People v. Louvier CA1/3 ( 2024 )

Filed 6/18/24 P. v. Louvier CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A166512
v.
RONNIE LOUVIER, (San Francisco City & County
Super. Ct. No. SCN207079,
Defendant and Appellant.
No. CRI02388429)
A jury found defendant Ronnie Louvier guilty of second-degree murder
(Pen. Code, § 187)1 and firearm and drug possession offenses and found true
that he personally used a firearm in the commission of the murder
(§ 12022.53, subd. (d).) He was sentenced in 2010 to 43 years to life in prison,
including a term of 25 years to life for the firearm enhancement, and this
court affirmed on appeal. (People v. Louvier (Apr. 27, 2012, A127955)
[nonpub. opn.] (Louvier).) In 2022, the People moved to recall defendant’s
sentence and resentence him pursuant to the amendment of section 1385 by
Senate Bill No. 81 (2021–2022 Reg. Sess.) (Senate Bill 81). The court granted
the motion in part, striking the sentence on the firearm enhancement under
1 Further unspecified statutory references are to this code.
1
section 12022.53, subdivision (d), and replacing it with a term of 10 years to
life under section 12022.53, subdivision (b).
Defendant asserts two main claims of error on appeal. First, he argues
that section 1385, subdivision (c)(2)(C) (hereafter section 1385(c)(2)(C))
mandated dismissal of the firearm enhancement because it would result in a
sentence of over 20 years, or alternatively, that the statute established a
presumption in favor of dismissal that was not rebutted in this case. Second,
defendant contends the trial court should have held a hearing to determine
the admissibility of rap lyrics pursuant to Evidence Code section 352.2, which
became effective during this appeal and, according to defendant, applies
retroactively to this case. We reject his contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
The People filed an information accusing defendant of the murder of
Marquis Washington. (§ 187, subd. (a), count 1.) The People also accused
defendant of participation in a criminal street gang (§ 186.22, subd. (a), count
2); possession of a firearm by a person under 30 (§ 12021, subd. (e), count 3);
possession of a controlled substance with a firearm (Health & Saf. Code,
§ 11370.1, subd. (a), count 4); and possession of a controlled substance
(Health & Saf. Code, § 11350, subd. (a), count 5). Further, the information
alleged defendant personally discharged a firearm (§ 12022.53, subd. (d)) in
the commission of count 1, committed the offenses charged in counts 1 and 3
for the benefit of a street gang (§ 186.22, subd. (b)(1)(C)) and committed all
2 This background is adapted from the prior unpublished decision in the
direct appeal, People v. Louvier (Apr. 27, 2012, A127955) [nonpub. opn.], and
from the appellate record in Louvier, of which we take judicial notice on
defendant’s request. Additional facts relevant to the contentions on appeal
are set forth in the corresponding sections of the Discussion, post.
2
offenses while on bail (§ 12022.1). (Louvier, supra, (Apr. 27, 2012, A127955)
[nonpub. opn.].)
Washington died from a bullet to the head in a drive-by shooting at the
intersection of Gough and Turk Streets in San Francisco at around 8:00 p.m.
on March 20, 2008. (Louvier, supra, (Apr. 27, 2012, A127955) [nonpub.
opn.].) Witness A.V., who was walking with Washington, saw a black car
with tinted windows drive by and then return with the driver’s side window
cracked open. A.V. heard gun shots and saw flashes of light from the car
before seeing Washington on the ground.3 Another witness heard the shots,
saw a black Camaro leave the scene, wrote down the license plate number of
the car, and gave it to the police. Utilizing the information provided by the
witness, police traced the vehicle to defendant, who lived with his aunt in
San Leandro at that time. (Louvier, supra, (Apr. 27, 2012, A127955)
[nonpub. opn.].)
On the morning after the shooting, police observed defendant cleaning
the driver’s side window on the Camaro and apprehended him as he was
getting into the vehicle. After taking him into custody, police tested for, and
found, gunshot residue on defendant’s hands. Police found a hidden
compartment in the dashboard of the Camaro containing a Glock semi-
automatic pistol loaded with nine .9 mm Luger RP cartridges, as well as a
quantity of rock cocaine. No fingerprints were found on the gun. DNA
testing showed defendant was a major donor of the DNA found on the
weapon. Police also searched defendant’s bedroom at his aunt’s house and
recovered a box of Remington cartridges with several cartridges missing from
the box. Ballistics evidence showed that the bullets found at the scene of the
3 At trial, A.V. testified that he could not identify the shooter. He would
later state in postjudgment proceedings that defendant was not the shooter.
3
crime were fired from the Glock semi-automatic found in the Camaro and
that the head stamps on the bullets found at the scene matched those found
on the box of ammunition seized in defendant’s bedroom. (Louvier, supra,
(Apr. 27, 2012, A127955) [nonpub. opn.].)
Defendant took the stand at trial. He denied any involvement in the
shooting but testified that he was in San Francisco on the day of the shooting
and that his car was towed. He retrieved his car around 4:00 p.m. and then
went to a barber shop where he met his friend Charles Heard, who asked if
he could borrow defendant’s Camaro. Defendant agreed on the condition
Heard return the vehicle to San Leandro later that night. Defendant took
BART back to San Leandro, arriving home shortly after 7:00 p.m. Heard
returned the Camaro about 10:30 p.m. and warned defendant to wipe the car
because “ ‘some shit went down.’ ” Defendant testified that the Glock found
in the Camaro did not belong to him, he had never touched it, and he did not
know how his DNA got on the gun. He also denied any knowledge of the box
of cartridges found in his bedroom and the cocaine found in the vehicle.
(Louvier, supra, (Apr. 27, 2012, A127955) [nonpub. opn.].)4
The jury ultimately found defendant guilty of second-degree murder as
charged in count 1, and found true the allegations that he personally
discharged a firearm in the commission of the offense and committed the
offense while on bail. The jury also returned guilty verdicts on the firearm
and drug offenses charged in counts 3–5 and found true the allegation
defendant committed those offenses while on bail. However, the jury found
4 During the investigation, Heard was excluded as a contributor to the
DNA found on the steering wheel of the Camaro, while defendant was found
to be the major donor. Heard was also excluded as a donor to the sample
swabs taken from the interior of the Camaro and on the Glock pistol found in
the Camaro.
4
the allegation that defendant committed the murder for the benefit of a street
gang not true and acquitted him of participating in a criminal street gang as
alleged in count 2.
In February 2010, the trial court sentenced defendant to an
indeterminate term of 43 years-to-life in state prison. The judgment was
affirmed on direct appeal. (Louvier, supra, (Apr. 27, 2012, A127955) [nonpub.
opn.].)
In February 2022, the People moved to recall defendant’s sentence and
resentence him pursuant to former section 1170.03 (renumbered section
1172.1). The motion was based on the recommendations of the San Francisco
District Attorney’s Innocence Commission (Innocence Commission) and on
defendant’s “positive post-conviction conduct,” which demonstrated “he no
longer presents a public safety risk such that his confinement is no longer in
furtherance of justice.”
As the People recounted in the motion, defendant filed several petitions
for postconviction relief, including a 2015 petition for writ of habeas corpus
based on a declaration from witness A.V. stating, contrary to his trial
testimony (see fn. 3, ante), that he had seen enough of the shooter to identify
him as a light-skinned male and not defendant. At a 2017 evidentiary
hearing on the petition, A.V. claimed he was pressured by police officers to
falsely identify defendant as the shooter, and so he testified at trial that he
could not identify the shooter. The trial court denied the habeas petition,
finding A.V.’s testimony to not be credible. Defendant filed a second habeas
petition presenting additional new evidence, and at the time of the People’s
resentencing motion, the trial court had issued an order to show cause on the
petition.
5
The People argued that during defendant’s incarceration thus far, he
had established a positive record of rehabilitation, earned “laudatory
‘chronos’ for participating in extensive self-help programming and cognitive
behavioral therapy, maintained an acceptable disciplinary record, and
continued to engage positively in his education.” He committed “few” rules
violations and had a security classification score (CS) of 51, which reflected
his “few, non-violent rule violations over the past several years, but
represent[ed] a substantial improvement (a decrease of 20 points) since
[defendant’s] earliest available CS score from 2014.” His California Static
Risk Assessment (CSRA) score was 1, “the best possible score he could obtain,
revealing a low risk of recidivating.”
The People further argued that circumstances had changed since
defendant’s original sentencing, as he was 22 years old at the time of the
shooting and was now 37 years old, and that the Innocence Commission’s
investigation “undermine[d] the People’s confidence” in the second-degree
murder conviction. The People additionally provided details on defendant’s
reentry plan and community support network.
The trial court held an initial hearing in May 2022, and put the matter
over to August 15, 2022, for decision. At the August 15 hearing, the People
requested a continuance due to the case having been reassigned at the
District Attorney’s Office. The court continued the matter, and at the
continued hearing on August 19, began by asking whether the People were
withdrawing the petition in light of the reassignment of the case. The People
requested an additional continuance, but the court remarked it was not
considering defendant’s claim of innocence and prior habeas petitions, “which
have been denied after hearing, denied at the Court of Appeal, denied at the
California Supreme Court.” The court clarified it was only “looking at his
6
performance” and “whether or not he fits the description of someone who
represents an unreasonable risk to reoffend violently, as defined if released
at this point.” As such, the court did not “believe that there’s any need for a
continuance at this time” and proceeded to the merits of the motion.
Despite having brought the original resentencing motion, the People
now argued they were “concerned for public safety. We are concerned
because of the lack of remorse and the exceptions of [sic] responsibility by the
defendant, which we feel is necessary for rehabilitation.” Defendant’s counsel
argued that his client had shown remorse, engaged in substantial
programming, and had strong community support and a robust release plan,
and therefore qualified for resentencing.
The trial court acknowledged that defendant “has most recently been
doing better in custody. He currently has an institutional security score of
51, his lowest could be 19, so he’s got a relatively high score.” As for
defendant’s CSRA score, the court noted that his “score of one is the lowest,”
but “[t]hat instrument moderately predicts recidivism. And recidivism,
within three years on that model, is as high as 40 percent. So low is a
relative term, as to that instrument.”
The trial court highlighted defendant’s 2019 “rules violation for his
girlfriend inappropriately touching him in a visiting room; 2020, possession of
a cell phone; 2019, getting tattooed; and 2013, somewhat more remotely,
having a cell phone.” Acknowledging these rules violations were nonviolent,
the court nonetheless found they demonstrated defendant’s attitude that “the
rules don’t apply to him.”
As to defendant’s maintaining of innocence, the trial court stated it was
“not going to hold that against him in any way, despite the fact that
numerous [courts] have turned down his bid, even after taking new
7
evidence,” because guilt or innocence “was not what the Court’s here to
determine.” The court recognized that despite his claim of innocence,
defendant was gaining more insight and “moving toward a position where
he’s able to better articulate” his role in the shooting.
The trial court further noted that defendant was a young man at the
time of the shooting, and that at 37 years old, he was “still relatively young.
Looks like he’s started doing some positive work in groups, but not until
2018. It took him a while before he got involved in groups. There may have
been reasons for that, but I don’t really see much participation, if any, very
little, before then.” In the court’s view, defendant was “someone who is
becoming less dangerous, is starting to acknowledge his role in the death of
the decedent in this case, and is starting to do a little bit better. And I also
do see someone who has good community resources and people that care
about him.” However, the court also found that defendant “continues to
represent an unreasonable risk to the public in that he might commit . . . a
violent offense as defined by the statute.”
Based on its findings, the trial court refused to dismiss the term of 15
years to life on count 1. However, the court struck the term of 25 years to life
for the firearm enhancement under section 12022.53, subdivision (d), on
count 1 and replaced it with a term of 10 years to life under section 12022.53,
subdivision (b). The court also modified the 3-year sentence on count 4 to run
concurrently rather than consecutively. In sum, the court resentenced
defendant to a total of 25 years to life, rather than the original sentence of 43
years to life. The court explained that its decision “reflects putting
[defendant] in custody for a longer period of time, where he’ll start to get into
a demographic area where demonstratively his risk level will drop, and I
think it will also give him an opportunity to continue his path on reflecting on
8
his involvement in the kind of offense that got him in prison, and avail
himself of the programming that he seems to have just started.”
Defendant moved for reconsideration, arguing that section
1385(c)(2)(C) required dismissal of the firearm enhancement because it would
result in a sentence of greater than 20 years, and that the trial court failed to
give great weight to defendant’s status as a youthful offender (under the age
of 26 at the time of the offense). The court denied reconsideration.
Defendant timely appealed from the trial court’s denials of the
resentencing and reconsideration motions.
DISCUSSION
A. Dismissal of Sentencing Enhancements
Under section 12022.53, subdivision (h), “[t]he court may, in the
interest of justice pursuant to Section 1385 and at the time of sentencing,
strike or dismiss an enhancement otherwise required to be imposed by this
section.” The court may also impose a lesser included, uncharged section
12022.53 enhancement if facts supporting imposition of the lesser
enhancement have been alleged and found true. (See People v. Tirado (2022)
12 Cal.5th 688, 697.)
In 2021, the Legislature enacted Senate Bill 81, “which amended
section 1385 to specify mitigating circumstances that the trial court should
consider when deciding whether to strike enhancements from a defendant’s
sentence in the interest of justice.” (People v. Lipscomb (2022) 87 Cal.App.5th
9, 16 (Lipscomb).)
Section 1385 provides in relevant part: “Notwithstanding any other
law, the court shall dismiss an enhancement if it is in the furtherance of
justice to do so, except if dismissal of that enhancement is prohibited by any
initiative statute.” (§ 1385, subd. (c)(1).) “In exercising its discretion under
9
this subdivision, the court shall consider and afford great weight to evidence
offered by the defendant to prove that any of the mitigating circumstances in
subparagraphs (A) to (I) are present. Proof of the presence of one or more of
these circumstances weighs greatly in favor of dismissing the enhancement,
unless the court finds that dismissal of the enhancement would endanger
public safety. ‘Endanger public safety’ means there is a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
danger to others.” (§ 1385, subd. (c)(2).) One such mitigating circumstance is
that “[t]he application of an enhancement could result in a sentence of over
20 years. In this instance, the enhancement shall be dismissed.”
(§ 1385(c)(2)(C).)
1. Mandatory Versus Discretionary Dismissal
Defendant argues section 1385(c)(2)(C) mandates dismissal of the
firearm enhancement under section 12022.53, subdivision (d), because the
enhancement could result in a sentence of over 20 years. Appellate courts
have unanimously rejected this argument, concluding that the “shall be
dismissed” language found in section 1385, subdivision (c)(2)(B) and (C),
when read in context with the statutory framework as a whole, does not
categorically mandate dismissal of an enhancement whenever any of the
statutorily listed mitigating circumstances is shown. (See People v. Mendoza
(2023) 88 Cal.App.5th 287, 294–297 (Mendoza); People v. Anderson (2023) 88
Cal.App.5th 233, 239, review granted Apr. 19, 2023, S278786 (Anderson);
Lipscomb, supra, 87 Cal.App.5th at pp. 17–21; People v. Walker (2022) 86
Cal.App.5th 386, 396–398, review granted Mar. 22, 2023, S278309 (Walker).)
As explained in Mendoza, the “shall be dismissed” language of section
1385(c)(2)(C) cannot be read in isolation, and the statutory language as a
whole supports the interpretation that “if the court finds that dismissal of an
10
enhancement ‘would endanger public safety,’ then the court need not consider
the listed mitigating circumstances. [Citation.] The ‘shall be dismissed’
language in section 1385(c)(2)(C), like the language of all of the mitigating
circumstances, applies only if the court does not find that dismissal of the
enhancement would endanger public safety.” (Mendoza, at p. 296.) Mendoza
further reasoned that the defendant’s interpretation—like defendant’s here—
would lead to an absurd result because the trial court would be required to
dismiss an enhancement even when it has found that dismissal would
endanger public safety. (Ibid.; see also Anderson, supra, 88 Cal.App.5th at
pp. 239–240 [refusing to consider the “shall be dismissed” language “in
isolation” and concluding “a finding of danger to public safety can overcome
the circumstances in favor of dismissal”].) And as the court in Lipscomb
similarly reasoned, it would be “absurd” to construe such language as
mandating dismissal in the context of a 25-year-to-life firearm enhancement
under section 12022.53, subdivision (d), because then “this enhancement
could never be imposed under any circumstances” including where trial court
expressly found endangerment to public safety. (Lipscomb, supra, 87
Cal.App.5th at pp. 20–21.)
Defendant notes we are not bound by the published decisions of other
appellate districts. (See Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480,
1489, fn. 10.) Even so, we agree with their reasoning and join them in
concluding that dismissal of the firearm enhancement was not compelled
simply because the enhancement would result in a sentence over 20 years.5
5 In light of the trial court’s finding that dismissal of the firearm
enhancement would endanger public safety, we need not decide how the
“shall be dismissed” language in section 1385(c)(2)(C) would operate if the
court had not found that dismissal would endanger public safety. (See
Mendoza, supra, 88 Cal.App.5th at p. 297 & fn. 6.)
11
Defendant’s attempts to persuade us otherwise are unavailing. He
criticizes Anderson and Lipscomb for basing their legislative history analyses
on a September 10, 2021, letter by the author of Senate Bill 81 that postdated
the bill’s passage. In our view, however, those courts’ reliance on Senator
Skinner’s letter was secondary to their analysis of the statutory language,
and Mendoza and Walker reached the same conclusion without resort to
Senator Skinner’s letter. We do likewise.
Relying on the principle of statutory construction that “ ‘the specific
controls over the general,’ ” defendant contends section 1385(c)(2)(C)’s “shall
be dismissed” language controls over the more generalized considerations of
public safety and the furtherance of justice in the statute. We cannot agree.
We are not presented here with a conflict between two different statutes, one
specific and the other general. (See Estate of Kramme (1978) 20 Cal.3d 567,
576 [specific statute covering particular subject controls and takes priority
over general statute encompassing same subject].) Rather, we are presented
with two parts of the same statutory subdivision. The guiding principle in
this endeavor is to harmonize the parts of the statute, not to consider a single
part in isolation from the other. (See Mendoza, supra, 88 Cal.App.5th at
p. 294.)
Defendant also invokes the rule of lenity, which has been stated as
follows: “ ‘If the statutory language is ambiguous and susceptible of two
plausible interpretations, we must, because this is a criminal statute, adopt
the one more favorable to the defendant.’ ” (People v. Lamb (1999) 76
Cal.App.4th 664, 682.) But adoption of defendant’s construction of section
1385(c)(2)(C) would mean that a firearm enhancement under section
12022.53, subdivision (d), which necessarily increases a sentence to over 20
years, must always be dismissed, even if the court finds that dismissal would
12
endanger public safety. Because that is not a plausible construction of
section 1385 (see Mendoza, supra, 88 Cal.App.5th at p. 296; Lipscomb, supra,
87 Cal.App.5th at pp. 20–21), the rule of lenity does not apply.
For the foregoing reasons, we reject defendant’s contention that
dismissal of the firearm enhancement under section 12022.53, subdivision
(d), was mandated under section 1385(c)(2)(C).
2. Rebuttable Presumption
Defendant alternatively contends section 1385(c)(2)(C) creates a
rebuttable presumption that an enhancement that will cause a sentence to
exceed 20 years cannot be imposed absent substantial evidence of
endangering public safety that rebuts the presumption. Notably, the
appellate courts are currently split on this issue, which is under review in the
Supreme Court.
In Walker, the Court of Appeal held that “section 1385’s mandate to
‘afford great weight’ to mitigating circumstances erects a rebuttable
presumption that obligates a court to dismiss the enhancement unless the
court finds that dismissal of that enhancement—with the resultingly shorter
sentence—would endanger public safety.” (Walker, supra, 86 Cal.App.5th at
p. 391, review granted Mar. 22, 2023, S278309.) In Walker’s view, “the term
‘great weight’ places a thumb on the scale that balances the mitigating
circumstances favoring dismissal against whether dismissal would endanger
public safety, and tips that balance in favor of dismissal unless rebutted by
the court’s finding that dismissal would endanger public safety.” (Id. at
pp. 399–400.)
In People v. Ortiz (2023) 87 Cal.App.5th 1087, review granted April 12,
2023, S278894 (Ortiz), the appellate court rejected the argument that the
language of section 1395, subdivision (c)(2)(B) “warranted a presumption in
13
favor of dismissal that could only be rebutted by a showing that dismissal
would endanger public safety.” (Ortiz, at p. 1096.) In Ortiz’s view, the final
language of Senate Bill 81 “reflects a legislative recognition that a trial
court’s exercise of sentencing discretion involves more than a strictly binary
weighing of mitigation against public safety” and includes consideration of
generally applicable sentencing principles such as the defendant’s
background, character, and prospects. (Ortiz, at p. 1097.) “Those principles
require consideration of circumstances in mitigation (and aggravation) in the
broader context of the recognized objectives of sentencing, which are not
limited to public safety.” (Ibid.) As such, Ortiz “decline[d] to follow Walker in
its more formalistic reading” of section 1385, subdivision (c)(2). (Ortiz, at
pp. 1097–1098.)
We need not weigh in on this split, as the trial court here found that
dismissal of the firearm enhancement would endanger public safety. Thus,
even if Walker’s holding proves to be the correct formulation of section 1385,
subdivision (c)(2), the presumption in favor of dismissal in this case was
rebutted by the court’s finding of endangerment to public safety.
3. Abuse of Discretion
Defendant argues the trial court abused its discretion in refusing to
dismiss the firearm enhancement because the record shows his rehabilitation
history, engagement in programming, and CS and CSRA scores were “ ‘all
extremely favorable’ ” and supported his “low risks for violence.” We
disagree.
We review a trial court’s decision not to strike a sentence enhancement
under section 1385 for abuse of discretion. (People v. Carmony (2004) 33
Cal.4th 367, 373– 374 (Carmony).) An abuse of discretion may occur where
the trial court is not aware of its discretion, considers impermissible factors,
14
fails to consider relevant factors, or where the decision is so irrational or
arbitrary that no reasonable person could agree with it. (Carmony, at
pp. 377–378.) “The court is presumed to have considered all of the relevant
factors in the absence of an affirmative record to the contrary.” (People v.
Myers (1999) 69 Cal.App.4th 305, 310.)
“[S]ection 1385(c)(2) does not require the trial court to consider any
particular factors in determining whether ‘there is a likelihood that the
dismissal of the enhancement would result in physical injury or other serious
danger to others.’ ” (Mendoza, supra, 88 Cal.App.5th at p. 299.) Here, the
record reflects that the trial court considered, among other factors,
defendant’s CS score of 51. “California prison inmates are classified
pursuant to a scoring system that determines their prison custody level.
[Citation.] A higher score means the inmate is considered a higher security
risk and would be assigned to a correspondingly higher security facility; a
lower score means the inmate is considered a lower security risk and would
be assigned to a correspondingly lower security facility. . . . Among the
factors considered in this annual review is the inmate’s participation in a
work, school, or vocational program.” (In re Jenkins (2010) 50 Cal.4th 1167,
1171.) Here, the trial court concluded that defendant’s CS score of 51 was
sufficiently above the lowest possible score of 19 to constitute “a relatively
high score,” and we see nothing unreasonable in this view. Accordingly, it
was not unreasonable for the court to be concerned that corrections
authorities still assessed defendant with an elevated security risk score.
The trial court also appropriately considered defendant’s record of
rehabilitative programming, which we acknowledge is commendable.
However, the court emphasized that defendant’s engagement was relatively
recent. This finding is supported by the record, which reflects that despite
15
being sentenced in 2010, defendant’s participation and completion of various
courses started in or around 2018. On this record, the court could reasonably
conclude that defendant still required more time to participate in beneficial
programming before it could say that dismissal of the firearm enhancement
would not likely endanger public safety. Indeed, the court’s decision to
reduce the enhancement from 25 years to 10 reflected a reasonable balancing
of defendant’s success to date with realistic concerns that his rehabilitation
was still a work in progress.
Defendant faults the trial court for refusing to consider his innocence
claims but cites no authority that required the court to do so. Granted, this
case took some unique turns, as the effort to resentence defendant was
initiated by the People based on the recommendations of the Innocence
Commission before an internal reassignment of the case at the District
Attorney’s Office resulted in the People’s change of course. At the same time,
the trial court was correct that defendant’s innocence claims had been
repeatedly rejected by several courts in collateral postjudgment proceedings.
On this record, we cannot say the court acted unreasonably or arbitrarily in
relying on conventional resentencing factors rather than importing
defendant’s innocence claims into its analysis.
We credit defendant’s point that all of the rules violations cited by the
trial court were nonviolent. We also note the court seemed to give short
shrift to defendant’s low CSRA score, concluding (without reference to any
evidence in the record) that the CSRA only “moderately predicts recidivism.”
But these points do not establish that the court’s decision was so irrational or
arbitrary that no reasonable person could agree with it. (Carmony, supra, 33
Cal.4th at pp. 377–378.) In evaluating the court’s decision, we may
reasonably infer that the court’s concerns about defendant’s potential for
16
recidivating were informed by the nature of his offense, in addition to the
factors already discussed. (See People v. Pearson (2019) 38 Cal.App.5th 112,
117 [factors to consider when determining whether to strike firearm
enhancement are same as when handing down sentence in first instance,
including that crime involved great violence, threat of great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness].) In
the instant case, the offense was a drive-by shooting of the victim in cold
blood. In light of this violent and callous crime involving the use of a firearm,
defendant’s “relatively high” institutional risk score of 51, and the relative
recency of his engagement in rehabilitative programming, we cannot say the
court acted arbitrarily or unreasonably in concluding that complete dismissal
of the firearm enhancement at the time of the resentencing motion posed a
likely danger to public safety.
For all of these reasons, we conclude defendant fails to demonstrate the
trial court erred in refusing to dismiss the firearm enhancement.
B. Evidence Code Section 352.2
Defendant contends Evidence Code section 352.2 applies retroactively
and requires the matter to be remanded for a hearing to consider the
admissibility of rap lyrics that were admitted at trial. We conclude the
statute does not apply retroactively to this case, and that even if it did,
defendant fails to show he was prejudiced by any assumed error.
1. Additional Background Facts
During the police investigation, officers searched defendant’s bedroom
in his aunt’s San Leandro residence and found, in addition to the box of
Remington cartridges, a notebook with rap music lyrics written by defendant.
At trial, defendant requested an Evidence Code section 402 hearing to
challenge the prosecution’s gang expert, San Francisco Police Officer Damon
17
Jackson. The court permitted Officer Jackson to testify as an expert on gang
activity in the Fillmore/Western Addition area of San Francisco. Officer
Jackson testified as to his familiarity with the “Eddy Rock” and “800 Block”
gangs. He noted the lyrics found in defendant’s bedroom referred to
defendant’s street and stage name, “Ron Ruge,” and his affiliation with the
800 Block gang. Jackson also noted the lyrics described defendant as a “big
powerful animal[],” a “ ‘predator,’ ” and a “ ‘beast’ ” who used a Glock pistol.
Jackson testified that “to some extent the rap music that we retrieved and
we’ve listened to regarding Western Addition gangs is art,” but that “a lot of
what they talk about is true.” In Jackson’s view, “celebrating murders is not
artistic” and “is meant to enrage” rival gang members and associates.
Jackson opined that the specific references to real locations, people, and
events in defendant’s lyrics were “outside of the art or expression part of the
song.”
Defendant denied he was a member of the 800 Block gang and testified
that Officer Jackson misinterpreted the rap lyrics he had written. Defendant
explained that when he talked about murder or violence in his music, he was
not doing so because he had committed these acts, but because rapping
allowed him to “be whatever you want to be.” According to defendant, his
lyrics came from a variety of sources, including motion pictures and “things I
hear on the streets,” and gangster rap “is just artistic expression” and a way
of “paint[ing] pictures with words” with the ultimate goal of making money.
2. Retroactivity
Effective January 1, 2023, Assembly Bill No. 2799 (2021-2022 Reg.
Sess.) added Evidence Code section 352.2 to California law. (Stats. 2022,
ch. 973, § 2.) The Legislature’s intent was to “provide a framework by which
courts can ensure that the use of an accused person’s creative expression will
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not be used to introduce stereotypes or activate bias against the defendant,
nor as character or propensity evidence; and to recognize that the use of rap
lyrics and other creative expression as circumstantial evidence of motive or
intent is not a sufficient justification to overcome substantial evidence that
the introduction of rap lyrics creates a substantial risk of unfair prejudice.”
(Stats. 2022, ch. 972, § 1, subd. (b).)
The statute provides that “[i]n 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 Section 352, shall consider, in addition to the
factors listed in Section 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 Section 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).)6
6 Evidence Code section 352.2 also requires the trial court to consider, if
proffered and relevant, credible testimony that provides social or cultural
context on the creative expression evidence; experimental or social science
research on the potential for racial bias through the admission of creative
expression evidence; and any evidence to rebut such research or testimony.
(Evid. Code, § 352.2, subd. (b).) Admissibility of creative expression evidence
must be heard in limine and determined by the court outside the presence of
the jury pursuant to Evidence Code section 402, and the court must state its
ruling and reasons on the record. (Id., subd. (d).)
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The appellate courts of this state are split as to whether Evidence Code
section 352.2 applies retroactively to nonfinal cases on appeal. (Compare
People v. Venable (2023) 88 Cal.App.5th 445, review granted May 17, 2023,
S279081 (Venable) [Evid. Code, § 352.2 has ameliorative effect and thus
applies retroactively to nonfinal cases] with People v. Ramos (2023) 90
Cal.App.5th 578, 592–596, review granted July 12, 2023, S280073 (Ramos)
[Evid. Code, § 352.2 is not retroactive]; People v. Slaton (2023) 95 Cal.App.5th
363, 372–376, review granted November 15, 2023, S282047 (Slaton) [same].)
We agree with Ramos and Slaton and adopt their reasoning and
conclusions. The general rule is that in the absence of indications of contrary
legislative intent, it will be presumed that a statute is intended to operate
prospectively; but “ ‘amendatory statutes that lessen the punishment for
criminal conduct are ordinarily intended to apply retroactively.’ ” (Ramos,
supra, 90 Cal.App.5th at p. 593, citing In re Estrada (1965) 63 Cal.2d 740,
744–745 (Estrada).) In disagreeing with Venable’s conclusion that Evidence
Code section 352.2 should apply retroactively as an ameliorative enactment
within the meaning of Estrada, Ramos reasoned that, although the statute
“may, in many instances, end up being beneficial to a criminal defendant in
that it may result in the exclusion of evidence favorable to the People, it is
not a statute that creates the possibility of lesser punishment or any other
type of more lenient treatment. It is also not a statute that reduces criminal
liability, such as by altering the substantive requirements for a conviction or
expanding a defense.” (Ramos, supra, 90 Cal.App.5th at pp. 595–596 (italics
omitted).)
Slaton similarly concluded that Evidence Code section 352.2 is not
retroactive because it does not “alter the punishment or other consequences
for an offense,” “reduce the possible punishment for an offense,” or “change
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the substantive offense or penalty enhancement for any crime.” (Slaton,
supra, 95 Cal.App.5th at pp. 372–373.) In the words of the Slaton court, the
statute “is instead a new evidentiary rule intended to prevent trial courts
from admitting a person’s creative expression without first properly
evaluating the negative consequences of doing so. And it is a neutral rule at
that, limiting a defendant’s ability to present a person’s creative expression
just as much as the prosecution’s ability to present this type of evidence. To
be sure, we expect the statute will tend to affect the prosecution’s ability to
present evidence more than a defendant’s ability. And in some cases, no
doubt, defendants will benefit from having adverse evidence excluded under
section 352.2. But in other cases, the prosecution will instead be the
beneficiary, as could be true, for instance, if a defendant attempted to falsely
accuse another of a crime based on that person’s poetry, rap lyrics, or other
creative expression. Neutral evidentiary rules of this sort do not warrant
Estrada treatment.” (Slaton, at p. 373.)
We agree with Ramos and Slaton and conclude Evidence Code section
352.2 is not an ameliorative change to the criminal law entitled to retroactive
application under the Estrada rule.
3. Harmless Error
Even assuming for the sake of argument that Evidence Code section
352.2 applies retroactively to this case, and that the trial court’s admission of
the rap lyrics violated the statute,7 we conclude defendant has not sufficiently
established prejudice.
7 The People maintain there is a strong likelihood the rap lyrics would
have been admissible under Evidence Code section 352.2 due to their
similarities to the facts of this case—e.g., references to defendant’s street
name and the 800 Block gang, defendant’s use of a Glock pistol, and the use
of phrases like “ ‘man down’ ” and “ ‘Murder.’ ” Defendant argues a remand is
21
Because the routine application of the California Evidence Code does
not implicate a criminal defendant’s constitutional rights, we apply the state
harmless error standard under People v. Watson (1956) 46 Cal.2d 818, asking
whether it is reasonably probable that defendant would have obtained a more
favorable result had the error not occurred. (People v. Jones (2013) 57
Cal.4th 899, 957.)
We do not find it reasonably probable that defendant would have
obtained a more favorable result absent the rap lyric evidence. That the
jurors acquitted defendant of the gang participation count and found the
gang allegation on the murder count not true tends to dispel the inference
that the jurors gave serious consideration to the lyrics’ mention of murder,
defendant’s affiliation with the 800 Block gang, and his use of a Glock pistol.
Moreover, the record shows that defendant’s guilt on the murder count
was sufficiently established by evidence unrelated to the rap lyrics. The
bullets found at the crime scene were fired from the Glock pistol found in
defendant’s Camaro (the same type of car a witness saw at the scene), and
matched the bullets found in the box of ammunition seized from defendant’s
bedroom. Defendant had traces of gunshot residue on both hands and was a
major contributor to the DNA on the gun (which he claimed to have never
touched) and the Camaro’s steering wheel and interior. Moreover, Heard was
excluded as a suspect, as his DNA was not found on the gun or in the
Camaro. On this record, which included abundant forensic evidence tying
defendant to the murder weapon and vehicle used in Washington’s murder,
necessary for the trial court to conduct a hearing on these matters in the first
instance. We need not resolve this dispute in light of our conclusion that
defendant has not established prejudice.
22
we see no reasonable probability that defendant would have obtained a more
favorable result had evidence of the rap lyrics been excluded.
DISPOSITION
The judgment is affirmed.
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Petrou, J.
People v. Louvier (A166512)
23