Murder conviction overturned through new `rap music' law

A state appellate court has reversed a San Bernardino gang member's murder conviction stemming from a 2014 drive-by shooting, ruling that a rap video he appeared in was prejudicial and should not have been admitted as evidence at his trial.

It is the first criminal conviction in California to be overturned under a new law requiring judges to weigh more carefully “forms of creative expression” — explicitly rap videos and lyrics — that could be racially biased and prejudicial against defendants before admitting them as evidence at trial, said Jacquelyn Rodriguez, a spokesperson for the San Bernardino County District Attorney's Office.

Travon Rashad Venable Sr., 34, of San Bernardino was convicted in 2018 and sentenced to 129 years to life in prison in connection with the fatal shooting of Enon Damon Edwards, 20, and the wounding of another man in a drive-by shooting at Medical Center Drive and Union Street in San Bernardino on March 5, 2014.

Venable was the alleged driver of the white Kia used in the killing. Under a plea agreement, co-defendant Elgin Johnson, 28, the alleged shooter, pleaded guilty to voluntary manslaughter in December 2019 and was sentenced to 22 years in prison, court records show.

“The potential impact of this decision, if it stands, is that it would likely raise a new avenue for convictions to be challenged,” Rodriguez said in an email Tuesday.

It was unclear whether the district attorney's office will retry the case.

“We would examine each case individually for retrial,” she said.

Defense attorney James Gass, who represented Venable, said in a telephone interview that the prosecution's case relied heavily on the rap video evidence.

Initially, a witness who had been a police informant came forward in 2014 and identified Venable and Johnson as the perpetrators. Police presented that evidence to prosecutors, who declined to file charges. The case languished for two years until investigators discovered the video and felt they had their clincher, Gass said.

“Police saw the video, saw that it referenced the shooting, took it back to the DA and they filed,” Gass said. “They took the video as confirmation.”

He said he didn't believe the video should have been admitted in the first place and argued against it during trial.

“It wasn't a statement by Mr. Venable and it wasn't a statement implicating anyone in murder. It was just a statement that vaguely mentioned the shooting,” Gass said. “So we'll see if they're willing to try it again without the video. I thought it was a weak case to begin with. I don't think there's much evidence that (Venable) is guilty of anything.”

New law

The law that took effect in January, Assembly Bill 2799, added a new section to the Evidence Code requiring trial judges to consider specific factors before admitting evidence of a form of creative expression in a criminal proceeding. The amendment was designed to avoid injecting racial bias and improper consideration of criminal propensity at trial.

When the judge presiding over Venable's trial allowed the video evidence in, it illustrated everything the new law was tailored to prevent, according to the opinion handed down Friday by the threejustice panel of the Fourth District Court of Appeals in Riverside.

“There's no question the trial judge's admission of the rap evidence in this case did not comply with the new requirements for admission of creative expression. There's also substantial concern that admitting the evidence may have had the precise effects the Legislature sought to avoid,” Justice Marsha Slough said in the 20-page opinion, in which Justices Manuel Ramirez and Frank Menetrez concurred.

Slough concluded it was “clear the prosecution used that evidence to tie Venable to the specific crime.”

Rap video

The video, made by Venable's younger brother who goes by the name Young Trocc, contains offensive language, including frequent uses of the n-word, depictions of guns and drugs and references to violent gang activities. Most of those who appear in the video are young Black men.

Venable didn't say anything in the video, although he was seen holding a rifle with an extended magazine. A 22-caliber rifle was one of the firearms used in the 2014 drive-by, according to the evidence presented.

Most of the lyrics had nothing to do with the shooting, though one line could be interpreted as referring to the shooting:

“Got word from a bird that they did that (racial slur) dead wrong/Slid up Medical and left that (racial slur) head gone.”

The appellate justices, however, concurred that nothing in the song indicated the rapper or others in the video had personal knowledge or involvement in the shooting, only that they had heard about it. Still, the prosecution placed a lot of emphasis on the video, playing it twice for the jury during trial and a third time during closing arguments, according to the opinion.

“In closing, the prosecutor argued, `There he is (Venable). There he is. They kill them on-scene. They kill. Slid up Medical, left that (racial slur) head gone. That's our victim's murder. There he is. There he is (Venable). There he is,' ” Slough said in the opinion.

Weak evidence

The justices concurred the video was prejudicial and that the prosecution's remaining evidence against Venable was lacking, that there was substantial doubt whether the trial judge would have admitted the video evidence under the new standard and that it was clear “the prosecution used that evidence to tie Venable to the specific crime.”

“The remaining evidence of Venable's involvement was not strong. The only witness who identified him as being involved was Doe, a police informant who gave a series of conflicting accounts of the incident and had testified Venable was being framed,” according to the opinion. “Meanwhile, Venable's aunt provided an alibi for him and Venable testified he was not involved in the shooting. The prosecution's emphasis of the rap video at various points in the trial, including in closing arguments, likely had an effect on the outcome.”

Racial Justice Act

While Venable's conviction was reportedly the first in California to be reversed under AB 2799, a Contra Costa County judge in October ordered a new trial for two men charged with murder, citing violation of the state's Racial Justice Act of 2020.

Judge Clare Maier cited the use of the n-word by the prosecutor, defense attorneys and a police gang expert when quoting rap lyrics by the defendants, Gary Bryant Jr. and Diallo Jackson. Prosecutors argued that the lyrics showed the defendants' gang ties and helped to discredit Bryant's claims the killing was an act of self-defense.

The Racial Justice Act prohibits the state from seeking a criminal conviction or sentence on the basis of race, ethnicity or national origin.

Both AB 2799 and the Racial Justice Act are retroactive, meaning they can be applied to criminal convictions predating passage of both laws.