Watts

*105 A jury convicted Bobby Watts (Watts) of murder and found that Watts committed the offense for the benefit of, at the direction of, and in association with a criminal street gang. Watts then filed a motion for new trial, alleging the evidence was insufficient to sustain the jury's true finding on the gang enhancement allegation and that his trial attorney had provided ineffective assistance of counsel. The trial court denied the motion. On appeal, Watts contends the trial court abused its discretion in denying the motion. Watts also contends the trial court erred by precluding him from introducing evidence of the *252 victim's blood alcohol level at the time of his death and that instructing the jury using CALCRIM No. 315 violated his due process rights. We hold that the trial court employed the incorrect test when reviewing Watts's new trial motion with respect to the gang enhancement allegation. We thus reverse the trial court order denying the motion with respect to the gang allegation only. We further hold that the case must be remanded so that the trial court can exercise its newly ripe discretion under *106 Penal Code 1 section 12022.53, subdivision (h), and determine…