Evidence Code section 352.2 (added by Assembly Bill No. 2799 and effective 1/1/2023), which 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, does not apply retroactively. E. Ramos and D. Ramos were convicted of first degree murder and other offenses based on evidence they participated in a gang-related shooting. Recordings of E. Ramos performing rap were admitted at the trial. The lyrics referred to gang culture and criminal activity. In supplemental briefing on appeal, they argued that newly enacted section 352.2 should apply retroactively, and that under the new provision, the trial court erred in admitting the rap video evidence. Held: Reversed on other grounds (unpublished). Section 352.2 provides, in part, 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 . . . .” After analyzing California Supreme Court cases addressing the retroactivity of new laws, the Court of Appeal held that section 352.2 does not apply retroactively (disagreeing with People v. Venable (2023) 88 Cal.App.5th 445). Neither the text of the section nor the legislative findings expressly indicate the intent for the statute to retroactively apply to nonfinal cases. In addition, the Estrada presumption that an amendatory statute mitigating punishment shall apply retroactively is inapplicable to section 352.2 because it neither lessens criminal punishment nor reduces criminal liability. [Editor’s Note: People v. Bankston (S044739) and People v. Hin (S141519), both automatic appeals in the California Supreme Court, include an issue involving the retroactivity of section 352.2. On 5/17/2023, the Supreme Court granted review in People v. Venable (2023) 88 Cal.App.5th 445 (S279081/E071681) with briefing deferred pending decision in Bankston and Hin.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D074429.PDF