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California Supreme Court:
Changes to Admissibility of Rap Lyrics Are Not Retroactive
Justices Reverse Death Verdict Where Only Special Circumstance Alleged Was Based on Former Version of Gang Statute; Divided Court Otherwise Affirms Conviction, Says Evidence Code §352.2 Is Proactive
By a MetNews Staff Writer
The California Supreme Court yesterday unanimously agreed to reverse a death sentence, imposed in 2009, where the only special circumstance alleged was based on a since-amended statute governing gang offenses, but the justices were divided over other challenges to the murder conviction, including an assertion that handwritten rap lyrics were improperly admitted under recent changes to the Evidence Code governing “creative expressions.”
At issue is Evidence Code §352.2, which was enacted in 2023 and provides:
“In any criminal proceeding where a party seeks to admit as evidence a form of creative expression, the court…shall consider…that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime…, bears a sufficient level of similarity to the…crime…or includes factual detail not otherwise publicly available; and (2) undue prejudice includes…the possibility that the trier of fact will…treat the expression as evidence of the defendant’s propensity for violence…as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.”
In an opinion authored by Chief Justice Patricia Guerrero, and joined in by Justices Carol Corrigan, Leondra Kruger, Joshua P. Groban, and Martin J. Jenkins, the court acknowledged that “[t]he question of whether Evidence Code section 352.2 applies retroactively has divided the Courts of Appeal” and declared:
“[W]e see nothing that ‘clearly and unavoidably’…reveals an intent to depart from the general rule of prospective-only application.” Justices Goodwin H. Liu, joined by Justice Kelli Evans, dissented from the court’s determination that §352.2 does not apply retroactively, and from the majority’s determination that the trial judge in the case was owed deference as to his determination that the prosecutor sufficiently rebutted an accusation that she dismissed a juror for racial reasons.
Evans wrote separately to “highlight additional reasons why deference to the trial court is unwarranted,” pointing to training materials “used by prosecutors over the past two decades” which list prepackaged justifications to offer when facing racial accusations relating to peremptory challenges.
Liu and Evans argued that the judgment of conviction should be reversed in its entirety.
The question arose after Jason Aguirre was found guilty of shooting into a car full of people, killing 13-year-old Minh Tran and wounding two others. Among other charges, he was convicted of first-degree murder with an accompanying special allegation that the killing was committed in furtherance of the activities of a criminal street gang.
Handwritten rap lyrics were discovered in his apartment, which say things like “I stay with my black beanie disguise” and “don’t be surprised when these guys dressed in black are coming to take your life.” A gang expert testified that black is associated with the defendant’s gang, Dragon Family.
Then-Orange Superior Court Judge William R. Froeberg (now retired) allowed the admission of seven pages of the lyrics without a specific limiting instruction. During jury selection, a prosecutor with the Orange County District Attorney’s Office exercised a peremptory challenge against Juror 179, the only Black panelist in the box.
Aguirre’s attorney objected and raised a so-called Batson/Wheeler motion, asserting that the prosecutor was improperly selecting the juror based on race. When directed to respond, the deputy said:
“Juror 179 is an engineer, very precise type area of work. He…has been friends with gang members in the past, had heard of [Dragon Family], but didn’t know if it was in connection to any crime. Although he answers certain questions okay, he had some level of hesitation in giving the answer. So that’s my reason for excusing him.”
Froeberg said that the reasons “appear to be race neutral” and denied the motion.
As to whether the special analysis applicable to a “creative expression”—defined in the code as “application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols”—is to be given retroactive effect, Guerrero said:
“Defendant…contends that Evidence Code section 352.2 applies retroactively to his case, which was tried before that statute entered into effect, and that under the statute’s terms,…the lyrics should [not] have been admitted.”
He points to the 1965 decision in In re Estrada, in which the high court held that a presumption of retroactivity applies “[w]hen the Legislature amends a statute so as to lessen the punishment.”
Finding the case to be inapplicable, Guerrero opined:
“Estrada’s rationale does not apply here. Evidence Code section 352.2 ‘does not directly or potentially reduce the punishment for an offense. Nor does it change the elements of a substantive offense, defense, or penalty enhancement. Likewise, it does not create an alternative avenue for certain individuals to receive lesser or no punishment.’…Evidence Code section 352.2 instead implements an essentially ‘neutral’ rule of evidence.”
She characterized the section as having “at best an attenuated and inconsistent connection to reduced punishment,” and concluded that “the Estrada inference of retroactive application does not attach to the statute.”
No Retroactive Application
Based on that analysis, she declared:
“We conclude…that Evidence Code section 352.2 does not apply retroactively to this case. Statutes are presumed to operate only prospectively, and this statute, which articulates a rule of evidence, does not implicate the contrary presumption of retroactive application that adheres to certain kinds of ameliorative legislation that have a sufficiently close relationship to the reduction of punishment….Addressing the lyrics’ admissibility under Evidence Code section 352 and relevant constitutional principles, we find no abuse of discretion by the trial court and no violation of defendant’s constitutional rights.”
As to the prosecutor’s use of a peremptory challenge to dismiss Juror 179, she noted that when a Batson/Wheeler motion is raised, a prosecutor is asked to offer a race-neutral justification if the defense makes a prima facie case. The judge is then tasked with deciding whether the defendant has proven purposeful discrimination.
She rejected Aguirre’s assertion that the court should not extend its usual deference to Froeberg’s ruling on the motion because he did not articulate a sincere effort to evaluate the justifications offered, writing:
“[T]he trial court’s ruling that…’They appear to be race neutral,’ in response to the prosecutor’s statement of reasons, reasonably reflected a finding that the prosecutor was credible and that her peremptory challenge was not motivated by discriminatory intent.”
Finding no other reversible errors, the court affirmed the murder conviction but reversed the judgment of death.
The chief justice said that “Assembly Bill No. 333….increased the showing that must be made to prove…the gang-murder special-circumstance allegation” and, because the changes have been determined to apply retroactively, “we cannot conclude…that any rational fact finder, properly instructed, would have…found the gang-murder special-circumstance allegation to be true.”
Liu’s Dissent
Liu wrote:
“[T]he touchstone of our retroactivity inquiry is legislative intent…, and Evidence Code section 352.2’s text and findings could not be more clear that the statute’s purpose is not ‘neutral’ in the manner today’s opinion suggests.”
He opined that “[b]y restricting the introduction of evidence that ‘create[s] a substantial risk of unfair prejudice’ against defendants…, the Legislature sought to ensure that defendants are no longer convicted of crimes…based on their creative expression,” and argued:
“Suppose the Legislature passed a law limiting the use of confessions in criminal trials with a stated purpose of preventing wrongful convictions and with findings that explain why, in the Legislature’s judgment, confessions are often unreliable. Would we say this is merely a prophylactic rule of criminal procedure and on that basis conclude it is not ameliorative within the meaning of Estrada?”
Faulting the majority’s holding for “lack[ing] a coherent principle, he declared that “I would conclude that Evidence Code section 352.2 applies retroactively.”
As to Juror 179, he commented that “[a] careful, independent examination of these reasons reveals cause for suspicion” and said:
“Here the trial court determined only that race-neutral reasons existed and did not ‘carefully evaluate the prosecutor’s explanations’ for challenging the prosecutive juror….Because the trial court applied the wrong legal standard and did not meaningfully evaluate whether the prosecutor’s stated reasons actually prompted her to challenge the prospective juror, deference to the trial court’s ruling is inappropriate.”
The case is People v. Aguirre, 2025 S.O.S. 2502.
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