidence under the new rules. Because they didn't exist yet.
It just seems weird to me to say that a new trial is required because evidence was inadmissible under new rules that didn't yet exist and that the trial court wasn't required to consider. It'd be one thing if the new rules were constitutional or the like, or necessary for a fair trial. Those it makes sense to hold as retroactive. But that's not the case here. Plenty of trials went forward under the regular old "probative vs. prejudice" balancing test, and we're not reversing any of those results. But for cases on appeal, we say that a new trial's required because an "error" was made that couldn't not have been made since the new rules -- the new balancing test -- didn't yet exist.
Strange, no?
Take a different example. Imagine that certain evidence suddenly becomes inadmissible after a trial is over; say, because the Legislature creates a new privilege (maybe "Patron/Supermarket Cashier"). If a defendant confesses to a cashier and that evidence is admitted at trial, does that conviction get reversed on appeal given the new evidentiary rule? I'd have thought before today that the answer was clearly "No." Even though the new rule was "ameliorative" in the sense that it helped the defendant and was meant to advance appreciable social interests. Under the reasoning of today's opinion, by contrast, the answer seems far less clear, and might well be "Yes."
The retroactivity cases that the Court of Appeal cites here are all cases that make a fair amount of sense to me: that things like the availability of pretrial division and sentencing reductions and the like are all applicable to cases still on appeal. But evidentiary rules just seem to me different. At least when, as here, they're mere Legislative enactments and not constitutionally based or something like that.
Sure, the Legislature could expressly make those new evidentiary rules retroactive if they want. But that's not what happened here. The Legislature said nothing. Given that silence, I'd think that the very strong presumption is that the evidence rules at trial remain the evidence rules on appeal.
But apparently the Court of Appeal thinks otherwise.
Anyway, super interesting result, and one that I definitely didn't expect when I first saw the issue teed up on appeal.
