Trial court did not abuse its discretion by refusing to bifurcate trial of a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)) from underlying robbery and assault with a deadly weapon charges. Garcia, Mendoza, and Guzman were charged jointly with multiple offenses arising from a series of robberies in Escondido and a gang enhancement was also alleged. Prior to trial, Mendoza and Guzman moved to bifurcate trial of the gang enhancement. The trial court denied the motion. The jury convicted the defendants and found the gang enhancement true. They appealed. Held: Affirmed. In order to prevail on a motion to bifurcate a gang enhancement, a defendant must clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Hernandez (2004) 33 Cal.4th 1040.) The question is whether any of the gang evidence is relevant to the charged offense. If not, gang evidence is prejudicial. If it is relevant to establish identity, motive, modus operandi, specific intent, or other issues pertinent to guilt of the charged crime, bifurcation should be denied. But where some of the gang evidence is relevant to guilt of the underlying offense and other gang evidence is not, bifurcation should be denied unless the irrelevant gang evidence is highly inflammatory. Here, much of the gang evidence was admissible to prove the motive for the robberies and none of the gang evidence was any more inflammatory than the victims’ testimony about the robberies themselves. The trial court did not abuse its discretion by denying bifurcation.
Field show-up was not unduly suggestive even though officers informed witnesses prior to the show-up that they had caught the people they thought were involved because the officers admonished the witnesses not to infer guilt. Defendants also argued that the field show up was unduly suggestive. The Court of Appeal disagreed. For an identification procedure to violate a defendant’s due process rights, the state must, at the threshold, improperly suggest something to the witnessi.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure. (People v. Ochoa (1998) 19 Cal.4th 353, 413.) Although the police called the witnesses and informed them that the police had caught the people thought to be involved in the robberies, the officers read both an admonishment that advised them they should not infer any guilt just because someone had been detained, that they did not have to identify anyone, and that it was just as important to free an innocent person as identify someone involved in a crime. Furthermore, both the witnesses said they understood the admonishment and one of them was actually unable to identify any of the defendants. Under these circumstances, the court found defendants did not meet their burden of showing that the statements the police made to the witnesses before the lineup were unduly suggestive.
Six-pack photo lineup is not unduly suggestive because only one other person in the six-pack had long hair like the defendant. Guzman argued that the six-pack photo lineup was unduly suggestive because only one other person in it had long hair. The Court of Appeal disagreed. There is no requirement that a defendant in a lineup be surrounded by people nearly identical in appearance. (People v. Wimberly (1992) 5 Cal.App.4th 773, 790.) Because there was one other person in the six-pack with long hair, and because only three of the six victims were able to identify Guzman, the lineup was not unduly suggestive.
There was sufficient evidence to support gang enhancement allegation where a defendant, who was not a member of the gang, committed crimes in association with gang members with the specific intent of aiding the gang members. At trial, evidence was presented that Garcia was a documented member of the Eastside gang in San Diego and that Guzman and Mendoza were documented members of the Diablos gang in Escondido. To prove the existence of a criminal street gang for purposes of the gang enhancement, the prosecution only presented evidence of predicate offenses committed by the Diablos. On appeal, defendants argued that there was insufficient evidence to support their gang enhancements. The Court of Appeal disagreed. The section 186.22, subdivision (b) gang enhancement does not depend on gang membership and applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang. Here, the prosecution met its burden of showing that the Diablos were a criminal street gang. There was also substantial evidence to support an inference that the defendants committed the crimes in association with the Diablos street gang and that they had a specific intent to assist in criminal conduct by Diablos gang members. Even though Garcia was a documented member of a different gang, the jury could still find that he committed the armed robberies in association with and for the benefit of the Diablos. The California Supreme Court’s recent decision in People v. Prunty (2015) 62 Cal.4th 59 does not foreclose a true finding on the gang allegation in this case.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D065101.PDF
