Evidence Code section 352.2, limiting admission of rap lyrics, applies retroactively to nonfinal cases under In re Estrada (1965) 63 Cal.2d 740. During Venable’s murder trial for the shooting death of a rival gang member, the prosecution introduced evidence of a rap video featuring his younger brother. Venable appeared in the video holding a rifle with an extended magazine, but said nothing. Although most of the lyrics had nothing to do with the shooting, one lyric stated, “Got word from a bird[] that they did that [racial slur] dead wrong/Slid up Medical and left that [racial slur] head gone.” The gang expert testified that “this meant Venable’s brother had heard a California Gardens member shot someone else in the head on Medical Center.” The prosecution played the video twice during its case-in-chief and again during closing arguments. Held: Reversed and remand for a new trial. At the time of Venable’s trial, rap lyrics were generally deemed admissible so long as they were relevant and not so unduly prejudicial or confusing as to require exclusion under Evidence Code section 352. Effective January 1, 2023, Assembly Bill No. 2799 added new section 352.2, which “now requires a trial judge to consider in addition that the probative value of such evidence is minimal absent certain markers of truth and that undue prejudice includes the possibility the evidence will inject racial bias and be used to improperly indicate the defendant’s propensity for violence.” This new section is ameliorative under Estrada because it provides defendants of color charged with gang related crimes the benefit of “a trial conducted without evidence that introduces bias and prejudice into the proceedings, limitations designed to increase the likelihood of acquittals and reduce punishment for an identified class of persons.” It therefore applies retroactively to all cases not yet final on the statute’s effective date.
Admission of the rap video without Evidence Code section 352.2’s new safeguards was prejudicial. The Court of Appeal concluded there was substantial doubt as to whether the trial judge would have admitted the rap video under the new evidentiary standard. The prosecution used the video to tie Venable to the specific crime and the remaining evidence of Venable’s involvement was not strong. Because the prosecution’s emphasis of the rap video at various points in the trial, including in closing arguments, likely had an effect on the outcome, remand for a new trial was required.
