People v. Hosley CA2/8 ( 2024 )

Filed 4/3/24 P. v. Hosley CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B317584
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA147421
v.
JALEN TYRELL HOSLEY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed in part,
vacated in part, and remanded.
Verna Wefald, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, and Marc A. Kohm, Deputy Attorney General,
for Plaintiff and Respondent.
____________________
A man drove through a Compton neighborhood and was
shot dead. A jury convicted Jalen Tyrell Hosley of murder and
found gang enhancements true.
Hosley contends insufficient evidence shows he was the
shooter and ineffective assistance of counsel and prosecutorial
misconduct compel reversal. He argues the trial court erred in
admitting rap lyrics, and recent legislation concerning the
admission of these lyrics and concerning gang enhancements
requires vacating the enhancements and ordering a new trial.
We vacate Hosley’s gang enhancement findings and the
corresponding sentences, remand for further proceedings, and
otherwise affirm. Undesignated statutory references are to the
Penal Code.
I
We begin with an overview of the case, viewing the
evidence favorably to the prosecution, which prevailed before the
jury. Then, when discussing Hosley’s insufficiency challenge, we
examine the evidence more closely.
No one saw the shooting that killed Marquise Lawrence. It
was in March 2015. Several neighbors and a trash collector
testified about what they heard at the time and what they saw
afterwards.
Police obtained surveillance video from a nearby home,
which showed the suspect vehicle witnesses described: a blue
SUV fleeing the murder scene. A nearby license plate reader
identified just one possible suspect vehicle, which was the blue
SUV Hosley drove.
Bullet evidence suggested the shooter fired on Lawrence
from the driver side of an oncoming, taller vehicle.
2
Police talked to a member of the Acacia Blocc Crips gang,
Chris Perkins, who associated with Hosley. On the stand,
Perkins was a difficult witness who claimed not to remember
some of what he originally reported to detectives, denied making
certain statements to them, and maintained he just told them
what they wanted to hear because he was in custody. The
prosecution played Perkins’ earlier recorded statements. There,
Perkins admitted he was a few blocks from the shooting and had
told a group of “homies” that a member of a rival gang was
driving by. Someone went after the supposed rival in an “old
school” SUV, and then Perkins heard shooting.
Detective Scott Lawler, the prosecution’s gang expert,
provided background on the Acacia Blocc Crips. He confirmed
Perkins and Hosley were members, explained Acacia and Palmer
Blocc are rivals, and showed this shooting occurred in territory
claimed by Acacia. Lawler testified about the significance of
“snitching,” of protecting one’s gang territory, and of driving
through rival gang territory: “territory is everything for a gang”
and a gang that lets rivals drive through its territory “would be
seen as weak . . . a gang that can be exploited.” Lawler explained
gang members gain respect by committing violent acts in their
neighborhood. He opined a gun murder like this one was for the
benefit of a gang and the shooter.
A former girlfriend of another Acacia gang member
testified about steps Hosley took after the shooting—and after
seeing a wanted poster in the area—to change his appearance
and to get rid of the SUV. This woman overheard Hosley
discussing this with her boyfriend.
The trial included evidence of Hosley’s background,
including two Facebook pictures of him. One picture shows
3
Hosley’s hand sign for the Acacia Blocc Crips; the other shows
him holding his arm out front as if he were holding a gun. The
jury also saw a notebook identifying Hosley’s gang alliance. The
notebook appears also to contain rap lyrics.
The prosecution’s trial theory was Hosley shot Lawrence
because he was egged on by a fellow gang member (Perkins) who
mistakenly believed Lawrence was a rival entering his gang’s
territory. (Lawrence’s girlfriend confirmed Lawrence was never a
member of Palmer Blocc.) Gang members seek to establish
themselves as someone to be feared, and Hosley was eager to
make a name for himself and to elevate himself in his gang.
The defense did not call witnesses.
The jury convicted Hosley of first degree murder (§ 187,
subd. (a)) and of shooting at an occupied vehicle (§ 246). The jury
also found true a firearm allegation and gang allegations for both
counts. Before trial, Hosley sought to strike and then bifurcate
the gang allegations, but the trial court denied this relief after
finding the gang evidence could “supply motive and intent” for
the shooting, was “inextricably intertwined with the charged
offense,” and was relevant to witness credibility.
Hosley hired a lawyer who filed a motion for new trial
asserting, among other things, that witness Perkins had not been
sworn. The trial court denied the motion.
The court sentenced Hosley to 35 years to life in state
prison, consisting of 25 years to life on the first count, plus 10
years for the gang enhancement. The court struck the
punishment for the firearm allegation and stayed the
punishment on the second count.
4
II
On appeal, Hosley challenges the sufficiency of the evidence
supporting his convictions. He maintains his trial counsel
provided ineffective assistance by failing to object that Perkins
was unsworn. He argues the prosecutor committed misconduct
by referring, in her opening statement, to anticipated testimony
of a witness who never ended up testifying, and his counsel
provided ineffective assistance by failing to seek a mistrial on
this basis. Hosley contends the admission of rap lyrics violated
his rights and he should benefit from recently enacted laws
concerning rap lyrics and gang enhancements, laws he says
require vacating his enhancements and ordering a new trial.
We agree only with part of his latter contention. A limited
remand is necessary. We reject Hosley’s claim of cumulative
error.
Hosley raised other issues in his opening brief concerning a
jury note and his presence at a part of trial. We ordered the trial
court and trial counsel to address these issues at a record
correction hearing. After the November 2023 hearing, Hosley
withdrew these arguments. We do not discuss them further.
A
Hosley’s insufficiency challenge concerns identity only. He
claims nothing showed he was the shooter.
In reviewing claims of insufficiency of evidence, we
examine the record in the light most favorable to the prosecution.
We discern whether there is substantial evidence from which any
rational trier of fact could reach the conclusion beyond a
reasonable doubt. And we presume in support of the judgment
the existence of every fact the jury reasonably could deduce from
the evidence. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
5
We reverse only if it appears there is insufficient evidence to
support the verdict under any hypothesis. (Ibid.) This is an
enormous burden for a defendant to overcome on appeal. (People
v. Vasco (2005) 131 Cal.App.4th 137, 161.)
Hosley did not meet this burden. Substantial evidence
supports the jury verdict that he shot Lawrence to death.
Lawrence died at the corner of Willowbrook Avenue and
Johnson Street in Compton. This residential area has narrow
streets and one-story homes. Just west of this corner, the east-
west Johnson Street makes a right-angle turn north and becomes
Acacia Avenue.
Video from a home surveillance system about one block
from the shooting site shows the victim Lawrence at 4:59 p.m.
driving in a tan sedan on Acacia Avenue, toward the crime
scene. The sun brightly illuminates the scene; dusk is hours
away. Shortly thereafter, the video shows a blue SUV Chevrolet
Tahoe driving in the opposite direction on Acacia Avenue, away
from the crime scene. Only a single other car passes by on the
video—going in Lawrence’s direction, well behind Lawrence—and
there are no pedestrians or other people to be seen. This street
thus is largely deserted at the time of the murder.
Neighbors heard several shots and saw a bluish SUV
driving away from the fatal corner heading west on Johnson
toward where that street turns and becomes Acacia Avenue, in
the direction of the aforementioned camera system. All the
neighbors’ eyes were drawn to this one departing vehicle.
(Lawrence’s car crashed into a wall when the head shot caused
his rapid death.) Several neighbors saw a lone man—the
driver—in the fleeing SUV.
6
One neighbor phoned 911 at 5:01 p.m. to report a “drive-by
at my house.” She said the departing vehicle was “[l]ike a 1997
Suburban,” blue in color, driven by a Black male, a “big guy” at
least 250 to 300 pounds, with an “afro” hair style about two to
three inches long. Hosley concedes he matched this description.
The reporting neighbor said the suspect SUV had turned off
Willowbrook and traveled west on Johnson Street, in the
direction of the camera system. Another neighbor described the
car as a blue “ ‘98, ‘99 Chevy or GMC. I’m not sure if it was a
Tahoe or a Yukon.” This neighbor saw this SUV “taking off” from
the murder scene.
The police linked the shooter’s vehicle to Hosley. A camera
six blocks away photographed a blue Chevrolet Tahoe shortly
after the murder. This was the only vehicle identified from the
relevant time period that matched the witness descriptions. The
license plate connected this Tahoe to Jalen Hosley’s mother:
Tiffany Hosley. The Tahoe was registered to her. Police records
showed an officer named Juan Torres had ticketed Jalen Hosley
while he was driving this 1997 blue Tahoe on Willowbrook
Avenue in December 2014, a few months before the shooting.
During these events, Hosley was 17 years old, so a jury
reasonably could have concluded it made sense he drove his
mother’s car.
The prosecution established Hosley’s motive. Hosley is a
member of the Acacia Blocc Crips, which at the time was in a
shooting war with a rival gang called Palmer Blocc. Fellow
Acacia member Perkins told police he was about three blocks
away just before the murder when his group saw someone in a
tan car driving on Acacia Avenue. Perkins and Hosley had been
seen together before.
7
Perkins and his group were discussing the Palmer gang
and had information someone from Palmer was coming by when
Perkins said, “ ‘Damn, there’s goes motherfucker right there’ ”—
driving in Acacia territory. Perkins thought the driver looked
like “Little D” from the Palmer gang. He saw “[l]ike a old school
Suburban” go after him. Then he heard some shooting. Perkins
later confirmed the shooter was in a blue Tahoe. Perkins went by
Lawrence’s crashed tan car afterwards and realized the dead
man was not Little D after all.
Lawrence had been shot in a case of mistaken identity.
Perkins refused, however, to name the person who had been
driving the SUV and, by inference, the shooter. He refused to
identify who he was with before the shooting. He did not explain
how the shooter so swiftly had learned about a supposed Palmer
driver in Acacia territory.
A woman had been dating someone from the Acacia Blocc
Crips gang identified only as Tyler. The woman testified she
heard Hosley and Tyler discussing a wanted poster about Hosley.
This woman said “[i]t was a wanted poster of Jalen” posted at a
gas station near the crime scene. Tyler told Hosley he should cut
his hair; Hosley responded he had already done it. The woman
said Hosley had worn an afro grown out two or three inches but
cut or shaved it after the wanted poster came out. Regarding the
car, Tyler suggested Hosley “get rid of it.” Hosley responded he
did not have it anymore. DMV records showed Hosley’s mother
sold the car.
Crediting the evidence favoring the verdict and drawing
reasonable inferences to support the judgment, Hosley’s
substantial evidence challenge fails. The jury reasonably could
infer Hosley was the Acacia member Perkins egged on but would
8
not name, and Hosley took actions after the murder showing his
consciousness of guilt. This verdict was rational. (See People v.
Navarro (2021) 12 Cal.5th 285, 307 (Navarro) [“We ask not
whether the jury's judgment was the most probable
interpretation of the evidence, but simply whether it was a
rational one”].)
B
Hosley claims his trial counsel provided ineffective
assistance in failing to object that Perkins had not been sworn.
A defendant claiming ineffective assistance of counsel must
show deficient performance by counsel that prejudiced the
defense. (See People v. Johnsen (2021) 10 Cal.5th 1116, 1165
(Johnsen).) On direct appeal, we find deficient performance only
if (1) the record shows counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) no satisfactory
explanation could exist. (Ibid.) We defer to counsel’s reasonable
tactical decisions and presume counsel acted within the wide
range of reasonable professional assistance. (People v. Mai (2013)
57 Cal.4th 986, 1009 (Mai).)
To understand Hosley’s ineffective assistance of counsel
claim, some background is necessary.
Before Perkins took the stand and outside the jury’s
presence, the trial court told Perkins he would be called to take
an oath and he must promise to tell the truth. Perkins
announced that he had been lying all his life and that his counsel
said telling the truth was optional. The court instructed him not
to reveal his communications with counsel. Then counsel
weighed in. Later, when the court tried to administer the oath
9
and asked Perkins if he would tell the truth, Perkins answered
“No.” They continued:
“The Court: You aren’t going to tell the truth?
“Chris Perkins: You said to tell the truth? Tell the
truth about this?
“The Court: I want you to tell the truth about any
question they ask you.
“Chris Perkins: Yeah.
“The Court: Okay. Go have a seat.”
The court announced, without objection, that it would “indicate
for the record Mr. Perkins has been sworn when the jurors come
in.” When the jurors entered the courtroom, the court told them
Perkins “was already administered the oath.”
Allowing Perkins to testify without objecting was rational.
Hosley cites no rule or law requiring any particular form for a
witness oath. His cited rules contain no such requirement. (See
§ 118; Code Civ. Proc., § 2094; Evid. Code, § 710.)
Hosley’s counsel rationally could have determined the
court’s instruction and Perkins’s ultimate response sufficed.
The trial court reached this conclusion. It explained, in
denying Hosley’s new trial motion, that a witness oath need not
be done before a jury, there are no “magic words” that must be
used for administering an oath, the court’s question and Perkins’s
verbal response were sufficient, and Perkins’s “demeanor,” “facial
expression” and “body language” reflected he “clearly understood”
what was being asked. (See Code Civ. Proc., § 2094, subd. (b)
[“the court may administer an oath . . . in a manner that is
calculated to awaken the person’s conscience and impress the
person’s mind with the duty to tell the truth. The court shall
10
satisfy itself that the person testifying understands that his or
her testimony is being given under penalty of perjury”].)
Hosley relies heavily on Griffin v. Harrington (9th Cir.
2013) 727 F.3d 940 in arguing his counsel provided ineffective
assistance, but that case is not like Hosley’s. Griffin is a habeas
case where the witness refused to take the oath and was not
asked again or instructed further, and where nothing suggested
he entertained changing his mind to speak truthfully. (Id. at pp.
942–943 & 945.) Defense counsel later recognized there was no
sworn testimony and acknowledged his mistake in not objecting.
(Id. at pp. 943, 945 & 946.) The consequences of failing to object
there were enormous, as that witness had identified the
defendant as the killer in his earlier recorded statement, counsel
knew the witness likely would recant the statement, and this
statement was the only evidence showing the defendant was the
shooter. (Id. at pp. 943, 946 & 948.) Griffin does not
demonstrate there was ineffective assistance of counsel here.
Hosley acknowledges Perkins’s testimony was helpful to
him—Perkins denied telling Hosley to shoot anyone and
maintained he had no idea who shot the victim—while Perkins’s
earlier recorded statements were “convoluted and ambiguous.”
In short, defense counsel may have determined that
objecting here was pointless, unnecessary, or unwise. The choice
not to object was reasonable. (See Mai, supra, 57 Cal.4th at p.
1018 [whether objections should be made is within counsel’s
discretion and rarely implicates ineffective assistance of
counsel].)
Because Hosley has not established deficient performance
by his trial counsel, we need not reach the issue of prejudice.
11
C
Hosley next claims the prosecutor committed misconduct
and deprived him of constitutional rights by summarizing
anticipated witness testimony that was highly incriminating yet
never uttered to the jury.
During her opening statement, the prosecutor said the jury
would hear from another Acacia Blocc Crip, Michael Barnes,
about Hosley confessing he killed an innocent man because
Perkins told him the guy was a rival, and about Perkins
admitting he “ ‘told him to go get him and he got him.’ ” Later,
outside the jury’s presence, the trial court ordered Barnes to take
the oath and to answer the attorneys’ questions, but Barnes
refused and the court initiated contempt proceedings. Defense
counsel did not move for a mistrial.
Hosley forfeited this issue by failing to raise it at trial. (See
Johnsen, supra, 10 Cal.5th at pp. 1164–1165 [timely and specific
objection required to preserve claims of prosecutorial
misconduct].) Hosley’s opening brief concedes objecting is
required to preserve a misconduct claim yet does not argue
objecting or admonishing the jury would have been ineffectual
here. He suggests we should excuse any forfeiture because the
misconduct here resulted in a miscarriage of justice. Hosley’s
citations show this is no exception to the objection requirement.
(See Navarro, supra, 12 Cal.5th at p. 334; People v. Green (1980)
27 Cal.3d 1, 28–35.)
Hosley argues the trial court nevertheless should have
declared a mistrial on its own. He cites section 1044 in support of
this argument, which imposes no such duty. Case law confirms
the lack of duty. (See People v. Carrera (1989) 49 Cal.3d 291, 321
[“a trial court has no sua sponte duty to control prosecutorial
12
misconduct . . . . that a case is close does not in and of itself
excuse the failure to object or impose a duty on the trial court to
intervene in the absence of objection”].)
Grasping the court’s lack of duty and the forfeiture here,
Hosley claims his trial counsel provided ineffective assistance in
not seeking a mistrial.
But counsel’s conduct was rational, given the prosecutor’s
opening remarks about Barnes were brief, Barnes was not called
to the witness stand before the jury, and neither counsel returned
to him in closing arguments. Further, the trial court instructed
the jury that opening statements are not evidence, an opening
statement is simply an outline of what counsel expects the
evidence will show at trial, and the verdict must be based solely
on the trial evidence. Frazier v. Cupp (1969) 394 U.S. 731, 733–
736, cited by Hosley, shows limiting instructions like these are
sufficient and any error here did not amount to a constitutional
violation.
Hosley repeatedly maintains the challenged remarks
concerned confessions, the most damaging evidence, which
necessitates a new trial. But this case is not like the ones Hosley
emphasizes. In Arizona v. Fulminante (1991) 499 U.S. 279, 283–
284 & 287, the trial court admitted the defendant’s coerced
confession at trial. And in Douglas v. Alabama (1965) 380 U.S.
415, 416–419, the prosecution brought a codefendant to the stand
and read his signed confession implicating the defendant under
the guise of cross examination, despite the codefendant’s refusal
to answer any questions.
Defense counsel here might have decided no new trial
would be more favorable to Hosley. Barnes, after all, might
13
decide to testify in a future trial. Not seeking a mistrial thus
would be a rational tactical choice.
Counsel also reasonably could have concluded the
prosecutor made her opening remarks about Barnes in good faith.
(See Navarro, supra, 12 Cal.5th at p. 317.) It is true Barnes
announced multiple times before trial that he was not a
prosecution witness and no one had spoken to him. But the
prosecutor responded that she needed the detectives present to
speak with Barnes, and the court explained it was typical to have
a witness present in these circumstances and they also needed to
appoint counsel for Barnes. Other comments by the prosecutor
signaled she believed Barnes would testify. The prosecutor
conceded some of her witnesses were difficult and “no one
testifies on gang defendants willingly.” But this does not show
she knew Barnes would not testify until he refused. Perkins,
another difficult witness, did testify.
This trial lacked the earmarks of prosecutorial misconduct:
deceptive or reprehensible methods to persuade the trier of fact,
or conduct infecting the trial with extreme unfairness. (See
Navarro, supra, 12 Cal.5th at p. 332.) Hosley has failed to
establish his counsel’s performance was deficient.
D
Hosley’s next two contentions concern Assembly Bill No.
333 (2021-2022 Reg. Sess) (Stats. 2021, ch. 699) (AB 333), which
became effective on January 1, 2022, several years after the jury
convicted Hosley. (See People v. Tran (2022) 13 Cal.5th 1169,
1206 (Tran).)
AB 333 did two key things. First, it altered the elements of
the section 186.22 gang enhancement and made the standards for
applying these enhancements more rigorous. (Tran, supra, 13
14
Cal.5th at p. 1206; People v. Cooper (2023) 14 Cal.5th 735, 744–
745.) Second, it added section 1109, which, on defense request,
requires a gang enhancement charge to be tried separately from
the substantive offenses. (See Tran, supra, 13 Cal.5th at p.
1206.)
On the first issue, the prosecution concedes the changes to
section 186.22 apply retroactively to Hosley. The prosecution
further concedes the matter should be remanded for “possible”
retrial of the gang enhancements. We agree. This trial did not
establish the new statutory requirements of section 186.22.
On the second issue, Hosley argues new section 1109
entitles him to a new trial. The parties, and California appellate
courts, are split on whether the new bifurcation provision applies
retroactively. (See Tran, supra, 13 Cal.5th at p. 1208.) We need
not take sides because we conclude failing to bifurcate the gang
allegations did not prejudice Hosley.
The trial court allowed the prosecution to present limited
gang evidence to advance its theory that Hosley killed because he
mistook Lawrence for a gang rival driving through Acacia
territory. Most of the gang evidence would have remained
central to this case, and would have been admissible in a
bifurcated trial, because it established Hosley’s motive and intent
for an otherwise-puzzling killing. (See Tran, supra, 13 Cal.5th at
p. 1208 [even if not admitted to prove a gang enhancement, gang
evidence may be relevant and admissible to prove other facts
related to a crime].) The prosecution’s theory required it to
explain about Hosley’s identity as a gang member, about his
gang’s rivals, and about his connection with fellow gang
members.
15
Hosley’s counsel acknowledged pretrial that the
prosecution could use gang evidence to show the motive and
intent for the shooting. This defense concession was logical and
significant, but the gang evidence was even more sweeping in
import than this concession admitted. The gang evidence went to
witness credibility and explained Perkins’s and others’ reluctance
on the stand and with police. Our Supreme Court has recognized
many possible uses of gang evidence. (See People v. Hernandez
(2004) 33 Cal.4th 1040, 1049 [“Evidence of the defendant’s gang
affiliation—including evidence of the gang’s territory,
membership, signs, symbols, beliefs and practices, criminal
enterprises, rivalries, and the like—can help prove identity,
motive, modus operandi, specific intent, means of applying force
or fear, or other issues pertinent to guilt of the charged crime”].)
The trial court was attuned to the prejudicial nature of
certain gang evidence and took steps to limit undue prejudice.
Hosley does not argue the gang evidence at trial was cumulative.
This evidence was not particularly inflammatory: there was no
gore or graphic violence. And the court instructed jurors on the
limited relevance of the gang evidence, warning they could not
conclude from this evidence that Hosley was a person of bad
character or was disposed to commit crime. Presumably the jury
obeyed this instruction. (See People v. Chhoun (2021) 11 Cal.5th
1, 30.)
Hosley fails to pinpoint any evidence he thinks was
admitted only because of the gang enhancements. Possibly
evidence that other members of the Acacia Blocc Crips (who were
not trial witnesses) committed certain other offenses would have
been unnecessary in a bifurcated trial. But this evidence was not
16
extensive. It comprised but a few pages of trial testimony and a
small number of exhibits of certified records.
The gang evidence did not render this trial fundamentally
unfair. Hosley has not established a reasonable probability of
obtaining a more favorable result with a bifurcated trial. (See
Tran, supra, 13 Cal.5th at pp. 1209–1210 [applying the People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson) harmlessness
standard]; People v. Ramos (2022) 77 Cal.App.5th 1116, 1131
[same].)
E
In a short section at the end of his lengthy opening brief,
Hosley claims the admission of handwritten rap lyrics violated
another new law—Assembly Bill No. 2799 (2021-2022 Reg. Sess)
(Stats. 2022, ch. 973), codified as Evidence Code section 352.2—
as well as his rights to due process and a fair trial.
Recently enacted Evidence Code section 352.2 requires trial
judges in criminal cases to consider certain factors before
admitting forms of creative expression, including rap lyrics, as
evidence. It aims to avoid injecting racial bias and improper
consideration of criminal propensity in criminal proceedings.
(People v. Venable (2023) 88 Cal.App.5th 445, 448, review granted
May 17, 2023, S279081 (Venable).)
The rap lyrics here were in a notebook that made a brief
appearance at trial. A deputy testified about serving a search
warrant at a home he believed was Hosley’s. The deputy found a
briefcase there containing a notebook, and he confirmed Exhibit
64 was an envelope containing that notebook. The notebook had
Hosley’s first name (Jayman) inside and mentioned “ATF,” “ATF
Crip” and “Acacia,” among other things. Gang expert Lawler
explained Hosley’s gang (Acacia Blocc Crips) was aligned with
17
two others (Spook Town and Farm Dog Crips), and the alliance
was called “ATF.” The prosecutor briefly asked Lawler about a
few words from a few pages of the notebook, including “catching
fades” (fighting), “troopin wit the foety” (hanging out), and “pop
ya” (shoot). Defense counsel later asked Lawler whether Hosley’s
gang moniker was in the notebook (it was not).
Defense counsel earlier had objected to the notebook as late
discovery and on authentication and Evidence Code section 352
grounds. The court said it was not going to “let all of it in.” The
parties would photocopy certain pages and compile them into a
separate exhibit for the jury. But after the parties rested, the
court appeared to receive Exhibit 64 into evidence without any
objection. The court conceded as much at the record correction
hearing.
Hosley argues that admitting the lyrics into evidence
amounted to a due process violation because it was unknown who
authored them. But the prosecution sufficiently authenticated
the notebook as Hosley’s. It established the notebook was found
where Hosley lived, bore Hosley’s name, and referred to Hosley’s
gang. (See Evid. Code, § 1421; see also People v. Goldsmith
(2014) 59 Cal.4th 258, 268 [proponent of a writing may rely on
the writing’s content or on circumstantial evidence to
authenticate it].)
Regarding the new law, Hosley does little more than
provide background on the law and describe its text. He notes
the lyrics here were not similar to the charged crime, implying
this law would render the lyrics inadmissible. The prosecution
counters that the new law operates prospectively only.
Courts have divided over whether Evidence Code section
352.2 is retroactive. (Compare Venable, supra, 88 Cal.App.5th at
18
pp. 448 & 456, review granted May 17, 2023, S279081 [the
provision is ameliorative and applies retroactively to cases
pending on appeal] with People v. Ramos (2023) 90 Cal.App.5th
578, 592–596, review granted July 12, 2023, S280073 [the
provision “is not a statute that creates the possibility of lesser
punishment or any other type of more lenient treatment” or “that
reduces criminal liability, such as by altering the substantive
requirements for a conviction or expanding a defense” and
therefore is not retroactive] and People v. Slaton (2023) 95
Cal.App.5th 363, 372–376, review granted November 15, 2023,
S282047 [the provision is a neutral evidentiary rule that applies
prospectively only; applying it retroactively would be inconsistent
with precedent].) We agree with the thorough reasoning in the
later decisions finding the new law to be prospective only and
incorporate that reasoning here.
Assuming this law is retroactive and the trial court
erroneously admitted the rap lyrics, Hosley’s challenge falls short
because he has not established prejudice.
Hosley’s entire argument on prejudice in his opening brief
is this: “Appellant was severely prejudiced by the admission of
the rap lyrics because it was no more than bad character
evidence. The court abused its discretion under section 352 when
it admitted them, in violation of appellant’s due process rights.
(People v. Partida (2005) 37 Cal.4th 428, 435.) The prosecution
cannot prove that the failure to bifurcate was harmless beyond a
reasonable doubt. (Chapman v. California, 386 U.S. at p. 24.)
Appellant is entitled to a new trial.”
Hosley assumes the Chapman standard applies based on
People v. Partida (2005) 37 Cal.4th 428. That case recognizes the
erroneous admission of gang evidence can rise to the level of a
19
due process violation “only if it renders the trial fundamentally
unfair.” (Id. at p. 432.) “Absent fundamental unfairness, state
law error in admitting evidence is subject to the traditional
Watson test.” (Id. at p. 439.) This notebook did not poison
Hosley’s trial. The presentation of this evidence was brief and
tangential. We therefore apply Watson’s harmlessness standard
and conclude Hosley failed to show a reasonable probability of
obtaining a more favorable result if the rap lyrics had been
excluded.
In connection with the trial court’s record correction
hearing and after submitting his reply brief, Hosley had several
opportunities to explain why these lyrics mattered in this trial,
yet he never engaged the lyrics. Hosley conceded most of his
notebook was “essentially meaningless.” The only thing Hosley
added on the issue of prejudice was that the evidence against him
was weak and the jury initially was unable to reach a verdict, so
“the admission of colorful rap lyrics that appeared to glorify
violence, but were completely irrelevant” was not harmless error.
This does not show prejudice. The lyrics here were not
lengthy. They were cryptic, not inflammatory. Counsel
questioned only one witness about them. The jury saw no
graphic music video, as in Venable, supra, 88 Cal.App.5th at pp.
452–455, review granted. Also unlike that case, the prosecutor
here placed no special emphasis on the lyrics. (See id. at pp. 456
& 458.) She did not mention the notebook writings in her closing
and rebuttal arguments, and defense counsel only mentioned
them in passing as “a little verse, a rap verse” with no apparent
relevance. The trial court’s instruction on the limited relevance
of gang evidence encompassed the rap lyrics and told jurors they
could not consider this to be evidence of Hosley’s bad character or
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propensity to commit crime. The rap lyrics were not the sole, or a
major, source of gang evidence. The notebook contents were
probative to pass the low bar of relevance but were not a
significant focus in this murder trial.
Assuming the trial court erred in admitting rap lyrics,
then, the error was harmless.
F
Hosley urges us to find cumulative error, arguing the
combined effect of the missteps here violated his constitutional
rights, denied him a fair trial, and requires reversal. Hosley has
demonstrated neither multiple trial errors nor an unfair trial.
Even assuming without deciding it was error to admit the
rap lyrics and not to bifurcate the gang enhancements, these
assumed errors were harmless and viewed together do not
amount to prejudicial error requiring reversal. (See People v.
Poletti (2015) 240 Cal.App.4th 1191, 1216–1217 [appellate court
reverses a judgment under the cumulative error doctrine if there
is a reasonable possibility the jury would have reached a more
favorable result absent a combination of errors].)
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DISPOSITION
We reverse the true findings on the gang enhancements
and vacate the corresponding sentences for these enhancements
(10 years on each count). We remand for the trial court to
provide the prosecution an opportunity to retry the gang
allegations under the amended section 186.22. In all other
respects, we affirm the judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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