Gang Enhancement In California

In People v. Hernandez (2004) 33 Cal.4th 1040, the California Supreme Court considered whether trial of a gang enhancement allegation generally should be bifurcated from trial of the substantive offense. It concluded that because a "gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense," there is generally less need for bifurcation of a gang enhancement than for bifurcation of a prior conviction allegation, which relates to the defendant's status and may have no connection to the charged offense. (Id. at p. 1048.) Evidence of gang membership is often relevant to the charged offense in order to prove motive, identity or other issues pertinent to prove guilt. "To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. " (Id. at pp. 1049-1050.) Bifurcation of a gang allegation may be warranted if the evidence of predicate offenses offered to establish a pattern of gang activity is unduly prejudicial. However, even if some evidence offered to prove the gang enhancement would be inadmissible at trial of the substantive offense alone on the ground that it is unfairly prejudicial, a court may still deny bifurcation. The court's discretion to deny bifurcation of a gang enhancement is broader than its discretion to admit gang evidence when a gang enhancement is not charged. (Id. at pp. 1049-1050.)