Landmark California Cases Addressing Gang Enhancement

To establish the gang enhancement, the prosecution must prove: (1) the crime was "committed for the benefit of, at the direction of, or in association with" a criminal street gang, and (2) the defendant had "the specific intent to promote, further, or assist in any criminal conduct by gang members." (Pen. Code, 186.22, subd. (b)(1).) The crime and the defendant's specific intent must be gang related. (People v. Gardeley (1996) 14 Cal.4th 605, 624-625, fns. 10, 12; People v. Mendez (2010) 188 Cal.App.4th 47, 56; People v. Ramon (2009) 175 Cal.App.4th 843, 849; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199.) A defendant's mere membership in a gang does not suffice to establish the gang enhancement. (People v. Gardeley, supra, 14 Cal.4th at p. 623; In re Frank S., supra, 141 Cal.App.4th at p. 1199; People v. Ochoa (2009) 179 Cal.App.4th 650, 663.) Rather, '' 'the crime itself must have some connection with the activities of a gang . . . .' " (In re Frank S., supra, 141 Cal.App.4th at p. 1199.) On appeal, we review the entire record to determine if there is substantial evidence from which a reasonable jury could find the gang enhancement true beyond a reasonable doubt. (People v. Ochoa, supra, 179 Cal.App.4th at pp. 656-657.) We draw all reasonable inferences in favor of the jury's verdict, and affirm if the circumstances reasonably justify the jury's finding even if the circumstances can also support a contrary finding. (Id. at p. 657.) To be admissible, expert opinion testimony must be related to a subject that is sufficiently beyond common experience so that the expert's opinion would assist the trier of fact. (Evid. Code, 801, subd. (a).) If the expert opinion addresses a matter beyond common experience, it is admissible even if it encompasses an ultimate issue in the case. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, 805.) The jury need not be wholly ignorant of the subject matter of the opinion to justify its admission; the test is whether the evidence would add something to the jury's common fund of information so that it would assist the jury. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299-1300.) Generally, expert testimony is permissible to show whether and how a crime was committed to benefit a gang because this is a matter sufficiently beyond common experience so as to assist the jury. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1523; People v. Olguin, supra, 31 Cal.App.4th at pp. 1367, 1370-1371 permissible for expert to testify that defacing gang's graffiti was sign of disrespect and that murder (precipitated by graffiti defacement) was for benefit of gang; see also People v. Gardeley, supra, 14 Cal.4th at p. 619 expert testified that attack committed by defendants was classic example of gang-related activity because gangs rely on assaults to frighten residents who live in gang's drug-dealing area.) However, the scope of an expert's opinion testimony is restricted by the rule that when the trier of fact is as competent as the expert to make a particular factual determination, expert opinion testimony on this fact is of no assistance to the trier of fact and should be excluded. (See People v. Torres (1995) 33 Cal.App.4th 37, 45, 47.) Further, the courts exercise caution to ensure that the expert's testimony is "not tantamount to expressing an opinion as to the defendant's guilt." (People v. Ward (2005) 36 Cal.4th 186, 210; People v. Killebrew (2002) 103 Cal.App.4th 644, 651.) Consistent with these principles, the courts have concluded that although a gang expert may provide gang-related information from which the jury may infer the defendant's state of mind, the gang expert may not give an opinion about the particular defendant's subjective knowledge or intent. (See People v. Garcia, supra, 153 Cal.App.4th at pp. 1512-1513; People v. Gonzalez, supra, 126 Cal.App.4th at p. 1551; People v. Killebrew, supra, 103 Cal.App.4th at p. 658; see also People v. Gonzalez (2006) 38 Cal.4th 932, 946-947, & fn. 3; People v. Ward, supra, 36 Cal.4th at pp. 209-210.) In People v. Hernandez (2004) 33 Cal.4th 1040, the Court held that a trial court has the power to bifurcate the trial of gang enhancement allegations from the trial of substantive criminal charges, and if it chooses to bifurcate the trial, the substantive charges are tried first, as there is no need to try the allegations if the defendant is acquitted. (Id. at pp. 1048, 1049, 1050.) The standard of review is abuse of discretion (id. at p. 1048) and the trial court's discretion is broad. "The trial court's discretion to deny bifurcation of a charged gang enhancement is . . . broader than its discretion to admit gang evidence when the gang enhancement is not charged." (Id. at p. 1050.) Although it would be too much "to say that a court should never bifurcate trial of the gang enhancement from trial of guilt" (id. at p. 1049), doing so is disfavored. "Much of what we have said about severance is relevant" (id. at p. 1050) to the question, and those considerations include "the increased expenditure of funds and judicial resources which may result" (ibid.) from a bifurcated proceeding, even though bifurcation ordinarily is a more efficient use of judicial resources than is outright severance of charges, which requires trials before separate juries. (Ibid.) It was defendant's "burden 'to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.'" (Id. at p. 1051.)