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 witness identifications and the incriminating statements attributed to Albarran himself.
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 mling at the section 402 hearing.2 I agree.
*234Before trial Albarran moved to exclude all gang evidence, arguing, although there was (undisputed) evidence Albarran was a member of the 13 Kings gang, there was no evidence the crimes charged were gang related. In particular, Albarran asserted there would be no evidence at trial the perpetrators called out a gang name or made gang signs during the shooting or its aftermath. The court ordered a section 402 hearing based on Albarran’s motion and argument. At that hearing Los Angeles County Deputy Sheriff Robert Gillis, a gang expert who had worked for more than three years in the Palmdale area where the crime occurred, testified 13 Kings (also known as Palmas) is the most active gang in the area and the gang frequently engages in the crimes of carjacking and drive-np shootings.
Deputy Gillis expressed his opinión 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 á “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.
*235Following 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 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 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 [110 Cal.Rptr.2d 324, 28 P.3d 78]; see People v. Williams (1997) 16 Cal.4th 153, 193, 196 [66 Cal.Rptr.2d 123, 940 P.2d 710] [“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 *236without 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.4 Instead, as indicated below, I believe the proper analysis focuses not on comparing the potential for undue prejudice from the admission of the gang evidence to its probative value with respect to the underlying charges, but rather on evaluating whether that evidence, even if properly admitted at trial, was nonetheless so prejudicial when viewed in light of the entire record that Albarran’s trial was fundamentally unfair.
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-Evidence-Code-section-352/prejudice analysis” (maj. opn., ante, at p. 228), that the new trial motion should be denied because the gang evidence was not unduly prejudicial: “[T]he language the court used in expressing its ruling implies it engaged in, as suggested by the prosecutor, a type of Evidence Code 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.” (Maj. opn., ante, at pp. 226-227.)
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 *237of 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.5 That issue of limited admissibility, however, did not constitute any part of the trial court’s rationale for denying the new trial motion on the underlying charges. Rather, the court concluded the introduction of the gang evidence “would not have affected the verdict one way or the other” in light of the independent strength of the identifications of Albarran and his own statement implicating himself in the crimes and, therefore, Albarran was not denied a fair trial.6
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.
*2383. 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 [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 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 [251 Cal.Rptr. 467, 760 P.2d 996].) In considering that question, the reviewing court examines the impact at trial of the joinder by looking at the *239evidence actually introduced at trial—the independent evidence of the defendant’s guilt, as well as the spillover effect of the evidence from the joined charge. (People v. Turner (1984) 37 Cal.3d 302, 313 [208 Cal.Rptr. 196, 690 P.2d 669]; Bean, at p. .940.)
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 [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 the 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. Partida (2005) 37 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 [86 L.Ed. 166, 62 S.Ct. 280] [“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. (United States v. Bagley (1985) 473 U.S. 667, 678 [87 L.Ed.2d 481, 105 S.Ct. 3375]; 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 [131 L.Ed.2d 490, 115 S.Ct. 1555] [“The question is not whether the defendant would more likely than not have received a different verdict with *240the 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 [90 L.Ed. 1557, 66 S.Ct. 1239] [“If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand . . .”]; United States v. Lane (1986) 474 U.S. 438, 449 [88 L.Ed.2d 814, 106 S.Ct. 725] [“an error involving misjoinder ‘affects substantial rights’ and requires reversal only if. the misjoinder results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury’s verdict’ ”].) Utilizing that standard, I respectfully disagree with the majority’s ultimate conclusion Albarran’s trial on the underlying charges was “fundamentally unfair.”
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 comer, 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.
*241Moreover, 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 caijacking 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 [2 Cal.Rptr.3d 186, 72 P.3d 1166] [“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 [63 Cal.Rptr.2d 782, 937 P.2d 213] [“Jurors are presumed to understand and follow the court’s instructions.”].)
*242In 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.
Following the trial court’s grant of a new trial as to the gang enhancement allegations, the allegations were dismissed.
In a footnote the majority does “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.” (Maj. opn., ante, at p. 230, fn. 14.) But it nowhere suggests the trial court erred in concluding at the section 402 hearing that the People had established a sufficient foundation to attempt to *234prove the criminal street gang enhancements under Penal Code section 186.22, subdivision (b)(1)(A). To do so, the People had to present evidence at trial that each of the offenses was 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 criminal conduct by gang members. To establish 13 Kings is a “criminal street gang,” the People had to prove, among other things, it has as one of its primary activities the commission of one or more of the crimes enumerated in section 186.22, subdivision (e), and has engaged in a “pattern of criminal gang activity” by committing two or more “ ‘predicate offenses.’ ” (§ 186.22, subds. (e), (f); People v. Gardeley (1996) 14 Cal.4th 605, 617 [59 Cal.Rptr.2d 356, 927 P.2d 713].) Accordingly, evidence of Albarran’s membership in 13 Kings, as well as evidence 13 Kings had committed various violent crimes and the gang expert’s opinion that shootings and other acts of intimidation were committed by gang members to promote themselves, were all relevant to proving the elements of the gang enhancements. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1047-1048 [16 Cal.Rptr.3d 880, 94 P.3d 1080] [“to prove the elements of the criminal street gang enhancement, the prosecution may, as in this case, present expert testimony on criminal street gangs”].)
At trial the People presented no evidence to support Deputy Gillis’s assertion the second shooter was a member of 13 Kings. That failure was a primary factor in the trial court’s posttrial conclusion the evidence was legally insufficient to support the jury’s true findings on the gang enhancement allegations.
The majority’s assertion that much of the gang evidence “had no legitimate purpose in this trial” (maj. opn., ante, at p. 230), if intended to suggest it was not properly admitted at the trial that actually took place, in my view, is simply incorrect because that evidence was necessary if the People were to prove the gang enhancement allegations. (See fn. 2, above.) If it is intended as an evaluation of a hypothetical trial in which there were no gang allegations, it seems to me to be beside the point.
Albarran’s appellate counsel confirms this interpretation of the trial court’s comments during the hearing on the new trial motion: “The trial court itself implicitly acknowledged that not all of the gang evidence would have [been] admissible at a trial on the underlying charges. It is true that the court did express its view that perhaps some of the evidence would have been admissible absent the gang allegation, to prove motive or intent.” (Fns. & record citation omitted, italics added.)
The trial court fully explained the basis for its decision, obviating any need to reconstruct by implication the court’s rationale for denying the motion: “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 [and 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.”
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.
In People v. Hernandez, supra, 33 Cal.4th at page 1050, the Supreme Court analyzed the scope of the trial court’s discretion to deny bifurcation of the trial of a gang enhancement from trial of the charged offense when some of the evidence to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—“for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged.” In this somewhat related context, the Supreme Court found reference to the well-developed law of severance useful, even if “[t]he analogy ... is not perfect.” (Hernandez, at p. 1050.)