People v. McElvane CA5 ( 2024 )

Filed 1/5/24 P. v. McElvane CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085037
Plaintiff and Respondent,
(Super. Ct. No. 20CR-04015A)
v.
DOMINIC MCELVANE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County. Carol K. Ash
and Ronald W. Hansen, Judges.*
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John
Merritt, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Judge Ash presided over McElvane’s preliminary hearing and jury trial; Judge Hansen, a
retired judge of the Merced Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution, presided over his change of plea hearing as to count 1
and pronounced his sentence.
INTRODUCTION
The Office of the District Attorney of Merced County filed an information
charging Dominic McElvane and Khaleiah Dixon1 with trafficking Gloria L., a minor, by
force (Pen. Code, § 236.1, subd. (c)(2);2 count 1), and trafficking L.M., a minor, (§ 236.1,
subd. (c)(1); count 2). McElvane was further charged with a prior strike conviction
(§§ 667, 1170.12). On August 17, 2022, the jury reached a verdict on count 2 but not on
count 1. The trial court declared a mistrial as to count 1 on August 18, 2022.
The trial court granted the People’s motion to amend count 1 to a charge of
trafficking a minor without force (§ 236.1, subd. (c)(1)). The parties reached a settlement
in which McElvane waived his constitutional rights pursuant to Boykin/Tahl,3 waived his
right to a probation officer’s report, admitted the allegation and the prior strike
conviction, and received a stipulated prison term of 21 years and four months as follows:
the midterm of eight years on count 2, doubled by the prior strike conviction to 16 years;
plus a consecutive sentence of one-third the midterm of two years and eight months on
count 2, doubled by the prior strike conviction to five years and four months.
On January 1, 2023, Evidence Code section 352.2 became effective. (Stats. 2022,
ch. 973, § 2.) It requires trial courts to scrutinize more carefully the admissibility of
forms of creative expression evidence (e.g., rap lyrics) that purportedly tie criminal
defendants to crimes they have allegedly committed so as to prevent the implicit or
explicit injection of racial bias into proceedings. Although McElvane was tried in 2022,
he contends that Evidence Code section 352.2 applies retroactively to him, he was unduly
1 In a pretrial brief, defense counsel stated Dixon entered into a plea agreement prior to
McElvane’s trial. Records of Dixon’s conviction in this case were admitted into evidence as
defense exhibits.
2 Unspecified statutory citations are to the Penal Code.
3 Boykin v. Alabama (1969) 395 U.S. 238, 242–244; In re Tahl (1969) 1 Cal.3d 122, 131–
134.
2.
prejudiced by the introduction of his rap video into evidence, necessitating a new trial,
and that this court should find the video inadmissible in a retrial. McElvane further
contends that an amendment during trial of the date of the offense alleged in the
information as to count 2 violated his due process right to a fair trial. We reject these
contentions and affirm the judgment.
FACTS
Gloria L. Begins Working for McElvane
Gloria L. was born in 2002. She grew up in Fresno and was 17 years old in
June and July 2020.4 Gloria was 13 years old when she met Dixon. Gloria referred to
Dixon as Kalani. Gloria met Dixon at school or juvenile hall. Gloria had juvenile
adjudications for attempted robbery in 2017 and battery of a police officer in 2019.
Gloria ran away from a group home in 2020 but could not remember where she
stayed afterward. Gloria saw Dixon in Fresno in June of 2020.5 Dixon asked Gloria to
leave town with her. Gloria agreed to do so.6 Gloria began “chilling” with Dixon in
Fresno until Dixon left town. Dixon arranged for Gloria to get a train ticket to Los
Angeles. The plan for Gloria was to make money for McElvane by selling herself for
sexual acts. Dixon introduced Gloria to “the game” because Gloria had not previously
been a sex worker.
Gloria knew McElvane as Cashoutt.7 Prior to leaving for Los Angeles, McElvane
sent voice messages to Gloria’s cell phone, and they exchanged text messages. When
4 Because Gloria and the other victim, L.M., were minors at the time of the allegations, we
do not set forth the month or date of their births. We have verified that both victims were minors
under age 18 during the events reviewed herein.
5 Subsequent references to dates are to dates in the year 2020, unless otherwise stated.
6 Gloria first met McElvane when he and Gloria were briefly in Fresno prior to Gloria
leaving Fresno for Los Angeles.
7 McElvane’s moniker, or nickname, is spelled differently throughout the record.
Depending on who is reporting testimony or transcribing recordings, he is variously referred to,
or his nickname is spelled, as Cashoutt, Cashouttdomo, Cashoutt Domo, Cashout, and cashout
3.
Gloria arrived in Los Angeles, McElvane and Dixon had arranged for Gloria to meet
them by sending her an Uber or Lyft ride. Gloria arrived in Los Angeles with a fanny
pack, the clothes she was wearing, and no money. Dixon provided her with clothes.
Gloria planned to stay with Dixon and for McElvane to provide her food in exchange for
Gloria selling her body.
Gloria met Dixon, McElvane, and L.M. in a hotel room. Gloria changed into the
clothes provided by Dixon. The four got into a car driven by McElvane; Dixon sat in the
front seat and Gloria and L.M. sat in the back seats. McElvane drove them to Figueroa
Street. Gloria and L.M. exited the car, and McElvane told Gloria to give him a sign when
she got a date, which meant Gloria was exchanging sex for money. All of Gloria’s
“dates” took place in McElvane’s car, not in hotel rooms, and involved oral sex for $80
or sexual intercourse for $100. Gloria saw L.M. go on dates in the car and received text
messages from her that she was with a “John.” Gloria was with the group in Los Angeles
for a couple of weeks and only slept one evening in a hotel. When asked if she testified
at the preliminary hearing to staying in Los Angeles just a matter of days, Gloria replied,
“Yeah.”
Gloria performed more than 10 sexual acts a day while in Los Angeles. She
would make $800 or $900 a day. After being paid, Gloria gave the money to Dixon who
gave it to McElvane. Gloria was not allowed to keep any money. McElvane did pay for
Gloria to have her nails done.
Gloria identified the ticket she used to travel from Fresno to Los Angeles.8 Gloria
identified a photograph of herself with L.M. while they were in Los Angeles and another
of herself after she got her nails done. Two photographs of Gloria together with L.M.
wearing a dress and Dixon while they were on Figueroa Street were admitted into
domo. All versions refer to McElvane and we use them interchangeably as they are referenced
in the record.
8 The ticket bears Dixon’s name and is dated June 28.
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evidence. Someone took the pictures as a photoshoot. Another photograph from the
same photoshoot depicted Gloria wearing a colorful outfit, holding a bottle of alcohol.
The car was always driven by McElvane or Dixon. Gloria and L.M. never drove.
Between McElvane and Dixon, McElvane was in charge. Dixon answered to McElvane
“[e]very time” and was not allowed to do whatever she wanted without McElvane’s
permission. McElvane made Gloria stay out all night. She felt she had nowhere else to
go. Every day, Gloria smoked marijuana provided by McElvane. McElvane or Dixon
purchased alcohol for Gloria to drink. Gloria also consumed stimulants while she worked
for McElvane.
Gloria’s Discontentment with McElvane and His Arrest
McElvane drove everyone to Fresno on the way to Oakland where Gloria expected
to continue working for McElvane. In Fresno, McElvane stopped at an apartment and
went inside with Dixon for several hours while Gloria and L.M. remained in the car. She
and L.M. got out of the car to try to find McElvane and Dixon in the apartment. Gloria
thought about leaving but had no ride. When McElvane and Dixon finally returned, they
headed to Oakland.
While still in Fresno, Gloria asked McElvane to take her home so she could pick
up the clothes she had forgotten to bring with her to Los Angeles. McElvane refused
Gloria’s request because they had just taken the freeway. McElvane became angry and
started cursing at Gloria. He told her she was going to continue working in Oakland.
Gloria was tired and no longer wanted to work for McElvane and just wanted to go home.
Gloria remained quiet and was crying. She began texting the police.9 She also texted
McElvane or Dixon that she wanted to return home.
9 Gloria’s 911 text was admitted into evidence. She told the emergency dispatcher that she
and her friend were 17 years old and in a situation where a pimp was trying to hit on them.
Gloria explained she was scared, they were driving north on Highway 99 toward Sacramento in a
grey Kia, and she was not sure of their exact location.
5.
While Dixon was driving, Gloria told McElvane that she did not want to work for
him in Oakland without her own clothes. McElvane yelled at Gloria and L.M. and told
Dixon to pull over on the side of the freeway. Gloria was crying but did not argue with
McElvane. McElvane told Gloria that once they were in Oakland, she and L.M. were
going to get out of the car to get some money. To Gloria, this meant she had to continue
selling her body. Gloria thought she would be kicked out of the car for saying something
back to McElvane. Gloria had seen Dixon arguing with McElvane and McElvane punch
or slap Dixon in the face.
Although Gloria wanted to get out of the car, she had nowhere to go and no one to
call. McElvane asked Dixon, “[Y]ou want this bitch to stay with us or you want me to
kick her out the car?” Dixon said nothing, but Gloria believed that if Dixon had said yes,
McElvane would have kicked Gloria out of the car along the freeway. Although Dixon
told McElvane it was up to him, they did not expel Gloria from the car along the freeway.
Gloria remained in the car until the police pulled them over. Gloria was nervous about
talking to the police.
McElvane told Gloria to not tell officers anything and to delete everything on her
phone. Gloria deleted everything from her phone when officers pulled them over as
McElvane instructed her to do but did this so it would appear that she had not contacted
law enforcement. Because Gloria was worried about outstanding warrants, she gave
officers her older sister’s name and birthdate. Gloria denied telling California Highway
Patrol Officer Talbot that if she was stopped by law enforcement that McElvane told her
to use her older sister’s birthdate. Even though Gloria used her older sister’s birthdate,
she told officers that she was a minor. Gloria denied working as a prostitute prior to
traveling to Los Angeles. Dixon introduced Gloria to “the game” after Gloria was in Los
Angeles.
Dixon later posted on Facebook that Gloria was cooperating with law enforcement
using “paperwork,” or police reports, with Gloria’s nickname on them. Dixon was
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publicizing on the Internet that someone had talked. This upset Gloria. She was also
upset with law enforcement for using her nickname in official documents because
everyone in Fresno knew her by this name. It made Gloria fearful to cooperate. She
explained in her testimony: “Eventually I’m going to get killed but I don’t care. If they
come for me, they come for me.”
Talbot began following the car Dixon was driving in Merced County and stopped
it north of Merced to investigate a report to 911 about human trafficking. The backseat
passengers were Gloria and L.M. Both were minors. At first, Gloria gave Talbot a fake
name and date of birth as though she was trying to hide something. McElvane and Dixon
were both on the scene. After Talbot separated Gloria from them by taking her behind
the patrol car, she became more forthcoming and calmed down.
Gloria gave Talbot her actual name and date of birth, showing that she was a
minor. Gloria explained that McElvane told her to provide a false name to make it
appear she was older. When Talbot tried to talk to L.M., she would not answer questions
and was rude to him. L.M. was adamant that she was 19 years old but had a baby face; to
Talbot she appeared at most 16 years old, playing dress up. Later in the office, L.M.
provided her true name and date of birth. Dixon and McElvane were not in the California
Highway Patrol office. Dixon was cited and released at the scene. McElvane was
transported to Merced County Jail for booking.
L.M.’s Testimony
L.M. was born in 2007 and was 13 years old in June and July. L.M. knew Dixon
as Kalani and McElvane as Cashoutt. L.M. did not know McElvane’s “government
name.” L.M. first met Dixon in 2019 when they lived in the same apartment complex in
Fresno. L.M. met McElvane through Dixon.
L.M. talked to Dixon about going down to Los Angeles to do what Dixon was
doing, work as a prostitute. L.M. said she saw McElvane in the apartment building once
but most of the time communicated with Dixon. L.M. traveled to Los Angeles by
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Greyhound bus, leaving Fresno with no money. L.M. did bring her own clothes in a bag.
One of her mother’s friends bought her ticket. L.M. took an Uber to the hotel room
where Dixon was staying. The hotel was down the street from Figueroa, where
prostitutes worked. L.M. asserted she only talked to Dixon, not to McElvane, about how
to work as a prostitute.
L.M. spoke to McElvane when she arrived but was unsure if he knew her age or
why she was in the city. McElvane was present for conversations in which she and
Dixon discussed the rules for prostitution. L.M. denied telling a detective that she had
discussed the rules with McElvane or that he provided her with clothes to wear. L.M.
worked on Figueroa for a few days in late June before Gloria arrived.
L.M. worked during the day and evening. L.M. defined a “date” as a “trick,” or
someone who pays for sex. L.M. said she mostly performed oral sex and did not think
she did much sexual intercourse. Dates would take place in the car or the hotel room.
After getting money, L.M. would give it to Dixon. L.M. did not recall if she saw Dixon
give McElvane the money, but L.M. expected Dixon to do so because McElvane was
Dixon’s boyfriend. L.M. did not recall telling a detective that when McElvane received
money he would tell L.M. she did a good job. L.M. claimed Dixon was really “the
pimp.”
L.M. did recall telling a detective that she made between $500 and $1,000 an
evening. Although L.M. never kept any of the money she made, she said it was spent on
her. L.M. did not recall telling a detective that she performed oral sex on McElvane once
because Dixon was McElvane’s boyfriend. L.M. denied there was a time when
McElvane was in bed with her because when they were in a room, he would sleep with
Dixon and L.M. would share a bed with Gloria. L.M. denied using drugs or alcohol
while in Los Angeles.
L.M. explained she ate three meals a day and had enough clothes. Dixon paid for
L.M. to get her nails done. The group left Los Angeles on July 3. When the group
8.
arrived in Fresno, Gloria and L.M. exited the car and went to a friend’s house. McElvane
and Dixon were at L.M.’s mother’s residence. Gloria was not upset during their stay in
Fresno but became upset when they were on the freeway leaving town and she asked to
pick up her clothes in Fresno. There was a disagreement, but it was conversational, not
angry. No one yelled at Gloria, and Gloria never cried.
L.M. remembered them being pulled over by law enforcement in Merced County.
L.M. gave officers a false name and date of birth, stating her age as 19 years old. L.M.
denied being a runaway, though she admitted she did not tell her mother where she was
going. L.M. told officers that no one made her do anything in Los Angeles. L.M. said
she chose to do what she wanted to do and no one forced her. L.M. claimed everything
she told the officers was fake. When they were pulled over, L.M. was worried about
McElvane and Dixon getting in trouble for what L.M. chose to do.
Detective Johnson Testifies About L.M.’s Prior Inconsistent Statements
Detective Satwan Johnson worked for the Long Beach Police Department’s vice
investigations detail and investigated human trafficking cases, massage parlors,
prostitution, illegal gambling, and overconsumption of alcohol in bars. Johnson had
investigated thousands of prostitution and human trafficking cases. Johnson began
training in human trafficking investigations in 2007 and had completed over 1,000 hours
of classes. He was familiar with the terminology used by human traffickers.
On September 24, L.M. was questioned by Johnson in a recorded video and audio
interview. Investigators had seized L.M.’s cell phone. She was afraid but very
cooperative with Johnson.
L.M. knew McElvane by his moniker, Cashouttdomo, and was introduced to him
by Dixon. Dixon introduced L.M. to the idea of working as a commercial sex worker.
The first two conversations L.M. had with McElvane were by cell phone, and there was
no mention of commercial sex. During a third conversation, McElvane told L.M. that he
could not wait “until she came ‘home.’ ” The phrase “come home” is used in commercial
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sex to mean come work for me as my (the pimp’s) worker. L.M. understood the phrase
to mean that she would be Dixon’s “wifey” and would give all of the proceeds she earned
committing acts of commercial sex to McElvane. A “wifey” is another sex worker who
is under the same stable, meaning that they both work for the same sex trafficker or pimp.
L.M. told Johnson that she convinced her father to buy her a Greyhound bus ticket
to Los Angeles, where McElvane arranged for Uber transportation from the bus station to
a hotel on Hoover Street. This hotel is only four blocks from Figueroa Street, a
prostitution track. McElvane told L.M. his rules, which included not contacting other
pimps and walking away if another pimp exited his car and approached her. McElvane
and Dixon provided L.M. with a clear two-piece outfit with Louis Vuitton LV symbols to
wear while she performed commercial sex acts. McElvane directed Dixon to take L.M.
to the Figueroa prostitution track. Dixon instructed L.M. how to perform commercial sex
acts and to charge $60 or more for each act.
L.M. said her first few dates were car dates. On each date she received $150 for
oral sex. The third sex act was a double date she performed with Dixon and two males.
They received $60 each for oral sex. On the fourth date, L.M. received $200 for
performing oral and vaginal sex on a male. L.M. handed all of the money she received to
Dixon. When they returned to the hotel, Dixon handed the money to McElvane who told
L.M. she did a good job.
The following morning, a female named Gloria arrived from Fresno and worked
with them on the Figueroa and Western prostitution tracks. L.M. and Gloria performed
double dates together. A male paid them $180 to have sex together in the hotel room.
L.M. and Gloria were not into this act, which upset the male. Because McElvane was
outside the room, the male did nothing. L.M. explained that she worked in Los Angeles
from June 26 or 27 until July 3. L.M. did not have vaginal sex with McElvane but
performed oral sex on him once while they were lying in bed together. L.M. made
between $500 and $1,000 an evening and gave the money to McElvane. The hotel rooms
10.
they stayed in were registered to McElvane under his birth name. Johnson had a
conversation with L.M. at the hotel they were both staying for the trial. L.M. stated
concern that McElvane would see her as a snitch.
Social Media Messages
District Attorney Investigator Fausto Lopez received search warrant returns for
Facebook, Instagram, and Snapchat accounts. From Dixon’s Facebook account, there
was an instant message from June 23, conversing with someone who used Gloria’s
nickname and trying to convince her to go to Los Angeles. Dixon told this person that
she was going to make some money. A video of McElvane counting money was sent on
June 28 via Dixon’s Facebook account to the person. The person responded that she did
not want to put money into someone else’s pocket and stated her age as 17 and a half
years old. Dixon responded that McElvane was aware of the person’s age.
Audio messages from McElvane were in the communication between these
accounts. Lopez identified McElvane’s voice from YouTube music videos and other
Instagrams. In a June 28 message, McElvane told the person using Gloria’s nickname to
make up her mind, that she had no money, and she expected him to pay for her ticket to
Los Angeles. The two appeared to be arguing over who was going to pay for the ticket.
Human Trafficking Expert
District Attorney Investigator Sheri Carpenter had extensive training in human
trafficking cases and worked primarily with these investigations. The court received her
as an expert in human trafficking cases. Carpenter investigated this case.
Carpenter explained several terms and phrases used by sex traffickers starting with
“daddy,” which is a term pimps require their sex workers to call them. A “date” is a
commercial sex arrangement between a “trick” or a “John” and the sex worker.
“Hoeing” is prostitution, and a “pimp” is a trafficker exploiting sex workers for
commercial sex. “The game” refers to the rules of the game for acting as a sex worker
and “the life” refers to the subculture of pimping or being a sex worker. Pimps often use
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the word “bitch” to describe their sex workers. Carpenter explained that if you flip the
numbers “3-0-4,” they spell “hoe.”
The term “real one” refers to an actual pimp or sex worker versus someone who is
not really in the life. “Bag” refers to money. Having a “dude” refers to having a pimp
that one works for. “Bands” refers to money and can sometimes refer to $1,000 or a lot
of money. “Stacking bands” is making money. “Trapping” in the pimping and pandering
subculture is a reference to sex work, and “knocking” occurs when pimps look at sex
workers or try to get them to work for the pimps. A “stable” refers to multiple sex
workers working for one pimp.
Sex workers refer to one another with the term “wifey” or “wife-in-law.” The
letter “P” and the number “16” refer to a pimp. “In pocket” is a phrase used to indicate
sex workers are on good terms and following the rules. “Quota” is the amount of money
the pimp expects the sex worker to earn in one day or night. A “bottom” is the most
senior sex worker under the pimp. She is someone who helps with recruiting, makes sure
the sex workers know the rules, usually makes the most money, and has been with the
pimp the longest. “Team” refers to the pimp’s team and “f[*]g[**]d off” is a derogatory
term used for someone who leaves the pimp. “Paperwork” refers to a police report, and
being “on paperwork” means someone is a snitch talking to law enforcement.
Carpenter explained human trafficking victims tend to be younger people who
have run away from home or unstable backgrounds such as foster care or group homes.
There are other risk factors such as alcoholism, drug addiction, and prior sex abuse. The
bottom’s recruitment therefore focuses on making the sex worker feel part of a family
and creating a sense of belonging. The senior sex worker also does much of the pimp’s
bidding, acting as a liaison and a manager.
Sex workers are often reluctant to participate in law enforcement investigations
because they don’t want to be a snitch, or they can also feel as though they are in a
boyfriend/girlfriend relationship with the pimp. The sex workers do not want to wrong
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the pimp because they care for or love him. Sex workers often have a work name to not
be detected by law enforcement or to avoid nearby family. In Carpenter’s investigations,
she has seen arrangements where the pimp takes all the money and pays for room, food,
and marijuana and where the pimp splits money 50/50 with the sex worker. Pimps
control sex workers by providing them with a phone and using an application like 360 to
monitor where the sex workers are located. Where a hotel room is used, the pimp will
wait in the parking lot, the bathroom, or an adjoining room while sex acts take place.
Sex workers can either post ads on the Internet or work on “the blade” outside.
Well known “blades,” or streets, are Figueroa in Los Angeles and International in
Oakland. At these locations, a sex worker can make over $1,000 a day or night. In a
smaller place, like Merced, a sex worker could make $100 to $200 a day. Another name
for a blade is a “track.”
Popular sex trafficking blades can go “dry,” so pimps like to move around.
Moving around also makes it easier to control sex workers because it is more difficult for
friends and family to find loved ones. New sex workers are groomed. They are shown
how to dress, told how to talk, and prepared for a life as a sex worker. Social media is
used to recruit new sex workers. Pimps and sex workers advertise and brag about
themselves on social media. Recruitment happens through private messaging. Pimps
flash money, ask recruits to make money with them, and present prostitution as
glamourous. The social media most commonly used are Instagram, Facebook, and
Snapchat.
Common signs and emojis used by pimps in their social media communications
include the letter “P” in a blue box, the numbers “3-0-4” or “#304,” high heels, and the
money bag. Sex workers are often tattooed, or branded, with the pimp’s name or
moniker. Pimps will often tattoo the names of their sex workers on themselves to show
they have them. Carpenter knew that Dixon’s moniker was Kalani and McElvane’s was
Cashouttdomo.
13.
Recorded Jailhouse Phone Conversations with McElvane
Pimps in jail still have their sex workers, especially the senior ones, working for
them even though the pimp is incarcerated. Carpenter described this as going on
“automatic.” Merced County Jail utilizes a service called Global Tel Link to record all
calls made by inmates. Inmates use a Personal Identification Number (PIN) when
making a call, which is then recorded under that inmate’s name.
Carpenter accessed and listened to McElvane’s recorded calls from jail.
McElvane made some calls from jail using a different PIN. Carpenter could identify and
listen to those calls from the phone number McElvane called because it belonged to
Dixon. McElvane told Dixon he would be using a name and PIN that was not his own.
Another phone number McElvane called was his mother’s. McElvane began making
calls on July 5 or 6 and continued until July 16. Carpenter recognized McElvane’s voice
from watching his social media and listening to his calls from jail. She also recognized
other voices, including Dixon’s. Recordings of the calls were played to the jury. Jurors
were also provided transcripts of the recordings.
Jail call recordings were placed into evidence as part of a series of conversations
between McElvane and Dixon that took place on July 6 and 7. McElvane instructed
Dixon to contact Gloria and L.M. and figure out what was said. Dixon told McElvane
that one of her “homies” was caught for the same offense as McElvane. Dixon said her
friend explained if the “bitches” do not go to court, they would not have any evidence
because the authorities did not have anyone’s phone. Dixon said she thought they did not
have anyone’s phone because she had her own phone and McElvane’s phone was broken.
Dixon believed one of the minors, whom she referred to as bitches, still had her phone
but she was not sure about the other minor. Carpenter understood the call to mean that if
Gloria and L.M. did not go to court, nothing would happen to McElvane; also, there
would not be any other evidence without anyone’s phone.
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Dixon told McElvane she did not come in “til four” and made $450. She “put up”
two. McElvane asked if the money was going toward the lawyer. Dixon confirmed it
was but said she did not trust herself because McElvane was not there to manage it.
Carpenter understood this conversation to mean that Dixon was still working and putting
money out of her own reach so she would not spend it.
Dixon confirmed that she was “used [to] running the program.” McElvane stated
he did not want to be “under other mother fuckers, it’s harder.” He also told Dixon that
he taught her “how to get this shit by yourself even when I’m not around.”
Dixon referred to another sex worker named Brooke who was working for Dixon.
Brooke’s voice was in the background, and Dixon was arguing with her about “hoe
money” during the call with McElvane. McElvane asked Dixon why she was talking like
that. Dixon replied she was talking “shit to Brooke.” McElvane told Dixon he was on
the phone and that Dixon’s conversation with Brooke was “hella dumb” because “all
these phone calls can be used against me in court bruh.” McElvane told Dixon that if he
calls her from another name, they can talk freely. McElvane asked Dixon what her phone
said when he called. Dixon said he was identified by “Dominic.” McElvane said that if
he called from another inmate’s name, it would be him and they could “talk regularly.”
Dixon talked to McElvane about “internet bitches” who were advertising on the
internet through commercial sex sites, transitioning into coming outside. Carpenter
explained this referred to sex workers transitioning from working using the Internet to
working outside on the street. Dixon described Brooke as a person walking with Dixon.
McElvane told Dixon to go to Hoover and get a room.
In another call, McElvane told Dixon she forgot he was in jail for pimping. He
complained that every other time he talks to her, Dixon talked about “hoe” or said
“outcall.” Carpenter explained that “outcall” refers to a sex worker going to the location
of the trick or John for the commercial sex. McElvane continued to complain that they
could “play that shit back” and use it against him. McElvane called Dixon a “dumb ass
15.
bitch.” McElvane was upset that when Dixon talked to a sex worker while on the phone
with McElvane, it was incriminating. He told Dixon to slap herself for him.
Dixon told McElvane that one of the minors was only 13 years old. McElvane,
using Gloria’s nickname, asked if it was Gloria. Dixon said it was the other girl, using
the nickname “S.” for L.M. Carpenter believed Dixon was referring to L.M. as the 13-
year-old. McElvane reacted to this information with “Oh my God” and “The fuck?”
McElvane asked Dixon, “But she didn’t say nothing though right?” Dixon replied the
minor was in a group home waiting for Dixon to get her out “some kind a way.” Dixon
told McElvane, “Now that I really know how she is, bitch, I don’t want you around me.
It’s different if you like sixteen seventeen, but thirteen?”
Dixon continued referring to Gloria as the other bitch and as being “the one telling
on you or some shit.” Dixon told McElvane that at the end of the day, the minors would
have to go to court to testify against him before he would “really go to jail.” McElvane
wanted to know if the group home would take her. Dixon replied, “that bitch went to
CPS,” but Dixon thought that what a kid had to say “don’t mean shit.” Dixon, apparently
talking about L.M., told L.M. to run away from the group home. McElvane said, “We
get caught with the bitch again? Then what?” Dixon explained she was not worried as
long as the minor kept her mouth shut. McElvane responded that they did not “know
what’s up with this other bitch, bruh, so you feel me?” McElvane asked if Gloria had put
“n[****]s” in jail before. Dixon replied that Gloria had not.
McElvane was angry at Dixon throughout another conversation for saying things
he thought incriminated him. McElvane told Dixon to quit playing him. Dixon
responded, “Okay, daddy.”
McElvane and Dixon had a conversation on July 8. McElvane mentioned S.
Dixon told McElvane to stop including S. because it was “fuck[ing Dixon’s] brain up.” S.
was trying “to do some whole other shit.” McElvane should leave S. out of it. Dixon
continued: “It’s only one bitch that we should be worried about right now and that’s the
16.
bitch that’s telling that’s in juvenile hall.” Carpenter understood from the context of the
call that the minor talking to authorities referred to Gloria and the one who was not
talking to authorities was L.M.
On July 9, McElvane told Dixon, “You’re my bottom bitch, you’re my top bitch.”
Dixon responded, “Aww, thank you daddy.” Dixon told McElvane she was outside
calling a lot of traffic but had not yet busted a date, but she was really trying. McElvane
asked Dixon why she was talking like that. McElvane accused Dixon of not caring about
his life. She responded that if she did not care about his life, she would not be on the
phone with him. McElvane said that did not “mean shit” and all Dixon was doing was
incriminating him “every time.” McElvane asked Dixon to “slap $500 on [his] books and
stop fucking with [him.]”
Carpenter said the reference “fuck with me” meant Dixon was still working for
McElvane. The reference to “top bitch” meant Dixon was McElvane’s most senior sex
worker. On July 8, Dixon referred to sex worker Brooke and working around “grown
bitches.” Dixon talked about sending an Uber to “scoop” Brooke up, meaning pick her
up. Dixon added, “[W]ith both of us that shit will add up.”
On July 8, there was a three-way conversation in which Carpenter recognized the
voices of McElvane, Dixon, and Gloria. Dixon asked Gloria if the police took her phone
and if she told them anything. Gloria denied telling investigators anything. Speaking to
Dixon, McElvane said, “She’s lying bruh.” Gloria told McElvane to shut up. Dixon said
one of them “obviously said something because now he’s gonna almost get life in jail.”
Gloria, referring to L.M., said, “She’s thirteen she’s thirteen and she was telling him shit I
won’t tell him shit so don’t try to come at me like that.”
Using Gloria’s nickname, McElvane told Dixon how he knew Gloria was lying.
McElvane said he heard Gloria in the next room. Dixon used the term “perp bitch” and
told Gloria to make sure there was no paperwork. Gloria replied she was not going to “be
on no paperwork.” After some unintelligible statements, McElvane said it was about him
17.
facing life because of Gloria’s statement. Dixon told McElvane, “Bruh, she’s a little girl,
she think someone tryin to punk her.”
On July 8, Dixon told McElvane she did not “think these bitches is going to go to
court.” McElvane asked if Dixon meant both of them needed to come to court. Dixon
replied she did not know. McElvane told Dixon she had to “figure this shit out.” Dixon
asked, “How am I supposed to figure this out they not tell me anything if they not gonna
tell your mom anything.”
Two additional conversations were recorded on July 8. The first recording was
between McElvane, his mother, and Dixon. The second recording was between
McElvane and Dixon. McElvane’s mother stated the authorities could still charge him
with one count even if the minors did not talk, “just to stick him.” McElvane, using
Gloria’s nickname, said he “highly” thought “the fucking [nickname] bitch said
something.” McElvane admitted that while sitting in the car he grabbed Dixon’s hand
and gave her “all the money and everything.” McElvane reiterated he “knew that bitch
was talkin.” Dixon said she told Gloria that McElvane better not be on paperwork or
have a court date. In the second recording, McElvane told Dixon, “[A]nd another thing,
ma, go ahead and deactivate uh my Facebook.” She indicated that she would do so.
On July 10, McElvane asked Dixon if she talked to her neighbor and whether they
“makin em come?” After a moment of misunderstanding, Dixon understood what
McElvane meant and said they were making them “come to the to the thing.” Dixon said,
“She went the same day.” McElvane asked if this was court. McElvane asked, “My
court date, bro.” Dixon said, “She went to court … the same day as you.” McElvane
asked if it was S. or Gloria’s nickname. Dixon said it was S. McElvane replied, “Oh my
God, bruh, this shit has made my head hurt. Dog, that did almost made me pass out,
bitch, my legs just went weak. The fuck?” Carpenter explained that the reference to
Dixon’s neighbor was to L.M. because they had lived in the same apartment complex in
Fresno, and the reference to S. was to L.M.’s nickname.
18.
Two conversations were recorded on July 11. McElvane asked if Dixon was
telling him, “[T]his bitch told on me.” Dixon replied, “[S]he’s gonna testify against you
and she’s already on paperwork and all that shit.” McElvane lamented that they were
going to throw the book at him. Dixon responded, “I know.” Carpenter explained she
understood McElvane and Dixon to be referring to Gloria. McElvane told Dixon there
was no point in going to trial and he might as well tell them he is guilty.
On July 13, Dixon wondered “what could she tell on me about.” McElvane
replied, “[T]hat basically you’re my bottom bitch, you’re my bottom bitch, you’re
basically my main chick.” Dixon said that they knew that already. McElvane added that
Gloria could say Dixon “recruited her to come fuck with us and the whole and do this and
do that, ya feel me? And then she could say she been trappin with you.” McElvane told
Dixon this could put her in jail on a pimping charge. Carpenter explained that “main
chick” referred to being the most senior sex worker, “trapping” was sex work or
prostitution, and the “she” in the conversation referred to Gloria.
Additional Evidence
Carpenter obtained a search warrant to seize L.M.’s phone after McElvane’s
arrest. A forensic extraction was performed by Homeland Security on L.M.’s phone
pursuant to the search warrant. A forensic search warrant was also secured for extraction
of Gloria’s phone. The call logs from Gloria’s phone showed calls to a contact named
“Daddy” during the time she was in Los Angeles.
A video obtained from L.M.’s Snapchat account depicted L.M. in the forefront
wearing a ponytail and Gloria in the background. The time stamp was from June, and it
was recorded in Los Angeles. Another of L.M.’s videos also depicted L.M. and Gloria
together in Los Angeles on June 30.
A video taken on July 1, extracted from Gloria’s phone, showed Gloria and
McElvane together in a car with him driving. Three short videos from Gloria’s phone
19.
had time stamps between June 29 and June 30 and showed Gloria and L.M. together. In
one of these videos, McElvane was walking behind Gloria and L.M.
L.M. sent three or four voice messages to Gloria about Gloria’s argument with
McElvane prior to the car being stopped by Talbot. L.M. accused Gloria of being a
snitch. L.M. warned Gloria that they tried to kick her “dumbass” out on the freeway, but
Gloria did not want to get out of the car. L.M. advised Gloria to “shut the fuck up.”
Carpenter reviewed McElvane’s Facebook account that was under the name
Dominic Davis, a name McElvane mentioned in his jail calls. Carpenter received
Facebook data from Investigator Lopez in September. The profile picture promoting this
account was the same one McElvane used on YouTube for some of his rap videos. In
this account, there was a posted video from January 30 with a female where McElvane
talked about pimping. The action in the video took place in the corner of what appeared
to be a hotel room. McElvane took money from a female hand. McElvane indicated the
money was light and said, “Bitch you wasn’t working,” and it was “time to go outside.”
The caption for the video was titled, “We practice in how to collect trap.”
The returns for McElvane’s accounts were received in August. In the time after
the search warrants were authorized, McElvane and Dixon changed the names on their
Instagram accounts. The two had discussed doing so during jail calls. In Carpenter’s
experience, investigation subjects commonly changed social media accounts to escape
detection from law enforcement. Based on McElvane’s Instagram account, Carpenter
believed he recruited Dixon to work for him in January.
In a series of private messages to L.M.’s account, McElvane discussed the
prospect of her coming to Los Angeles to work for him. McElvane asked her for
photographs of L.M. and she sent one. In another message sent June 27, McElvane asked
L.M. how much money she had, which Carpenter interpreted to mean that he wanted
L.M. to pay him.
20.
McElvane messaged L.M. again the same day, promising to turn her “into a boss
bitch as long as you keep it 100 and you don’t do no f[*]g shit, you can hit states with me
and [Dixon].” He promised to Uber her to their location “by the blade” when she arrived
in town. Carpenter translated the message to mean that McElvane expected L.M. to
follow the rules. McElvane further explained that Dixon’s whole life changed “when she
started fucking with me.” Carpenter said McElvane was referring to Dixon beginning
working for him as a sex worker. McElvane promised to take care of all of L.M.’s needs
if she started the game or began prostituting herself for him.
“No Love” YouTube Video
McElvane’s “No Love” rap music video was played for the jury and admitted into
evidence. The video is four minutes long. The jury was also provided a transcript of the
rap lyrics. The rap lyrics describe sex trafficking generally and the viewpoint of a pimp
more specifically. The video was posted on YouTube on May 7. McElvane’s lyrics are
repetitive within stanzas as well as a refrain he uses three times in the video with six long
stanzas and a few one- or three-line stanzas. The complete lyrics are attached to the end
of our opinion as an appendix, post, pages 49–50.
Carpenter explained to the jury how particular phrases in the lyrics referred to
human trafficking subculture. The refrain begins with these three lines:
“Dumb Thot man you gets no love
“Stupid Bitch man you gets no love
“Chasing bands only thing that I love”
The third line is repeated three more times in the stanza. Carpenter explained it meant
making money.
The next stanza began with these six lines:
“Comin up I had to get it out the (unintelligible)
“F[*]g[**]t Bitch say she wanna choose up
“Tell that bitch I need blue strips huh
“N[****]s (unintelligible) give two fucks huh
“I’m getting money out that bitch man (unintelligible)
21.
“Bitch keep lookin at a n[***]a I need a fee”
Carpenter explained a “F[*]g[**]t bitch” is a sex worker that wants to leave or is
someone not following the rules. “Bitch keep looking at a n[***]a” and “reckless
eyeballing” also refer to a sex worker leaving and not looking at another pimp.
“Choosing up” occurs when the sex worker goes to work for another pimp. The
reference to “a fee” is the money a sex worker has to pay the pimp to work for him.
Later in the same stanza, McElvane raps:
“I’m getting money out this bitch bruh she steady hoe’n
“And all my bitches straight goer’s but they straight hoe’n”
Carpenter said the first line statement about getting money refers to a sex worker going
on commercial sex dates and paying the pimp. The reference in the second line means
that all of the pimp’s sex workers are out working on commercial sex dates.
The next stanza after a refrain has the following lines:
“It’s another one of your bitches that be bustin dates fo me
“I’m getting money n[****]s hate’n on me”
Another stanza begins with these four lines:
“Stupid bitch wanna choose up, I need a fee
“Stupid bitch wanna fuck with me, I need a fee
“These union dues cost money bitch, I need a fee
“Your talkin to a real ‘P’ bitch, I need a fee”
Carpenter explained that “bitches that be bustin dates” was a significant line in sex
trafficking subculture. The phrase “N[****]s hating on me” and the references to “union
dues” and “I need a fee” refer to the choose up fee the sex worker has to pay the pimp.
The “real ‘P’ ” reference is a statement that he is a real pimp who has to be paid.
The prosecutor discussed during her closing argument how the evidence fit the
elements of each crime. She discussed the contrast in credibility between Gloria and
L.M. and the expert testimony concerning the sex trafficking subculture. The prosecutor
pointed out that McElvane bragged about being a real pimp on his social media.
22.
The prosecutor turned to the rap video “No Love” and had it played for the jury.
The prosecutor argued Carpenter explained that the phrase “f[*]g[**]t bitch says she
wants to choose up” is a sex worker who is leaving or choosing another pimp. The
prosecutor mentioned other phrases in the video like needing a fee, being a real pimp, and
steady hoeing, which Carpenter previously explained meant constantly working to pay
the pimp. The prosecutor said that in the video, McElvane referred to himself as a real
pimp who needed a fee and how he talked about a fee in messages to L.M. The
prosecutor argued that McElvane made his money off girls like 13-year-old L.M. and 17-
year-old Gloria.
The prosecutor explained that was how sex traffickers operate and that they target
the kind of girls who fall within susceptible categories, such as being in trouble with the
law or coming from broken homes with no stable family life. The prosecutor said that
while defense counsel wanted to direct the jury’s attention to Dixon in order for her to
shoulder all of the blame, Dixon worked for McElvane at his direction, and he was her
boss. The prosecutor pointed out that Dixon was submissive during her jailhouse calls
with McElvane. Dixon reported to McElvane, walked the blade for him, and put money
on his books for a lawyer.
The prosecutor then focused on several of McElvane’s jail calls to show his
consciousness of guilt as a sex trafficker. The prosecutor mentioned calls where
McElvane called Dixon his bottom and his top bitch and asked her to slap $500 on his
books. The prosecutor also focused on the call in which McElvane said that there was no
point in going to court and he may as well plead guilty. McElvane complained in the
calls not about Gloria lying, but about how she was a snitch and was on paperwork.
McElvane admitted during a call that when they were stopped, he gave Dixon all of the
money. The prosecutor argued McElvane was admitting he was the one who had all of
the money and that Gloria was telling the truth when she told on him.
23.
The prosecutor’s rebuttal argument addressed the dynamic between McElvane and
Dixon. The prosecutor talked about Dixon’s access to McElvane’s social media accounts
and his concern during jail conversations that the authorities not be able to get evidence
from the minors’ phones. The prosecutor argued that McElvane received money from
trafficking L.M. and Gloria based off the trafficking dynamic and structure that was set
up for him. The prosecutor discussed the victims’ credibility. The prosecutor played the
three-way jail call between Dixon and McElvane with Gloria but did not replay the rap
video. The prosecutor argued McElvane was not just talking to a woman, he was a sex
trafficker talking to his bottom. The prosecutor emphasized that there was a wildly
disproportionate dynamic between minors only 13 and 17 years old and McElvane who
was 27 years old. At 19 years old, it was absurd to believe that Dixon was running the
whole operation.
Defense Case
When Talbot questioned Gloria after he stopped the car, she told him that she had
been detained or arrested for prostitution “plenty of times.” On cross-examination,
Gloria admitted she and Dixon worked together as prostitutes in Pomona. Gloria
elaborated that she was not just trafficking in Los Angeles on Figueroa, but Pomona and
“all type of cities,” and she went to these cities with McElvane as well as Dixon. Gloria
was detained in Pomona for prostitution prior to meeting McElvane.
On redirect examination, Gloria clarified she never worked with another pimp,
only with McElvane. Gloria was a sex worker in Pomona with Dixon when there was no
pimp involved but also later worked for McElvane with Dixon in Pomona. Previous
statements from another hearing by Gloria were also admitted into evidence.
L.M. was recalled as a defense witness and denied working as a prostitute prior to
traveling to Los Angeles. Defense counsel showed L.M. an Instagram name that L.M.
did not remember. L.M. could not recall if she had a conversation with Dixon where
24.
L.M. admitted she had trapped before. The Instagram that purportedly belonged to L.M.
was admitted into evidence.
Records of Dixon’s conviction in this case were also admitted into evidence.
During closing argument, defense counsel argued that Dixon communicated with Gloria
as a peer and it was Dixon who induced Gloria to travel to Los Angeles. It was Dixon
who directed Gloria’s activities. Both girls knew why they were going to Los Angeles,
what they were going to do, and wanted to make money. According to defense counsel,
neither minor was forced or threatened to work as a prostitute.
Most importantly, defense counsel argued it was Dixon who did everything from
recruiting to giving the minors the rules on the street. Contrary to the People’s assertion
that McElvane completely controlled everything, it was Dixon who did not submit to
everything McElvane wanted. Defense counsel said both minors described Dixon as
someone with attitude who spoke her mind and even attacked McElvane once, according
to Gloria. Defense counsel argued there was no direct evidence McElvane directed
Dixon in recruitment of either minor.
NEWLY ENACTED EVIDENCE CODE SECTION 352.2
Introduction
McElvane contends he is entitled to retroactive application of Evidence Code
section 352.2 because this statute requires a heightened examination of forms of creative
expression. McElvane argues the Legislature enacted the law to stop prosecutors from
offering rap lyrics by minority defendants to introduce stereotypes, bias, and character or
propensity evidence against defendants. McElvane asserts admission of the rap video
was not harmless and the case must be remanded for a new trial in which the video is not
admitted absent a careful consideration pursuant to Evidence Code section 352.2.
The People contend that Evidence Code section 352.2 is a procedural change not
affecting defendant’s punishment and therefore not subject to retroactive application.
The People argue that the trial court’s in limine Evidence Code section 402 hearing on
25.
the admissibility of the video substantially complied with the new requirements of
Evidence Code section 352.2. The People further argue that even if there was error in the
admission of McElvane’s rap video, the error was harmless in light of the other
prosecution evidence against him.
The issue of whether Evidence Code section 352.2 is retroactive is currently
pending before the California Supreme Court. We will not attempt to resolve the issue of
retroactivity. We review the in limine proceedings to explain the legal limitations of the
People’s substantial compliance argument. We find the evidence against McElvane so
substantial that even assuming it was error to admit his rap video into evidence, the error
is harmless beyond a reasonable doubt.
Retroactivity
On September 30, 2022, the Governor approved Assembly Bill No. 2799 (2021–
2022 Reg. Sess.). Effective January 1, 2023, this bill added Evidence Code section 352.2,
subdivision (a), which states:
“In any criminal proceeding where a party seeks to admit as evidence a
form of creative expression, the court, while balancing the probative value
of that evidence against the substantial danger of undue prejudice under
[Evidence Code s]ection 352, shall consider, in addition to the factors listed
in [Evidence Code s]ection 352, 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 or crimes, bears
a sufficient level of similarity to the charged crime or crimes, or includes
factual detail not otherwise publicly available; and (2) undue prejudice
includes, but is not limited to, the possibility that the trier of fact will, in
violation of [Evidence Code s]ection 1101, treat the expression as evidence
of the defendant’s propensity for violence or general criminal disposition as
well as the possibility that the evidence will explicitly or implicitly inject
racial bias into the proceedings.” (Evid. Code, § 352.2, subd. (a), added by
Stats. 2022, ch. 973, § 2.)
26.
Subdivision (b) of Evidence Code section 352.2 further directs trial courts to
consider the following criteria in assessing the admissibility of a defendant’s creative
expression:
“If proffered and relevant to the issues in the case, the court shall consider
the following as well as any additional relevant evidence offered by either
party: [¶] (1) Credible testimony on the genre of creative expression as to
the social or cultural context, rules, conventions, and artistic techniques of
the expression. [¶] (2) Experimental or social science research
demonstrating that the introduction of a particular type of expression
explicitly or implicitly introduces racial bias into the proceedings. [¶]
(3) Evidence to rebut such research or testimony.” (Evid. Code, § 352.2,
subd. (b).)
Evidence Code section 352.2, subdivision (c) defines “creative expression” as
including, but not limited to, “music, dance, performance art, visual art, poetry, literature,
film, and other such objects or media.” Evidence Code section 352.2, subdivision (d)
provides that the admissibility of a form of creative expression shall be heard in limine
and determined by the court, outside the jury’s presence, and the court “shall state on the
record its ruling and its reasons therefor.”
There is currently a split of authority regarding whether Assembly Bill No. 2799
(2021–2022 Reg. Sess.) should be deemed retroactive to criminal matters not yet final on
appeal. (See People v. Venable (2023) 88 Cal.App.5th 445, 456–457 (Venable) [Evid.
Code, § 352.2 should be deemed retroactive], review granted May 17, 2023, S279081;
cf. People v. Ramos (2023) 90 Cal.App.5th 578, 596 (Ramos) [Evid. Code, § 352.2 does
not apply retroactively], review granted July 12, 2023, S280073.) Although this issue is
currently pending before our high court, we briefly review the facts and rationale of each
case to guide our own prejudice analysis.
Venable explained that to address the problem of prosecutors introducing racial
stereotypes into criminal proceedings by admitting into evidence creative content such as
rap lyrics, the Legislature passed this statute. (Venable, supra, 88 Cal.App.5th at p. 454,
27.
review granted May 17, 2023, S279081.) Venable was convicted of gang-related first
degree murder and attempted murder. A rap video, referring to the shooting, was
admitted into evidence. (Id. at p. 447.) Venable appeared in the video with other young
Black men, but he said nothing. Most of the lyrics in the video had nothing to do with
the case except for one reference that could be interpreted to be to the shooting. Nothing
in the video indicated the rapper or others in the video had personal knowledge or
involvement in the shooting. Nevertheless, the prosecution placed a lot of emphasis on
the video, playing it twice during their case-in-chief and a third time during closing
arguments. (Id. at pp. 455–456.)
The court in Venable described the legislative amendment as “an ameliorative
benefit” to defendants of color charged with gang-related crimes. (Venable, supra,
88 Cal.App.5th at p. 456, review granted May 17, 2023, S279081.) The court reasoned
that trials must now be conducted without evidence that introduces bias and prejudice
into the proceedings. Pursuant to recent California Supreme Court precedent developing
the rule of In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Venable court reasoned the
Legislature intended the new provision to apply retroactively to cases that are not yet
final. (Venable, at p. 456, review granted May 17, 2023, S279081.)
Venable rejected the People’s argument that because the rule dealt with the
introduction of evidence, it did not directly reduce punishment. (Venable, supra,
88 Cal.App.5th at p. 456, review granted May 17, 2023, S279081, citing People v. Frahs
(2020) 9 Cal.5th 618, 624–628 (Frahs) [applying retroactive application of new
provisions giving trial courts discretion to grant pretrial diversion for defendants with
mental health disorders].) Venable found applicable the rationale in People v. Superior
Court (Lara) (2018) 4 Cal.5th 299, 303, 308 (holding Prop. 57 retroactive, which
changed the law to prohibit prosecutors from filing charges directly against a minor in an
adult criminal case to give juvenile courts discretion to determine whether a minor should
be prosecuted as an adult) analogous to its own facts. (Venable, at pp. 457–459, review
28.
granted May 17, 2023, S279081.) The Venable court further noted the rap video was
prejudicial because the remaining evidence of Venable’s involvement in the offenses was
not strong. (Id. at p. 458.)
In Ramos, the defendants, Daniel Ramos and Elias Ramos (no relation), were
found guilty of a shooting that led to first degree murder, attempted murder, gang
enhancements, and firearm enhancements. (Ramos, supra, 90 Cal.App.5th at p. 580,
review granted July 12, 2023, S280073.) The Ramoses’ gang was Center Street, a
criminal street gang in Oceanside with 70 members. Posole is a rival Oceanside gang
with 100 members. Annebell F. was 15 years old, lived in the Posole neighborhood, and
was not a gang member. Her friend, Julye R., was a member of Posole. (Id. p. 582.) At
2:00 a.m., while Julye and Annebell were talking in Balderrama Park, two men wearing
dark hoodies and white bandanas covering their faces came into the park, and one began
shooting. (Id. at pp. 582–583.) Julye ran for his life. Annebell tried to hide in the crawl
tube of a jungle gym but died from gunshot wounds. (Id. at p. 583.)
Julye refused to cooperate with investigators. Julye was incarcerated on another
matter, and so was Annebell’s brother, JoJo F. Julye and JoJo were placed in the same
cell, and police recorded their conversation in which Julye told JoJo that Julye had been
targeted by Daniel Ramos. Daniel was armed with a revolver and pulled down his
bandana before shooting so Julye could see his face. Julye described Daniel as being
with Elias Ramos whom Julye referred to as “ ‘the short fool.’ ” (Ramos, supra,
90 Cal.App.5th at p. 583, review granted July 12, 2023, S280073.)
Investigators obtained Elias’s cellphone. Elias’s cellphone contained searches for
Annebell’s Facebook account, the park where the shooting occurred, and for
“ ‘Oceanside teen girl shot to death.’ ” (Ramos, supra, 90 Cal.App.5th at pp. 583–584,
review granted July 12, 2023, S280073.) There was also a video of Elias singing a rap
which led investigators to similar YouTube videos. In general, the rap videos, which
were introduced into evidence, identify Daniel and Elias as Center Street gang members
29.
who, among other things, sought to kill Posole gang rivals. (Id. at p. 584.) Talking later
to a confidential informant, Daniel admitted he and his “ ‘homie’ ” did a “ ‘hot one,’ ”
meaning a murder, at 2:00 a.m. at a park. When asked if he used a revolver or a semi-
automatic, Daniel said he used a revolver. Daniel told the confidential informant that he
threw his clothes out of a car. (Id. at p. 585.)
The rap videos on Elias’s cellphone were recorded on YouTube and referred to
Center Street gang culture and criminal activity. The trial court denied defense motions
to exclude the videos on Evidence Code section 352 and hearsay grounds because they
were admissible against Elias as a party admission, showed his gang affiliation, intent,
and premeditation. One video depicted events very similar to those that happened in the
charged offenses. (Ramos, supra, 90 Cal.App.5th at p. 588, review granted July 12,
2023, S280073.)
After reviewing the most recent decisions of the California Supreme Court
interpreting the Estrada rule, the Ramos court found that they carried the potential of
substantial reductions in punishment for the parties. (Ramos, supra, 90 Cal.App.5th at
p. 594, review granted July 12, 2023, S280073.) Ramos stated that Frahs found the
ameliorative nature of a diversion program places it squarely within the spirit of the
Estrada rule. (Ibid.; see Frahs, supra, 9 Cal.5th at p. 631.) Ramos noted that no case
from our Supreme Court has applied the Estrada holding to a statute that does not alter
the punishment for an offense, make a lesser punishment possible, or change the elements
of an offense or a defense. Although Evidence Code section 352.2 may benefit a
defendant by operating to exclude evidence favorable to the prosecution, the statute does
not create the possibility of lesser punishment or more lenient treatment. (Ramos, at
p. 595, review granted July 12, 2023, S280073.) Ramos concluded that Evidence Code
section 352.2 does not apply retroactively. (Ramos, at pp. 595–596, review granted July
12, 2023, S280073.)
30.
Venable and Ramos reach different conclusions concerning the retroactivity of
Evidence Code section 352.2. Without expressly saying so, Venable implies this statute
should be retroactive to protect a defendant’s due process right to a fair trial. Ramos
views the statute as a procedural change without any affect on a defendant’s punishment.
Both cases have been granted review by our Supreme Court which will ultimately decide
this issue. Because of the strong evidence in this case, however, we need not decide
whether this statute applies retroactively to McElvane’s case.
Substantial Compliance with Evidence Code Section 352.2 In Limine Hearing
The trial court conducted an in limine hearing to determine the admissibility of
evidence, including McElvane’s rap video. Defense counsel argued in his brief that rap
lyrics are protected speech according to an article by ACLU of Northern California and
included an internet link to the article. Defense counsel explained that courts view rap
lyrics unfairly as incriminating evidence rather than an art form. Defense counsel noted
that the lyrics did not appear to specifically reflect the complaining witnesses or incidents
alleged. Defense counsel acknowledged the lyrics indicated a confession to crimes of
human trafficking.
Defense counsel argued that other genres of music contain similar content to hip-
hop music, but those lyrics are typically not used in criminal prosecutions. An opinion in
The New York Times noted that in four prosecutions where fictional writing was used
that were non-rap lyrics since 1950, three cases were thrown out and the one conviction
was overturned. Defense counsel observed that country music often contains lyrics about
committing crimes, but those lyrics are typically by white artists and the argument is
rarely, if ever, made that country songs indicate a confession to an actual crime.
Defense counsel included a link in her brief to a 2016 study by criminologists at
the University of California, Irvine where two groups of people were told lyrics came
from a country song and other lyrics were from rap. Participants rated whether they
found the lyrics offensive and whether they thought the lyrics were fictional or based on
31.
the writer’s experience. The participants in the study judged rap lyrics to be more
offensive and truer to life. The study suggested that rap lyrics could inappropriately
impact jurors when admitted as evidence to prove guilt.
Defense counsel also noted the New York State Senate passed a bill that would
require prosecutors to make a showing the material being presented is literal rather than
figurative or fictional. Acknowledging that this law was not yet signed into law and was
not binding in California, defense counsel argued it is persuasive that other states are
taking legal steps to stop the unfair use of rap music in jury trials. Defense counsel
concluded her argument by noting rap music is predominantly produced by black men,
McElvane is a black man, and the potential of racial bias from introduction of this
evidence was a major risk at trial.
The prosecutor filed a motion seeking to admit the rap video into evidence. The
prosecutor noted that although Evidence Code section 1101, subdivision (a) prohibits
admission of character evidence to prove a defendant’s conduct on a particular occasion,
Evidence Code section 1101, subdivision (b) provides exceptions where the prior conduct
is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or whether a defendant in a
prosecution for an unlawful sexual act or attempted unlawful sexual act did not
reasonably and in good faith believe that the victim consented) other than his or her
disposition to commit such an act.” The prosecutor argued that where a defendant
charged with pimping and pandering sent bragging text messages about his conduct to
persons unconnected to the charged offense, the messages could be introduced to show
intent where there was other evidence indicative of the pimp-prostitute relationship
(citing to People v. Scally (2015) 243 Cal.App.4th 285, 314–315). The prosecutor argued
McElvane’s music video was admissible to show knowledge of the human trafficking
subculture and intent to traffic sex workers.
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Carpenter testified at the hearing that she was an expert in human trafficking.
After reviewing the return for a warrant on McElvane’s Instagram account, Carpenter
discovered links or photos to music videos posted on YouTube. Carpenter also received
returns on search warrants for other social media accounts and found “Cashoutt Domo”
on YouTube. She found the video “No Love” among other videos in McElvane’s
accounts. McElvane promoted his YouTube rap videos through his social media.
Although Carpenter did not know who produced the video or wrote the lyrics, she
explained that rappers usually write their own lyrics. Carpenter said that when a rapper is
promoting his art through his social media, he posts a link to it. In recorded jail
conversations with Dixon, McElvane discussed not deleting his Instagram account
because it was his music promotion account. Instead, McElvane discussed changing the
name of the account. After listening to over 100 jail calls from or to McElvane,
Carpenter was aware of his voice and verified that the voice and person depicted in the
video was McElvane.
In her statements to the court, defense counsel distinguished People v. Scally,
supra, 243 Cal.App.4th 285 because the text messages to third parties were used to rebut
defendant’s argument that he was only texting his girlfriend. The text messages to third
parties were used to show his intent to act as a pimp and traffic pursuant to Evidence
Code section 1101, subdivision (b). Defense counsel argued that until McElvane decided
to testify and deny the allegations, he had not yet opened the door by denying intent to
traffic. Defense counsel reiterated all of her arguments from her written brief, including
that rap music is used as confession to crime more than country music sang by white
artists, which is not usually taken as a literal confession.
Defense counsel added that rap and hip-hop music are traditionally produced by
black artists and used in prosecutions to show confession to actual crimes and there is a
major racial component to this. In addition to discussing the bill passed by the New York
State Senate, defense counsel mentioned the California Racial Justice Act of 2020
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(§ 745). Defense counsel referred to The New York Times opinion article and the 2016
study from the University of California, Irvine indicating the substantial risk of
prejudicial impact on jurors from playing rap music because they believe it to be more
truthful. Defense counsel added that it was unclear McElvane produced or wrote the
music or who was responsible for uploading it, leaving the evidence with a very low
probative value with nothing linking it to the charged crime. Defense counsel described
the video as amounting to character evidence to show McElvane was a pimp.
The prosecutor argued the video depicted McElvane bragging about being a pimp
and trafficking. The prosecutor added that McElvane pled not guilty to human
trafficking, he has promoted these videos, and if it is 20 years old, he was still promoting
the video on his Instagram account even after his arrest. The video showed McElvane’s
intent and constituted admissions. McElvane expressed concern even from jail about
promoting his music videos.
The trial court found that McElvane placed all the elements of the case at issue
with his not guilty plea. The court thought the prosecutor made a good point about
McElvane continuing to promote his social media accounts with links to his music
videos. The court thought McElvane’s rap video was incriminating because he was
bragging about the behavior he described in the video. The court, however, did not find
the video to be so prejudicial that the jury would be unable to sort through it. The court
found the evidence relevant and pursuant to Evidence Code section 352, balancing the
relevance against any prejudicial effect, the court thought its relevance outweighed any
prejudicial effect and found the rap video admissible. The court further found the
evidence admissible under Evidence Code section 1101, subdivision (b) to show
McElvane’s intent and that the video was not improper character evidence.
Analysis
We initially note that there was no error in the trial court’s analysis of the
admissibility of the rap video based on the law as it stood during McElvane’s trial in
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2022, nor is such error alleged by the parties.10 The People argue the trial court’s ruling
substantially complied with Evidence Code section 352.2. The defense presented the trial
court with the key factor of the new statute—the potential to inject racial bias into the
proceedings. The new statute, however, provides for an evidentiary hearing based on
credible expert testimony, which did not happen here.
Evidence Code section 352.2, subdivision (a)(1) sets forth the following specific
criteria for courts to weigh in deciding the admissibility of a defendant’s creative content:
“[T]he 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 or crimes,
bears a sufficient level of similarity to the charged crime or crimes, or includes factual
detail not otherwise publicly available.” The trial court expressly considered the issue of
whether the video was near in time to the alleged offenses, ultimately agreeing with the
prosecutor that the video remained in continuous publication. The court’s comments also
show the court found sufficient similarity to the video and the alleged crimes. The trial
court’s ruling appears to clear this initial admissibility threshold.
Subdivision (a)(2) of Evidence Code section 352.2 further requires the court to
weigh the following in its determination of whether there is undue prejudice: “[U]ndue
prejudice includes, but is not limited to, the possibility that the trier of fact will, in
violation of [Evidence Code s]ection 1101, treat the expression as evidence of the
defendant’s propensity for violence or general criminal disposition as well as the
possibility that the evidence will explicitly or implicitly inject racial bias into the
proceedings.”
The trial court considered the propensity for violence or general criminal
disposition in its Evidence Code sections 352 and 1101 analysis. Defense counsel raised
10 In our view, the video in question could be found admissible under the new law if this
case were to be remanded for a hearing in light of the new statute.
35.
the issue of racial bias in her written brief, making it the focus of her argument. In her
oral arguments to the court, defense counsel emphasized traditional Evidence Code
section 352 considerations of improper admission of character evidence. Defense
counsel also emphasized all of the materials she introduced in her written brief that
discussed the problem of racial bias. The prosecutor directed her oral arguments toward
traditional prejudice considerations. The court focused its analysis of the admissibility of
the rap video on Evidence Code sections 352 and 1101. Although the court did not
expressly refer to the problem of injecting racial bias into the proceedings, this argument
was before the court in McElvane’s written briefing and his counsel’s oral argument.
The court considered whether prejudice outweighed the probative value of admitting the
video within the context of the arguments of both parties.
Application of the substantial compliance doctrine to the in limine motion is
complicated, however, by the more expansive evidentiary hearing envisioned by
subdivision (b) of Evidence Code section 352.2. Evidence Code section 352.2,
subdivision (b) expressly allows for “[c]redible testimony on the genre of creative
expression as to the social or cultural context, rules, conventions, and artistic techniques
of the expression” and for experimental or social science research demonstrating that
introduction of such “expression explicitly or implicitly introduces racial bias into the
proceedings.” (Evid. Code, § 352.2, subd. (b)(1), (2).)
Defense counsel argued there was a major racial component to the introduction of
rap music by black artists and referred to legislation in New York that would require a
material showing by prosecutors before introducing artistic content. Counsel referred to
articles in The New York Times and from ACLU of Northern California. She also
referred to a 2016 study comparing rap lyrics to country lyrics. This study showed that a
group of people found rap lyrics more offensive and truer to life. In her brief, defense
counsel argued there was a chance of introducing racial bias into the trial. Defense
36.
counsel submitted the type of evidence described in subdivision (b) of Evidence Code
section 352.2 but did not call any expert witnesses.
It would be speculative for us to surmise one way or the other as to whether the
criteria set forth in subdivision (b) of Evidence Code section 352.2 would have prompted
a more robust evidentiary showing by the defense, followed by a rebuttal by the
prosecution. Perhaps the trial court would have excluded the rap video had it heard
persuasive and relevant expert testimony that its introduction into evidence would inject
racial bias into the proceedings. After hearing such testimony, the trial court could also
have exercised its discretion to admit the video. We decline to speculate how a
hypothetical hearing following all of the procedures set forth in Evidence Code
section 352.2 may have turned out.
We are certain for the reasons set forth below, however, that any error in the
admission of the rap video was harmless because there was no more potential to inject
racial bias from the jury watching the video as there was from the jury listening to
McElvane’s calls from prison and witness testimony at trial. We therefore do not decide
whether the in limine procedure employed here substantially complied with all of the
requirements of the new law because this point is superseded by our prejudice analysis.
Harmless Error Analysis
The Respondent argues that presuming it was error to admit McElvane’s rap
video, any error was harmless under the state standard of People v. Watson (1956)
46 Cal.2d 818, 836. Under Watson, the question is whether it is reasonably probable the
verdict would have been more favorable to appellant absent the alleged error. (Ibid.) If,
however, there is a constitutional dimension to McElvane not receiving a fair trial due to
the admission of his video, the correct standard of measuring whether the error is
harmless is determined under the federal standard of Chapman v. California (1967)
386 U.S. 18, 24. The federal standard requires that the party who benefitted from the
37.
alleged error must establish beyond a reasonable doubt that the constitutional error did
not contribute to the verdict. (Ibid.)
We need not resolve the controlling standard of review. We find that under either
standard, any presumed error was harmless because McElvane made several inculpatory
statements directly related to the charges in this case during his jail calls. These included
conversations with Dixon concerning whether the minors, especially Gloria, were talking
to the authorities and whether they were likely witnesses in any legal proceeding. The
jail conversations show that McElvane was still trying to make money as a sex trafficker,
using Dixon, and he was still in charge of her. Also, many of the more derogatory and
inflammatory statements McElvane uses in the video are the same as, or similar to, ones
he used in his conversations from jail with Dixon.
Carpenter explained that McElvane referred to using different accounts than his
own to make calls from jail. He told Dixon to be aware of calls from different accounts.
This evasion began McElvane’s pattern both of deception and inculpatory statements.
Early on, McElvane instructed Dixon to get into contact with the minors to figure
out what was said. Later, Dixon told McElvane that a “homie,” or friend who was
charged with the same offense, explained that if the minors did not go to court, the
authorities would not have evidence against McElvane. Dixon told McElvane she did not
believe investigators had anyone’s phone. In these conversations, it is clear McElvane
and Dixon were working together to ascertain the strength of the case against him. These
calls became more inculpatory in light of later conversations.
Dixon talked to McElvane about “internet bitches” who were advertising on the
internet through commercial sex sites, transitioning into coming outside. Carpenter
explained this referred to sex workers who are transitioning from working using the
Internet to working outside on the street. Dixon described Brooke as a person walking
with Dixon. McElvane told Dixon during the jail call to go to Hoover and get a room.
McElvane was still acting as the controlling sex trafficker even while in jail.
38.
On July 9, McElvane told Dixon, “You’re my bottom bitch, you’re my top bitch.”
Dixon responded, “Aww, thank you daddy.” Dixon told McElvane she was outside
calling a lot of traffic but had not yet busted a date, but she was really trying. McElvane
asked Dixon why she was talking like that. McElvane said that Dixon caring about his
life did not “mean shit” and all Dixon was doing was incriminating him “every time.”
McElvane asked Dixon to “slap $500 on [his] books and stop fucking with [him].”
Carpenter interpreted the reference “fuck with me” to mean Dixon was still
working for McElvane. The reference to “top bitch” meant Dixon was McElvane’s most
senior sex worker. On July 8, Dixon referred to sex worker Brooke and working around
“grown bitches.” Dixon talked about sending an Uber to “scoop” Brooke up, meaning
pick her up. Dixon added, “[W]ith both of us that shit will add up.” The implication of
these comments is that Dixon was still engaged as a sex worker for McElvane and
earning money for him.
McElvane was clearly worried in another call when Dixon told him L.M. was only
13 years old, and he replied, “Oh my God” and “The Fuck?” McElvane asked Dixon,
“But she didn’t say nothing though right?” McElvane, apparently worried and referring
to Gloria, said, “[T]hen we don’t know what’s up with this other bitch, bruh, so you feel
me?” McElvane, using a racial epithet, asked if she put others in jail before. Dixon said
Gloria had not.
In a three-way conversation with Gloria, Dixon asked Gloria if she had talked to
the police and if they had taken Gloria’s phone. Gloria denied telling investigators
anything. Speaking to Dixon, McElvane said, “She’s lying bruh.” Dixon complained
that someone had talked because McElvane was facing a long prison sentence. Gloria
said it was L.M. who talked to investigators.
In another conversation, McElvane wanted to know if the minors, referring to
them as “bitches,” were going to court and if Dixon had figured out if both of the minors
had to go to court. Dixon asked how she could figure out “this shit” if they, apparently
39.
referring to the minors, were not talking to Dixon or to McElvane’s mother. This
conversation implies that Dixon, and possibly McElvane’s mother, were trying to
influence the minors.
In a three-way conversation between Dixon, McElvane, and his mother, his
mother stated the authorities could still charge him with one count even if the minors did
not talk “just to stick him.” McElvane, using Gloria’s nickname, said he “highly”
thought “the fucking [nickname] bitch said something.” McElvane admitted that while
sitting in the car he grabbed Dixon’s hand and gave her “all the money and everything.”
McElvane reiterated he “knew that bitch was talkin.” Dixon said she told Gloria
McElvane better not be on paperwork or have a court date. This conversation is
confessional because McElvane is admitting that during their arrest he gave all of the
money to Dixon. It shows consciousness of guilt because he was obsessed with whether
Gloria is talking to investigators, and it also shows that McElvane, rather than Dixon, was
in control of the money for the criminal enterprise.
In another recording, McElvane told Dixon, “[A]nd another thing, ma, go ahead
and deactivate uh my Facebook.” She replied, “Ok.” This conversation shows that
McElvane was concerned about his Facebook content and it demonstrates his direction of
Dixon as his primary sex worker, as well as the fact that Dixon had access to McElvane’s
social media accounts.
On July 10, McElvane asked Dixon if she talked to her neighbor and whether they
“makin em come?” After a moment of misunderstanding, Dixon understood what
McElvane meant and said they were making them “come to the to the thing.” Dixon said,
“She went the same day.” McElvane asked if this was Court. McElvane asked, “My
court date, bro.” Dixon said, “She went to court … the same day as you.” McElvane
asked if it was S. or Gloria’s nickname. Dixon said it was S. McElvane replied, “Oh my
God, bruh, this shit has made my head hurt. Dog, that did almost made me pass out,
bitch, my legs just went weak. The fuck?” Carpenter explained that the reference to
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Dixon’s neighbor was to L.M. because they had lived in the same apartment complex in
Fresno, and the reference to S. was to L.M.’s nickname.
Two conversations recorded on July 11 were illuminating. McElvane asked if
Dixon was telling him, “[T]his bitch told on me.” Dixon replied, “[S]he’s gonna testify
against you and she’s already on paperwork and all that shit.” McElvane lamented that
they were going to throw the book at him. Dixon responded, “I know.” Carpenter
explained she understood McElvane and Dixon to be referring to Gloria. In one of his
more inculpatory and confessional comments, McElvane told Dixon there was no point in
going to trial and he might as well tell them he is guilty.
McElvane’s inculpatory comments to Dixon continued during their July 13
conversation. Dixon began with a question about what “she” could tell on Dixon about.
McElvane replied, “[T]hat basically you’re my bottom bitch, you’re my bottom bitch,
you’re basically my main chick.” Dixon said they knew that already. McElvane added
that Gloria could say Dixon “recruited her to come fuck with us and the whole and do
this and do that, ya feel me? And then she could say she been trappin with you.”
McElvane told Dixon this could put her in jail on a pimping charge. Carpenter explained
that “main chick” referred to being the most senior sex worker, “trapping” was sex work
or prostitution, and the “she” in the conversation referred to Gloria. McElvane was
admitting Dixon was his main sex worker and that she worked for him.
The jail conversations of McElvane’s inculpatory statements show more than a
consciousness of guilt. They demonstrate that he, and not Dixon, remained in control of
the sex trafficking operation for his personal financial benefit. McElvane also directed
Dixon to help in his defense, including to persuade the minors not to testify against him.
In one three-way call, Dixon directly accused Gloria of cooperating with investigators,
which had to be intimidating to Gloria, if not frightening.
McElvane’s jail conversations used the vernacular of his trade—terms common to
pimping, pandering, and sex trafficking he also used in the rap video. These included the
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“N” word, “bitch,” “hoe,” “Chasin bands,” and “fuck.” The theme of the rap video is
McElvane’s love of money. The video is an anthem, bragging about sex trafficking and
being a pimp. McElvane showed no concern for the sex workers he claimed to be
trafficking in his video. There is nothing in the video, however, that is any more
derogatory or shocking than what McElvane said about sex workers and sex trafficking
during his jail conversations.
The rap video was corroborative of social media and jail recording evidence, but
not unduly cumulative.11 The video was shown once during the prosecutor’s case-in-
chief and once during closing argument and was about four minutes long. Neither
Investigator Carpenter nor the prosecutor belabored the content in the lyrics. Carpenter
explained the video served to promote McElvane’s sex trafficking operation. Carpenter’s
testimony about the video, and the prosecutor’s arguments to the jury about it, focused on
11 The trial court has a duty to exclude unduly cumulative evidence. (People v. Booker
(2011) 51 Cal.4th 141, 194; see People v. Williams (2009) 170 Cal.App.4th 587, 612–613.)
Where the content of evidence is neither inflammatory nor unduly prejudicial, it is admissible
unless it invites a purely irrational response as to render the trial fundamentally unfair. (See
People v. Romero and Self (2015) 62 Cal.4th 1, 45–46 [rejecting challenge to the quantity and
content of victim impact statements in penalty phase of capital case].) The defendant’s not guilty
plea put all of the elements of the offense at issue and the defendant’s mental state during the
commission of the crime is relevant, the prosecutor is not relieved from proving this element.
Where photographs of murders were introduced to show the defendant’s intent, they were
admissible despite their graphic nature. The prosecution may present a persuasive and forceful
case, except as limited by Evidence Code section 352, and need not sanitize the evidence.
(Booker, at p. 171.)
Trial courts are not required to exclude all cumulative evidence if it has substantial
relevance to prove material facts that are hotly contested and central to the case. Such evidence
is not “ ‘merely cumulative.’ ” (People v. Lang (1989) 49 Cal.3d 991, 1016, questioned on
another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) According to Carpenter, the
video served as a means, along with McElvane’s other social media, to promote and recruit for
his sex trafficking operation. Thus, the video served a different evidentiary purpose in the
prosecution’s case than the telephone recordings of McElvane’s jail calls. To the extent the
video provided overlapping evidence with jail calls, it was corroborative rather than unfairly
cumulative. The relevance of McElvane’s rap video to the charged offenses appears to be more
directly related to the allegations against him than the videos in either the Venable or Ramos
cases.
42.
a few key phrases used by McElvane that indicated he was a pimp who wanted to be paid
by the people he employed as sex traffickers. Nothing in the video was any more
provocative or likely to inject racial bias implicitly or explicitly into the proceedings than
McElvane’s recorded statements during his jail conversations.
We conclude the evidence against McElvane, especially his inculpatory and
confessionary statements during calls from jail, was strong enough that we are certain any
error in the admission of his rap video—assuming arguendo that Evidence Code
section 352.2 is held to be retroactive—is harmless beyond a reasonable doubt pursuant
to the federal Chapman standard of review. Any such error would also be harmless under
the state Watson standard of review. We therefore reject McElvane’s contention that his
case should be reversed for a new trial because his rap video was introduced into
evidence.
AMENDMENT OF INFORMATION DURING TRIAL
Introduction
McElvane contends the trial court erred in granting the prosecution’s motion to
amend both counts of the information to include the time frame in late June when they
were in Los Angeles. McElvane argues his conviction on count 2 must be reversed
because inclusion of the expanded time frame and location of the offenses to establish the
elements of the offense violated his constitutional rights to notice and due process,
depriving him of a fair opportunity to prepare his defense. McElvane asserts the
prosecution ambushed him at the end of trial because his defense focused on events in
Merced County rather than events that occurred in Los Angeles or Fresno.
The People respond that the prosecutor had already presented evidence of events
in Los Angeles during the preliminary hearing, and events before McElvane’s arrest on
July 3 were relevant to the charge all along. We agree with the People that the
amendment did not constitute error.
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Preliminary Hearing and Motion to Amend at Trial
The original information charged McElvane with trafficking Gloria and L.M. on
or about July 3. During the preliminary hearing, Gloria testified that she went to Los
Angeles in June and the vehicle she was riding in was pulled over on July 3. Gloria
began communicating with Dixon about going down to Los Angeles. Gloria confirmed
that she went to Los Angeles to work as a prostitute and to pay McElvane. McElvane
and Dixon got Gloria a train ticket from Fresno to Los Angeles.
Gloria went to Los Angeles with the clothes she was wearing and a fanny pack.
An Uber or Lyft brought Gloria to a hotel on Figueroa where she met McElvane and
Dixon. Gloria entered a gray Kia with McElvane, Dixon, and L.M. They went to
Figueroa and 70th Streets where Gloria was to work as a prostitute. McElvane told
Gloria to send him an emoji sign when she caught a date with a John with whom she was
expected to have sex in exchange for money. Gloria could not remember how many
dates she had, but she performed intercourse and oral sex in exchange for money. She
gave McElvane all of the money she made.
L.M. was outside talking to Johns. Gloria saw L.M. leave with a John. Gloria
worked all day and all night every day. Gloria was not sure of the exact length of time
she was in Los Angeles but thought it was about eight days. Gloria sometimes gave the
money she made to Dixon and other times to McElvane. In Los Angeles, Gloria became
scared and contacted her sister who sent her a number to contact for help.
After their time in Los Angeles, they all went to Fresno. Gloria called her mother
to get her but ran out of time. Gloria asked McElvane if she could get her clothes. He
called her a bitch and told her she should have told him earlier. McElvane threatened to
“fire” Gloria and leave her on the freeway. Gloria texted “911” because she just wanted
to go home. On July 3, Talbot followed their car in Merced County but stopped it in
Stanislaus County.
44.
The parties’ arguments and the court’s findings during the preliminary hearing
centered on whether Merced County or Los Angeles County was the proper jurisdiction
to bring this case. The parties stipulated that the trial court could make factual findings
regarding jurisdiction and continued the hearing so the court could deliberate.
The trial court later found Gloria was lured to Los Angeles County by defendants
McElvane and Dixon for the purposes of prostitution and gave all the money she received
for those acts to the defendants, but primarily to McElvane. The trial court found Gloria
testified she was in Los Angeles for eight days before leaving with the defendants to go
to Oakland. After briefly stopping in Fresno County, the group, which included the
defendants and L.M., drove through Merced County. McElvane became angry with
Gloria and threatened to fire her on the freeway. The court found the charged offenses
occurred in Merced County and the events in Los Angeles were not part of these
allegations but were admissible to prove the elements of section 236.1, subdivision (c)(2).
The court ruled Merced County had jurisdiction to try the case and held both defendants
over to answer on both counts.
The prosecutor moved during her case-in-chief at trial to amend the information
on both counts by interlineation so that the dates alleged were June 26 to July 3 instead of
a reference only to July 3. Defense counsel objected on due process grounds, arguing the
alleged conduct was limited to what occurred on Highway 99. The trial court noted the
events leading up to July 3 were admissible to show a course of conduct. The court
referred to its earlier decision after the preliminary hearing that events in Los Angeles
were relevant to show McElvane had threatened Gloria to continue working for him.
After initially reserving its ruling, the trial court reread the preliminary hearing
transcript where the original objection by the defense concerned jurisdiction. The court
found that all along the parties were aware the events in Los Angeles were relevant to the
allegations against McElvane. The court noted the continuing nature of the offense,
which even at the preliminary hearing included a range of acts that began in Los Angeles
45.
County, giving the defense notice of the People’s theory of the case. The court found
there was not a due process violation and granted the motion to amend both counts by
interlineation.
Amending Information and Due Process
The preeminent due process principle is that one accused of a crime must be
informed of the cause and nature of the accusation. (People v. Jones (1990) 51 Cal.3d
294, 317.) Criminal defendants have a due process right to be advised of pending
charges so he or she has a reasonable opportunity to prepare and present a defense and
not be taken by surprise by the evidence proffered at trial. (Ibid.) The right to defend
includes the right to notice of the charges and the right to present a defense to those
allegations. (Ibid.) In modern criminal prosecutions, it is clear they are initiated by the
information and the transcript of the preliminary hearing. (Ibid.)
The information performs the limited role of informing the defendant of the kinds
and number of offenses. The preliminary hearing transcript provides the time, place, and
circumstances of the charged offenses, representing the so called “ ‘touchstone of due
process notice to a defendant.’ ” (People v. Jones, supra, 51 Cal.3d at p. 312.) The
transcript of the preliminary hearing, not the accusatory pleading, affords the defendant
practical notice of the criminal acts against which he or she must defend. (Id. at pp. 312,
317.)
The court may allow amendment of the accusatory pleading to correct or make the
factual allegations more specific to the charged offense “at any stage of the proceedings,”
up to and including the close of trial, if there would be no prejudice to the defendant.
(§ 1009.) Section 1009 provides that an indictment or information cannot amend the
offense charged so as to allege an offense not shown by the evidence produced at the
preliminary hearing. (§ 1009; People v. Graff (2009) 170 Cal.App.4th 345, 361–362;
People v. Winters (1990) 221 Cal.App.3d 997, 1003.)
46.
The amendment challenged here did not allege a new or additional offense.
McElvane argues that the trial court’s preliminary hearing ruling threw him off because
the court found the events alleged happened in Merced County, establishing jurisdiction
there. The court’s factual findings and ruling, however, were limited to the issue of
jurisdiction and in no way placed a limitation on the prosecution from amending the
information to conform with proof. McElvane and his counsel were present during
Gloria’s testimony and were well aware that she testified to acts of prostitution in Los
Angeles. In its preliminary hearing ruling, the trial court acknowledged acts of
prostitution occurring in Los Angeles but focused on whether there was sex trafficking in
Merced County.
The June dates in question were known at the time of the preliminary hearing.
Gloria testified that she secured a train ticket from McElvane and Dixon and traveled to
Los Angeles to be employed as one of his sex workers.12 Gloria did not remember exact
dates but in her preliminary hearing testimony thought she was in Los Angeles about
eight days before the group traveled north to Fresno before being stopped in Stanislaus
County on July 3.
At the preliminary hearing, Gloria said she performed sex acts for money and gave
the funds she made to Dixon and to McElvane. In addition to collecting money from
Gloria, McElvane asked her to send him an emoji when she secured a date with a John.
Gloria also saw L.M. on the street making dates with Johns. This was evidence
12 Social media evidence of McElvane and Dixon contacting Gloria on June 23 and 28 was
introduced at trial. The ticket was introduced into evidence as exhibit 120 and was dated
June 28. Videos and photographs with time stamps in June depicted Gloria with L.M., with
McElvane walking in the background of one of them. Some of these were clearly taken in Los
Angeles. These exhibits were presumably available to the defense team prior to the beginning of
testimony. Although not presented at the preliminary hearing, this additional evidence
corroborated Gloria’s preliminary hearing testimony that she arrived in Los Angeles to engage in
sex work toward the end of June and gave further notice to the defense that sex trafficking
occurred in June as well as on July 3.
47.
McElvane was in charge of a sex trafficking operation in Los Angeles during at least the
last five days of June, and that he was trafficking Gloria and L.M.
The information is controlling on the specific facts and nature of the charges
against the defendant. McElvane was well aware of the more specific details of the
charges against him as a result of the preliminary hearing, which included the testimony
of Gloria, Investigator Carpenter, and Officer Talbot. There was no surprise to the
defense or added allegation. The defendant had ample notice to prepare a defense that
included evidence during the preliminary hearing of his presence and sex trafficking in
Los Angeles. The nature of the offense here was ongoing, occurring over more than a
week.13
McElvane was not deprived of due process or an opportunity to defend against the
allegations when the trial court granted the prosecution’s motion to amend the dates of
the charges in the information. We reject McElvane’s contention that he was denied a
fair trial by the amendment of the information.
DISPOSITION
The judgment is affirmed.
HILL, P. J.
WE CONCUR:
PEÑA, J.
SMITH, J.
13 Pimping and pandering have been held to be crimes of a continuous and ongoing nature.
(People v. Leonard (2014) 228 Cal.App.4th 465, 489.) Sex trafficking under section 236.1,
subdivision (c) also appears to be a continuous and ongoing crime as the circumstances of the
minors’ travels across California with McElvane and Dixon illustrate.
48.
APPENDIX
“YOUTUBE CASHOUTT DOMO
“ ‘No Love’ Lyrics
“And another one, and another one, [C]ashoutt [D]omo [D]omo
“Bitch bitch bitch
“And another one, and another one, and another one, and another one
“(female voice) (unintelligible) hit that shit
“Dumb Thot man you gets no love
“Stupid Bitch man you gets no love
“Chasin bands only thing that I love
“Chasin bands only thing that I love
“Dumb Thot man you gets no love
“Stupid Bitch man you gets no love
“Chasin bands only thing that I love
“Chasin bands only thing that I love
“Cashoutt Domo
“Comin up I had to get it out the (unintelligible)
“F[*]g[**]t Bitch say she wanna choose up
“Tell that bitch I need blue strips huh
“N[****]s (unintelligible) give two fucks huh
“I’m getting money out that bitch man (unintelligible)
“Bitch keep lookin at a n[***]a I need a fee
“I gotta keep it on her bruh I can’t trust these snitches
“N[****]s hate’n on me bruh what the fuck you mean
“I’m getting money out this bitch bruh she steady hoe’n
“And all my bitches straight goer’s but they straight hoe’n
“And all my bitches straight goer’s but they straight hoe’n
“And all my bitches straight goer’s but they straight hoe’n
“Dumb Thot man you gets no love
“Stupid Bitch man you gets no love
“Chasin bands only thing that I love
“Chasin bands only thing that I love
“Dumb Thot man you gets no love
“Stupid Bitch man you gets no love
“Chasin bands only thing that I love
“Chasin bands only thing that I love
49.
“I’m getting bands n[****]s hate’n on me
“I’m getting money n[****]s hate’n on me
“It’s another one, why you playin homie
“It’s another one of you bitches that be bustin dates fo me
“I’m getting money n[****]s hate’n on me
“I’m getting money n[****]s hate’n on me
“Don’t fuck with n[****]s, n[****]s plottin on me
“Can’t fuck with n[****]s, n[****]s plottin on me
“Stupid bitch wanna choose up, I need a fee
“Stupid bitch wanna fuck with me, I need a fee
“These union dues cost money bitch, I need a fee
“[You’re] talkin to a real “P” bitch, I need a fee
“I’m real bad at this shit, I been getting nasty
“Girl bad at this shit, I been a touch of nasty
“You think it’s playin, on my mama oh I understand
“N[****]s playin, on my mama oh I understand
“Dumb Thot man you gets no love
“Stupid Bitch man you gets no love
“Chasin bands only thing that I love
“Chasin bands only thing that I love
“Dumb Thot man you gets no love
“Stupid Bitch man you gets no love
“Chasin bands only thing that I love
“Chasin bands only thing that I love
“Cashoutt Domo, Domo Cashoutt, Cashoutt fucking Domo whatever the
fuck you wanna call it I’m back at it again
“(unintellible) fuckin with me
“Cashoutt Domo, Cashout Domo, Cashoutt fucking Domo, whatever the
fuck you wanna call it I’m back at in again
“Chasin bands only thing that I love
“Chasin bands only thing that I love
“What you say bitch (unintelligible)
“Oh oh oh …”
50.