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Name: People v. Partida
Case #: B161356
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 07/30/2004
Subsequent History: Rev. granted 10/27/04: S127505

Appellant contended that the admission of inflammatory gang evidence in his trial for first degree murder violated his due process rights and was error under Evidence Code section 352. In this opinion on rehearing, the court affirmed the trial court’s ruling. The trial court’s admission of the entirety of voluminous gang expert testimony was in error under Evidence Code section 352. The testimony was both cumulative, and more prejudicial than probative. There was no gang allegation made in this case, and the evidence of gang affiliation had already been received through witness testimony. The erroneous admission of the evidence did not require reversal, however, because it was harmless. Without the gang evidence, the remaining evidence provided substantial evidence to support the jury’s verdict. Further, some of the gang evidence was admissible. It is unlikely that the exclusion of the objectionable portion would have resulted in a verdict more favorable to appellant. The court also held that appellant’s failure to raise a due process objection at trial did not waive the issue on appeal. Appellant’s counsel made it clear she objected to the admission of the gang testimony. Further, after appellant’s 352 objections had already been overruled, raising a due process objection would have been futile.