THE PEOPLE, Plaintiff and Respondent, v. ADAN ALBARRAN, Defendant and Appellant.
No. B185547
Second Dist., Div. Seven
Apr. 2, 2007
149 Cal. App. 4th 214
Nasatir, Hirsch, Podberesky & Genego, William J. Genego and Richard G. Hirsch for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Pamela C. Hamanaka, Assistant Attorneys General, Kenneth N. Sokoler and Susan Lee Frierson, Deputy Attorneys General, for Plaintiff and Respondent.
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
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.
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 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.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 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 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 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 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
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
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
During the
The court denied Albarran’s
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
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.
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
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.) 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.) 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.) “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.)
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.) 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;
We review the court’s order denying the motion for a new trial de novo. (People v. Ault (2004) 33 Cal.4th 1250, 1262.)7 Nonetheless, the decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the
In his pretrial motion to exclude the gang evidence, Albarran argued the gang evidence was irrelevant and otherwise inadmissible under
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
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
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
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)
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-
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
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; People v. Partida (2005) 37 Cal.4th 428, 439 (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) 926 F.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, 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 [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
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
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.
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 [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.
Adan Albarran was convicted after a jury trial of one count of attempted murder (
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
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.2 I agree.
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’ll 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, ‘we’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.
prove the criminal street gang enhancements under
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 was highly probative on the gang enhancement allegations, in ” ‘ “an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” ‘ [Citation.]” (People v. Ochoa (2001) 26 Cal.4th 398, 437-438; see People v. Williams, supra, 16 Cal.4th 153, 193, 196 [“we have without question permitted police to provide expert testimony regarding gangs“].) The trial court properly balanced the probative value of that evidence with respect to both the underlying offenses and the gang enhancement allegations against the potential for prejudice and determined the gang expert testimony should be permitted.3
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
Second, although qualifying its conclusion by twice noting the trial court “did not expressly so state” (maj. opn., ante, at p. 226), the majority insists the court necessarily, albeit “impliedly,” found the gang evidence relevant to the issues of motive and intent before concluding, based on what it describes as a “quasi-
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 found, “All of this comes together in terms
Finally, based on its apparent misunderstanding of the trial court’s ruling and relying on two decisions from the United States Court of Appeals for the Ninth Circuit, the majority holds, ” ‘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.” [Citation.]’ [Citation.]” (Maj. opn., ante, at pp. 229-230.) Applying that standard, the majority then decides, “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.” (Maj. opn., ante, at p. 230.) Because the premise for this conclusion is fundamentally flawed, I cannot accept the conclusion itself.
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 allegations7—a helpful analogy can be found in the law governing joinder and severance.8
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. Balderas (1985) 41 Cal.3d 144, 171; People v. Johnson (1988) 47 Cal.3d 576, 588.) 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 ruling, a gross unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or due process of law.” (Johnson, at p. 590; accord, People v. Bean (1988) 46 Cal.3d 919, 940.) In considering that question, the reviewing court examines the impact at trial of the joinder by looking at the
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, 97-98 [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
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. (United States v. Bagley (1985) 473 U.S. 667, 678; see, e.g., People v. Ochoa (1998) 19 Cal.4th 353, 474 [“[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 [“The question is not whether the defendant would more likely than not have received a different verdict with
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 sport 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 getaway 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.
Finally, although the evidence of criminal activity by the 13 Kings unrelated to the shooting and attempted kidnapping for carjacking on March 14, 2004, summarized at great length by the majority, certainly had a potential to prejudice the jury against Albarran, the court properly instructed the jury on several occasions they were not permitted to consider the gang evidence to prove Albarran “is a person of bad character or that he has a disposition to commit crimes.” “[E]vidence has been introduced for the purpose of showing criminal street gang activity and criminal acts by gang members, other than the crimes that are charged in this case for which the defendant is on trial. This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining, if it tends to show, that the crimes charged in this case were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct for gang members. . . . You are not permitted to consider such evidence for any other purpose.” It is, of course, presumed the jury followed the court’s instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139 [“we and others have described the presumption that jurors understand and follow instructions as ‘[t]he crucial assumption underlying our constitutional system of trial by jury.’ [Citations.]“]; People v. Holt (1997) 15 Cal.4th 619, 662 [“Jurors are presumed to understand and follow the court’s instructions.“].)
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.
Notes
For example, in People v. Nesler (1997) 16 Cal.4th 561, 582 (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 (Williams); see also People v. Carter (2005) 36 Cal.4th 1114, 1210 (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 a 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 a 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.)
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. Putting it somewhat differently, in my view the question is not “whether the erroneous admission of gang evidence was so serious as to violate Albarran’s federal constitutional rights to due process,” as the majority phrases the issue on appeal (maj. opn., ante, at p. 230, fn. 14, original italics), but whether, notwithstanding the proper admission of the gang evidence at the time, viewed in retrospect that evidence was so inflammatory it made Albarran’s trial fundamentally unfair—that is, its admission at trial undermines our confidence in the integrity of the verdict. To be sure, both forms of the question require us ultimately to decide if Albarran received a fair trial. But the question as posed by the majority focuses primarily on the nature of the gang evidence itself (both its probative value and its prejudicial impact), which is understandable since the majority assumes such an analysis formed the basis for the trial court’s denial of the new trial motion. I believe, in contrast, we should examine the independent evidence of Albarran’s guilt, as well as the potential prejudice from the gang evidence, and determine, viewing the record as a whole, whether we remain confident the jury reached the correct result for the proper reason.
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 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 (Brady v. Maryland (1963) 373 U.S. 83). (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, quoting Kyles v. Whitley (1995) 514 U.S. 419, 433, 434 [” ‘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