Filed 11/6/19
                      CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION FIVE


THE PEOPLE,
         Plaintiff and Respondent,
                                                   A152529
v.
JERRY CONEAL,                                      (San Mateo County
                                                   Super. Ct. No. SC080432A)
         Defendant and Appellant.


         Jerry Coneal appeals following his conviction for first degree murder (Pen. Code,
§ 187, subd. (a)).1 In the published portion of the opinion, we consider his challenge to
the admission of five rap videos featuring appellant and/or members of appellant’s gang.
As we explain, the rap videos had minimal probative value, either because they were
cumulative of other, less prejudicial evidence, or because their probative value depended
on construing the lyrics as literal statements of fact or intent without a persuasive basis to
do so. This minimal probative value was substantially outweighed by the highly
prejudicial nature of the violent, inflammatory lyrics, and the admission of these videos
was therefore an abuse of discretion under Evidence Code section 352. In light of the
substantial other evidence of appellant’s guilt, however, we find the error harmless. In
the unpublished portion of the opinion, we reject appellant’s remaining contentions.



*
 Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II–V.
1
    All undesignated section references are to the Penal Code.



                                              1
                                       BACKGROUND
The Shooting
         At approximately 8:21 p.m. on October 5, 2012, police responded to reports of
gunfire on a residential street in East Palo Alto. Police found Christopher Baker at the
top of a driveway, breathing but unresponsive, with apparent gunshot wounds. A bicycle
lying in the middle of the street was later identified as belonging to Baker. Baker died at
the scene from multiple gunshot wounds.
         On the other side of the street, a running but unoccupied silver Ford Escort was on
the sidewalk, apparently stuck on a fence. The driver’s door was open, the front
passenger seat was steeply reclined, and the headlights were off. Appellant’s blood was
found in the Ford Escort and on the outside of a nearby parked car.
         The Ford Escort was registered to Lakeisha Campbell. Campbell testified that she
loaned the car to Miguel Rivera, her then-boyfriend and a friend of appellant’s, at around
7 p.m. on October 5, 2012. A couple of hours later, Rivera called Campbell, told her the
car had been stolen, and directed her to report the theft to the police. About 30 minutes
later, Rivera arrived at their home, with blood on his stomach but no apparent injuries.
Gang Evidence2
         Appellant and Rivera were members of the “Taliban” gang, whose territory
extended through parts of East Menlo Park and East Palo Alto. The Taliban had a
longstanding and violent rivalry with another East Palo Alto gang, “Da Vill.” The People
played rap videos made before the shooting depicting Taliban and Da Vill members
taunting rivals and bragging about violence they had committed or intended to commit.
         On September 30, 2012—less than a week before Baker was killed—two Taliban
members were shot by a Da Vill member and a member of a gang allied with Da Vill.
On October 5, a memorial for a murdered Da Vill member called “Box” was held around
the corner from where Baker’s body was found. Baker, a Da Vill member, attended the


2
    The gang evidence presented at trial is discussed in more detail post, part I.A.



                                                2
memorial and was wearing a shirt memorializing Box when he was killed. On October
7—shortly after Baker was killed—a Da Vill member shot two Taliban members, one
fatally.
Appellant’s Actions the Day of the Shooting
         On October 5, 2012, around 11 a.m., appellant “liked” a Facebook post expressing
birthday wishes to Box, the deceased Da Vill gang member whose memorial would be
held later that day.
         Around noon, appellant sent a message on Facebook to a member of a gang allied
with Da Vill, trying to identify a person who had been looking for appellant. The other
gang member wrote, “Damn. Shit real serious?” Appellant replied, “Yup. It’s gone get
real too.” The People’s gang expert testified this indicated there would be a retaliation
for what was perceived to be disrespectful conduct.
         In the early afternoon, appellant sent messages on social media indicating that he
was trying to buy firearms.
Neighborhood Testimony and Crime Scene Evidence
         On the evening of the shooting, a resident of the block on which Baker was killed
saw a car with two occupants pass in front of his house three times in less than ten
minutes. The resident heard gunfire 10 to 15 minutes later and, when he went outside,
saw what he thought was the same car crashed against a fence.
         Other residents testified they heard gunshots that evening: most heard an initial
grouping of shots, a pause, and then a second grouping. “ShotSpotter”—an acoustic
gunfire detection and location system—recorded 15 shots at 8:20 p.m. around the
location Baker was killed and then, after a break of about eight seconds, 19 additional
shots a half-block away, near the location of Box’s memorial.3 Two residents, after
hearing the shots, saw two people running away.




3
    ShotSpotter has a 25-meter margin of error.



                                               3
       Five cartridge casings were recovered from the street near the bicycle, and four
more cartridge casings were found in the driveway where Baker lay. These cartridges
were all fired from the same Glock semiautomatic firearm. In addition, two bullet
fragments were removed from Baker’s body and a third was removed from the garage
door in the driveway where Baker died. These three bullet fragments—which came from
three separate bullets—were fired from a second gun, a revolver. Based on this evidence,
a firearms and ballistics expert opined there were at least two guns involved in the
shooting resulting in Baker’s death.
       Sixteen additional casings were found at the corner of the block, near the location
of Box’s memorial, all of which came from the same Glock firearm. This firearm (not
the same Glock that fired casings found near the bicycle and Baker’s body) was used two
days later when a Da Vill member shot two Taliban members. Multiple bullet fragments
recovered from the Ford Escort exhibited characteristics typical of bullets fired from
Glock firearms. The People’s theory was these casings were from the second round of
shots and were fired by Da Vill members attending Box’s memorial who had heard the
first round of shots.
       A handgun was found under Baker’s body. Although the gun was one bullet shy
of being fully loaded, loading the last bullet into the gun was a cumbersome process that
the prosecution argued Baker did not likely undertake. The gun was also corroded,
making it difficult to operate. Baker had particles consistent with gunshot residue on his
hands, which could have resulted from firing a gun, being in the vicinity of a gun when it
was fired, or touching a surface with gunshot residue on it.
       There was evidence that the crime scene could have been contaminated: the
original crime scene tape did not cover the entire crime scene; the responding officer had
run to the driveway where Baker lay, possibly disturbing casings or fragments; and the
morning after the shooting, officers found the crime scene tape was down, allowing
people to move through the crime scene.
Appellant’s Actions After the Shooting



                                             4
         Warner Travis, a friend of appellant’s and fellow Taliban member, testified
pursuant to a plea agreement in a separate murder case that guaranteed him a sentence of
25 years to life in exchange for his truthful testimony. Appellant told Travis that he and
Rivera went to the neighborhood where the crime took place during a gathering for Box,
intending to “shoot somebody.” While there, appellant shot the victim “off his bike” and
in the face,4 Rivera also fired shots, and then they tried to drive off but crashed.
Appellant told Travis he was worried because he had been injured and might have left
blood in the car. Travis thought Anthony Fuller was probably there when appellant said
he shot Baker, but Fuller testified that he never heard any such statements.
         Appellant appeared in a rap video titled “On Da Boulevard,” in which he rapped,
“I don’t know who baked the last cake,/All I know was the place got yellow taped.”
Although the video was first posted to YouTube a few weeks after Baker’s death and the
prosecutor argued the quoted lyrics referred to his killing, it was unclear whether
appellant’s lyrics were recorded before Baker was shot (see further discussion post, part
II).
         In November 2012, appellant, while in jail, was recorded on a phone call reciting
lyrics from a new rap song he had written called “Jailhouse Gas.”5 The lyrics referred to
catching someone “slippin for the mob[6] he got sprayed up. . ./And I got so close in, like
I was going for a lay up”; “Two shooters on one hit that’s how I like to move”; “nine tore
his chest out . . . had that boy stretched out. Got his partners mad and left his fams
stressed out”; “Caught him in the driveway, and chased him up to the porch.”




4
    Autopsy photographs show that Baker was not shot in the face.
5
    An audio recording of the call was played for the jury and a transcript was provided.
6
    “Village Mob” is another name for the Da Vill gang.



                                               5
       Appellant was interviewed by police in July 2013 and again in November.7
Appellant denied knowing anything about a Ford Escort with his blood in it or hanging
out with Rivera.
Appellant’s Testimony
       Appellant testified in his own defense at trial. He was a member of the Taliban.
On October 5, 2012, Rivera, a fellow Taliban member, drove with appellant to the street
where Baker was killed because Rivera “wanted to go drop or get some money from his
girlfriend’s little sister.” Appellant did not know they would be near a memorial
gathering for Box, who had been friends with appellant and was not in Da Vill.
Appellant also did not initially know that Rivera had a gun.
       They did not circle the block. Instead, Rivera said something about not
remembering the house and got out of the car. Appellant, who had been smoking
marijuana all day, remained in the car, leaning back in his seat. Appellant saw a guy ride
by on a bicycle and then heard shots. Appellant ducked as the shooting continued and,
when it stopped, he looked back and saw Rivera running to the car with a gun in his
hands. As soon as Rivera got in the car, more shots were fired, hitting the car.
Appellant’s thumb was injured either from a bullet or broken glass. Rivera tried to drive
but backed the car into a fence and got stuck, so they got out of the car and ran.
       Although Taliban and Da Vill were rival gangs, being a Taliban member did not
mean that appellant wanted to kill Da Vill members. Appellant tried to buy a gun on the
day Baker was killed because he thinks guns are cool, but he was not able to buy a gun
that day. Appellant told Travis that he was there when Baker was killed, but he did not
tell Travis he had shot Baker. Appellant lied to police in the interviews because he
“didn’t want to get [Rivera] in trouble” and did not want to inadvertently cast suspicion
on himself.


7
 Video recordings of the interviews were played for the jury and transcripts were
provided.



                                             6
       Appellant had been rapping since he was around 11 years old. He rapped about
violence and the gang lifestyle to make himself “look like a gangster” so he could get
“ladies” and hopefully become a famous rapper. Only some of the things he rapped
about related to reality. He writes “about stuff I don’t do all the time.” For example,
although he admitted the lyrics to Jailhouse Gas were about Baker’s murder, he “just took
what somebody told me and put it in my rap.” Rapping about killing Baker was different
than being “out on the streets claiming I did that.” He wrote the lyrics in On Da
Boulevard before Baker was killed.
Verdict and Sentence
       The jury convicted appellant of first-degree murder (§ 187, subd. (a)) and found
true allegations that appellant committed the crime by means of lying in wait and to
further the activities of his criminal street gang (§ 190.2, subd. (a)(15) & (22));
committed the crime for the benefit of a criminal street gang (§ 186.22, subd. (b)(5));
personally discharged a firearm causing death (§ 12022.53, subd. (d)); and committed the
crime for the benefit of a criminal street gang and a principal in the crime personally
discharged a firearm causing death (§ 12022.53, subd. (e)). The trial court sentenced
appellant to life in prison without the possibility of parole, with a consecutive term of 25
years to life and a second consecutive term of 25 years to life stayed pursuant to section
654.
                                       DISCUSSION
I. Gang Evidence
       Appellant argues the trial court’s admission of gang evidence was an abuse of
discretion under Evidence Code section 352. He argues that the “sheer volume” of the
gang evidence was excessive and, in particular, he targets the admission of several rap
videos published before the shooting that feature appellant and/or other Taliban members.
       A. Additional Background
              1. Detective Soares




                                              7
       Menlo Park Police Detective Ed Soares testified as an expert on criminal street
gangs in East Palo Alto and Menlo Park.8 Soares identified Taliban clothing, hand signs,
and sayings; for example, the expression “ ‘anybody can get it,’ ” which was used by the
Taliban to “instill[] a fear that anybody within the community, even their own gang
members, can get assaulted, killed.” Soares identified more than a dozen individuals as
Taliban members, based on his personal observations of them associating with known
Taliban members, displaying Taliban hand signs, wearing Taliban colors, and/or having
Taliban tattoos.
       Soares had investigated Taliban members for crimes including armed robbery,
assault with a deadly weapon, attempted murder, murder, and narcotics sales. In 2008,
Soares personally witnessed a Taliban member shooting at a car associated with the Da
Vill gang. Soares testified that in the East Palo Alto gang subculture, “if you have a gang
and one of your members gets killed and it’s by another gang . . . , you are expected to
retaliate.”
       In November 2012, Soares contacted appellant at a Taliban hangout. Appellant
had “Stone” tattooed on one forearm and “Nation” tattooed on the other, a reference to
Stoney Gipson, an older and respected Taliban member who had been killed. Soares also
testified about a photograph he found in March 2013 on a Taliban member’s phone
depicting appellant flashing a Taliban hand sign and associating with two Taliban
members.
              2. Inspector Draper

8
  Before Soares testified, and again before deliberations, the jury was instructed that it
could consider “evidence of gang activity” only in determining (1) appellant’s intent,
purpose, and knowledge as required for the gang-related crime, enhancements, special
circumstances allegations, (2) appellant’s motive, (3) whether the Taliban is a criminal
street gang, (4) to evaluate the credibility or believability of a witness, and (5) in
considering the facts and information relied upon by an expert witness in reaching his or
her opinion. Although the People’s brief on appeal argues gang evidence was also
admissible to prove identity and modus operandi, the evidence was not admitted for these
purposes below.



                                             8
       San Mateo County District Attorney’s Office Inspector Jamie Draper also testified
as an expert on criminal street gangs, specifically the Taliban and Da Vill gangs.
       In 2012, there were approximately 20 active Taliban members. Draper opined that
numerous individuals, including appellant, were members of the Taliban, based on tattoos
he observed in person or in certified copies of booking photographs; prior criminal
convictions; photographs found on social media records showing the individual
displaying Taliban hand signs, Taliban symbols, references to incarcerated or killed
Taliban members, and/or associating with known Taliban members; and/or the
individual’s rap lyrics and appearance in rap videos. Draper testified that Gipson was “a
very, very respected member of the [Taliban] gang” who was “looked at as essentially a
leader.”
       Draper testified about predicate crimes committed by various gang members,
including assault with a firearm, grand theft from a person, possession of a firearm by a
gang member, possession of a firearm by a felon, felony possession of marijuana for sale,
carrying a concealed firearm, and felony possession of methamphetamine for sale.9
Taliban members often make or display references to members who are in custody,
giving other members knowledge of the crimes committed by the gang.
       Draper testified that the rivalry between Taliban and Da Vill was a violent one. In
this rivalry, and in gang culture generally, “if one of your members is killed by a rival
gang, retaliation is expected.” Draper testified about the respective territories claimed by
the Taliban and Da Vill gangs. A gang member entering a rival gang’s territory could be
shot and/or killed. There was evidence that the neighborhood where Baker was killed,
called “the Gardens” or “the G,” was Da Vill territory, but also evidence that the area was
neutral in the Taliban/Da Vill rivalry.



9
  The alleged gang enhancement required proof of “ ‘gang members’ individual or
collective “commission . . . of two or more” enumerated “predicate offenses” during a
statutorily defined time period.’ ” (People v. Ochoa (2017) 7 Cal.App.5th 575, 581.)



                                              9
       Gang members used social media to stake out their gang’s claim to territory. For
example, a photograph posted on Rivera’s social media account depicted a large group of
people standing in front of a street sign in Taliban territory. Appellant was in this
photograph, making a hand gesture mimicking holding a firearm.
              3. Rap Videos10
       Draper testified that rap music was used by Taliban and Da Vill members as “a
back-and-forth bragging . . . between the gangs, insulting the rival gangs, bragging about
the crimes that they have done . . . .” Gang members rap about “real-life events,”
including “real-life individuals who have been murdered.” On cross-examination, Draper
testified that rap lyrics can also describe made up or inflated events and that appellant,
like some other rappers, was motivated by a desire to make money from rap music.
Warner Travis, the Taliban member, testified that his lyrics in one of the rap videos
played for the jury—such as, “I’m aiming [a gun] at your head”—described acts he had
not actually done.
       Draper testified at length about each of the videos, interpreting the lyrics and
testifying about numerous exhibits that were screenshots of the videos.11 “The Hoodstarz
& YF - Definition Music Video” was uploaded to YouTube in August 2011. Appellant
does not appear or sing in the video, which instead features other Taliban members.
Several screenshots from the video showed various Taliban members displaying Taliban
symbols, a firearm, and/or hand gestures mimicking the holding of a firearm.
       Draper interpreted several of the song’s lyrics. The first verse was rapped by
Gipson. “You don’t know the drama I seen, your block rowdy but you don’t want the

10
  During in limine motions, appellant sought to exclude or limit as unduly prejudicial the
presentation of rap videos featuring appellant and/or other Taliban members. The trial
court excluded two videos; the People withdrew their request to play two additional
videos; and the trial court denied the motion as to the remaining videos. Appellant
renewed his objection each time a Taliban rap video was played for the jury.
11
  All of the videos were played for the jury and a transcript was provided. We quote the
lyrics as represented in the transcripts.



                                             10
drama I bring. I bring beef to the Whitehouse death to your front door” was about
boasting, “calling out” rivals, and threatening violent repercussions. “[M]urder scenes
shit you only seen in the movies” was about promoting violence. A line about youths
“lurkin looking for a new stripe” referred to the expectation that younger gang members
commit crimes for the gang to earn respect. The next line—“Showed em how to move
mean, took em on a few hikes”—referred to showing younger gang members how to
commit violence. A line about “rid[ing]” with others who have “a few strikes and a few
lifes under their belt” was bragging about hanging out with people who commit violent
crimes.
       The chorus includes the line, “[I]f it’s a beef he aint worried, slide back and bang
em with the thirty.” Draper testified this line referred to not being worried about
rivalries, going to back to their gang’s territory, and shooting with “a 30-round magazine
and extended clip for a firearm.” The next verse, performed by another Taliban member,
refers to “[s]lap[ping]” someone “with a thirty dick,” which means shooting them with an
extended magazine. “For Jeez I’m a drop shells” refers to committing a retaliatory
shooting for a deceased Taliban member known as “Jeez.” Gipson raps the last verse,
which includes the line, “you can get it in the face, you can get it in broad day, night or
the morning. It’s on sight when I see e’m,” referring to shooting a rival in the face
anytime they are seen. “This is my only warnin, when bullets start stormin and bodies all
laid out” is bragging about the Taliban’s violence and warning rivals. “Cemetery under
my belt no cases” refers to committing murders and not getting caught.
       “Wayne - Really in Da Hood” was uploaded to YouTube in May 2012. Appellant
does not rap in this video, which was shot in Da Vill territory with the participants
flashing Taliban hand signs to show disrespect for Da Vill. Draper testified that the line,
“Caught his ass slippin left him stankin at a street light” referred to catching a rival who
had let his guard down. The rap also referred to appellant by his nickname, saying “Boo
Banga” will “handle that,” while the rapper made a firearm motion. The People again
showed several screenshots from the video showing Taliban members flashing Taliban
hand signs and displaying memorials to killed Taliban members.


                                             11
        “Boo Banga FT [featuring] Wayne Choosin-Clappin” was uploaded to YouTube
in November 2011. Appellant rapped in this video with Taliban member Dwayne Henry.
“Clappin” means shooting a gun. Draper testified that, in a line rapped by appellant,
“Always been a shooter/Better yet damn clapper/I’m a beast when I creep/But . . . keep
that heat,” “clapper” means shooter and “heat” refers to firearms. When appellant raps,
“Thang on my hip,” “thang” means firearm. Appellant’s next line, “Slide down your
block with broom/Back and forth tryin to sweep” refers to moving a semiautomatic rifle
back and forth while firing rounds. When Henry raps, “Now Boo’s on the block/Creepin
with a chop,” “chop” is slang for an assault rifle. Henry raps, “So I stay with a torch” and
“I’m ridin with a hammer”; both “torch” and “hammer” are slang for firearm. When
Henry raps, “You ain’t good in the hood/. . . I’ll Taliban ya,” he means “if you are not
supposed to be in our hood, . . . [w]e’ll get you, basically.” The People showed several
screenshots from the video depicting appellant making Taliban hand signs and mimicking
holding a firearm, other Taliban members making Taliban hand signs, and images of
guns.
        “Felonies” was uploaded to YouTube in July 2012.12 In the video, appellant raps
the following chorus multiple times: “Assault with a Deadly Weapon, Strong arm
robbery, Possession and Sales, Grand Theft, and Stolen Property, Arson, Ammunition,
Home Invasion and Burglary, Firearms, Manslaughter, Murder, all First Degree.” Draper
opined that the chorus is an expression of the Taliban’s primary activities and puts
Taliban members on notice as to the gang’s primary activities. Appellant raps, “Slide
through the back,” referring to stealthily entering a rival gang’s territory. The People
presented several screenshots showing appellant making Taliban hand signs and
associating with other Taliban members.



12
  The video was played during Warner Travis’s testimony and the trial court sustained
appellant’s objection to playing it again during Inspector Draper’s testimony; however,
Draper testified about the lyrics and several screenshots from the video.



                                             12
       “Free Wayne Choosin, Yellow Tape Gang, RIP Man-Man” was uploaded to
YouTube in April 2012. The People showed several screenshots from the video
depicting appellant making Taliban hand signs or mimicking holding a firearm, and other
Taliban members doing the same. Draper testified that in appellant’s rap, “The .357 send
you to Heaven for God sakes./Last man slid through put him on a shirt./Caught him
slippin trying to lurk messed around and got merked./Leave a whole family six feet in the
dirt,” “.357” refers to a type of firearm, “put him on a shirt” refers to the gang practice of
wearing shirts honoring killed members, and “merked” means murdered.
       The final rap video played by the People, “On Da Boulevard - Boo Banga,” and
the audio recording of appellant’s “Jailhouse Gas” rap are not challenged by appellant on
appeal. The People also showed two rap videos by Da Vill members; appellant did not
object to their admission below or on appeal.
       B. “Sheer Volume”
       Appellant concedes that “some” gang evidence was admissible. He could hardly
argue otherwise. The People’s theory was that appellant was a gang member who killed
the victim because he was a rival gang member; the People also alleged a gang
enhancement and a gang special circumstance. Thus, even the bare minimum of gang
evidence necessary for the People’s case would likely be substantial.
       Nonetheless, appellant asserts that “[m]uch” of the challenged gang evidence was
cumulative and had an “overwhelmingly” prejudicial effect. With the exception of five
of the rap videos (discussed separately below), appellant does not identify any specific
evidence as either cumulative or excessively prejudicial. Instead, appellant points to the
“sheer volume” of the gang evidence: almost 400 pages of testimony by the two gang
experts, 140 photographs of gang members, and multiple gangster rap videos.
       Absent an analysis of specific evidence, reference to volume alone is meaningless.
For example, while appellant emphasizes the length of the gang expert testimony, nearly
half of this testimony—around 170 pages out of 400—was elicited on cross-examination.
As for the 140 photographs of gang members identified by appellant, about a dozen
depicted Da Vill or other non-Taliban gang members.


                                              13
       To be sure, some of the more than 200 pages of expert testimony elicited by the
prosecution and more than 100 photographs of Taliban members were cumulative. For
example, both gang experts testified about the gang membership of several of the same
individuals. And more than 30 photos were screen shots from the Taliban rap videos
played for the jury. But appellant fails to explain how he was prejudiced by this
cumulative evidence. Nor has he shown he preserved objections to all of the evidence
challenged in this sweeping argument.
       Appellant’s reliance on People v. Albarran (2007) 149 Cal.App.4th 214, in which
the Court of Appeal found the admission of certain gang evidence unduly prejudicial, is
unavailing. Although the court noted that the gang expert’s testimony “consumed the
better part of an entire trial day (in a six day trial) and spans 70 pages of the reporters’
transcript” (id. at p. 228, fn. 10), its analysis did not rest on the length of the gang
expert’s testimony alone. Instead, the court discussed specific evidence—the
identification of the defendant’s fellow gang members, evidence of “the wide variety of
crimes they had committed,” “a specific threat [the defendant’s gang] had made in their
graffiti to kill police officers,” and “references to the Mexican Mafia”—which was all
“irrelevant to the underlying charges and obviously prejudicial.” (Id. at pp. 227–228.)
Appellant has provided no such analysis here (other than as to the rap videos, discussed
below), and Albarran provides no authority that the quantity of evidence alone renders its
admission error. Accordingly, appellant’s claim that the sheer volume of gang evidence
was unduly prejudicial fails.
       C. Rap Videos
              1. Legal Background
       “Gang evidence is admissible if it is logically relevant to some material issue in
the case other than character evidence, is not more prejudicial than probative, and is not
cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced
only to ‘show a defendant’s criminal disposition or bad character as a means of creating
an inference the defendant committed the charged offense. [Citations.]’ [Citations.]
. . . Even if gang evidence is relevant, it may have a highly inflammatory impact on the


                                               14
jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting it.’ ”
(People v. Avitia (2005) 127 Cal.App.4th 185, 192.) “A trial court’s admission of
evidence, including gang testimony, is reviewed for abuse of discretion.” (Id. at p. 193.)
       Two published California cases have considered the admissibility of rap lyrics. In
People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin), gang graffiti written by one of
the defendants was crossed out and replaced with another gang’s logo. (Id. at p. 1366.)
When the two defendants went looking for the culprit, the victim yelled out the name of
the other gang; one of the defendants punched him and the other shot him. (Id. at
pp. 1366–1367.) On appeal, the defendants challenged the admission of written rap lyrics
found in a search of one of their homes. (Id. at p. 1372.) After concluding the lyrics
were “adequately authenticated as the work of” this defendant, the Court of Appeal found
the admission proper: “they demonstrated his membership in [his gang], his loyalty to it,
his familiarity with gang culture, and, inferentially, his motive and intent on the day of
the killing.” (Id. at p. 1373.) Because the “crime [was] alleged to be gang related[,]
[g]ang membership was obviously important, and evidence tending to show it was highly
relevant.” (Ibid.) Although the lyrics contained “general threats of violence,” “[t]he
mere fact the lyrics might be interpreted as reflective of a generally violent attitude could
not be said ‘substantially’ to outweigh their considerable probative value.” (Ibid.)
       In People v. Zepeda (2008) 167 Cal.App.4th 25 (Zepeda), the defendant shot a
rival gang member and his son. (Id. at p. 28.) At trial, the jury heard two tracks from a
gangster rap CD that the defendant had written. (Id. at p. 32.) The Court of Appeal
found no abuse of discretion: “The evidence was probative of defendant’s state of mind
and criminal intent, as well as his membership in a criminal gang and his loyalty to it.
The songs showed that defendant’s gang had the motive and intent to kill [members of
the rival gang]. . . . [¶] While lyrics and poems do not often establish their author’s true
state of mind [citation], the gang expert here testified that gangs communicate through
music. Defendant’s communications here were not ambiguous or equivocal. These
lyrics, coupled with the other evidence of defendant’s gang membership and his
animosity towards [members of the rival gang], go beyond mere fiction to disclosing


                                              15
defendant’s state of mind, his motives and intentions, and his fealty to furthering his
criminal gang’s activities,” and “provided noncumulative evidence of defendant’s state of
mind and his gang association, differing in context from his tattoos, drawings, notebooks,
and pictures of himself flashing gang signs.” (Id. at p. 35.) The court further found the
tracks were not “unduly prejudicial. . . . The language and substance of the lyrics,
although graphic, did not rise to the level of evoking an emotional bias against the
defendant as an individual apart from what the facts proved.” (Ibid.)
              2. Analysis
       Appellant argues the admission of the five Taliban rap videos published to
YouTube before Baker’s murder was an abuse of discretion under Evidence Code section
352.13 As we explain below, we agree with this contention.14
                     a. Cumulative Evidence
       Appellant does not dispute that the rap videos were relevant. However, he argues
that the videos were cumulative to other evidence. With respect to a number of the
purposes for the rap videos advanced by the People, we agree. Significantly, as noted
above, for each of the rap videos the People also presented, as separate exhibits, multiple
screenshots capturing images from the videos.15 For many of the purposes advanced by
the People, the probative value of the videos was completely or largely captured by the
screenshots. In addition, substantial other evidence was presented in the People’s case-
in-chief.



 Although appellant’s briefs refer to six Taliban rap videos published before Baker’s
13

murder, we agree with the People that the record reveals only five such videos.
14
  Because of this conclusion, we need not decide appellant’s argument that the rap lyrics
sung by Taliban members other than appellant were inadmissible hearsay.
15
   We understand appellant’s challenge to be limited to the videos and the accompanying
transcripts, not to the separate screenshot exhibits. His argument on appeal focuses on
the prejudicial impact of the lyrics. And his in limine motion below argued the probative
value of some videos could be shown through still images.



                                             16
       For example, the People argued the rap videos were evidence of appellant’s gang
membership. The People presented more than a dozen screenshots from the videos
depicting appellant associating with other Taliban members and making Taliban hand
signs. Indeed, the People argue that the probative value of the videos on this point was
their depiction of appellant “making characteristic gang gestures and collaborating with
other Taliban members”—a depiction equally established by the screenshots. The People
presented an additional dozen or so photographs—from Taliban social media records and
a Taliban member’s phone—showing appellant associating with Taliban members,
wearing Taliban clothing, and/or displaying Taliban hand signs. Appellant has a tattoo
referring to the respected Taliban leader Stoney Gipson. Detective Soares contacted
appellant while appellant was associating with Taliban members at a known Taliban
hang-out. Warner Travis testified appellant was a Taliban member and identified him in
two photographs displaying Taliban hand signs. In light of this substantial evidence of
appellant’s gang membership, including numerous screenshots from the rap videos, the
additional probative value of the videos themselves was minimal.
       The People also argued the videos were evidence of the gang membership of
Dwayne Henry, Wilbert Ard, Vernon Durham, and Anthony Green, each of whom had
committed predicate offenses. As to each of these individuals, the People presented
multiple screenshots from the rap videos that showed them associating with other Taliban
members, flashing Taliban hand signs, wearing Taliban clothing, and/or displaying
Taliban tattoos. The People also presented multiple other photographs—found on
Taliban members’ social media accounts or in certified booking records—depicting these
individuals with Taliban tattoos, associating with Taliban members, and/or wearing
Taliban clothing. Detective Soares testified he had personally observed Henry and Ard
associating with other Taliban members, wearing Taliban colors, and/or displaying
Taliban hand signs. Henry had admitted a felony he committed was for the benefit of a
criminal street gang, and Durham had been convicted of being a gang member in
possession of a firearm. Again, in light of this other evidence, the additional probative
value of the videos themselves was minimal.


                                            17
       The People argued the “Definition” video was probative of Stoney Gipson’s status
as “the figurehead of the Taliban,” which was necessary to explain the significance of
appellant’s “Stone Nation” tattoo. The probative value of the video, as argued by the
People, is that Gipson “is one of the most prominent rappers.” We query the strength of
this probative value in light of other videos in which other Taliban members are
prominent; for example, while Gipson appears in the “Really In Da Hood” video, Henry
is the prominent rapper. In any event, there was other, substantially more probative,
evidence of Gipson’s status in the Taliban, to wit, both experts testified that Gipson was a
respected Taliban member and Draper testified he was “looked at as essentially a leader”
of the gang.
       Finally, the People argued the rap videos demonstrated the rivalry between the
Taliban and Da Vill gangs. Again, there was a substantial amount of other evidence
demonstrating this rivalry. Draper testified there was a violent rivalry between the two
gangs. Soares personally observed a Taliban member shooting at a car associated with
the Da Vill gang. Shortly before Baker’s killing, Da Vill members shot Taliban
members; the People argued Baker’s killing was in retaliation for this shooting. Shortly
after Baker’s killing, Da Vill members again shot Taliban members, this time killing one.
And the People introduced screenshots from one of the videos depicting Taliban
members making Taliban hand signs in front of a park at the heart of Da Vill territory, in
what Draper testified was an act of disrespect.
       We note that in neither Olguin or Zepeda were the raps so cumulative for the
purposes sought. Neither case involved videos, so no screenshots were used or available.
(Olguin, supra, 31 Cal.App.4th at p. 1372 [handwritten rap lyrics]; Zepeda, supra, 167
Cal.App.4th at p. 32 [rap audio CD].) In Olguin, there is no indication of substantial
other evidence of the defendant’s gang membership. (Olguin, at p. 1373.) In Zepeda,
although there was other evidence of the defendant’s gang membership, the quantity of
such other evidence—writings with gang symbols found in the defendant’s residence, one
photograph showing the defendant making a gang sign, and gang tattoos (Zepeda, at p.
32)—was not as substantial as that presented here.


                                            18
       In sum, there was a substantial amount of other probative evidence as to several
purposes for which the People introduced the rap videos. This other evidence, including
screenshots from the videos, rendered the additional probative value of the videos for
these purposes minimal. In fact, the only new “information” provided by the videos is
the lyrics, and the lyrics are the problem. As we will explain, the lyrics add no probative
value but are extremely prejudicial.
                     b. Literal Treatment of Rap Lyrics
       The People’s arguments about the probative value of the lyrics rely on construing
them literally, as statements of fact or actual intent. For example, the People argued that
appellant’s rap enumerating a list of felony crimes was evidence of “the Taliban gang’s
primary criminal activity.” The People also argued appellant’s raps about killing rival
gang members, catching his victims by surprise, and employing drive-by shootings were
evidence of appellant’s actual strategies and intent. And they relied on lyrics describing
or advocating violence as evidence that the rapper in fact committed and/or advocated
such acts.
       The People suggest that “statements framed as rap lyrics” are indistinguishable
from statements made in other contexts. Our Supreme Court has held to the contrary.
“In general, ‘[r]easonable persons understand musical lyrics and poetic conventions as
the figurative expressions which they are,’ which means they ‘are not intended to be and
should not be read literally on their face, nor judged by a standard of prose oratory.’ ” (In
re George T. (2004) 33 Cal.4th 620, 636–637.) As the Supreme Court reasoned with
respect to rap lyrics in which the author claimed to have committed a murder, “it appears
the words were merely rap lyrics. No reason appears to assume they relate actual events.
. . . [I]f, hypothetically, a piece of paper were found in Don McLean’s home containing
the handwritten words, ‘Drove my Chevy to the levee but the levee was dry,’ that would
not mean that McLean personally drove a Chevrolet to a levee and discovered it lacked
water.” (People v. Melendez (2016) 2 Cal.5th 1, 24 (italics added).)
       To be sure, Inspector Draper testified that gang members rap about “real-life
events.” But he also conceded that rap lyrics can describe made up or inflated events.


                                             19
Draper did not purport to be able to distinguish between the two, apart from obviously
fictional lyrics like Gipson’s rap that he brought “beef to the Whitehouse” and appellant’s
rap that he left “a whole family six feet in the dirt.” Absent some meaningful method to
determine which lyrics represent real versus made up events, or some persuasive basis to
construe specific lyrics literally, the probative value of lyrics as evidence of their literal
truth is minimal. (See In re George T., supra, 33 Cal.4th at pp. 636–637; People v.
Melendez, supra, 2 Cal.5th at p. 24; State v. Skinner (N.J. 2014) 95 A.3d 236, 251 [where
“there was no evidence that the crimes and bad acts about which defendant wrote in rap
form were crimes or bad acts that he in fact had committed . . . [, t]he lyrics can only be
regarded as fictional accounts”].)16
       We do not mean to suggest that lyrics are never probative of their literal truth. For
example, where lyrics are written within a reasonable period of time before or after the
charged crime and bear a sufficient level of similarity to the charged crime, their
probative value as a statement of fact is increased.17 (See Holmes v. State (Nev. 2013)


16
  We note the apparent discrepancy between the use of rap lyrics and the use of lyrics
from other musical genres. “ ‘[C]ourts do not treat lyricists of other mainstream musical
genres similarly, even those who live an outlaw lifestyle or promote an outlaw image . . .
are not presumed to be making statements about their beliefs, intent or their conduct. . . .
We discern no reason why rap music lyrics, unlike any other musical form, should be
singled out and viewed sui generis as literal statements of fact or intent.”
(Commonwealth v. Gray (Mass. 2012) 978 N.E.2d 543, 561; see also Dennis, Poetic
(In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence (2007) 31 Col. J.L. &
Arts 1, 2–3, fn. 6 [“To date, research has identified only one case involving defendant-
authored music lyrics admitted into evidence that did not appear to be rap music.”].) One
scholar has argued conventions specific to rap music render its lyrics particularly
unreliable as literal evidence, including the use of “collective experiences” such that
“[r]ap music lyrics may be based on the life of the lyricist, the lives of individuals he
knows, or the lives of individuals he has observed”; the use of “ ‘[e]xaggerated and
invented boasts of criminal acts’ ” as part of “ ‘verbal duels’ ”; and the adoption of
“mythical or real-life characters as alter egos or fictional personas.” (Dennis, at pp. 20–
23.)
17
  Because appellant does not challenge the admissibility of On Da Boulevard and
Jailhouse Gas, we need not decide whether these raps bore a sufficient level of similarity


                                               20
306 P.3d 415, 420 [admission of rap lyrics affirmed where there were “similarities
between the lyrics and the facts of the charged robbery, as established by the evidence”
and lyrics were written “after [the defendant’s] arrest” for the charged crime]; Greene v.
Com. (Ky. 2006) 197 S.W.3d 76, 86 [admission of rap video affirmed where it was “shot
days after the murder” and showed the defendant “boasting of his crime”].) It may also
be that lyrics with sufficient corroboration from other evidence will have increased
probative value. (See Zepeda, supra, 167 Cal.App.4th at p. 35 [“These lyrics, coupled
with the other evidence of defendant’s gang membership and his animosity towards
Sureños, go beyond mere fiction to disclosing defendant’s state of mind, his motives and
intentions, and his fealty to furthering his criminal gang’s activities.” (italics added)].)
However, corroborating evidence may also render the lyrics cumulative.
       We do not purport to provide an exhaustive list of factors that may increase the
probative value of lyrics as statements of literal fact or intent. It is sufficient that no such
factors were present here to increase the probative value of the rap lyrics as evidence that
the Taliban’s primary activities were the list of felonies rapped by appellant;18 that
appellant had or intended to kill rival gang members, catch victims by surprise, and
engage in drive-by shootings; or that the Taliban rappers committed or intended to
commit the various heinous crimes they rapped about.
                      c. Prejudicial Impact
       We now turn to the potential for prejudice from the rap videos. The lyrics casually
describe graphic, widespread violence. For example, appellant’s raps include: “Creep up
when you sleepin/Leave you dead in your sheet”; “A thirty on that Mac 10 and it make
you do a back flip./. . . So we left ‘em bloody like a raw steak”; “Last man slid through


to the charged crime such that the increased probative value outweighed the potential for
prejudice.
18
  We note that the predicate offenses proven by the People—assault, theft, firearms
possession offenses, and drug offenses—did not include several felonies listed in
appellant’s rap, including arson, manslaughter, and murder.



                                               21
put him on a shirt./ . . . Leave a whole family six feet in the dirt”; “I kill you and your kin
folks”; and “I got a gun named ‘Chap Stick.’/Boy she really clap shit./Slip up on that man
and left his thoughts where his lap is.” His Taliban associates similarly rap: “I’m a let
that snitch bleed from his head to his knees”; “Bullets in his head./Eyes still open but his
body is still tweakin.”; “you can get it in the face, you can get it in broad day, night or the
morning. It’s on sight when I see e’m. This is my only warnin, when bullets start
stormin and bodies all laid out. . . . Spray e’m out a hundred shots . . . Rearrange your
face, hands like a surgeon. It’s hurtin. Bury e’m closed caskets. Turn wife’s into
widows and sons to little bastards”; “I’ll leave you in the traffic/Leave you stankin in the
alley/In a dumpster where the cats is”; “Call me major pain cuz I’m a shoot until my
wrist hurt”; and “Fill em up with hollow tips.”
       The rap videos also contain misogynistic lyrics. Appellant rapped: “Bitches get
played just like the radio station./Had a bitch named (UI) real dick pleaser./Sucked me so
long until my dick had a seizure./But enough of all that cuz I aint worried about the cat./I
treat ‘em like change and just throw them on the track”, a reference to pimping out
women, according to Draper’s testimony. Other Taliban members rapped: “my bullets
bisexual/I knock a bitch down/If she get disrespectful”; “Put a couple bitches on the track
if they dumb enough”; “Never trust hoes”; and “Never love a bitch I be all in her purse.”
       Even with the testimony—from Inspector Draper, Warner Travis, and appellant
himself—that not all lyrics describe actual events, the rap videos paint a picture of
appellant and his fellow gang members as eagerly and ruthlessly seeking out and
engaging in violence, with no empathy for their victims.19 While it may be that this
picture is accurate, it poses a significant danger that the jury will use it as evidence of
appellant’s violent character and criminal propensity in violation of Evidence Code
section 1101, subdivision (a). (See People v. Carter (2003) 30 Cal.4th 1166, 1194

19
  The People argue the violence of the charged crime reduced the prejudicial impact of
the videos. While the charged crime was extremely violent, it alone does not convey the
widespread bloodthirst conveyed by the videos.



                                              22
(Carter) [“evidence of a defendant’s gang membership creates a risk the jury will
improperly infer the defendant has a criminal disposition and is therefore guilty of the
offense charged”]; U.S. v. Gamory (11th Cir. 2011) 635 F.3d 480, 493 [“[T]he substance
of the rap video was heavily prejudicial. The lyrics presented a substantial danger of
unfair prejudice because they contained violence, profanity, sex, promiscuity, and
misogyny and could reasonably be understood as promoting a violent and unlawful
lifestyle.”]; State v. Skinner, supra, 95 A.3d at p. 251 [“defendant’s graphically violent
rap lyrics could be fairly viewed as demonstrative of a propensity toward committing, or
at the very least glorifying, violence and death”].) Indeed, some of the purposes
advanced by the People—the rap videos prove appellant “embraced the gang lifestyle”
and was “a violent Taliban soldier”—skirt dangerously close to advocating the use of the
videos as evidence of appellant’s violent character. Similarly, a Taliban member’s rap to
“[c]all Boo Banga” who will “handle that,” which the People urged below and on appeal
was probative, seems to be nothing other than evidence of appellant’s character for
violence. And the misogynistic lyrics had no probative value yet were highly
inflammatory. (See Boyd v. City and County of San Francisco (9th Cir. 2009) 576 F.3d
938, 949 [“[T]he court neglected to exclude the portions of the lyrics that . . . referenced
and advocated prostitution. Failure to exclude these lyrics was error, as they had no
probative value . . . and were unfairly prejudicial in light of their offensive nature.” (fn.
omitted)].)
                      d. Conclusion
       Our Supreme Court recently reiterated its advisement that “gang-related evidence
‘creates a risk the jury will improperly infer the defendant has a criminal disposition’ and
that such evidence should therefore ‘be carefully scrutinized by trial courts.’ ” (People v.
Mendez (2019) 7 Cal.5th 680, 691.) This caution applies with particular force to rap
songs that promote and glorify violence. Trial courts should carefully consider whether
the potential for prejudice posed by these songs outweighs their probative value. In
particular, where the rap lyrics are cumulative of other evidence, like screenshots, or
where the probative value rests on construing the lyrics literally without a persuasive


                                              23
basis to do so, the probative value will often be “substantially outweighed by [the]
prejudicial effect.”20 (Carter, supra, 30 Cal.4th at p. 1194.)
       This was such a case. The probative value of the videos and lyrics was minimal in
light of the substantial amount of other evidence and the absence of a persuasive basis to
construe specific lyrics literally. Weighing this minimal probative value against the
significant prejudicial effect, we conclude the admission of the rap videos was an abuse
of discretion under Evidence Code section 352.
              3. Harmless Error
       Appellant contends the erroneous admission of the rap videos should be reviewed
for harmlessness under the federal constitutional standard. We disagree. “The admission
of evidence results in a due process violation only if it makes the trial fundamentally
unfair. [Citation.] ‘Only if there are no permissible inferences the jury may draw from
the evidence can its admission violate due process. Even then, the evidence must “be of
such quality as necessarily prevents a fair trial.” [Citation.] Only under such
circumstances can it be inferred that the jury must have used the evidence for an
improper purpose.’ ” (People v. Hunt (2011) 196 Cal.App.4th 811, 817.) There were
multiple permissible inferences to be drawn from the evidence, most obviously, that
appellant and others were Taliban members. No due process violation occurred, and we
will review the error under the state law harmlessness standard. (People v. Watson
(2008) 43 Cal.4th 652, 686 [“ ‘Absent fundamental unfairness, state law error in
admitting evidence is subject to the traditional [state law] test: The reviewing court must
ask whether it is reasonably probable the verdict would have been more favorable to the
defendant absent the error.’ ”].)
       The evidence incriminating appellant was strong. He admitted being a member of
the Taliban and the gang’s violent rivalry with Da Vill was well-established by evidence

20
   Trial courts have the discretion to exclude a rap video but permit the People to
introduce screenshots, even if the People have not separately sought to introduce the
screenshots.



                                             24
other than the erroneously-admitted rap videos. Appellant admitted trying to buy a gun
on the day of Baker’s killing. Most significantly, appellant admitted being at the scene of
the shooting but claimed only Rivera had a gun, yet the ballistics evidence showed two
guns were used against Baker. Appellant’s testimony was flatly contradicted by the
ballistics evidence and there is no evidence—in appellant’s testimony or otherwise—of a
third person who could have shot at Baker. The only other theory argued by appellant on
appeal is that the jury could have concluded he acted in imperfect self-defense or in the
heat of passion, based on evidence that Baker may have fired one shot. But appellant’s
own testimony was to the contrary, and the presence of Baker’s bike lying in the middle
of the street strongly suggests Baker was not the instigator. Accordingly, we find no
reasonable probability that, but for the erroneous admission of the five Taliban rap
videos, appellant would have received a more favorable outcome.21
II. Closing Argument
       Appellant raises two claims of prosecutorial misconduct based on comments made
in the prosecutor’s closing statements. We reject both claims.
       A. On Da Boulevard Comment
              1. Additional Background
       During the trial, Inspector Draper testified about a rap video titled “On Da
Boulevard,” published on YouTube on October 23 and November 6, 2012. In the video
played for the jury, appellant and Anthony Green rapped while still photographs of them
were displayed. One of appellant’s raps is: “I don’t know who baked the last cake,/All I
know was the place got yellow taped.” The People’s position was that this was a
reference to Baker’s murder.


21
  Because of this conclusion, we need not decide the People’s argument that the
unchallenged admission of Jailhouse Gas and On Da Boulevard, as well as two Da Vill
rap videos, rendered any error in the additional admission of the five challenged videos
harmless. We also need not decide their contention that the limiting instruction rendered
any error harmless.



                                            25
       During cross-examination, to the apparent surprise of defense counsel, Draper
testified that he, in consultation with the prosecutors, had edited the version of On Da
Boulevard played for the jury in order to shorten it. The edit omitted a portion of the
video in which Stoney Gipson raps while an image of Gipson is displayed with the text,
“RIP Stone, The Realist.” Defense counsel asked a number of questions on this issue,
eliciting testimony that if the video had been created before Gipson’s death—which
occurred two days after Baker’s murder—appellant’s line about “who baked the last
cake” would probably not have been a reference to Baker’s killing. Draper testified he
did not intentionally edit out Gipson’s rap, but simply edited everything after appellant’s
“main portion of the rap lyrics” were over. The entire seven-minute video was played for
the jury during this cross-examination.
       Following Draper’s testimony, the People recalled District Attorney’s Office
Inspector Jordan Boyd. Boyd testified that he obtained a thumb drive from Google
(which owns YouTube) containing certain publicly-available videos, including the
complete, unedited version of On Da Boulevard. This thumb drive had been admitted
into evidence earlier in the trial, during the testimony of a Google employee. On cross-
examination, Boyd testified that defense counsel had been provided with well over a
terabyte of digital records, that four separate search warrants were served on Google for
“many dozen videos,” and that he was not certain whether the defense or the court was
notified that the On Da Boulevard video was an excerpt of a longer video.
       During closing arguments, both parties briefly argued about whether the On Da
Boulevard video was made before or after Gipson’s death. Defense counsel also
questioned Draper’s testimony that the editing was solely for time purposes: “[It] seems
to me to be a powerful piece of evidence that the government would want to put on.
They would want to tie Stoney Gipson and [appellant] together”; moreover, “I don’t
understand why where we’ve had such a gigantic amount of gang evidence that they
would choose to edit that video.” Defense counsel continued, “if the government is
editing the videos and controlling the information as much as they can that goes to you,
then is that the time where you want to sign off on these [verdict] forms? No. I would


                                             26
submit to you that’s the time where you want to dig in and do your job as jurors, which is
sift through every single piece of evidence and determine what it means.” In rebuttal, the
prosecutor responded that the On Da Boulevard video “was moved into evidence in its
entirety by us on July 21st. You can look at its exhibit tag. It was moved into evidence
by us in its entirety. Inspector Boyd talked about it being moved into evidence and talked
about it being in its entirety. [¶] Now, was an edited version provided on the screen?
Yeah. But the complete version was in evidence. You know, there was no nefarious
reason why.” Defense counsel did not object during this portion of the prosecutor’s
rebuttal argument.
       After closing arguments, outside of the presence of the jury, the trial court queried
why a transcript of the full video had not been submitted as required by the California
Rules of Court rule 2.1040; noted that, but for the cross-examination of Inspector Draper,
the jury would not have known the entire video was in evidence; and stated the
prosecutor’s argument “suggests to the jury that the full seven-minute video was always a
piece of evidence presented by the prosecution to the jury . . . .” The prosecutor
conceded that the People did not intend to show the full video to the jury, but rather
intended to use the exhibit of Google records as “the source material, the foundational
material, to play the excerpt,” and then later withdraw it. The prosecutor contended the
rebuttal argument was not meant to suggest that the People intended to give the jury the
full video, but merely to assert that “we didn’t hide it” from the defense. After a lengthy
discussion between the trial court and the prosecutor, the court concluded, “there is no
finding of wrongdoing by the court. There is no admonition that I’m going to give. Just
because I just think that what surprised me in [the prosecutor’s] rebuttal argument is my
interpretation, and it isn’t fair for me to admonish the jury that counsel has said anything
factually wrong or inappropriate.”
       At this point, defense counsel requested a curative instruction or the opportunity to
surrebut on the issue. The court denied the request: “I think it is of such minimal weight
in the totality of all of the evidence in this case . . . [and] it has been thoroughly vetted by
counsel in front of the jury during direct and cross-examination.” The court continued,


                                               27
“I’m not going to admonish because I don’t think there is any wrongdoing. I don’t know
if it was a misstatement. It doesn’t jive with what the Rule of Court required if the
prosecution had intended that the full seven-minute video be admitted to the jury. He
says they did not, and I think that closes the book on this chapter.”
              2. Analysis
       “A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state law only if it involves the
use of deceptive or reprehensible methods to attempt to persuade either the trial court or
the jury. . . . [W]hen the claim focuses upon comments made by the prosecutor before the
jury, the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.” (People v.
Morales (2001) 25 Cal.4th 34, 44.)
       Appellant contends the entire video “was not in evidence in any meaningful sense”
because the People did not play it for the jury, provide a full transcription, or mention that
the played video was only an excerpt. Nonetheless, as the People argue, the prosecutor’s
statement that the entire video was in evidence was literally true. The jury was fully
aware of the omissions appellant notes. To the extent appellant argues that the
prosecutor’s argument could be construed to mean the People intended to present the full
video to the jury, we disagree. In light of the cross-examinations of Draper and Boyd, we
find no reasonable likelihood that the jury understood the argument to mean the
prosecution independently intended to inform the jury about the unedited video, instead
of as an argument about whether the prosecution attempted to conceal the unedited video
from the defense.
       Accordingly, appellant’s misconduct claim fails. Because of this conclusion, we
need not decide whether defense counsel forfeited the objection by failing to raise it
during the prosecutor’s rebuttal argument; we need not decide appellant’s alternative
argument that, if the objection were forfeited, appellant received ineffective assistance of


                                             28
counsel; and the trial court’s refusal to issue a curative instruction or allow the defense to
surrebut was not an abuse of discretion.
       B. Burden of Proof Comment
       Appellant challenges the following argument in the prosecutor’s closing
statement: “They [the defense] don’t have a burden of proof, but when they ask you to
find a reasonable doubt, there has to be a reason behind it. And in the absence of
producing any evidence that supports a reasonable doubt regarding the veracity of the
evidence, the strength of the evidence, I would submit to you it is unreasonable.”
Appellant contends the argument was prosecutorial misconduct because it is reasonably
likely the jury understood this argument to mean the defense had a duty to present
evidence.
       “To preserve a claim of prosecutorial misconduct on appeal, ‘the defense must
make a timely objection at trial and request an admonition; otherwise, the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct.’ ” (People v. Clark (2016) 63 Cal.4th 522, 577.) No objection was made
below and appellant fails to demonstrate any misconduct would not have been cured by
an admonition. Accordingly, the argument is forfeited.
       Appellant alternatively contends his trial counsel was constitutionally ineffective
for failing to object. Assuming the failure to object was deficient, we find no reasonable
probability that the outcome would have been different. The prosecutor repeatedly noted
appellant had no burden of proof, including at the beginning of the challenged comments.
The trial court instructed the jury on the People’s burden to prove their case beyond a
reasonable doubt. (See CALCRIM No. 220.) Appellant’s ineffective assistance of
counsel claim is unavailing.
III. Lesser Included Offense
       Appellant contends the trial court erred in refusing his request to instruct the jury
on the lesser included offense of voluntary manslaughter because there was sufficient
evidence that appellant killed in the heat of passion or imperfect self-defense; to wit, the
jury could have found that Baker fired one shot based on the gun found underneath his


                                              29
body and the gunshot residue on his hands. (See People v. Koontz (2002) 27 Cal.4th
1041, 1085 [trial court must instruct on lesser included offenses “when the evidence
raises a question whether all the elements of the charged offense were present, but not
when there is no evidence the offense was less than that charged”].)
       We need not decide whether the refusal to instruct was error because any error was
harmless under any standard. “Error in failing to instruct the jury on a lesser included
offense is harmless when the jury necessarily decides the factual questions posed by the
omitted instructions adversely to defendant under other properly given instructions.”
(Koontz, supra, 27 Cal.4th. at pp. 1085–1086; see also People v. Demetrulias (2006) 39
Cal.4th 1, 24–25 [in such a case error is harmless beyond a reasonable doubt].) The jury
found true the special-circumstance allegation that appellant committed the killing by
means of lying in wait. In so finding, the jury found that appellant “made a surprise
attack on the person killed from a position of advantage” and “intended to kill the person
by taking the person by surprise.” (See CALCRIM No. 728.) The jury also found true
the gang special circumstance allegation, thereby finding that appellant “intentionally
killed” Baker “to further the activities of the criminal street gang.” (See CALCRIM No.
736.) Accordingly, the jury necessarily found appellant did not kill Baker “ ‘upon a
sudden quarrel or heat of passion’ ” or “in the actual but unreasonable belief that he or
she is in imminent danger of death or great bodily injury.” (Koontz, at p. 1086; see also
People v. Cruz (2008) 44 Cal.4th 636, 665 [“special circumstance findings [that the
murder was committed by means of lying-in-wait and intentionally for the purpose of
perfecting an escape from lawful custody] themselves negate any possibility that
defendant was prejudiced from the failure to instruct on provocation/heat of passion or
unreasonable self-defense theories of manslaughter”].)22
IV. LWOP Sentence


22
  We reject appellant’s contention that the cumulative prejudice from the asserted trial
errors deprived him of a fair trial.



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       Appellant turned 18 one week before Baker was killed. He argues that, despite
being 18 years old at the time of the murder, he was emotionally immature such that his
mandatory sentence of life without the possibility of parole (§ 190.2, subd. (a)(15) &
(22)) violates the constitutional prohibition on cruel and unusual punishment and the
equal protection clause.
       In Miller v. Alabama (2012) 567 U.S. 460 (Miller), the United States Supreme
Court held that “mandatory life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’ ” (Id. at p. 465; see also id. at p. 479 [“By making youth (and all that
accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme
poses too great a risk of disproportionate punishment.”].) Our Supreme Court
subsequently considered the bright line nature of the rule: “ ‘Drawing the line at 18 years
of age is subject, of course, to the objections always raised against categorical rules. The
qualities that distinguish juveniles from adults do not disappear when an individual turns
18. By the same token, some under 18 have already attained a level of maturity some
adults will never reach.’ [Citation.] But ‘[t]he age of 18 is the point where society draws
the line for many purposes between childhood and adulthood’ [citation], and that is the
line the high court has drawn in its Eighth Amendment jurisprudence.” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1380.)
       Appellant’s case demonstrates the difficulty of categorical rules. Moreover, as he
notes, the Legislature has required youth offender parole hearings after a certain number
of years of incarceration for persons who committed their offenses at age 25 or younger,
suggesting a legislative judgment that young adults share some of the same
characteristics as juveniles. (§ 3051; but see id., subd. (h) [statute does not apply to
persons sentenced to life in prison without parole who were 18 years or older at the time
of their offense].) Regardless, we are bound by the line drawn by the United States
Supreme Court and our Supreme Court. (See People v. Argeta (2012) 210 Cal.App.4th
1478, 1482 [declining to extend Miller to defendant who committed murder five months
after eighteenth birthday]; accord, People v. Perez (2016) 3 Cal.App.5th 612, 617 [“We


                                              31
decline Perez’s invitation to conclude new insights and societal understandings about the
juvenile brain require us to conclude the bright line of 18 years old in the criminal
sentencing context is unconstitutional. Our nation’s, and our state’s, highest courts have
concluded 18 years old is the bright line rule and we are bound by their holdings.”].)23
       Appellant also argues that treating him differently from juvenile offenders violates
equal protection. We reject the claim. Juveniles and young adults are not similarly
situated, despite the possibility that some juvenile characteristics may persist in young
adults. (See Miller, supra, 567 U.S. at p. 481 [“We have by now held on multiple
occasions that a sentencing rule permissible for adults may not be so for children.”];
People v. Gamache (2010) 48 Cal.4th 347, 405 [“We previously have rejected the
argument that a death penalty scheme that treats differently those who are 18 years of age
and older, and those younger than 18, violates equal protection.”].)
V. S.B. 620 Remand
       The trial court imposed two additional terms of 25 years to life for firearm
enhancements (§ 12022.53, subds. (d) & (e)). Appellant argues he is entitled to a remand
of the firearm enhancements pursuant to new legislation that grants trial courts the
discretion to strike or dismiss such enhancements. (§ 12022.53, subd. (h), as amended by
Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018; People v. Chavez (2018) 22 Cal.App.5th 663,
712 (Chavez) [§ 12022.53, subd. (h) applies retroactively in cases that are not yet final on
appeal on its effective date].)
       In light of this new legislation, “ ‘the appropriate remedy is to remand for
resentencing unless the record “clearly indicate[s]” that the trial court would have
reached the same conclusion “even if it had been aware that it had such discretion.” ’ ”
(Chavez, supra, 21 Cal.App.5th at p. 713.) The People argue the record does so indicate.

23
  Appellant argues both Miller and Gutierrez involved defendants who were under 18
years old, and therefore neither court considered the application of mandatory life
without parole sentences on 18-year-olds. Even if the defendants in those cases were not
18 years old, the cases make clear that 18 years is the dividing line for Eighth
Amendment purposes.



                                             32
At sentencing, the trial court stated that appellant “deserve[s] every day, every minute,
every second that you will spend in state prison for the rest of your life without parole”;
“has no empathy”; “took joy in celebrating the degradation of human life because you
don’t care about other people”; and is “a soulless, heartless human being” who does “not
deserve sympathy.” Appellant concedes the trial court would not strike the firearm
enhancements on remand.
       However, appellant argues the court’s comments at sentencing indicated it was not
fair and impartial and appellant thus seeks remand to a different bench officer. “[T]he
statutory power of appellate courts to disqualify sentencing judges should be used
sparingly and only where the interests of justice require it.” (People v. Gulbrandsen
(1989) 209 Cal.App.3d 1547, 1562.) We are not persuaded that this is one of these rare
cases. The trial court’s comments at sentencing, while strong, do not demonstrate an
“animus inconsistent with judicial objectivity.” (Ibid.)
                                      DISPOSITION
       The judgment is affirmed.




                                             33
                   SIMONS, J.




We concur.




JONES, P.J.




NEEDHAM, J.




(A152529)



              34
Superior Court of San Mateo County, No. SC080432A, Hon. Lisa Novak, Judge.


Randi Covin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General,
Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano and J.
Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.




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