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Name: People v. Slaton (2023) 95 Cal.App.5th 363
Case #: C096437
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/11/2023

Evidence Code section 352.2, which requires a specific balancing test when deciding the admissibility of “creative expression,” is not retroactive. A jury found Slaton guilty of murder, finding true a firearm enhancement and a special circumstance for discharging the firearm from a motor vehicle. The prosecution’s theory was that the victim was targeted because he wore a red shirt and defendant, although not a gang member, affiliated with a gang that wore blue. The trial court allowed the prosecution to present 13 screenshots from defendant’s rap music video to advance this theory. Slaton appealed, arguing the trial court wrongly admitted these screenshots. Held: Affirmed. Section 352.2 requires a specific balancing test for the trial court to consider when deciding the admissibility of “creative expression,” including rap music. The statute became effective on January 1, 2023, several months after the trial in this case. The ordinary rule of construction is that new statutes are intended to operate prospectively. The Estrada exception to this rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible. Section 352.2, however, is not a law that “by design and function” reduces the possible punishment for a class of persons, or changes the substantive offense or penalty enhancement for any crime. It is instead a new and neutral evidentiary rule intended to prevent trial courts from admitting a person’s creative expression without first properly evaluating the negative consequences of doing so. [Editor’s Note: This adds to a current split in authority on the question of the retroactivity of section 352.2. (See People v. Venable (2023) 88 Cal.App.5th 445, 448 [retroactive], review granted May 17, 2023, S279081; People v. Ramos (2023) 90 Cal.App.5th 578, 595 [no retroactivity], review granted July 12, 2023, S280073.) The issue is pending in the California Supreme Court in two automatic appeals. (People v. Bankston, S044739, and People v. Hin, S141519).]