Albarran

*217 Opinion

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…

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 caqacking (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 However, the court denied Albarran’s motion for a new trial with respect to the underlying offenses, holding the admission of the gang evidence, “which the court would not describe as being overwhelming,” was not so prejudicial as to deprive Albarran of a fair trial in light of the independent evidence of his guilt, including…

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 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…