California Court of Appeals, First District, Fifth Division
FOR PARTIAL PUBLICATION[*]]
Cal.Rptr.3d 655] Superior Court of San Mateo County, No.
SC080432A, Hon. Lisa Novak, Judge.
Covin, Willits, 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
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the unpublished portion of the opinion, we reject appellant’s
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.
Appellant and Rivera were members of the "Taliban"
gang, whose territory extended [254 Cal.Rptr.3d 656] 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.
Appellant’s 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 conduct.
early afternoon, appellant sent messages on social media
indicating that he was trying to buy firearms.
Neighborhood 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
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 [254 Cal.Rptr.3d 657] 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.
Appellant’s 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 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).
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 [254 Cal.Rptr.3d 658] denied
knowing anything about a Ford Escort with his blood in it or
hanging out with Rivera.
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 ...