By Raymond Hill
Professor Emeritus, Santa Rosa Junior College
A new ruling about potential racial stereotyping in using products of “creative expression” in prosecution makes it now three district court rulings related to the 2023 law and its potential retroactivity to ongoing cases. It looks like the state Supreme Court will decide this issue.
LEGALUPDATES.COM previously published two cases that ruled on the retroactivity of 351.2 E.C. Enacted on Jan. 1, 2023, this statute requires a judge to balance the probative value (proof) against the prejudicial or inflammatory impact of “creative expression” before admitting it as evidence at trial.
“Creative expression” is defined as imagery such as forms, sounds, words, movements, or symbols including, music, dance, performing arts, poetry, literature, film, or other such objects or media (352.2 (c) E.C.).
The legislative intent behind this statute was to eliminate racial stereotyping and bias in the improper consideration of propensity evidence implying guilt (1101 E.C.).
3/25/23 – LU Ref. #CAB00202 – The 2DCA ruled the statute was retroactive to cases still pending trial or on appeal. Peo. v. Venable was granted review by the California Supreme Court on 5/17/23.
4/28/23 – LU Ref. #CAB00209 – The 4DCA ruled the statute was only prospective and not retroactive. The Ramos decision was granted review by the California Supreme Court on 7/12/23.
In a new decision, Peo. v. Slaton (9/11/23) 2023 WL 5842221 2023 Cal. App. Lexis 696 #C096437, the 3DCA ruled in a Sacramento murder case that the statute was not retroactive.
The defendant had appealed the introduction of 13 screen shots from his rap music video because this evidence had not been given prior judicial review per 352.2 E.C. The prosecution had introduced the screen shots to prove motive, intent and connection with the defendant’s Crips gang activity. The court ruled there was no indication by the legislature on the topic of retroactivity and upheld the defendant’s conviction.
So, everything is in the hands of the California Supreme Court, and we will report the results when a decision is made.