Filed 9/30/26 P. v. Afamasaga CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and
Respondent, A171550
v. (Sonoma County
EDNIE AFAMASAGA Super. Ct. No. SCR7495792)
Defendant and
Appellant.
THE PEOPLE,
Plaintiff and
Respondent, A171642
v. (Sonoma County
FOGATIA FUIAVA, Super. Ct. No. SCR7495791)
Defendant and
Appellant.
Ednie Afamasaga and Fogatia Fuiava appeal after a jury
convicted them of second degree murder of Kenneth McDaniel,
shooting at an occupied vehicle, and assault with a firearm on
Raymond Burt, as well as various enhancements, based on a
1
shooting outside a bar in Santa Rosa.1 Defendants admitted at
trial that they shot the victims but contended they acted in self-
defense. They presented evidence that McDaniel had previously
shot Afamasaga, and they argued McDaniel’s actions at the bar
made them afraid he would shoot them. They now argue the trial
court should have instructed the jury on heat of passion
voluntary manslaughter because there was substantial evidence
that McDaniel’s actions would have provoked to rash action an
ordinary person who shared the same history with McDaniel.
They additionally contend the trial court erred by allowing the
People to present a lyric from certain rap videos in which Fuiava
threatened to “put [ ] to sleep” anyone who messed with
Afamasaga, and still images from those videos in which
Afamasaga wore a shirt that said “street justice” and both
defendants held guns.
We agree with the trial court that there was not
substantial evidence that defendants acted in the heat of passion,
so it did not err by failing to instruct on that theory. Even if we
assume the trial court erred in admitting the rap video evidence,
any such error was harmless. We will therefore affirm the
judgment.
BACKGROUND
I. Prosecution Case
1 Two of Raymond Burt’s brothers, Ronald and Richard
Burt, are also involved in this case and have the same last name.
We refer to them by their first names for clarity.
2
In September 2021, the Whiskey Tip, a bar in Santa Rosa,
hosted a hip hop show. Along one side of the building was a
parking lot with about 30 or 40 spaces. A taco truck was parked
in the corner of the lot near the entrance. The bar entrance was
up a ramp from the front of the parking lot near the street.
There was a side entrance to the bar along the side of the parking
lot whose door was locked from the outside but could be opened
by bar patrons from the inside. The back of the bar building
opened onto a wooden patio. At the bottom of four steps from the
patio was the area in front of the stage. The bar had surveillance
cameras covering, among other areas, the parking lot, the ramp
leading to the front door, and the patio.
Fuiava and Afamasaga arrived at the Whiskey Tip around
8:30 p.m. They walked through the bar and stood on the back
patio. McDaniel walked from the stage area, past Afamasaga
and Fuiava, and into the bar and then out again a few minutes
later, without speaking to them.
Afamasaga and Fuiava left the bar and went across the
parking lot to the taco truck area. While they were standing
outside the taco truck, McDaniel came out into the parking lot.
The Whiskey Tip’s security guard, Jon Tracy, described McDaniel
as pretty drunk that night but jovial and having a good time, not
causing any problems. With Afamasaga following him, Fuiava
started walking from the taco truck towards McDaniel.
McDaniel noticed them, turned around, spat in their direction,
and walked back into the bar. Fuiava took some steps after him
but then stopped. McDaniel repeatedly looked out into the
3
parking lot while presenting his identification to the security
guard to get back into the bar.
Fuiava and Afamasaga stayed outside for about 12
minutes. They met up with six newly arrived people. Fuiava and
Afamasaga led them to the side door, and they entered the bar.
Fuiava, Afamasaga, and the six newcomers stood on the
wooden patio for a few minutes until McDaniel approached the
bottom of the stairs. Afamasaga walked down the steps and
spoke to McDaniel for about 20 seconds. Richard Burt was
standing near McDaniel. Fuiava then came down the stairs,
reached over towards someone near McDaniel, and moved to
stand on one side of McDaniel’s area while Afamasaga stood on
the other. About a minute later, McDaniel walked up the stairs
and into the bar. McDaniel stood in the bar for about six
minutes, during which time he spoke on the phone with someone
later identified by cell phone records as Raymond. Fuiava and
Afamasaga stayed on the back patio.
McDaniel went out the front door to the parking lot.
Raymond was there, and McDaniel spoke to him animatedly for 2
minutes near Raymond’s truck in the parking lot before the two
walked deeper into the parking lot. Meanwhile, Afamasaga left
the back patio and walked to the front entrance, slightly around
the corner of the building from where McDaniel and Raymond
were talking. Fuiava joined him. Fuiava took a few steps into
the parking lot as McDaniel and Raymond walked deeper into the
parking lot, away from the entrance. He came back to stand with
Afamasaga at the edge of the building and parking lot for about
4
40 seconds, looking in the direction McDaniel and Raymond had
gone.
Fuiava walked into the parking lot and stood between a car
and a pickup, looking in the direction McDaniel and Raymond
had gone but hidden from view from that direction by the
pickup’s cab. McDaniel and Raymond started walking back
towards Raymond’s truck, and Raymond hopped in the driver’s
seat and left his door open. As a car drove into the parking lot
with its headlights shining towards McDaniel and Raymond,
Fuiava stepped out behind the car and started shooting at them.
At the same time, Afamasaga walked to the other side of the
pickup. He waited until the entering car had passed and Fuiava
had moved out of the way and then fired shots at McDaniel and
Raymond. McDaniel dropped to his knees behind the open door
of Raymond’s truck almost instantly after the first shots were
fired.
Fuiava and Afamasaga ran out of the lot and across the
street through traffic. Raymond got out of his truck and reached
towards either McDaniel slumped on the ground or the pocket of
the door behind him. He walked towards the entrance to the
parking lot and then towards the back of the parking lot. He
returned to his truck and McDaniel about 30 seconds later.
Police found 29 shell casings in the parking lot, all 9-
millimeter caliber. McDaniel had at least 19 gunshot wounds in
his neck, back, legs, and arms. McDaniel died from his wounds.
Police did not find any weapon on him. A toxicology report found
a blood alcohol level of 0.164 and THC.
5
When Santa Rosa police department investigator Matt
White interviewed Fuiava after arresting him, Fuiava denied
ever having been to the Whiskey Tip and said he was home all
weekend. He also said he did not own a cellphone.
Fuiava and Afamasaga were charged with first degree
murder (count 1), with a special allegation of lying in wait;
conspiracy to commit murder (count 2), discharging a firearm at
an occupied vehicle (count 3), and assault with a firearm (count
4). The People also alleged firearm and great bodily injury
enhancements to counts 1, 3, and 4. As to Fuiava, the People
alleged Fuiava had a prior strike, prior serious or violent felony,
and prior prison term. The People also alleged various
aggravating factors for both defendants.
II. Defense
At trial, after the People’s case in chief, Fuiava and
Afamasaga both testified in their own defense.
In 2017, Fuiava was shot in the leg while driving his
vehicle. He did not know who shot him. He bought a 9-
millimeter firearm later that year. Fuiava had been convicted in
2011 of shooting someone in in a drive-by shooting with a sawed-
off shotgun in 2009, when he was 17 years old. He was not
allowed to legally purchase a firearm because of that conviction,
so he bought his gun illegally.
In 2018, Afamasaga worked as a bouncer at Remy’s, a bar
in Santa Rosa. One night in June 2018, Afamasaga went to
Remy’s off duty to see a hip hop show. At the end of the night,
Afamasaga saw two men, one of whom Afamasaga later learned
6
was McDaniel, fighting with two other men near a car in the
parking lot. McDaniel was getting beat up. Afamasaga went to
the parking lot to try to break up the fight. McDaniel shot him
twice in the leg. Afamasaga thought that McDaniel mistook him
for one of the people he was fighting.
When the police interviewed Afamasaga at the hospital
about the shooting, Afamasaga lied and told them he just heard
shots and did not see anything. Afamasaga did not want
McDaniel to get in trouble and did not want to cooperate with the
police. Afamasaga later learned about McDaniel and his group of
friends and became concerned. He bought a .40 caliber gun from
a licensed dealer and registered it. Afamasaga did not see
McDaniel for three years, but he did learn that McDaniel was
violent and possessed a gun.
In August 2019, Afamasaga and Fuiava went to a bar
called La Rosa for a friend’s birthday. They went with some
friends and Fuiava’s younger cousins. A squabble arose between
Fuiava’s cousins and Ronald Burt, with whom Fuiava was friends
after playing football together at junior college. Fuiava offered to
get Ronald out of the bar safely. Ronald said he was not going
anywhere and cursed at Fuiava, so Fuiava punched him. Fuiava,
Afamasaga, and the rest of their friends and cousins then beat up
Ronald, a video of which the prosecution played for the jury in
rebuttal. Afamasaga did not know what was going on. He joined
in just because his family was fighting. Ronald was taken to the
hospital with a puncture wound to his back and significant
injuries to his face.
7
Afamasaga and Fuiava came to the Whiskey Tip about a
year later, in September 2021, to see their cousin and friend,
Palsy G., perform. Fuiava and Afamasaga parked across the
street from the bar. Neither man expected to see McDaniel that
night. They were both carrying 9-millimeter guns in their
waistbands. Fuiava’s gun had an extended clip that held 20
rounds. Afamasaga had bought his 9-millimeter a few months
earlier from a friend of a friend, neither of whose names he
remembered, and it was not registered. He brought the
unregistered 9-millimeter gun to the Whiskey Tip instead of his
legally purchased and registered .40 caliber gun because he had
bought the 9-millimeter more recently and liked it better.
When McDaniel first passed them on the patio, they did not
say anything to him. Fuiava asked Afamasaga if that was the
man who shot Afamasaga, and he said yes. This made things a
little more complicated. They were uncomfortable and concerned.
When they went outside to the taco truck after that, they were
discussing whether to stay or leave. They decided to stay because
Palsy had not yet performed and their other friends were arriving
soon. When McDaniel came out, Fuiava walked towards
McDaniel to talk, to squash any disagreement and have a good
night. When McDaniel spit towards them, they became more
concerned.
When Afamasaga spoke to McDaniel at the bottom of the
stairs to the back patio, he offered to just have a good night and
not have any problems. McDaniel told him “to bring [his] bitch
ass outside.” Fuiava came down the stairs then because he
8
recognized Ronald in McDaniel’s group of friends. Because he
was no longer friends with Ronald after the La Rosa incident,
Fuiava told Ronald he just wanted to have a good night. Ronald
agreed, and they shook hands. When Fuiava shook Ronald’s
hand, McDaniel shook his head and walked off.2
Afamasaga told Fuiava what McDaniel had said. They
viewed McDaniel’s comment as a threat and became scared. But
they did not tell their other friends. Afamasaga followed
McDaniel outside the front entrance to the bar because he was
concerned for himself, Palsy, and his friends and family who were
there. He thought McDaniel was going to the parking lot to plot
or get a weapon. Fuiava saw Afamasaga leave and followed him.
Fuiava recognized Raymond’s truck from an incident the
month prior. Someone in a truck had been following Fuiava and
making hand gestures, either dancing or gang signs. Fuiava then
recognized the person in the truck as Raymond, whom he knew
through Ronald. Fuiava had seen Raymond armed with a
firearm in the past and considered him dangerous. Afamasaga
did not recognize Raymond, but it raised his level of concern to
see McDaniel with someone in the parking lot.
Fuiava never saw a gun in Raymond’s or McDaniel’s
possession at the Whiskey Tip, but he believed they were armed
because he knew Raymond carried a gun, McDaniel had shot
Afamasaga, and McDaniel had rejected their attempts to make
2 The surveillance camera’s view of this interaction was
temporarily obstructed and did not show whether McDaniel
shook his head or not. But it does show clearly that McDaniel did
not walk away up the steps for well over a minute.
9
peace that night. Fuiava thought he was in danger because if he
had not fired, it would have been the other way around. He shot
all 20 rounds in his clip because he was scared and afraid for his
and Afamasaga’s lives.
Afamasaga froze when he saw McDaniel and Raymond
walking back to Raymond’s truck. He snapped out of it and
stepped out into the parking lot when he heard a round being
chambered. He did not know who chambered a round. He pulled
out his firearm when he heard shots fired. He saw Fuiava
shooting towards Raymond’s truck. He waited to shoot because
he was trying to assess what was going on and Fuiava and the
car were in his way. He fired more than five times after
McDaniel was already on his knees. Afamasaga was scared of
being hurt or killed by McDaniel. Seeing McDaniel walking back
towards the truck reminded Afamasaga of when McDaniel shot
him outside Remy’s, since that shooting also occurred near a
vehicle in a parking lot.
After the shooting, Fuiava and Afamasaga ran towards
their vehicles that were parked across the street. They drove
away in different directions. Fuiava pulled over somewhere near
his house, threw up, and put his gun in a bush. He threw away
his clothes. Afamasaga drove towards Petaluma and threw his
gun off a bridge into the river. He spoke to Fuiava on the phone,
who tried to comfort him, and they met up in Petaluma. The next
morning, Fuiava retrieved his gun from the bush and drove with
Afamasaga to the beach in Bodega Bay. Fuiava threw his gun in
the ocean.
10
While in jail before trial, Fuiava and another individual
followed an inmate into his cell and hit him while he was on the
ground.
Psychiatrist Dr. Zachary Torry testified for the defense. He
said that a person in a threatening situation can have a fight or
flight response in which the emotional parts of the brain are
functioning at a higher level and parts of the brain involved in
rational thought and deliberation are functioning at a lower level.
A person who perceives stimuli in the environment that reminds
the person of a prior traumatic situation can also have the same
emotional reaction. However, Dr. Torry acknowledged that not
everyone will have a fight or flight response. He did not examine
Afamasaga or Fuiava.
The parties stipulated that in 2013 McDaniel had been
convicted of assault causing serious bodily injury and possession
of tear gas by a convicted felon. In July 2021, police found
cocaine and a firearm in a vehicle McDaniel was driving. He was
charged with crimes but died before the case could be resolved in
court. Raymond had been convicted in 2017 of carrying a loaded
firearm in public, possession of a controlled substance while
armed, possession of a firearm and ammunition by a felon,
possession of a large capacity magazine, and possession of a gun
in a school zone.
III. Verdict and Sentence
Defendants asked the court to instruct the jury on
voluntary manslaughter based on both imperfect self-defense and
heat of passion. The People objected that the instruction on heat
11
of passion voluntary manslaughter was not warranted because
there was not substantial evidence to support it. The trial court
agreed and refused to deliver it. It instructed the jury on perfect
self-defense and imperfect self-defense voluntary manslaughter.
The jury requested readbacks of Fuiava’s testimony
regarding his intent to kill and fear for his life and all of
Afamasaga’s testimony. Including the time spent on those
readbacks, the jury deliberated for approximately 37 hours over
eight days. The jury found defendants not guilty of first degree
murder and conspiracy to commit murder. It found them guilty
of second degree murder, shooting at an occupied vehicle, and
assault with a firearm and found true the firearm and gross
bodily injury allegations.
Defendants had bifurcated and waived the right to a jury
trial on Fuiava’s strike prior and the alleged aggravating factors
for both defendants. Fuiava admitted the prior strike, and the
trial court found true some of the alleged aggravating
circumstances for each defendant. The trial court sentenced
Fuiava to 28 years plus 55 years to life in prison. It sentenced
Afamasaga to 19 years plus 40 years to life in prison.
DISCUSSION
I. Heat of Passion Instruction
Defendants contend the trial court erred by failing to
instruct the jury on heat of passion voluntary manslaughter as
well as imperfect self-defense voluntary manslaughter. We find
no error.
12
“Under the California Constitution’s due process clause, a
trial court must instruct the jury on a lesser included offense,
whether or not the defendant so requests, whenever evidence
that the defendant is guilty of only the lesser offense is
substantial enough to merit consideration by the jury. [Citation.]
Substantial evidence in this context is that which a reasonable
jury could find persuasive. [Citation.] In deciding whether there
exists sufficient evidence to support a requested instruction, trial
courts should resolve all doubts in favor of the accused.
[Citation.] However, speculation is not evidence and will not
warrant the giving of an instruction on a lesser included offense.
[Citations.]
“ ‘Manslaughter is the unlawful killing of a human being
without malice.’ ([Pen. Code,] § 192.) Voluntary manslaughter is
that committed ‘upon a sudden quarrel or heat of passion.’ ([Pen.
Code,] § 192, subd. (a).) Voluntary manslaughter is considered a
lesser, necessarily included, offense of intentional murder.
[Citation.] As [the California Supreme Court has] explained, ‘an
intentional killing is reduced to voluntary manslaughter if other
evidence negates malice. Malice is presumptively absent when
the defendant acts upon a sudden quarrel or heat of passion on
sufficient provocation.’ [Citation.] Failure to properly instruct on
heat of passion, when warranted, also implicates the federal
Constitution because evidence of heat of passion bears on the
existence of malice aforethought, an element of the charged
offense.” (People v. Choyce (2025) 18 Cal.5th 86, 104.) We
independently review whether a voluntary manslaughter
13
instruction should have been given. (People v. Manriquez (2005)
37 Cal.4th 547, 584.)
“ ‘[T]he heat of passion requirement for manslaughter has
both an objective and a subjective component.’ ” (People v.
Manriquez, supra, 37 Cal.4th at p. 584.) For the subjective
component, the defendant must actually kill under the influence
of passion. (Ibid.; People v. Beltran (2013) 56 Cal.4th 935, 951.)
“ ‘[I]f sufficient time has elapsed between the provocation and the
fatal blow for passion to subside and reason to return, the killing
is not voluntary manslaughter—“the assailant must act under
the smart of that sudden quarrel or heat of passion.” ’ ” (Beltran,
at p. 951.) “No specific type of provocation is required, and ‘the
passion aroused need not be anger or rage, but can be any
“ ‘ “[v]iolent, intense, high-wrought or enthusiastic emotion” ’ ”
[citations] other than revenge [citation].’ ” (People v. Lasko (2000)
23 Cal.4th 101, 108).
“With respect to the objective component, ‘ “this heat of
passion must be such a passion as would naturally be aroused in
the mind of an ordinarily reasonable person under the given facts
and circumstances.” ’ [Citation.] To satisfy this objective
standard, ‘ “the accused’s heat of passion must be due to
‘sufficient provocation,’ ” ’ which must come from the victim.
[Citation.] The provocation which incites the defendant to
homicidal conduct in the heat of passion must be caused by the
victim or by conduct reasonably believed by the defendant to have
been engaged in by the victim. [Citation.] ‘Adequate provocation
and heat of passion must be affirmatively demonstrated.’ ”
14
(People v. Choyce, supra, 18 Cal.5th at pp. 104–105.) “The
provocative conduct by the victim may be physical or verbal, but
the conduct must be sufficiently provocative that it would cause
an ordinary person of average disposition to act rashly or without
due deliberation and reflection.” (People v. Manriquez, supra,
37 Cal.4th at pp. 583–584.)
Defendants contend there is substantial evidence justifying
a heat of passion instruction, citing the testimony that McDaniel
shot Afamasaga at Remy’s when Afamasaga was trying to break
up a fight, Afamasaga learned McDaniel possessed a gun and had
a reputation for violence, McDaniel spat in their direction at the
Whiskey Tip, McDaniel told Afamasaga to “bring [his] bitch ass
outside,” McDaniel met up with Raymond in the parking lot and
walked to his truck, and both defendants were scared for their
lives. Defendants assume without conceding that spitting and
telling a person to “bring [his] bitch ass outside” would not
normally constitute sufficient provocation to cause a reasonable
person to act rashly. But they contend such acts would
sufficiently provoke a reasonable person with Afamasaga’s
history of trauma if the acts were done by the person who
inflicted that trauma. They also cite Dr. Torry’s testimony that a
person may respond with the fight or flight response rather than
react rationally if confronted with a situation similar to a prior
traumatic experience.
This evidence does not constitute substantial evidence of
heat of passion. We agree that extreme fear can be the type of
intense, high-wrought or enthusiastic emotion that supports a
15
heat of passion instruction. (See People v. Millbrook (2014)
222 Cal.App.4th 1122, 1139.) But only Afamasaga’s testimony
supports the subjective component of heat of passion, since he
testified that he felt frozen and unable to act when he saw
McDaniel walking with Raymond towards Raymond’s truck, right
before Fuiava opened fire. Fuiava, for his part, testified only that
he was “concerned” and “uncomfortable” on first seeing McDaniel
and things “started to get more intense” when McDaniel told
Afamasaga to “bring [his] bitch ass outside.” The emotional state
Fuiava described does not rise to the level of an intense, violent,
high-wrought or enthusiastic emotion. (Ibid.) Fuiava did say he
was scared and afraid for his and Afamasaga’s lives when he
opened fire. But his description of his emotional state was rather
dispassionate, since he explained that he thought if he did not
fire at McDaniel, “it would have been the other way around
easily.” A reasonable jury could not find this evidence persuasive
to show that Fuiava was in the grips of passion when he fired.3
In addition, even if both defendants had established the
subjective component of heat of passion, neither defendant
established the objective component. McDaniel’s actions of
walking outside, speaking with Raymond, and walking away
from and back to Raymond’s truck were not provocative at all.
McDaniel’s spitting and comment to Afamasaga to “bring [his]
3 Defendants argue briefly that even if McDaniel’s actions
did not cause them to react in fear, his actions could have
reasonably caused them to react in anger. But they cite no
evidence that they were actually, subjectively angry, much less so
angry as to react in the heat of passion.
16
bitch ass outside” are slightly provocative but insufficient to
provoke a reasonable person to be overcome by the heat of
passion. Just as gang-related insults or challenges (People v.
Enraca (2012) 53 Cal.4th 735, 759) and insults like “mother
fucker” (People v. Manriquez, supra, 37 Cal.4th at p. 586) do not
induce sufficient provocation in an ordinary person to support a
heat of passion instruction, a reasonable person in defendants’
position seeing McDaniel spit at them and, later, hearing his
words would not lose control of their emotions and act in passion.
Additionally, McDaniel spat towards defendants about 30
minutes before the shooting and told Afamasaga to “bring [his]
bitch ass outside” 10 minutes before the shooting. Even if these
actions could provoke a reasonable person, there was sufficient
time for a reasonable person’s emotions to cool by the time
defendants shot McDaniel.
Afamasaga’s history of trauma with McDaniel does not
change the calculus. The only explanation defendants offered for
why McDaniel shot Afamasaga at Remy’s was Afamasaga’s
testimony that he did not think McDaniel knew who was
standing in front of him when he shot. In other words, McDaniel
shot Afamasaga by mistake. Afamasaga offered no reason why
McDaniel would shoot him again. Nor did Afamasaga’s actions
after the shooting give McDaniel a motive to shoot him again,
since Afamasaga never told the police that McDaniel shot him to
avoid getting McDaniel in trouble. A reasonable person in
Afamasaga’s position would understandably be wary of McDaniel
after a mistaken shooting, especially if the person knew that
17
McDaniel owned a gun or that Raymond carried one.
Defendants’ testimony about McDaniel’s rejection of their peace
overtures actions also suggested McDaniel was quarrelsome or
disagreeable. But defendants point to no evidence that would
make a reasonable person fear McDaniel would make the same
mistake again or intentionally shoot someone he had only
mistakenly shot before. Dr. Torry’s testimony adds very little to
the state of the evidence, since he merely described the fight or
flight response in general, acknowledged that not everyone will
experience it, and never examined defendants or opined on
whether they were in a fight or flight state at the time of the
shooting. Even if we resolve all doubts in favor of defendants, we
cannot see how a jury could find from this evidence that a
reasonable person with Afamasaga’s history or Fuiava’s
knowledge of it would experience such fear of McDaniel’s spitting
and statement that Afamasaga should “bring [his] bitch ass
outside” as to overthrow reason and react in the heat of passion.
Defendants compare this case to People v. Millbrook, supra,
222 Cal.App.4th at page 1127, which reversed a conviction for
attempted murder because the trial court should have sua sponte
instructed the jury on heat of passion voluntary murder. There
was evidence in that case that the victim acted belligerently
throughout a party, had intense shouting arguments with the
defendant’s girlfriend and others at the party, and escalated a
fight with the defendant, clenching his fists and lunging at the
defendant, just before the defendant shot him. (Id. at pp. 1129–
1130, 1139–1141.) The victim also said either that he would “get
18
somebody to beat [the girlfriend’s] bitch-ass up” or that the
defendant needed to “check [his] bitch,” referring to the
defendant’s girlfriend. (Id. at pp. 1134, 1141.) The facts here are
not similar. Whereas the defendant shot the victim in Millbrook
in the midst of an argument (id. at p. 1142), defendants shot
McDaniel 30 minutes after the spitting and 10 minutes after
McDaniel’s comment to Afamasaga, giving defendants sufficient
time to cool off. McDaniel’s gesture and single challenge or insult
are also not comparable to the intense arguments and physical
aggression towards the defendant in Millbrook. Rather,
McDaniel’s alleged provocations are closer to the insults or gang
challenges that our Supreme Court has held to be insufficient
provocation. (See id. at pp. 1142–1143 [distinguishing, inter alia,
People v. Enraca, supra, 53 Cal.4th 735 and People v. Manriquez,
supra, 37 Cal.4th 547].)
II. Rap Video Evidence
A. Additional Background
During breaks in each defendant’s testimony, the People
asked the court for permission to introduce lyrics from certain
rap videos posted in 2019 and 2020 in which Fuiava appeared, as
well as still images from rap videos showing defendants holding
guns. The lyrics concerned taking revenge on enemies, which the
prosecution argued was relevant to defendants’ motive for
shooting McDaniel. The prosecutor contended the images were
admissible under Evidence Code section 1103 because defendants
had testified about Raymond’s and McDaniel’s possession of
weapons and defendants becoming concerned by what they heard
19
about the victims.4 Defendants objected under section 352.2 and
argued, among other things, that the videos contained
disclaimers that the weapons shown were replicas.
The trial court allowed the prosecution to present one lyric
that specifically referred to Fuiava avenging Afamasaga, using
the nickname Uce Lee, which the court said was “highly
relevant,” but it excluded the other lyrics under sections 352 and
352.2. The trial court allowed the prosecutor to admit one image
showing Fuiava holding a gun. It ruled that two images showing
Afamasaga holding guns were admissible because they were
more probative than prejudicial.
The prosecutor introduced an exhibit displaying the lyric
below a still image from the rap video showing Fuiava and
Afamasaga. Fuiava acknowledged writing the lyric, which he
read to the jury as, “If you fuckin’ with Uce Lee it’s a guarantee
put your ass to sleep, you already know. It don’t matter if we
broke in the end or if I end up back in the pin, you already
know.”5 He admitted that he called Afamasaga “Uce Lee.” But
he said the lyric was a song and could mean anything. Fuiava
said that the lyrics of his music were not necessarily true, and
4 Undesignated statutory citations are to the Evidence
Code.
5 The version of the lyric in the exhibit was slightly
different than what Fuiava read to the jury. The exhibit showed
the lyric as, “. . . If you fuckin’ with my [n***a] Uce Lee it’s a
guarantee put your ass to sleep, you already know! It don’t
matter if we broke in the end or if I end up back in the pin, you
already know! . . . ” Defendants place no significance on the two
different formulations of the lyric and focus on the version Fuiava
read to the jury, so we do likewise.
20
that he would write about things he had observed or stories as
well as things that had happened to him. He claimed the gun he
was holding in a still image from another video was a replica and
that he never used real guns in his videos. Afamasaga initially
said the weapons he was holding in the images were props, but
then admitted the gun in both images was his legally purchased
.40 caliber firearm.
During their rebuttal case, the People told the court it
wanted to admit another image from a rap video showing
Afamasaga wearing a T-shirt that said “street justice” on it.
Defendants objected under sections 352 and 352.2. The court
ruled the image was admissible and found that under a section
352 analysis it was more probative than prejudicial. The
prosecution introduced the image as an exhibit through the
testimony of White, the investigating police officer. The trial
court also allowed the People to introduce another still image
from a rap video showing Fuiava holding a gun. The People
asked to admit that image to rebut Fuiava’s testimony that the
firearms in his videos were replicas. The prosecutor said White
was prepared to testify that the image showed a hollow point
bullet in the magazine of the gun and that the gun was a real
firearm. Over defendants’ objections under section 352.2, the
trial court ruled the image was admissible under a section 352
analysis because it was more probative than prejudicial. The
image was introduced as an exhibit and White testified
consistently with the prosecution’s offer of proof.
B. Analysis
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“Evidence Code section 352.2, which became effective on
January 1, 2023, calls for a particularized inquiry when the
admissibility of a creative expression is challenged under
Evidence Code section 352. Subdivision (a) of Evidence Code
section 352.2 provides, ‘In any criminal proceeding where a party
seeks to admit as evidence a form of creative expression, the
court, while balancing the probative value of that evidence
against the substantial danger of undue prejudice under
[Evidence Code] Section 352, shall consider, in addition to the
factors listed in [Evidence Code] Section 352, that: (1) the
probative value of such expression for its literal truth or as a
truthful narrative is minimal unless that expression is created
near in time to the charged crime or crimes, bears a sufficient
level of similarity to the charged crime or crimes, or includes
factual detail not otherwise publicly available; and (2) undue
prejudice includes, but is not limited to, the possibility that the
trier of fact will, in violation of [Evidence Code] Section 1101,
treat the expression as evidence of the defendant’s propensity for
violence or general criminal disposition as well as the possibility
that the evidence will explicitly or implicitly inject racial bias into
the proceedings.’ Subdivision (b) of Evidence Code section 352.2
requires the court, in evaluating the admissibility of a creative
expression, to consider certain evidence ‘[i]f proffered and
relevant to the issues in the case,’ in addition to ‘any additional
relevant evidence.’ ” (People v. Aguirre (2025) 18 Cal.5th 629,
687.) Section 352.2, subdivision (c) defines a “creative
expression” as including music and film. Section 352.2,
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subdivision (d) directs trial courts to consider the admissibility of
a form of creative expression in limine and outside the presence
and hearing of the jury. It also states, “The court shall state on
the record its ruling and its reasons therefor.” (§ 352.2,
subd. (d).) We review a trial court’s evidentiary rulings under
section 352 for abuse of discretion. (Aguirre, at p. 687.)
Defendants challenge the trial court’s admission of rap
video evidence in the form of the lyric about Uce Lee, the images
of Fuiava and Afamasaga holding guns, and the image of
Afamasaga wearing a shirt with the text, “street justice.” They
contend each category of evidence was of limited probative value,
served only to show they had violent characters, and injected a
risk of explicit or implicit racial bias into the case. They also
fault the trial court for violating section 352.2, subdivision (d) by
not stating on the record its reasons for admitting the lyrics.
Defendants’ argument raises an interesting question about
the interplay between section 352.2 and Evidence Code section
1103. While section 352.2 describes the undue prejudice of
admission of creative expression evidence as including the
possibility that the trier of fact will impermissibly treat it as
character evidence, section 1103 expressly allows for the
admission of evidence of a defendant’s character if the defendant
attacks the character of the victim of a charged crime. This
suggests that when the prosecution can introduce character
evidence under section 1103, as defendants admit the prosecution
could here, the argument for excluding creative expression
evidence is weaker. At the same time, however, the Legislature
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has made clear its views that creative expression evidence has
minimal probative value for its truth and creates a risk of racial
bias.
It is not obvious how a trial court should reconcile these
statutes when performing the balancing under section 352 and
352.2, but we have no cause to take up the question here (our
examination of which would be hampered in any event by the
trial court’s failure to state the reasons for its rulings). Even if
we assume that defendants are correct that the trial court abused
its discretion in admitting the challenged evidence, it would not
entitle them to a reversal because any such error was harmless
under the circumstances of this case.
The parties disagree about the applicable standard for
prejudice, with defendants arguing for the federal constitutional
error standard while the People urge us to apply the standard for
state law error. “ ‘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. Coneal (2019)
41 Cal.App.5th 951, 972.)
Any error the trial court made here does not rise to this
level. The Uce Lee lyric and the image of Afamasaga wearing the
“street justice” shirt had some probative value to demonstrate
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defendants’ motive for shooting McDaniel and create an inference
of premeditation. It appears from the prosecutor’s arguments in
the trial court that the video from which the lyric and image were
taken was posted sometime in 2019, not long after the Remy’s
shooting in June 2018, albeit several years before the Whiskey
Tip shooting. The images of defendants holding guns likewise
had some value in showing their violent characters, which were
at issue at trial. (See § 1103, subd. (b) [evidence of defendant’s
violent character is admissible after defendant introduces
evidence of victim’s character].) That probative value was
reduced because the images came from a work of creative
expression, which raises legitimate doubts about whether the
lyric and images were intended to be interpreted literally. But
slight or minimal probative value still leaves room for some
permissible inferences. (People v. Aguirre, supra, 18 Cal.5th at
p. 694 [“while ‘ “[f]ew would argue . . . that Johnny Cash really
‘shot a man in Reno just to watch him die’ ” ’ [citation], it has also
been noted that ‘[i]f Johnny Cash had ever been charged with
murdering a man in Reno, the prosecution would have likely been
able to introduce Cash’s lyrics as evidence that the murder was
premeditated’ ”].) And even if the evidence raised no permissible
inferences whatsoever, it was not so graphic or enflaming as to
make defendants’ trial fundamentally unfair. We therefore do
not construe defendants’ claim of error under section 352.2 as
triggering the use of the federal standard for prejudice. We will
instead apply the state law standard of prejudice and consider
whether defendants have shown a reasonable probability that the
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outcome of the trial would have been more favorable absent the
error. (People v. Watson (2008) 43 Cal.4th 652, 686.)
Defendants admitted in their testimony that they shot at
McDaniel and Raymond and intended to kill them. The main
task for the jury was therefore to determine defendants’ mental
state in relation to the shooting, including whether they acted in
perfect or imperfect self-defense, whether they conspired, and
whether they acted with premeditation or after lying in wait. We
find no reasonable probability that excluding the rap video
images would have made the jury’s findings on these issues more
favorable to defendants.
The prosecution’s theory in closing arguments was that
defendants killed McDaniel in revenge for him shooting
Afamasaga at Remy’s. The prosecution displayed the Uce Lee
lyric and referred to Afamasaga’s “street justice” shirt in closing
argument to make this point and urge the jury to convict
defendants of first degree murder. Excluding this evidence likely
would have made the prosecution’s case for first degree murder
significantly weaker. But the jury already rejected the People’s
revenge theory despite hearing this evidence, since they found
defendants not guilty of conspiracy to commit murder and not
guilty of first degree murder. Given how favorable the jury
verdict was on these counts, excluding the lyric and “street
justice” image might have allowed the jury to reach its conclusion
more quickly but could not have improved the outcome for
defendants any further on those counts.
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The prosecution’s closing argument referred to the images
of defendants holding guns only to attack their credibility. A
prosecutor argued that Fuiava’s claim of using only replicas in
his videos was false because, as White testified, a hollow point
bullet was visible in a still image from one video and Afamasaga
eventually admitted to using his own gun in images from other
videos. Excluding the rap video evidence entirely would have
prevented the prosecution from making these arguments, since
the initial images of defendants with guns would not have been
admitted and it would have been unnecessary to admit the
additional images to impeach them. But this would not have
weakened the prosecution’s credibility arguments much, since the
prosecution persuasively attacked defendants’ credibility in a
myriad of other ways.
Most significantly, the prosecutor argued forcefully that
defendants’ claims of fear leading up to the shooting were
inconsistent with the surveillance camera footage, in which they
did not appear scared, approached McDaniel without apparent
hesitation outside near the taco truck, talked to him on the steps
leading to the back patio, and followed him outside to the parking
lot just before the shooting. The prosecution also noted that
defendants never called as witnesses any of their friends who
were at the Whiskey Tip and logically would have been able to
corroborate defendants’ accounts. The prosecution discussed
Fuiava’s lies to the police before trial, defendants’ severe beating
of Ronald at La Rosa, Fuiava’s beating of another inmate in the
jail, and his previous conviction for a drive-by shooting. The
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prosecution noted that Afamasaga claimed not to remember the
names of the friends through whom he bought his unregistered 9-
millimter gun. The prosecution attacked as implausible
Afamasaga’s explanation that he brought his unregistered 9-
millimeter gun instead of his legal, registered .40-caliber gun
simply because it was newer and he liked it better. The
prosecutor also argued that defendants’ disposal of evidence after
the shooting demonstrated their consciousness of guilt, which
was relevant to their credibility. With these many different
avenues of attack, excluding the gun images would not have
significantly changed the jury’s impression of defendants’
credibility.
The prosecution originally argued for the admission of the
images of defendants with guns under section 1103, to prove
their violent characters in response to defendants’ evidence of
McDaniel and Raymond’s violent characters. The prosecution did
not make this argument to the jury, though, so it is unlikely the
jury consciously considered those images for that purpose. The
jury perhaps could have been primed to find defendants’ claims of
fear based on the victims’ firearm possession less plausible after
seeing the images during trial. But there was plentiful other
evidence concerning defendants’ gun ownership, much of it more
powerful for the prosecution than the gun images. Afamasaga
admitted to owning a legal firearm, and he admitted to buying a
second gun illegally. Fuiava admitted to buying a gun illegally,
despite his criminal record. And as the prosecution emphasized
in closing argument, both defendants also admitted they carried
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their loaded guns concealed at their waistbands when they came
to the Whiskey Tip, before they even knew McDaniel was there.
Afamasaga’s weak explanation for buying and carrying an
unregistered gun instead of his legal one was a particularly
potent line of argument, since it raised a fair inference that
Afamasaga intended to use the gun for something other than
lawful self-defense. Compared to this type of evidence,
defendants’ display of guns in the rap videos added little to the
prosecution’s attempts to show defendants possessed firearms
and had violent characters.
Moreover, the biggest obstacle to defendants’ self-defense
claims, both perfect and imperfect, was not the evidence of their
own violent characters or questions about the credibility of their
claims of fear of the victims’ violent characters. As defendants
admit, the objective surveillance camera footage on its own badly
undermined their claim that they specifically feared imminent
death or great bodily injury from McDaniel or Raymond. This
was sufficient on its own to defeat their claims of perfect and
imperfect self-defense. (People v. Lopez (2011) 199 Cal.App.4th
1297, 1305 [“For either perfect or imperfect self-defense, the
defendant’s fear must be of imminent harm.”].) The prosecutors
emphasized this point repeatedly and at length in closing
argument. The prosecution also pointed out the fundamental
inconsistency in defendants’ claims of fear of McDaniel. As
discussed ante, defendants said they were afraid of McDaniel
intentionally shooting them at the Whiskey Tip even though by
Afamasaga’s account McDaniel shot him at Remy’s only by
29
mistake and Afamasaga never implicated him in the shooting.
Even if the admission of the rap video images was erroneous,
excluding it would not have remedied these fundamental defects
in defendants’ claims of self-defense, so there is no reasonable
probability that it would have led to an outcome more favorable
to defendants.6
DISPOSITION
The judgment is affirmed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GORDON, J.*
People v. Afamasaga (A171550)
People v. Fuiava (A171642)
6 We need not address defendants’ cumulative error
argument because the only error we have found is the one we
assume the trial court made under section 352.2.
* Judge of the Superior Court of San Francisco County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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