California Court of Appeals, First District, Fifth Division
FOR PARTIAL PUBLICATION[*]
Superior Court of San Mateo County, No. SC080432A, Hon. Lisa
Covin, under appointment by the Court of Appeal, for
Defendant and Appellant.
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
Coneal appeals following his conviction for first degree
murder (Pen. Code, § 187, subd. (a)). 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 In the unpublished portion of the opinion, we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.
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.
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.
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.
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.
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 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.
Actions the Day of the Shooting
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.
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
early afternoon, appellant sent messages on social media
indicating that he was trying to buy firearms.
Testimony and Crime Scene Evidence
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.
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. Two residents, after hearing the
shots, saw two people running away.
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.
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.
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.
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.
Actions After the Shooting
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,
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
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).
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.” The lyrics referred to
catching someone “slippin for the mob 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.”
was interviewed by police in July 2013 and again in
November. Appellant denied knowing anything
about a Ford Escort with his blood in it or hanging out with
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.
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.
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.
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.
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.
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.
Park Police Detective Ed Soares testified as an expert on
criminal street gangs in East Palo Alto and Menlo
Park. 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.
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.”
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.
Mateo County District Attorney's Office Inspector Jamie
Draper also testified as an expert on criminal street gangs,