The Criminal Street Gang Enhancement in California

In People v. Hernandez (2004) 33 Cal.4th 1040, the California Supreme Court made clear that "the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense." (Hernandez, supra, 33 Cal.4th at p. 1048.) Proof of the gang enhancement requires evidence that the substantive offense "'had been "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members."'" (Id. at p. 1047.) "'In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period.'" (Id. at p. 1047.) A defendant seeking bifurcation of the gang enhancement has the burden "'to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.'" (Hernandez, supra, 33 Cal.4th at p. 1051.) Trial on a gang enhancement should be bifurcated where the gang evidence is "so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Id. at p. 1049.) Where a gang enhancement is not bifurcated, the trial court generally has no sua sponte duty to provide a limiting instruction defining proper inferences from the gang evidence. (Id. at p. 1052.) In Hernandez, the court rejected the argument that counsel was ineffective for failing to request a limiting instruction. "'A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.'" (Id. at p. 1053, quoting People v. Maury (2003) 30 Cal.4th 342, 394.) Additionally, the Hernandez court found the failure to give a limiting instruction was harmless. (Id. at p. 1054.)