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Name: Admitting/Excluding

The Court of Appeal found the trial court prejudicially erred in admitting evidence of appellant’s gang affiliation and materials extracted from appellant’s cellphone, which included statements and videos containing gang-related rap lyrics, photos of appellant holding guns, and text messages regarding shooting guns.

Gang Membership

Due to the uniquely prejudicial nature of gang evidence, “the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. [Citation.] In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. [Citation.]” (Albarran, supra, 149 Cal.App.4th at p. 223.) Here, there was no evidence presented, or even any suggestion, that gangs were involved in these crimes, either directly or indirectly. Nor was there any evidence or argument that appellant’s criminal acts were motivated by gangs, and so there is no basis for their admission as evidence of motive or intent under Penal Code section 1101, subdivision (b). (Albarran, supra, 149 Cal.App.4th at p. 227.) Further, the exhibits and testimony demonstrating appellant’s connection to the gangs were highly inflammatory and confusing to the jury, as they were used to broadly imply that appellant was of bad character, a violent gangster who was predisposed to commit crimes.

Rap Lyrics

There is no indication the rap lyrics bore any relationship to appellant’s charges, state of mind, or any actual events. The lyrics served solely to give the jury the impression that appellant was a heartless gangster, in a case where there was no evidence appellant was in the gangs at issue, and no gang enhancements were charged.

Gun Evidence

A witness’s testimony that they never saw appellant be aggressive toward other people did not permit admission of the gun-related photos and messages as rebuttal evidence under section 1102. Section 1102 does not authorize the admission of specific instances of conduct. Additionally, there was no evidence presented that appellant’s gun possession was illegal, nor did the photos reflect that he threatened or shot anyone with a gun. Instead, the photos showed him posing like a stereotypical gangster, for gangs not at issue in the case, in a way certain to evoke emotional bias in the jury, without providing any actual evidence of aggressiveness beyond posturing. The gun-related messages were additionally inadmissible as evidence of intent or motive under section 1101(b), as they did not relate to any relevant individuals or facts in the case, nor did they shed light on appellant’s motive or intent. Again, they simply served as prejudicial character evidence, painting appellant as a gun-wielding gangster.


Without deciding whether prejudice should be assessed under Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818, the Court of Appeal concluded the errors were not harmless. The crucial question for the jury to decide in appellant’s case was whether he harbored the intent to kill the victim. The People did not present direct evidence of his intent or motive. As a result, his credibility was central to the case. The panoply of generic, gang-related evidence created a “real danger that the jury would improperly infer that [appellant] had a criminal disposition.” (People v. Cardenas (1982) 31 Cal.3d 897, 905.) Given that appellant admitted to shooting the victim twice and videos showed him laughing with friends and appearing remorseless in the hours that followed, followed, the Court of Appeal found the errors could have been harmless under Watson had the jury received proper limiting instructions. However, the instructions addressing the cellphone and gang-related evidence were ambiguous at best and greatly magnified the chance that the jury either used the motive and intent evidence as impermissible character evidence of aggressiveness, or alternatively considered the rebuttal evidence as evidence of intent and motive.

The judgment was reversed, and the case remanded to the trial court to permit the People to decide whether to retry appellant.