[217]Opinion
WOODS, J. Adan Albarran appeals his convictions for attempted murder, shooting at an inhabited dwelling and attempted kidnapping for carjacking. In connection with these offenses, the People asserted gang enhancements pursuant to Penal Code section 186.22, alleging the crimes were committed for the benefit of a criminal street gang. Prior to trial Albarran sought to exclude evidence of his gang affiliation and the other gang evidence arguing it was irrelevant to the charges and was inadmissible under Evidence Code section 352. After conducting an Evidence Code section 402 hearing, the court concluded a sufficient factual foundation existed to support the gang allegations and that the gang evidence was relevant (and not overly prejudicial) on the issues of intent and motive for the underlying charges. The jury convicted Albarran, and found the gang allegations true. Thereafter, Albarran filed a motion for a new trial asserting sufficient evidence did not support the gang allegations and that admission of irrelevant and prejudicial gang evidence warranted a new trial on all charges. The trial court granted the new trial motion with respect to the gang allegations, but denied it as to the underlying charges, finding the gang evidence was relevant to issues of intent.
On appeal from the judgment, Albarran asserts the trial court should not have admitted the gang evidence in the first instance (and/or should have granted his new trial motion in its entirety) because the gang evidence was completely irrelevant and highly prejudicial. He further asserts the erroneous admission of this evidence constituted prejudicial error under state law and also rendered the trial fundamentally unfair, in violation of federal due process. As we shall explain, the trial court should have granted Albarran a new trial on all charges. Our review of the entire record convinces us that certain extremely prejudicial gang evidence was not relevant to the underlying charges; the People failed to present sufficient evidence these crimes were gang motivated. Furthermore, given the highly inflammatory nature of the gang evidence presented, we cannot say the error in admitting the evidence was harmless.
FACTUAL AND PROCEDURAL HISTORY
The Crimes. On March 14, 2004, Michael Bacelis hosted a birthday party for a family member at his home in Palmdale. About 1:00 a.m., Bacelis, who was in an upstairs bedroom putting a child to bed, heard gunfire from outside in front of his house. At the time there were still 20 to 25 people in the house and backyard. After the gunfire began, Bacelis ran to the front entrance of his house. He observed two male Hispanics with shaved heads standing about three houses away, holding guns. One of the young men had a shotgun while the other had a handgun. They continued to fire at the front of Bacelis’s house.
[218]Bryan Monterrosa was sitting in a parked car near Bacelis’s house. He also heard the gunfire and looked up and saw two young men with guns pointed at the house. One of the shooters stood 7 to 10 feet away from Monterrosa and the other shooter, later identified as Albarran, was holding a handgun arid stood about a foot away from where Monterrosa sat inside the car. When interviewed by police, Monterrosa identified the shooters as Hispanic males with shaved heads. Monterrosa did not identify Albarran' as one of the shooters; he stated he did not see their faces well enough to recognize either of them.1
After the shooting stopped, Bacelis jumped into his SUV, which was parked in front of his house, and began to follow the shooters as they fled down the street on foot. The young men turned a comer and as Bacelis, turned he saw a car with its lights off at the end of that street. The car appeared to be backing up; it then came to a istop and Bacelis saw the two shooters jump into the car. Bacelis initially thought the car was the getaway vehicle and he proceeded toward it. The car turned left in front of Bacelis’s SUV and Bacelis crashed his car into it. Two males jumped out of the car and fled on foot. Bacelis was unable to identify the shooters.
The car was driven by Lizette Arvizu, Bacelis’s neighbor. According to Arvizu, shortly before her car was struck by Bacelis’s SUV, she had driven to the area with her cousin, Andrea, her friend Monique and Monique’s cousin Frankie. Lizette was driving, Andrea rode in the front passenger seat and Monique" and Frankie sat in the backseat. Lizette had been driving toward Monique’s house when she heard gunfire'and saw people mnning toward her car. Lizette put her car in reverse intending to back out of the area. A male holding a long gun suddenly jumped into the backseat of the vehicle. The male told her to “just drive, go.” As she started to make a left turn to leave the area; her car was struck by Bacelis’s SUV. Monique testified that she was struck in the head by the long gun. After the collision, another male jumped into the backseat and Frankie jumped out and ran. The second male' carried a shorter gun and may also have said “drive” or “go.” Lizette told the young men to get out of the car because it would not drive. Both young men got out and fled on foot. The young women stated they were frightened, upset, and under stress but also got quick (one-to-two second) glances at both young men. They told the jury the second male was a Hispanic teenager.2
[219]About six weeks later, Lizette, Andrea and Monique identified Albarran from a one-of-six-array photo lineup. The young women stated Albarran was the second male who carried the small handgun. Though none of the young women had mentioned it to the police during the investigation, the young women said they recalled the second young man had a small mole/birthmark on his face and recognized Albarran from the photos because he too had a small mole/birthmark on his face. The young women also conceded that they discussed the facts, including their respective identifications, on a number of occasions.
Albarran’s Arrest and the Trial Proceedings. According to Deputy Robert Gillis (the deputy who arrested Albarran), when Albarran was taken into custody, Albarran told the officer: “Man, this is messed up. We jumped into that bitch’s car when we got in that shooting and she drove us out of the area.” The officer also stated Albarran remarked: “Well, whatever. She got hit by a guy and I just told her to go, go, go.”
Albarran was charged with: (1) attempted willful, deliberate and premeditated murder of Michael Bacelis (count 1); (2) shooting at an inhabited dwelling (count 2); (3) three counts of attempted kidnapping for carjacking (as to Lizette Arvizu, Andrea Arvizu and Monique Gonzalez) (counts 3-5); and (4) three counts of attempted carjacking (as to Lizette Arvizu, Andrea Arvizu and Monique Gonzalez) (counts 6-8). As to each charge the People also alleged various enhancements,3 including a gang enhancement pursuant to Penal Code section 186.22. The enhancement alleged the crimes had been committed for the benefit of, at the direction of, or in ássociation with a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members. •
Prior to trial Albarran filed a motion to challenge the admission of any evidence of Albarran’s gang affiliation and evidence concerning whether the crimes were gang related as irrelevant. He also argued the evidence was inadmissible under Evidence Code section 352. The prosecutor argued the case presented a “classic” gang shooting and that the entire purpose of the shooting was to gain respect and enhance the shooters’ reputations within the gang community, and to intimidate the neighborhood—essentially to “earn one’s bones” within the gang. The prosecutor noted, however, that he had no percipient witness or evidence to prove the crime was gang related or motivated, but instead would be relying on testimony of the sheriff’s gang expert, Deputy Gillis, who was most familiar with Albarran and his gang, the 13 Kings.
[220]During the Evidence Code section 402 hearing, Deputy Gillis testified to his numerous contacts with Albarran and to Albarran’s admission that he was an active member of the 13 Kings street gang. Deputy Gillis described the types of crimes committed by the 13 Kings, Albarran’s gang tattoos, and gang graffiti at Albarran’s house. While he conceded he was aware of no direct evidence (no gang signs shown, announcements or gang graffiti) that specifically linked the 13 Kings or Albarran to these crimes, he believed the offenses were gang related because there were two shooters involved, and the crime would intimidate people. Gillis conceded, however, he did not know the exact reason for the shooting, though he was told there were members of another gang, Los Compadres, at the house.
The court denied Albarran’s Evidence Code section 402 motion, concluding that the prosecutor had laid a sufficient foundation for the expert testimony on the gang enhancements and gang evidence (including Albarran’s gang affiliation, tattoos, gang behavior, activities, crimes). The court also concluded the evidence- was' relevant to the issues of motive and intent as to the underlying charges.' The trial court further noted it had assessed the evidence under Evidence Code section 352 and determined that its probative value outweighed any resulting prejudice.
The case proceeded to trial. During the prosecutor’s opening argument, he made a number of references to Albarran being a member of a “dangerous” street gang, the 13 Kings. The prosecutor also showed a picture of Albarran’s gang tattoos, describing one of the tattoos as a “reference to the Mexican Mafia, which is a violent prison street gang that controls the Hispanic street gangs.” The prosecutor noted that when a person has such a tattoo it shows allegiance to the Mexican Mafia.
During the trial, two other sheriff’s deputies, in addition to Deputy Gillis, testified that Albarran was a member of the 13 Kings street gang. Deputy Gillis testified he had 20 face-to-face contacts with Albarran in the prior two years. He described in detail Albarran’s gang involvement, his tattoos and his gang moniker, “Flaco.” He testified that the shooting occurred in the 13 Kings’ gang area not far from Albarran’s home. Deputy Gillis stated Albarran had been “jumped into” the gang and that Albarran’s brother had been recently jumped in as well. Deputy Gillis explained Albarran had a number of gang tattoos, including one referencing the Mexican Mafia. He also testified concerning the prevalence of 13 Kings graffiti around Albarran’s home. Deputy Gillis described one piece of graffiti he attributed to Albarran’s gang which contained a specific threat to murder police officers. He also identified [221]a number of 13 Kings gang members by name and monikers and described arresting them. Gillis told the jury the 13 Kings committed a number of criminal offenses, including robberies, driveby shootings, carjackings, and felony vandalism. Deputy Gillis explained how gang members gain respect by committing crimes and intimidating people. Deputy Gillis stated that during the commission of a crime a gang member makes himself known and can gain respect by showing or “throwing” gang signs, yelling out an announcement of his presence or tagging. Gillis conceded that there was no evidence in this case that any of the shooters had made themselves known— the shooters made no announcements, did not throw any gang signs and there was no graffiti referring to the crime. Nonetheless, Gillis insisted that the shooters would gain respect within the gang absent such evidence because the people present at the party would know who was present at the party and would also know the shooters. Deputy Gillis testified that “by word of mouth, word on the street,” it was known the Los Compadres gang was at the party.
Deputy Gillis opined that the shooting of Bacelis’s house was gang related and intended to benefit the 13 Kings street gang because; (1) the shooting occurred in Palmdale; (2) it occurred at a party and gang members often commit crimes during parties; and (3) more than one shooter was involved. Deputy Gillis stated that when these crimes were committed the 13 Kings were involved in an active gang war. Deputy Gillis also testified that Michael Bacelis was a member of another gang, the Pierce Boys Gang, but he admitted he was unfamiliar with the Pierce Boys Gang and knew of no rivalry between Albarran’s gang and the Pierce Boys Gang.
Deputy Gillis also described how Albarran had “confessed” to his involvement in the shooting when Gillis arrested him. Before Deputy Gillis was cross-examined, the court admonished the jury concerning the limited use of the evidence—the court told the jury that the gang evidence could not be considered to prove that Albarran was a person of bad character or that he had a disposition to commit crimes, but could only be considered if it tended to show that the crimes committed were for the benefit of a street gang. The jury was also instructed pursuant to CALJIC No. 2.09 concerning the proper and limited use of the gang evidence.
Albarran presented an alibi defense from a number of family members and friends who testified Albarran was at a party with his family in Sun Valley at the time of the shooting.
[222]During his closing, the prosecutor made a number of references to Albarran’s gang involvement. He told the jury that the crime was gang motivated.4 The prosecutor also argued that because Albarran was a gang member his alibi was unbelievable. He also warned the jury not to be fooled by Albarran’s “altar boy” appearance at trial; he reminded the jury that Albarran was an active member of the 13 Kings with gang tattoos.
The jury convicted Albarran on counts 1 through 5 and found him not guilty on counts 6 through 8.5 As to counts 1 through 5 the jury also found the gang enhancement allegation true.
Albarran filed a motion for a new trial asserting that insufficient evidence supported the gang enhancement allegations. He also asked for a new trial on the underlying charges, arguing that absent the gang allegations, the gang evidence was irrelevant and overly prejudicial. The court granted the new trial motion as to the gang enhancements and denied it as to the underlying charges. The gang allegations were dismissed without prejudice.
Albarran appeals.
DISCUSSION
Before this court, Albarran complains the gang evidence presented at his trial was irrelevant and inadmissible. Specifically he argues the trial court should haVe excluded the evidence prior to trial.6 In any event, Albarran [223]asserts, the court thereafter having found the gang evidence was insufficient to prove the gang allegations, should have also concluded the gang evidence was irrelevant and unduly prejudicial as to the underlying charges, and thus, the court should have granted his new trial motion in its entirety. Albarran further asserts the erroneous admission of the gang evidence requires reversal because it amounts to prejudicial error under state law and deprived him of his constitutional due process rights under federal law to a fair trial. We address Albarran’s contentions in turn.
A. Admission of Gang Evidence.
California courts have long recognized the potentially prejudicial effect of gang membership. As one California Court of Appeal observed: “It is fair to say that when the word ‘gang’ is used in Los Angeles County, one does not have visions of the characters from the ‘Our Little Gang’ series. The word gang . . . connotes opprobrious implications. . . . [T]he word ‘gang’ takes on a sinister meaning when it is associated with activities.” (People v. Perez (1981) 114 Cal.App.3d 470, 479 [170 Cal.Rptr. 619].) Given its highly inflammatory impact, the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. (People v. Cox (1991) 53 Cal.3d 618, 660 [280 Cal.Rptr. 692, 809 P.2d 351].) In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047 [16 Cal.Rptr.3d 880, 94 P.3d 1080].) “Gang evidence should not be admitted at trial where its sole relevance is to show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense.” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449 [69 Cal.Rptr.2d 16].)
Thus, as general rule, evidence of gang membership and activity is admissible if it is logically relevant to some material issue in the case, other than character evidence, is not more prejudicial than probative and is not cumulative. (People v. Avitia (2005) 127 Cal.App.4th 185,192 [24 Cal.Rptr.3d 887].) Consequently, gang evidence may be relevant to establish the defendant’s motive, intent or some fact concerning the charged offenses other than criminal propensity as long as the probative value of the evidence outweighs its prejudicial effect. (People v. Williams (1997) 16 Cal.4th 153, 193 [66 [224]Cal.Rptr.2d 123, 940 P.2d 710]; see generally Evid. Code, § 352.) “Evidence of the defendant’s gang affiliation—including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Nonetheless, even if the evidence is found to be relevant, the trial court must carefully scrutinize gang-related evidence before admitting it because of its potentially inflammatory impact on the jury. (People v. Williams, supra, 16 Cal.4th at p. 193; People v. Carter (2003) 30 Cal.4th 1166, 1194 [135 Cal.Rptr.2d 553, 70 P.3d 981] [evidence of defendant’s gang membership although relevant to motive or identity creates a risk the jury will improperly infer defendant has a criminal disposition and is therefore guilty of the charged offense and thus must be carefully scrutinized].)
We review the court’s order denying the motion for a new trial de novo. (People v. Ault (2004) 33 Cal.4th 1250, 1262 [17 Cal.Rptr.3d 302, 95 P.3d 523] .)7 Nonetheless, the decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the [225]discretion of the trial court. (People v. Avitia, supra, 127 Cal.App.4th at p. 193.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 [36 Cal.Rptr.2d 235, 885 P.2d 1], original italics; see People v. Olguin (1994) 31 Cal.App.4th 1355, 1369-1370 [37 Cal.Rptr.2d 596].) It is appellant’s burden on appeal to establish an abuse of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316 [228 Cal.Rptr. 197, 721 P.2d 79].)
In his pretrial motion to exclude the gang evidence, Albarran argued the gang evidence was irrelevant and otherwise inadmissible under Evidence Code section 352. In connection with his motion for new trial he argued that the gang evidence was irrelevant to the underlying charges, inflammatory, unduly prejudicial, and constituted “bad character” evidence.
At the hearing on the new trial motion, the court announced its tentative ruling to grant the motion as to the gang allegation and to deny it as to the underlying charges. The court then gave both sides an opportunity to argue.
Albarran agreed with the court’s view that the evidence presented at trial was insufficient to support the gang allegation. He also asserted, however, that the gang evidence admitted was only relevant to the gang allegation and that absent the gang allegation none of the other gang evidence was relevant or admissible to the underlying charges. Albarran argued that but for the gang evidence he would have been acquitted. The court then asked Albarran whether at least “some” of the gang evidence would have been admissible even without the gang allegation. Albarran answered in the negative. The court disagreed, responding that gang evidence is admissible absent a Penal Code section 186.22 allegation for the limited purpose to prove motive and intent. Albarran then responded that the evidence was nonetheless inadmissible because there was no evidence of any particular motive in the case and [226]that the gang evidence was used to create a motive not otherwise suggested by the evidence. When the prosecutor was given an opportunity to speak, he stated his agreement with “the court’s analysis with respect to the relevance of gang evidence when there is no longer a gang allegation .... that it is relevant to motive [and] intent.” The prosecutor continued that in his view “what we’re left with . . . it’s a 352 issue . . . what is the weight of the evidence against Mr. Albarran in making a determination on that 352 issue and whether or not that evidence was—its probative value is substantially outweighed by its prejudicial effect.” The prosecutor also emphasized that at the pretrial Evidence Code section 402 hearing the court admitted the evidence to prove the gang allegation and to prove motive and intent for the underlying charges.8
At the conclusion of the argument the court stated: “The court did consider the arguments raised that the sheer introduction of the gang evidence in and of itself, in essence, poisoned the well and was too prejudicial and inflammatory. In its review of the evidence, the court considered the independent strength of the evidence, including the identifications in this case. The statements attributed to the defendant, in determining whether or not the gang evidence that did come in, which the court would not describe as being overwhelming, but whether or not that gang evidence in and of itself, if it did come in, would affect the jury’s verdict as to the remaining charges. The court’s opinion is that it would not have affected the verdict one way or the other.”
Though the trial court did not expressly so state, a fair reading of the transcript from the hearing on the new trial motion indicates' the trial court held the view that at least some of the gang evidence was relevant and admissible to the issue of motive or intent for the underlying crimes, irrespective of the fact that the gang evidence was not sufficient to prove the gang allegations (i.e., that the crimes were gang related and/or committed for the benefit of a criminal street gang). The same bench officer presided over the pretrial, trial and posttrial proceedings. The court’s question and comments at the hearing on the new trial motion concerning the relevancy of the gang evidence to issues of motive and intent clearly echoed the views it had earlier expressed at the Evidence Code section 402 hearing when it ruled the evidence was admissible to prove the underlying charges. In addition, the language the court used in expressing its ruling implies it engaged in, as suggested by the prosecutor, a type of Evidence Code section 352 balancing of prejudicial versus probative values and such an analysis presupposed the relevance of the gang evidence to the underlying charges. Consequently, we have no doubt the court continued to hold the view the gang evidence was [227]relevant to the motive and/or intent and that such an opinión played a significant role (even though the court did not so expressly state in its ruling) in the court’s decision to deny the new trial motion as to the underlying charge.
At trial the prosecutor argued the motive for the shooting was to gain respect and enhance the shooter’s reputation—essentially to “earn one’s bones” within the gang (i.e., the “respect” motive). In our view, however, there was insufficient evidence to support the contention that this shooting was done with the intent to gain respect. On the contrary, the motive for the underlying crimes, in particular the shooting at Bacelis’s house, was not apparent from the circumstances of the crime. The shooting occurred at a private birthday party for Bacelis’s cousin. Although according to Deputy Gillis, Bacelis was a member of the Pierce Boys Gang, Bacelis’s gang did not have any known or relevant gang rivalries. Deputy Gillis testified that gang members commit crimes to gain respect and enhance their status, within .the gang, He noted a gang member gains such respect if his identity (or the identity of his gang) becomes known to the victim(s), within the gang community and/or the neighborhood. Yet this shooting presented.no signs of gang members’ efforts in that regard—there was no evidence the shooters announced their presence or purpose—before, during or after the shooting. There was no evidence presented that any gang members had “bragged” about their involvement or created graffiti and took credit for it. In fact, at the Evidence Code section 402 hearing Deputy Gillis conceded he did not know the reason for the shooting, though he had “heard” that gang members were present at the party. There is nothing inherent in the facts of the shooting to suggest any specific gang motive.9 In the final analysis, the only evidence to support the respect motive is the fact of Albarran’s gang affiliation.
Even if we were to conclude that evidence of Albarran’s gang membership and some evidence concerning gang behavior were relevant to the issue of motive and intent, other extremely inflammatory gang evidence was admitted, which had no connection to these crimes. The prosecution presented a panoply of incriminating gang evidence, which might have been tangentially relevant to the gang allegations, but had no bearing on the underlying charges. Deputy Gillis testified at length10 about the identities of other 13 Kings members, the wide variety of crimes ■ they had committed and the numerous contacts between the various gang members (other than Albarran) [228]and the police. He described a specific threat 13 Kings had made in their graffiti to kill police officers. The jury heard references to the Mexican Mafia both during the prosecutor’s opening argument and in Deputy Gillis’s testimony. All of this evidence was irrelevant to the underlying charges and obviously prejudicial. Evidence of Albarran’s gang involvement, standing alone, was sufficient proof of gang motive. Evidence of threats to kill police officers, descriptions of the criminal activities of other gang members, and reference to the Mexican Mafia had little or no bearing on any other material issue relating to Albarran’s guilt on the charged crimes and approached being classified as overkill.11 While the court did admonish the jury concerning the proper use of the gang evidence, certain gang evidence admitted was so extraordinarily prejudicial and of such little relevance that it raised the distinct potential to sway the jury to convict regardless of Albarran’s actual guilt.
We are troubled by the lack of scrutiny given to the gang evidence (and its potential for prejudice) when the court denied the new trial motion on the underlying charges. When viewed in the full context of the arguments of counsel and discussion at hearing on the new trial motion, the trial court effectively endorsed the conclusions it had reached pretrial about the relevance of the gang evidence to the issues of motive and intent. The court impliedly found that “some”12 of the gang evidence was in fact relevant before proceeding to quasi-Evidence-Code-section-352/prejudice analysis in which it concluded the'gang evidence presented did not affect the verdict in view of the strength of the other non-gang evidence. As previously addressed, howbver, certain of the gang evidence, i.e., threats against police, reference to the Mexican Mafia, and descriptions of other crimes committed by other gang members, was irrelevant, cumulative and presented a substantial risk of undue prejudice. The paramount function of this evidence was to show Albarran’s briminal disposition—a fáfct emphasized in the prosecutor’s closing argument when he argued: “[Albarran] is all about being a gang member day in and day out, every day, every night, despite efforts of the deputies .... He’s all about it:”
B. Prejudicial Error
We turn then to the issue of prejudice. Albarran does not base his appeal solely on the argument that the trial court’s ruling admitting gang evidence [229]violated rules of evidence and prejudiced the verdict under state law. If this were so, we would now examine whether the result of the trial would have been the same, absent the error, under the “reasonably probable” standard of People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].
Instead, he claims that the erroneous admission of this evidence was so serious as to violate his federal constitutional rights to due process, rendering his trial fundamentally unfair. (See Estelle v. McGuire (1991) 502 U.S. 62, 70 [116 L.Ed.2d 385, 112 S.Ct. 475]; People v. Partida (2005) 37 Cal.4th 428, 439 [35 Cal.Rptr.3d 644, 122 P.3d 765] (Partida) [“[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair.”].)13 To determine whether an evidentiary ruling denied defendant due process of law, “the presence or absence of a state law violation is largely beside the point” because “failure to comply with the state’s rules of' evidence is neither a necessary nor a sufficient basis” for granting relief on federal due process grounds. (Jammal v. Van de Kamp (9th Cir. 1991) 926F.2d 918, 919-920.) If Albarran demonstrates the admission of evidence violated federal due process rights, he need not demonstrate the Watson standard for prejudicial error. Under Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824], in the case of a deprivation of federal due process, reversal is required unless the state can prove beyond a reasonable doubt that the error did not contribute to the verdict. (See People v. Boyette (2002) 29 Cal.4th 381, 428 [127 Cal.Rptr.2d 544, 58 P.3d 391] [Watson standard applies to prejudicial-error analysis for errors of state law, while beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. 18 applies to similar analysis for federal constitutional errors].)
To prove a deprivation of federal due process rights, Albarran must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted' in an unfair trial. ' “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.’ [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.” {Jammal v. Van de Kamp, supra, 926 F.2d at p. 920, italics omitted.) “The dispositive issue is . . . whether the trial court committed an error which [230]rendered the trial ‘so “arbitrary and fundamentally unfair” that it violated federal due process.’ [Citation.]” (Reiger v. Christensen (9th Cir. 1986) 789 F.2d 1425, 1430.)14
Certain gang evidence, namely the facts concerning the threat to police officers, the Mexican Mafia evidence and evidence identifying other gang members and their unrelated crimes, had no legitimate purpose in this trial. The trial court’s ruling on the new trial motion in which it broadly concluded the gang evidence was admissible to prove motive and intent for the underlying charges was arbitrary and fundamentally unfair. As we have concluded elsewhere, the prosecution did not prove that this gang evidence had a bearing on the issues of intent and motive. We thus discern “no permissible inferences” that could be drawn by the jury from this evidence. (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920, italics omitted.) From this evidence there was a real danger that the jury would improperly infer that whether or not Albarran was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished. Furthermore, this gang evidence was extremely and uniquely inflammatory,15 such that the prejudice arising from the jury’s exposure to it could only have served to cloud their resolution of the issues.16 In our view, looking at the effect of this evidence on the trial as a whole, we believe that this prejudicial gang [231]evidence was “ ‘of such quality as necessarily prevents a fair trial.’ ” (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920.)17
[232]This case presents one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant’s trial fundamentally unfair. Given the nature and amount of this gang evidence at issue, the number of witnesses who testified to Albarran’s gang affiliations and the role the gang evidence played in the prosecutor’s argument, we are not convinced beyond a reasonable doubt that the error did not contribute to the verdict. Consequently, the court- erred in failing to grant Albarran a new trial on all of the charges.18
DISPOSITION
The judgment is reversed and the matter is remanded to the superior court for further proceedings. On remand the superior court is directed to: (1) vacate its order denying appellant’s motion for a new trial as to counts 1 through 5; and (2) enter a new and different order granting appellant’s motion for a new trial on all charges.
Johnson, J., concurred.
Monterrosa went to middle school with Albarran. Monterrosa agreed that if Albarran had been one of the two shooters he would have been able to recognize him. .
Some of their trial testimony was inconsistent ydth information the young women provided to police at the scene. According to the police detective who interviewed the women the evening of the incident, they identified the assailants as “adult” Hispanics. Furthermore, according to the officer, the women never mentioned that Frankie was in the car with them. In addition, they also initially told police that both suspects jumped into the car before it was [219]struck by the SUV. The young women also gave inconsistent information concerning which car door each of the suspects used to get in their car.
The People also alleged various firearm enhancements.
The prosecutor stated: “Mr. Albarran has a ton of motive, a ton of motive. He’s a gang member. . . . You’ve seen the tattoos. This shooting happens in his gang area, near his home, near his work. That’s what gangsters do. Don’t kid yourself. Nobody is—Gangsters, what they do is engage in violent crime and they shoot at people and they shoot at houses. That is what they do. That’s how they earn their bones. That’s how they move, up in gang. That’s what they do. He’s got a ton of gang motivation to conduct a gang shooting in his own gang area. That’s a motive for the crime. He wasn’t plucked off the planet somewhere like that. He had a ton of motive to shoot at that house, because that’s what gang members do in order to get bragging rights in their own gang, in order to move up in their gang. That’s what they do. He’s got a ton of motive.”
Counts 6 through 8 were charged as lesser offenses to counts 3 through 5 and the jury was instructed that counts 6 through 8 were alternative charges to counts 3 through 5.
In Albarran’s opening brief he asserts “the evidence at the pretrial § 402 hearing failed to establish a sufficient foundation for the admission of the prosecution’s proffered gang evidence. . . .” In other words, Albarran asserts here, as he did at the hearing on the new trial motion, that the gang evidence should not have been admitted in the first instance. Albarran further claims this court need not determine whether the trial Court abused its discretion in its pretrial ruling, because “[e]ven assuming arguendo, the pretrial ruling was not an abuse of discretion, the court’s post-trial determination that the gang evidence was insufficient to prove the crime was gang related confirms,... it should not have been admitted.” Albarran continues “the gang evidence would not have been admissible at a trial on the underlying charges absent [223]the gang allegation.” Thus, contrary to what the dissenting opinion seems to suggest, Albarran did not concede that the trial court properly admitted the gang evidence prior to trial, nor for the purpose of appeal has he abandoned a claim the court erred in admitting the evidence pretrial.-
The California Supreme Court has stated that in cases in which the trial court grants a new trial order, the standard of review is abuse of discretion. (People v. Ault, supra, 33 Cal.4th at pp. 1260-1261.) However, in cases such as this, where the trial court denied the motion for a new trial, the authorities are less clear regarding the standard of review. (Id. at p. 1262, fn. 7 [noting the lack of uniformity in the standard of review].)
For example, in People v. Nesler (1997) 16 Cal.4th 561, 582 [66 Cal.Rptr.2d 454, 941 P.2d 87] (Nesler), the California Supreme Court stated: “Whether prejudice arose from juror misconduct... is a mixed question of law and fact subject to an appellate court’s independent determination.” Yet in People v. Williams, the court provided little explanation for its decision to apply an abuse of discretion standard, stating simply: “ ‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.’. ” (People v. Williams (1988) 45 Cal.3d 1268, 1318 [248 Cal.Rptr. 834, 756 P.2d 221] (Williams); see also People v. Carter (2005) 36 Cal.4th 1114, 1210 [32 Cal.Rptr.3d 759, 117 P.3d 476] (citing Williams).)
While Williams and Carter contain little or no discussion of the standard of review for denials of new trial motions, the Nesler court provides extensive analysis. In Nesler, the criminal defendant moved for a new trial on grounds of juror misconduct. The trial court denied the defendant’s motion, and the Court of Appeal affirmed. Our Supreme Court reversed, hqlding that the trial court erred in concluding there was no substantial likelihood the juror’s misconduct demonstrated her “actual bias.” The court stated the standard of review of the ruling on the motion for new trial as follows: “We accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.] Whether prejudice arose from juror misconduct, however, is a mixed question of law and fact subject to an appellate court’s independent determination. [Citations.]” (Nesler, supra, 16 Cal.4th 561, 582, fn. omitted (lead opn. of George, C. J.).) In a footnote further explaining the standard of the review," the Nesler court stated: “appellate courts . . . conduct an independent review of whether a defendant was prejudiced by juror misconduct. . . .” (Nesler, supra, 16 Cal.4th 561, 582, fn. 5 (lead opn. of George, C. J.).) The court further opined “that in reviewing an order denying a motion for new trial based upon jury misconduct, the reviewing [225]court has a constitutional obligation to determine independently whether the misconduct prevented the complaining party from having a fair trial. [Citation.]” {Nesler, supra, at p. 582, fn. 5, italics omitted (lead opn. of George, C. J.).)
Of particular importance to the Nesler court in evaluating the standard of review for the denial of a new trial motion was the fact that the question presented implicated the constitutional rights of the defendant.
We believe the Nesler court’s rationale for applying independent review when a question implicates a significant constitutional issue is inherently sound. Because the present case, like Nesler, implicates defendant’s federal constitutional rights to due process and concerns the fundamental fairness of his trial, we will apply the de novo standard of review. In any event, even were a more deferential standard of review applied here, our conclusion would be the same.
The same bench officer presided over the pretrial Evidence Code section 402 hearing, the trial and the motion for new trial.
The facts that more than one shooter was involved and the crime occurred in a gang area in Palmdale do not demonstrate one way or another that the crime was gang motivated. (See People v. Martinez (2004) 116 Cal.App.4th 753, 762 [10 Cal.Rptr.3d 751] [presence of an unidentified accomplice does not demonstrate a crime is gang related where there is no evidence the accomplice is a gang member].)
Deputy Gillis’s testimony consumed the better part of an entire trial day (in a six-day trial) and spans 70 pages of the reporter’s transcript.
Additionally, we doubt all of the gang evidence admitted was relevant to prove the gang enhancement/ In particular, the evidence concerning death threats to police and the Mexican Mafia has little, if any, bearing on the gang enhancements in this case.
Because the trial court did not examine the specific types of gang evidence admitted in light of the errors asserted at the new trial hearing, this court cannot be certain what exact evidence the court was referring to when during the hearing the court indicated its view that “some” of the gang evidence was relevant to the issues of motive and intent.
It appears Albarran did not assert a specific federal due process claim in the trial court. Nonetheless, under Partida his due process claim is subsumed within his Evidence Code section 352 objection, and thus has been preserved for appeal. Thus, he may argue “the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process.” (People v. Partida, supra, 37 Cal.4th at p. 435.)
According to the dissent, the trial court did not err when it admitted all of the gang evidence pretrial and thereafter, and the trial court committed no prejudicial error in denying the new trial motion. Based on these premises,.the dissent endeavors to analyze the issue of prejudice by offering an analogy to law governing joinder and severance, describing the question as “whether admission of the gang evidence, even though the trial court did not abuse its discretion in ruling that evidence admissible at the time of the section 402 hearing, ‘actually resulted in “gross unfairness” amouñting to a denial of due process.’ ” (Dis. opn., post, at p. 239.)
As we have elsewhere explained, however, we question whether (even considering the gang allegations) certain gang evidence (i.e., threats against police, reference to the Mexican Mafia) should have been excluded pretrial as irrelevant or unduly prejudicial under Evidence Code section 352. In addition, we read the trial court’s ruling at the hearing on the new trial motion to have included an implicit (and erroneous) finding that at least some (unidentified) gang evidence was relevant to the issues of motive and intent for the underlying charges. Thus, in our view the reliance on an analogy from the law governing joinder and severance, which was not offered, suggested or even briefed by any of the parties, is both unnecessary and inapt.
Instead, the analysis of prejudice properly proceeds to examine whether the erroneous admission of gang evidence was so serious as to violate Albarran’s federal constitutional right's to due process, rendering his trial fundamentally unfair under tests formulated by Jammal and Reiger.
Indeed, more than one California court has recognized references to the Mexican Mafia are extremely prejudicial. (See People v. Hisquierdo (1975) 45 Cal.App.3d 397, 405 [119 Cal.Rptr. 378]; People v. Ayala (2000) 23 Cal.4th 225, 276-277 [96 Cal.Rptr.2d 682, 1 P.3d 3].)
This strength of the gang evidence served to bolster the identifications and Albarran’s statement to Deputy Gillis.
Even were one to accept the dissent’s joinder and severance analogy, and its underlying premises concerning the propriety of the court’s rulings with respect to the admission of the gang evidence, the prejudice analysis turns on, as the' dissent acknowledges, whether the admission of the evidence was so prejudicial as to render the defendant’s trial fundamentally unfair. Thus, in the joinder and severance context, if the trial court’s ruling on a motion to sever is correct at the time it was made, the appellate court must nevertheless reverse the judgment if the “ ‘defendant shows that joinder actually resulted in “gross unfairness” amounting to a denial of due process.’ [Citation.]” (People v. Mendoza (2002) 24 Cal.4th 130, 162 [99 Cal.Rptr.2d 485, 6 P.3d 150].) “[E]rror involving misjoinder ‘affects substantial rights’ and requires reversal ... if [it] results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” (United States v. Lane (1986) 474 U.S. 438,449 [88 L.Ed.2d 814,106 S.Ct. 725] (Lane), relying on Kotteakos v. United States (1946) 328 U.S. 750, 765, 775 [90 L.Ed. 1557, 66 S.Ct. 1239].) The issue is not whether the evidence is sufficient to support the convictions on the joined counts, independent of the evidence on other counts. “ ‘The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.’ ” (Lane, supra, 474 U.S. at p. 449 [106 S.Ct. 725].) In further explaining the “substantial influence analysis,” the Supreme Court stated: “[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” (Kotteakos, supra, 328 U.S. at p. 765.)
Applying this “fundamental fairness” test, given the extremely inflammatory nature of certain gang evidence, we cannot say (even considering the other evidence against Albarran) that the verdict was not substantially swayed by the error. Thus, even under the severance and joinder analogy, reversal is warranted.
The dissent, however, while citing Lane and Kotteakos, does not actually use the “fundamental fairness” test derived from its joinder and severance analogy. Instead the dissent borrows the test from another entirely unrelated context, namely, the prejudicial error test applied to assess the impact of discovery and Brady violations (Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194]). (Dis. opn., post, pp. 239-240.) Specifically, in the discovery/Brady violation context a wronged defendant must convince the court that “ ‘there is a reasonable probability’ that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.” (Strickler v. Greene (1999) 527 U.S. 263, 289-290 [144 L.Ed.2d 286, 119 S.Ct. 1936], quoting Kyles v. Whitley (1995) 514 U.S. 419, 433, 434 [131 L.Ed.2d 490, 115 S.Ct. 1555] [“ ‘The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ ”].)
In this formulation of the “fundamental fairness" test as derived from this case law involving discovery errors and Brady violations, the dissent has weighed the (non-gang) evidence against what it characterizes as the “potential” prejudicial impact of the gang evidence and concludes the independent evidence establishing guilt was so strong that no gross unfairness occurred which undermines the confidence in the verdict. (Dis. opn., post, at pp. 239-240.)
We cannot agree with the dissent’s choice of fundamental fairness test or how the dissent applies it. A Brady/discovery violation is a procedural error in the trial; it concerns the failure to produce evidence which ultimately may or may not have benefited the defendant and which [232]may or may not have been even presented or even considered- by the jury. Thus the likely impact of a Brady!discovery error on the verdict is far from certain, and extremely difficult to measure. Thus, the fundamental fairness test in the Brady context attempts to determine prejudice by looking at whether, without the Brady evidence, the defendant nonetheless received a fair trial.
In contrast, here the error concerns, not the omission or exclusion of evidence from the trial, but evidence which the jury actually heard and which was emphasized throughout the trial. Where, as here, the trial is infused with gang evidence, it is simply not possible to assess the fairness of the trial in its absence, as is the case in the Brady context. The gang evidence in this case was plainly and without question prejudicial to defendant. Legions of cases and other legal authorities have recognized the prejudicial effect of gang evidence upon jurors. (See, e.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-905 [184 Cal.Rptr. 165, 647 P.2d 569] [where a defendant -is a known gang member, evidence of gang membership creates a real danger the jury will infer the defendant is guilty because of his membership standing alone]; Howarth, Representing Black Male Innocence, (1977) 1 J. Gender Race & Just. 97, 139 [“Gangs are a social phenomenon, in which the individual’s identity is linked (often brutally) to the group. At least in theory criminal trials focus on individual culpability. [But in the case of introducing gang evidence] individual guilt or innocence [may become] hazy and faded behind the wall of group identity and group guilt”].) Indeed, because of the way in which gangs terrorize the community, the crimes they commit, and their prevalence in society the very mention of the term “gangs” strikes fear in the hearts of most. In addition, the Legislature has singled out gang-related crimes, for enhanced punishment. For these reasons, in our view, the erroneous introduction of gang evidence, should be assessed under a less anemic test for fundamental fairness than the one used by the dissent.
In view of our conclusion that this evidence- violated federal due process protections and constituted error under Chapman v. California, supra, 386 U.S. 18, we need not assess whether it also constitutes reversible error under People v. Watson, supra 46 Cal.2d.818, 836.