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 a section 402 hearing, the court concluded a sufficient factual foundations
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
Bryan Monterrosa was sitting in a parked car near Bacelis' 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 7-10 feet away from Monterrosa and the other shooter, later identified as Albarran, was holding a handgun and 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.
After the shooting stopped, Bacelis jumped into his SUV 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 corner 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 stop and Bacelis saw the two shooters jump into the car. Bacelis initially thought the car was the get-away vehicle and he proceeded toward it. The car turned left in front of Bacelis' SUV and Bacelis crashed his car into it. Two males jumped out of
The car was driven by Lizette Arvizu, Bacelis' neighbor. According to Arvizu, shortly before her car was struck by Bacelis' 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 gun fire and saw people running 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 back seat 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' 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 (1-2 second) glances at both young men. They told the jury the second male was an Hispanic teenager.
About six weeks later, Lizette, Andrea and Monique identified Albarran from one of six-array photo line-ups. 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 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,
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 Sherriff's deputy gang expert, Deputy Gillis, who was most familiar with Albarran and his gang the 13 Kings.
During the 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) which 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 Albarrans 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 their allegiance to the Mexican Mafia.
During the trial, two other Sherriff'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 King's 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
Deputy Gillis opined that the shooting of Bacelis' house was gang related and intended to benefit the 13 King's 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 Gillis'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 tends 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.
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.
The jury convicted Albarran on counts 1-5 and found him not guilty on counts 6-8.
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.
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.
A. Admission of Gang Evidence.
California courts have long recognized the potentially prejudicial effect of gang membership. As one California Court of Appeal observed: "[I]t is fair to say that when the word `gang' is used in Los Angeles County, one does not have visions of the characters from `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,
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 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 tike—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, 16 Cal.Rptr.3d 880, 94 P.3d 1080.) 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, 66 Cal.Rptr.2d 123, 940 P.2d 710; 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.)
In his pre-trial motion to exclude the gang evidence, Albarran argued the gang evidence was irrelevant and otherwise inadmissible under 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 rating to grant the motion as to the gang allegation and to deny it as 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
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 pre-trial, trial and post-trial proceedings, and 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 section 402 hearing when it ruled the evidence was admissible to 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 section 352 balancing of prejudice 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 relevant to the motive and/or intent and that such an opinion 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
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 length
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 pre-trial about the relevance of the gang evidence to the issues of motive and intent. The court impliedly found that "some"
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 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, 112 S.Ct. 475, 116 L.Ed.2d 385; 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."])
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.' [Citation.] 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.) "The dispositive issue is whether the trial court committed an error which rendered the trial `so "arbitrary and fundamentally unfair" that it violated federal due process.' [Citations.]" (Reiger v. Christensen (9th Cir.1986) 789 F.2d 1425, 1430.)
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.) From this evidence
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 1-5; and (2) enter a new
JOHNSON, J., concurs.
PERLUSS, P.J., Dissenting.
I respectfully dissent.
Adan Albarran was convicted after a jury trial of one count of attempted murder (Pen.Code, §§ 664, 187, subd. (a)), one count of shooting at an inhabited dwelling (Pen.Code, § 246) and three counts of attempted kidnapping for carjacking (Pen. Code, §§ 664, 209.5, subd. (a)). The jury also found true firearm use allegations as to several counts (Pen.Code, §§ 12022.53, subds. (b), (c), 12022.5, subd. (a)(1)) and, with respect to all counts, a special allegation the crimes had been committed for the benefit of a criminal street gang and with the specific intent to promote or assist in criminal conduct by gang members. (Pen.Code, § 186.22, subd. (b)(1)(A).) The trial court granted Albarran's motion for a new trial with respect to the gang allegations, concluding the evidence was not sufficient to support the jury's true findings.
1. The Pretrial Ruling on the Admissibility of the Gang Evidence
Although Albarran asserts the trial court abused its discretion in ruling at the pretrial Evidence Code section 402 (section 402) hearing that the People had established a sufficient foundation for the admission of the gang evidence, he does not press that claim on appeal. To the contrary, in his opening brief Albarran advises us we need not address the issue: "This Court, however, need not determine whether the trial court's pretrial ruling constituted an abuse of discretion." Instead, he advances only a single ground for reversing the trial court's denial of his new trial motion: "The extreme and highly inflammatory gang evidence that was admitted to prove the subsequently dismissed gang allegation unfairly prejudiced the defendant's trial on the underlying charges."
It seems the majority has accepted this invitation, at least as I understand its opinion, and does not hold the trial court erred in its ruling at the section 402 hearing.
Deputy Gillis expressed his opinion Albarran is an active member of 13 Kings. According to Gillis, he has had many direct contacts with Albarran, who admitted to him he was a gang member in one of their face-to-face conversations; Albarran's gang moniker is "Flaco"; he has a "13" tattooed on one shoulder and a "K" tattooed on the other shoulder; and Albarran's residence was known to be a 13 Kings gathering place. Gillis also testified in his opinion the March 14, 2004 shooting "was specifically intended to promote, further or assist a criminal street gang." Gillis noted the person whose house was the target of the gunfire was a member of the Pierce Boys gang (although he conceded he was not aware of any specific rivalry between that gang and 13 Kings) and explained it was an issue of respect: You 11 get rival gang members that go to the same party-and it's a respect issue, where if they show their muscle, who they are, what they do, maybe not even necessarily say, Ve're 13K,' but people on the street will know that they're 13K or Palmas, which is what they were often claiming then. They don't necessarily need to claim it for people to know who they are." Finally, Gillis testified (albeit without any factual foundation) the second shooter with Albarran was also a member of 13 Kings and, in his experience, when gang members carry out a shooting, they typically do so with other gang members.
Following Deputy Gillis's testimony Albarran asked the court to dismiss the gang enhancement allegations, and to exclude the gang evidence. The court denied the motion, recognizing that gang evidence necessarily creates some risk of undue prejudice, but concluding in this instance, "based on the testimony of Deputy Gillis that that there is a sufficient foundation that has been presented that does intertwine, not only the charges but also the gang allegation. All of this comes together in terms of reasoning or the intent or the motive behind the shooting.... The court does not believe that the gang evidence as a whole—that the probative value is substantially outweighed by the risk of undue prejudice to the defendant."
Based on this record, we could not hold the trial court exercised its discretion to allow the gang evidence at trial, including evidence that may not have been directly relevant to Albarran's motive or intent but
2. The Majority's Misperception of the Trial Court's Ruling Denying a New Trial on the Underlying Charges
If the gang evidence was not improperly admitted at trial, at least when viewed from the trial court's ex ante perspective, on what ground does the majority hold the court erred in denying Albarran's new trial motion? The majority concludes the trial court failed to give sufficient scrutiny to the gang evidence and, in particular, its potential for prejudice and, by improperly concluding much of that evidence was admissible on the underlying charges without regard to the gang enhancements, rendered Albarran's trial "so arbitrary and fundamentally unfair" that it violated due process. To reach this result, the majority proceeds in three steps, each of which is problematic.
First, it engages in a lengthy analysis demonstrating that much of the gang evidence relating to the various criminal activities of the 13 Kings, which without doubt had a high potential for prejudice, would not have been admissible over an Evidence Code section 352 objection if there had been no gang enhancement allegations in the information and the only basis for admitting the evidence were to prove Albarran's motive or intent in connection with the attempted murder and other substantive crimes charged. I do not disagree with the analysis itself, but believe it is essentially irrelevant to the issue before us because there were, in fact, special gang enhancement allegations tried to the jury. As discussed, the trial court did not err in ruling before trial that the gang evidence proffered by the People was admissible under those circumstances.
Second, although qualifying its conclusion by twice noting the trial court "did not
My disagreement with this second step rests on the fact the trial court did not engage in the analysis or make the ruling the majority attributes to it. To be sure, in connection with the pretrial motion to exclude all gang related evidence, the trial court stated the gang enhancement allegations and underlying charges "intertwine," and then round, All or this comes together in terms of reasoning or the intent or the motive behind the shooting." But even if this is properly construed as a pretrial ruling that all of the gang evidence was relevant to the issues of motive and intent without regard to the presence of the gang allegations (which I do not believe it is), the trial court made no such statement, let alone a ruling, in denying the new trial motion. To the contrary, in a colloquy with defense counsel during argument on the new trial motion, the court observed that "some of the gang evidence [could] have come in even without the 186.22 allegation," never suggesting that all or even most of the evidence would have been admissible in the absence of the gang enhancement allegations.
3. Albarran's Trial Was Not Fundamentally Unfair
If the ruling identified by the majority as "arbitrary and fundamentally unfair" was never made, is there any other basis for reversing the trial court's decision to deny Albarran's motion for a new trial? Although there appear to be no published cases directly considering the issue before us—how to evaluate the prejudicial impact of gang evidence properly admitted at trial only because special gang allegations were also included in the information when the evidence thereafter presented at trial is legally insufficient to support a true finding as to those allegations
An appellate court reviews the trial court's denial of a pretrial severance motion based on the facts known and the showing made at the time of the motion itself. (People v. Bolderas (1985) 41 Cal.3d 144, 171, 222 Cal.Rptr. 184, 711 P.2d 480; People v. Johnson (1988) 47 Cal.3d 576, 588, 253 Cal.Rptr. 710, 764 P.2d 1087.) However, even if the trial court did not abuse its discretion in denying the motion to sever based upon the showing made at the time of the motion, "there remains the question whether despite the correctness of the trial court's
Applying that analytic structure to the case at bar, the question is 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' amounting to a denial of due process." If it did, the trial court erred in denying Albarran's new trial motion. (See, e.g., People v. Drake (1992) 6 Cal.App.4th 92, 98, 7 Cal.Rptr.2d 790 [trial court's constitutional duty to ensure defendants be accorded due process of law provides it with authority to grant new trial when defendant "did not receive a fair trial," even though cause of unfairness is not expressly recognized as ground for granting new trial under Pen.Code, § 1181]; People v. Fosselman (1983) 33 Cal.3d 572, 582, 189 Cal.Rptr. 855, 659 P.2d 1144.) The standard, then, is whether the gang evidence presented was so inflammatory when viewed in light of the record as a whole that it denied Albarran a fair trial: "The admission of relevant evidence will not offend due process unless that evidence is so prejudicial as to render the defendant's trial fundamentally unfair." (People v. Falsetta (1999) 21 Cal.4th 903, 913, 89 Cal.Rptr.2d 847, 986 P.2d 182; see (People v. Falsetta (1999) 21 Cal.4th 428, 439, 35 Cal.Rptr.3d 644, 122 P.3d 765["[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."]; see generally Lisenba v. California (1941) 314 U.S. 219, 228-229, 62 S.Ct. 280, 86 L.Ed. 166 ["We do not sit to review state court action on questions of the propriety of the trial judge's action in the admission of evidence. We cannot hold, as petitioner urges, that the introduction and identification of the snakes so infused the trial with unfairness as to deny due process of law. The fact that evidence admitted as relevant by a court is shocking to the sensibilities of those in the courtroom cannot, for that reason alone, render its reception a violation of due process."].)
Although there is no single test for such "fundamental unfairness," in a variety of contexts the United States and California Supreme Courts have stated, beyond a violation of the specific guarantees enumerated in the Bill of Rights, only acts that "undermine[ ] confidence in the outcome of the trial" rise to the level of due process violations. (See, e.g., People v. Ochoa (1998) 19 Cal.4th 353, 474, 79 Cal.Rptr.2d 408, 966 P.2d 442["[n]ot every discovery violation is a due process violation—only those that undermine confidence in the outcome"]; Kyles v. Whitley (1995) 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 ["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"]; see also Kotteakos v. United States (1946) 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 ["If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but
Notwithstanding the potentially prejudicial nature of the gang evidence introduced at trial, the evidence supporting the jury's guilty verdicts, which included three positive eyewitness identifications and Albarran's own highly damaging admission of involvement in the shooting, in my view, is compelling. Michael Bacelis, the owner of the home at which the first shots were fired, ran to the front of his house after hearing gunfire and saw two Latino males holding guns (one a shotgun, the second a handgun) several houses away. (Bacelis's house and garage sustained shotgun and handgun damage from the assault.) The two young men, both with shaved heads, continued to shoot toward Bacelis's home. Once the men stopped firing and began to run away, Bacelis gave chase in his sports utility vehicle (SUV). After turning a corner, Bacelis saw the young men, still holding their guns, jump into a car at the end of the street.
The car, which was facing Bacelis, initially appeared to be backing up. After it came to a stop, the two men got in. The car then proceeded forward, turning left in front of Bacelis. Believing the car was a get-away vehicle for the shooters, Bacelis crashed his SUV into it. Two young men jumped out and fled.
Bacelis could not identify the two shooters. However, the three young women who were in the car into which Bacelis crashed—Lizette Arvizu, the driver of the car; her cousin, Andrea Arvizu, a neighbor of Bacelis; and their friend Monique Gonzalez—each separately identified Albarran as one of the two men who had entered the car that evening. Each of the young women also stated Albarran carried a small handgun. Given Bacelis's testimony that he saw the two shooters climb into Arvizu's car, those identifications of Albarran are devastating, notwithstanding some inconsistencies between the young women's trial testimony and information they provided the police that evening.
Moreover, when Albarran was taken into custody on April 30, 2004, six weeks after the incident, he clearly admitted his involvement in the shooting and acknowledged entering Arvizu's car, thus confirming the young women's identification of him. According to Deputy Gillis, who arrested Albarran, Albarran told him, "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." (Both at trial and on appeal counsel for Albarran have attempted to make much of the fact Lizette Arvizu did not, in fact, drive Albarran or his confederate out of the area because Bacelis crashed his SUV into her car. Whatever value that point may have had before a jury, it does not undermine Gillis's credibility in reporting what Albarran said at the time of his arrest, nor does it weaken the significance of Albarran's admission.)
Albarran did not testify, but presented an alibi defense through several witnesses (his mother, an uncle, a cousin and a family friend). In finding Albarran guilty, the jury plainly credited the identification testimony of the three young women and disbelieved Albarran's alibi witnesses, although there was no suggestion any of them was a gang member.
In sum, considering the potential prejudicial impact of the gang-related evidence (with its related limiting instructions) against the great weight of the independent evidence of Albarran's guilt on the underlying charges, I cannot conclude a gross unfairness has occurred that undermines my confidence in the jury's verdict. Like the trial court, I believe Albarran received a fundamentally fair trial. Accordingly, I would affirm the judgment.
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: "[w]hether prejudice arose from juror misconduct ... is a mixed question of law and fact and 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: "`[t]he 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, holding 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, 66 Cal.Rptr.2d 454, 941 P.2d 87, 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, 66 Cal.Rptr.2d 454, 941 P.2d 87 (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 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, 66 Cal.Rptr.2d 454, 941 P.2d 87 (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.
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 pre-trial as irrelevant or unduly prejudicial under 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 rights to due process, rendering his trial fundamentally unfair under tests formulated by Jammal and Reiger.
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. (Dis.opn. p. 113-114.) 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, 119 S.Ct. 1936, 144 L.Ed.2d 286 ["`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.'"] quoting, Kyles v. Whitley (1995) 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490.)
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. at p. 113-114.)
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 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 the 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 know gang member, evidence of gang membership creates a real danger the jury will infer the defendant is guilty because of his membership standing alone]; Representing Black Male Innocence, Joan W. Howarth, 1 J. Gender Race & Just. 97, 139 (1997) ["Gangs are a social phenomenon, in which an 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.