Appellate court upholds Tory Lanez's convictions and sentence for shooting Megan Thee Stallion
The 46-page opinion was issued one week before trial begins in Megan's federal lawsuit against an online commentator accused of a 'campaign of harassment' on Lanez's behalf.
A California appellate court on Wednesday affirmed rapper Tory Lanez’s felony convictions and 10-year prison sentence for shooting Megan Thee Stallion and injuring her feet in Los Angeles five years ago.
The three justices determined eight errors Lanez, legal name Daystar Peterson, alleges occurred in his trial and sentencing are not errors. They identified one error when they determined the jury should’ve been instructed differently regarding the concealed unregistered firearm in a vehicle charge, but they also determined that “on this record, the court’s failure to do so was harmless.”
They also said that any ambiguity regarding an instruction about great bodily harm sustained by Megan, legal name Megan Pete, is harmless “because substantial evidence established, beyond a reasonable doubt, that the injuries Peterson inflicted on Pete were more than moderate harm.”
“Indeed, they are more properly characterized as significant or substantial harm,” according to the 46-page opinion, written by Justice Anne H. Egerton in the 2nd District Court of Appeal, Division Three, in Los Angeles with concurrence from Justices Lee Smalley Edmon and Rashida A. Adams.
Egerton said Pete’s testimony about her pain and physical therapy, as well testimony from a surgeon who removed bullet fragments from Pete’s feet, “was more than sufficient to support the jury’s finding that Peterson personally inflicted great bodily injury on Pete.”
The opinion is unpublished, which means it does not establish new case law and is not citable in other cases. It was filed one week before trial is to begin in Miami, Florida, a federal defamation lawsuit Megan is pursuing against an online commentator her lawyers say is working with Lanez and his family to perpetuate “a years-long campaign to smear and intimidate” Megan.
The opinion rejects arguments about Megan’s testimony, jurors seeing photos of his tattoos, testimony about his probation case in Florida and jurors hearing prosecutors’ pre-trial interview with Megan’s now-former friend Kelsey Harris, who witnessed the shooting and whom Lanez’s lawyer argued in trial was the real shooter. It also says Los Angeles County Superior Court Judge David V. Herriford did not error when he allowed prosecutors to use as evidence an Instagram post from the Shade Room in which Lanez’s account replied “that’s not true” to someone saying Kelsey was the shooter.
The opinion mentions Kelsey again when rejecting Lanez’s argument that prosecutors improperly influenced his first lawyer, Shawn Holley, to leave the case. Justices cite other reasons for Holley’s departure, including her belief that blaming Kelsey for the shooting was not “a viable strategy.”
The opinion also rejects the argument that Judge Herriford “impermissibly chilled” Lanez’s right to testify by saying prosecutors could question him about his music video and rap lyrics, and it rejects arguments that prosecutors made improper statements in closing argument.
Egerton, Edmon and Adams in August rejected two habeas petitions that sought an evidentiary hearing or a new sentencing based on alleged new evidence. That ruling also rejected Lanez’s argument the DNA testing presented at trial violated industry-accepted standards.
The justices heard oral argument in Lanez’s main appeal on Aug. 18 from Lanez’s lawyer Crystal Morgan and Deputy Attorney General Michael C. Keller.
Here’s a breakdown of the issues addressed in the opinion:
The trial court did not abuse its discretion in permitting the prosecutor to ask Pete questions directed to her inconsistent reports to police and her attitude about the case and about testifying
Morgan argued that Los Angeles County Deputy District Attorney Alex Bott’s question to Megan about how she “felt coming into court” was improper. Justices disagreed, saying jurors were instructed that they can consider a witness’ attitude when assessing their credibility, and Megan’s credibility “was a key issue in the case.”
“Indeed, in cross-examination Peterson’s counsel repeatedly asked Pete to admit she’d lied,” justices wrote.
Evidence Code section 352.2 does not apply retroactively, and the trial court did not abuse its discretion in admitting a photograph of Peterson’s torso and arms
Lanez argued his convictions should be reversed because Judge Herriford errored by allowing jurors to see a photo that showed Lanez’s tattoos, including one of a gun on his chest that Morgan said in her 103-page opening brief is “an homage to his idol, Tupac Shakur.”
Morgan cited a California law that took effect on Jan. 1, 2023 — 10 days after his convictions — but justices said the California Supreme Court ruled on Aug. 28 that it isn’t retroactive.
“Accordingly, Evidence Code section 352.2 does not assist Peterson,” according to the opinion.
Justices also said the record doesn’t support his argument that the photo of his tattoos injected “racial bias” into his trial.
“There was no gang allegation in this case and no one ever suggested that Peterson had any gang ties. The prosecution offered Exhibit 18 (and Exhibits 19 and 20), and the court admitted them into evidence, solely to show the identity of the individuals [who] officers swabbed for gunshot residue at the police station,” according to the opinion.
Morgan argued Bott improperly referenced the gun tattoo during his questioning of Megan’s former stylist Eric “EJ” Culberson, but justices said it was Lanez’s lawyer George Mgdesyan “who asked—both on direct and on redirect—if Culberson had ever seen Peterson with a gun.”
“Neither of the prosecutors even mentioned Peterson’s tattoos—much less the tattoo of a firearm—in their closing arguments,” justices wrote.
Justices also said Megan’s “brief reference” to Lanez making a music video “chopping up horse legs” was permissible because it relates to her attitude about testifying.
“The trial court did not “impermissibly chill[] Peterson’s right to testify” and—as Peterson did not testify—he cannot raise this issue on appeal”
Judge Herriford said he’d take impeachment evidence against Lanez “on a case-by-case basis” if he testified, but said that “essentially, anything pertaining to this case, obviously is fair game.” Morgan argued on appeal that Herriford errored by including Lanez’s song lyrics, but the opinion said “Neither Peterson nor his counsel ever told the court that Peterson wished to testify, but was deterred by the prospect of impeachment by the prosecution.”
The 1984 U.S. Supreme Court ruling Luce v. United States said appellate courts can’t adequately review trial court decisions regarding a defendant’s testimony if the defendant didn’t testify.
Morgan argued Luce doesn’t apply in Lanez’s case because Luce involved impeachment with a prior criminal conviction, and all impeachment material against Lanez should’ve been excluded under the new law about creative expressions as evidence.
“We are not persuaded. Nothing in Luce suggests its holding is limited to impeachment with a prior conviction as opposed to other types of conduct or acts,” the justices wrote. “And, as we have said, Evidence Code section 352.2 ‘does not guide us in this appeal,’” quoting the 5th District Court of Appeal ruling in August that said the law isn’t retroactive.
“The mention of Peterson’s criminal case in Florida was not prejudicial”
Justices said testimony about Lanez being on probation in Florida didn’t unfairly prejudice Lanez because prosecutors elicited it after Lanez’s lawyer implied in questioning that Megan falsely told police Lanez claimed to be on probation.
Lanez actually was on diversion for a criminal case in Florida, and Mgdesyan stipulated with prosecutors that jurors be instructed, “Diversion and probation are not the same. You are not to speculate about the circumstances of Mr. Peterson’s grant of diversion in 2017. It was terminated in 2017. And you are not to conclude from this evidence that Mr. Peterson has a bad character or that he’s disposed to commit crime.”
“Pete’s testimony that Peterson said he’d been ‘caught with a gun before’ was not false,” justices wrote in the new opinion. “In any event, Peterson’s counsel reached an agreement with the prosecution to present a stipulation with the true facts to the jury, and for the court to instruct the jury on what ‘diversion’ means. The record does not support Peterson’s claim of error on this point.”
“The trial court did not err in permitting the prosecution to play for the jury, as a prior inconsistent statement, the recording of Kelsey Harris’s interview with prosecutors”
Judge Herriford allowed prosecutors to play for jurors Kelsey’s entire pre-trial interview with prosecutors after Mgdesyan implied in his cross-examination of her that prosecutors unfairly pressured her during the interview.
Deputy District Attorney Kathy Ta first played excerpts of the interview in direct-examination to try to refresh Kelsey’s recollection because, justices wrote, she “repeatedly claimed not to remember what had happened that early morning and in the days following the shooting.”
Justices said jurors are allowed to consider prior statements such as Kelsey’s interview “for its truth as well as for the light it sheds on the witness’s lack of credibility.”
“So the prior statement has a dual purpose: it may be considered for impeachment as well as substantive evidence. When a trial court concludes, on substantial evidence, that a witness’s professed lapses of memory are false, evasive devices to avoid truthful answers, it may admit as ‘inconsistent’ the witness’s prior statements describing events the witness now claims to have forgotten,” justices wrote, quoting the 1996 4th District Court of Appeal opinion People v. Arias.
The trial court did not abuse its discretion in admitting evidence regarding an Instagram post
After jury selection, prosecutors moved to admit a “that’s not true” comment Lanez’s Instagram account made in reply to a comment on post from the gossip powerhouse The Shade Room that said, “People saying Kelsey shot her 😭”.
Morgan argued on appeal that prosecutors improperly disclosed the post late, and that it shouldn’t have been admitted at all under evidentiary rules against hearsay.
The new opinion says Lanez forfeited the timeliness issue on appeal because he didn’t object to the lateness of the post in trial. Justices also said any error in admitting the post was harmless because as Judge Herriford noted when rejecting Lanez’s motion for new trial, it “Was an extremely minor issue in the case.”
“The case turned on Pete’s testimony, Peterson’s admissions to Harris when he called her from jail, and other similar evidence,” according to the opinion. “Detective [Warren] Eberhardt testified he was not saying that Peterson had posted the statement ‘that’s not true,’ and he admitted he had no knowledge of who controlled Peterson’s Instagram account,” justices wrote.
The trial court properly instructed the jury on count 1 and the firearm enhancement; any error in the instructions on count 2 was harmless
Justices called Morgan’s appellate argument about jury instructions “somewhat difficult to understand” and said she didn’t cite case law to support her assertion that assault with a semiautomatic firearm “is a general intent crime; yet, the enhancement attached to this count through Penal Code section 12022.5 requires specific intent.”
“No case has held that assault with a semiautomatic firearm or a personal use of a firearm enhancement requires specific intent,” justices wrote.
However, justices said Morgan’s contention about the instruction for count 2 — carrying a concealed firearm within a vehicle — “requires more discussion” and agreed Judge Herriford should have instructed jurors that the crime requires “the specific state of knowledge” instead of only general criminal intent.
“However, on this record, the court’s failure to do so was harmless,” justices wrote.
Herriford instructed jurors that prosecutors had to prove Lanez had wrongful intent and knew the gun was in the vehicle, and Bott argued in closing that Lanez knew the gun was in the car.
Mgdesyan also emphasized the need to establish intent by arguing Lanez “didn’t even know the gun was there.”
“In short, the jurors were well aware that the prosecution had to prove Peterson knew the gun was in the vehicle,” justices wrote, quoting. 2016 5th District ruling that says jurors “are presumed to be intelligent and capable of understanding and applying the court’s instructions.”
Any ambiguity in CALCRIM No. 3160 is harmless in this case
Justices said any ambiguity regarding an instruction about great bodily harm is harmless “because substantial evidence established, beyond a reasonable doubt, that the injuries Peterson inflicted on Pete were more than moderate harm.”
The prosecutors’ statements in closing argument do not require reversal
Morgan argues Bott made improper comments during closing argument that warrant reversing Lanez’s convictions, but justices said the claims “fail on the merits.”
“As we have explained, the prosecution’s questioning of Pete about why she initially lied to medical personnel and police, the criticism directed at her after she accused Peterson, and her attitude about the case and about testifying was not improper,” justices wrote. “Reference to that testimony in closing argument was not improper for the same reason.”
The justices also addressed an issue discussed in oral argument: the propriety of Bott telling jurors in his opening statement that he expected Megan’s former security guard Justin Edison would say Lanez implicated himself in the shooting. The new opinion said it’s “not uncommon for counsel—on both sides—to tell the jury that a particular witness will testify, only to be unable ultimately to procure that witness’s appearance.”
Bott also suggested Lanez tried to bribe Kelsey — prosecutors unsuccessfully tried to charge him with witness intimidation during trial — which justices said wasn’t improper.
“Pete testified Peterson said, ‘Don’t tell on me,’ and ‘I’ll give y’all a million dollars if you don’t tell on me’ immediately after the shooting. “Harris said the same thing in her September 2022 interview with prosecutors (though by the time of trial three months later she equivocated about why Peterson offered her the money).” justices wrote. “Harris also told prosecutors she’d met with Peterson outside a hotel a day or two after the shooting, and he asked her if she needed a job, if she wanted to work with him. He also mentioned ‘invest[ing] into a business.’”
“Prosecutors may argue inferences from the evidence,” according to the opinion. “When attacking the prosecutor’s remarks to the jury, the defendant must show that, in the context of the whole argument and the instructions, there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. Peterson has not made that showing here.”
Justices also rejected Morgan’s argument that Bott improperly denigrated defense counsel, calling the trial “vigorously litigated and hard fought.”
“In sum, none of the prosecutors’ statements constituted ‘deceptive or reprehensible methods’ that were ‘reasonably likely to have affected the outcome of the proceeding,’” justices wrote, citing a 5th District ruling issued in July.
The record does not support Peterson’s contention that prosecutorial misconduct interfered with his “right to conflict-free counsel”
Justices seemed particularly annoyed by Morgan’s arguments that Holley, who represented Lanez in pre-trial proceedings but wasn’t in the courtroom for his trial, was pushed to withdraw from the case because prosecutors waited until trial to accuse her of bribing Kelsey.
“Peterson’s wholesale failure to support any of these assertions with citations to the record is telling,” justices wrote.
“The letter and emails Peterson himself attached to his new trial motion show the reasons Holley did not try the case and ultimately withdrew:
(1) she was engaged in a lengthy seven-month arbitration, (2) she was ‘not comfortable’ with a defense blaming Harris for the shooting, and (3) after Harris’s statements were introduced at trial, she concluded she had a conflict.
Nothing in the record supports Peterson’s allegation that prosecutors “‘opted to lull Holley into a false sense of security by deceptively assuring her they did not believe her to be involved,’” according to the opinion.
The trial court did not err in imposing the midterm
Judge Herriford said he viewed Lanez’s “post-incident conduct” as “a major factor in aggravation in this case.” He also ruled that Lanez’s use of a weapon and his elgibility to be sentenced to extra time for his gun conviction were aggravators.
Lanez didn’t challenge those on appeal. Instead, Morgan challenged only Herriford’s finding that Megan was a vulnerable victim and argued Megan “had the ability to run or duck once she saw a gun being pointed at her.”
“We find no error. Substantial evidence supports the trial court’s true finding on that aggravating factor. Moreover, even were that not the case, no resentencing would be required. The middle term was the presumptive term. The court was not required to rely on any aggravating factors in selecting the middle term, and Peterson does not dispute the presence of three of the four aggravating factors the court identified. All the trial court was required to do in selecting the middle term was to state its reasons. The court did that here,” justices wrote.
I’ll discuss the ruling live on YouTube at 12 p.m. PST / 3 p.m. EST on Thursday.
The federal defamation trial in Miami
I’ll be in Florida next week to report on the federal jury trial in Megan’s lawsuit against Milagro Cooper, an online commentator with the streaming website Stationhead.
The complaint, filed in the Southern District of Florida, alleges Cooper works with Lanez and his father to employ automated social media robot or “bot” accounts “to attack Ms. Pete and her supporters with hateful, derogatory, and malicious statements on social media.”
The judge who will preside over the trial ruled in February that Megan’s claims against Cooper “extend far beyond mere negligence — they paint a picture of an intentional campaign to destroy her reputation.”
U.S. District Judge Cecilia M. Altonaga rejected Cooper’s dismissal motion and said her statements that Megan alleges defamed her “go beyond casual name-calling.”
“Given that a reasonable person could interpret Defendant’s statements as accusations of perjury, mental incapacity, and alcoholism, the Court finds they are actionable as defamation per se,” the judge wrote.
Lanez is to sit for a deposition with Megan’s lawyers after U.S. Magistrate Judge Lisette Reid on Oct. 30 rejected his motion to quash their subpoena.
Judge Reid also rejected a motion to quash from streamer Aiden Ross and ordered him to be deposed “the week of November 10th.” Streamer DJ Akadmiks, legal name Livington Allen, also has testified in a deposition.
Megan has a team of lawyers from Quinn Emanuel Urquhart & Sullivan LLP. Cooper’s lawyers include Jeremy McLymont, who recently represented Alicia Andrews in the trial over rapper Julio Foolio’s murder, as well as Ronda Dixon, a Los Anglees lawyer who tried to join Lanez’s defense team in 2023 in what I like to call the “Help Me Ronda” era of the Lanez’s post-trial litigation.
I’ll have an article about the case later this week, and I’ll write regular articles from Miami. Subscribe to get them in your inbox. I’ll also post video updates on TikTok, Instagram and YouTube.
Previous articles:
Feb. 24 Tory Lanez to be deposed in prison as Megan’s lawsuit against blogger proceeds
Jan. 9 Judge bars Tory Lanez from contacting Megan Thee Stallion for 5 years
July 29, 2024 State says Tory Lanez knew how his driver would testify but chose not to call him
Sept. 15, 2023 Tory Lanez insults reporter in final courtroom appearance for shooting Megan Thee Stallion
The habeas petitions and the main appeal opening brief are available below for paid subscribers. The Attorney General’s Office filings are down there, too. Your paid subscriptions make my work possible. Follow me on TikTok, Instagram, YouTube, Facebook and X aka the website formerly known as Twitter for more.