People v. Perez CA3

DISCUSSION

Defendant now contends the trial court “prejudicially erred when it considered evidence of gang music and lyrics” in denying his petition for resentencing. (Capitalization & boldface omitted.) In support of his contention, defendant argues the trial court’s reliance on gang music and lyrics runs afoul of newly enacted Evidence Code section 352.2. (Added by Stats. 2022, ch. 973, § 2, effective Jan. 1, 2023.) In response, the People contend Evidence Code section 352.2 does not apply here because it does not apply retroactively. What neither party addresses is that defendant is appealing from a postjudgment order. Thus, the first question that should be considered is whether Evidence Code section 352.2 even applies in a postjudgment, Penal Code section 1172.6 resentencing hearing. We need not resolve that question in this appeal, however, because, we conclude, even if Evidence Code section 352.2 does apply in a Penal Code

3 section 1172.6 hearing, it does not apply here, where the hearing took place before Evidence Code section 352.2 was enacted. Courts of appeal are split on whether section 352.2 applies retroactively. In People v. Venable (2023) 88 Cal.App.5th 445,…