Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Riverside County, Super. Ct. No. RIF138870 Patrick F. Magers, Judge.
NARES, Acting P. J.
A jury convicted Brenda Elizabeth Acosta of the following five offenses (counts 1-4 and 7) alleged in the amended information: (1) possession of methamphetamine for sale (count 1: Health & Saf. Code, § 11378); (2) transportation of methamphetamine (count 2: Health & Saf. Code, § 11379, subd. (a)); (3) possession of a blank and unfinished check with the intent to complete and facilitate the completion of the check in order to defraud (count 3: Pen. Code, § 475, subd. (b)); (4) possession of a completed check with the intent to utter and pass and facilitate the utterance and passage of the check in order to defraud (count 4: § 475, subd. (c)); and (5) misdemeanor possession of an access card without the cardholder's and issuer's consent with the intent to use, sell, and transfer the card to a person other than the cardholder and issuer (count 7: § 484e, subd. (c)).
All further statutory references are to the Penal Code unless otherwise specified.
The jury also convicted Acosta's codefendant, Lawrence Rees Sorensen, who is not a party to this appeal, of the following five offenses (counts 1, 3, and 5 through 7): (1) possession of methamphetamine for sale (count 1: Health & Saf. Code, § 11378); (2) possession of a blank and unfinished check with the intent to complete and facilitate the completion of the check in order to defraud (count 3: § 475, subd. (b)); (3) receiving stolen property (count 5: § 496, subd. (a)); (4) active participation in a criminal street gang (count 6: § 186.22, subd. (a)); and (5) misdemeanor possession of an access card without the cardholder's and issuer's consent with the intent to use, sell, and transfer the card to a person other than the cardholder and issuer (count 7: § 484e, subd. (c)).
The jury also found true gang enhancement allegations that Acosta committed the felony offenses charged in counts 1, 3, and 4 for the benefit of, or at the direction of, or in association with a criminal street gang (i.e., the Norco chapter of the Vagos motorcycle gang, the president of which was Acosta's codefendant, Lawrence Rees Sorensen (Sorensen)) with the specific intent to promote, further or assist in any criminal conduct by gang members within the meaning of section 186.22, subdivision (b) (hereafter section 186.22(b)). Acosta admitted she had a prior prison term (§ 667.5, subd. (b)).
The jury also found that Sorensen, who (as already noted) is not a party to this appeal, committed the offenses charged in counts 1, 3, 5, and 7 (see fn. 2, ante) for the benefit of, or at the direction of, or in association with a criminal street gang (i.e., the Norco chapter of the Vagos motorcycle gang) with the specific intent to promote, further or assist in any criminal conduct by gang members within the meaning of section 186.22(b).
The court sentenced Acosta to a total state prison term of nine years, consisting of a three-year term for the possession of methamphetamine for sale (count 1), plus a consecutive three-year term for the count 1 gang enhancement, a concurrent three-year term for the transportation of methamphetamine (count 2), a consecutive eight-month term for the possession of a blank and unfinished check (count 3), a consecutive eight-month term for the possession of a completed check (count 4), a consecutive eight-month term for the possession of an access card (count 7), and a one-year term for the prior prison term conviction enhancement. The court stayed the remaining gang enhancements related to counts 3 and 4.
Acosta appeals, contending (1) her conviction for possession of methamphetamine for sale (count 1) violates her right to due process under the federal and state Constitutions because there was insufficient evidence to support findings that she exercised dominion and control over the methamphetamine with knowledge of its presence and nature; (2) the jury's true findings that she committed the offenses for the benefit of, at the direction of, or in association with the Vagos motorcycle criminal street gang with the specific intent to promote, further or assist in any criminal conduct by the gang members, within the meaning of section 186.22(b), violated her right to due process because there was insufficient evidence to support the findings; (3) the admission of the gang evidence violated her due process rights because the prejudicial effect of that evidence outweighed its probative value; and (4) the court's denial of her request to bifurcate the gang enhancement allegations from the charged offenses violated her rights to due process and a fair trial. We affirm the judgment.
Acosta also contends on appeal that the court abused its discretion and violated her due process right to a fair trial by denying her request to sever the gang enhancement allegations from the charged offenses. However, a review of her trial brief and the reporter's transcript of the hearing on Acosta's bifurcation request shows that (1) she argued the court should bifurcate, not sever, the gang enhancement allegations; and (2) the court, in its brief ruling, addressed the request for bifurcation, and did not address any request for severance. Accordingly, we need not, and do not, address the issue of whether the court abused its discretion and violated Acosta's due process right to a fair trial by denying a request to sever the gang enhancement allegations.
FACTUAL BACKGROUND
In June 2007 the City of Buena Park Vice and Narcotics Unit received information that Acosta was selling methamphetamine in Orange County. After identifying Acosta and the vehicles she drove─a black Ford Mustang and a black Ford F-150 truck─Detectives Christopher Nyhus and Tom Carney conducted surveillance on her, and followed her throughout Los Angeles, Orange and Riverside Counties, and to a house owned by Sorensen located on Eagles Nest Drive in Corona. Sorensen was the president of the Norco chapter of the Vagos Motorcycle Club.
In the afternoon on June 20, 2007, Detective Carney saw Acosta buy five cell phones at a Sprint PCS Store in Norco. She bought the phones under the name of "Heather Marshall." Later, around 7:00 p.m., the police stopped Acosta in Anaheim. Inside her Ford F-150 truck the police found the five cell phones and numerous documents bearing the names of other people.
On that same day, the police executed a search warrant at Acosta's Lake Elsinore residence, and Detective Carney found suspected forged documents, as well as credit cards, driver's licenses and checkbooks bearing the names of other people, the vast majority of whom were females.
On August 10, 2007, using a credit card and an identification card in the name of "Katherine Shippen, " Acosta bought five more cell phones at Radio Shack in Corona.
That night, at around 8:30 p.m., Acosta drove a white Dodge Magnum belonging to Sorensen at high speed through a stop sign at an intersection in South Corona. Riverside County Sheriff's Deputy John Juarez and another officer, Deputy Lance, stopped Acosta, who identified herself as "Marlene Ramos." Acosta was nervous and jittery. With Acosta's permission, Deputy Lance moved her car, which was blocking an entrance to a gated community. After the car was moved, Deputy Juarez noticed and picked up a wallet that was on the ground where Acosta had stopped the car.
In the wallet, Deputy Juarez found a checkbook, credit cards, and a Social Security card, all in the name of Katherine Shippen; a Visa credit card in the name of Maria Aguilar; Katherine Shippen's identification card; an Albertson's check for Maria Quinonez; three blank checks for Gonzalo Martinez; a check written by Gonzalo Martinez that was payable to Nicole Akers; Nicole Aker's Social Security card and driver's license; blank checks for M.G. Interior Decorating on Katy Way in Corona; a business card for Sandra Garcia as the owner of an interior decorating company; a business card for Katherine Shippen as the owner of an interior decorating company on Katy Way; a check made payable by M.Q. to Ann Opp; a book of interior decorating checks from Bank America; Nicole Akers's automated teller machine card; a blank Bank of America check with Katherine Shippen's name on it; a Provident check with the name Sandra Garcia on it, made payable to Ann Opp; and Katherine Shippen's Bank of America Master Card, Lowe's card, Circuit City Visa card, and Mervyn's card.
In Acosta's purse, Deputy Juarez found unopened letters for Maria Quinonez and Katherine Shippen; additional mail for Maria Quinonez from a financial services company; an Albertson's check for Maria Quinonez; a DMV renewal form for Soledad Oto; Maria Quinonez's Check Care and a Social Security benefits statement for her; and a credit card statement for Katherine Shippen;
In the Dodge Magnum, the deputies also found a Radio Shack bag containing two Radio Shack receipts─one for hand radios and one for cell phones─and a PCS service agreement, all with Katherine Shippen's name on them. Acosta was arrested, and the Dodge Magnum was towed and stored.
The Buena Park police continued investigating Acosta and, early in the morning on September 14, 2007, Detectives Carney and Nyhus began to conduct surveillance of another residence where Acosta had also been living: Sorensen's house on Eagles Nest Drive in Corona. Acosta's black Ford F-150 truck was parked there, blocking the driveway.
Between 6:30 and 7:00 a.m. that morning, the detectives observed Acosta, who was accompanied by another female, drive away from Sorensen's house in her truck. Detective Nyhus assisted a Riverside County Sheriff's deputy in stopping Acosta as she left the area. Detective Nyhus noticed something different about Acosta's truck: It had a green and red Vagos sticker on the outside that had not been on the truck when it was impounded in June 2007. The sticker read: "In memory of my Vago Brother Pomona Dave."
After Acosta and her passenger exited the truck, Detective Nyhus searched the truck and discovered the two front doors had been altered to create hollow compartments. In the compartment on the passenger side, Detective Nyhus found a digital scale that appeared to have methamphetamine residue on the surface, a bag of marijuana, and a brown leather wallet with a photograph of Jesus Malverde. Detective Nyhus explained that Malverde was considered a folk hero and patron saint of narcotics trafficking.
During the search of Acosta's truck, Detective Nyhus also found four cell phones in a purse, and, in the rear passenger area, a woman's-style black wallet. The wallet contained the following items: a check made payable to Best Buy with the name "Amanda R. Powell" at the Katy Way address in Corona as the payor; a deposit voucher for Katherine Shippen; a Home Depot special order form and Mervyn's coupon for Katherine Shippen; a $500 cashier's check made out to Amanda Powell; a registration acknowledgment card for Louise Rodriguez; two deposit slips in the name of Maria Quinonez with the Katy Way address on them; a check from Amanda Powell to Winco, and two checks from Melissa McCray to Amanda Powell; a check from an interior decorating company to Amanda Powell; a blank check from Esther Rodriguez with the same Katy Way address on it; a $752 check to Best Buy with Esther Rodriguez's name and the Kay Way address on it; a $500 Wells Fargo traveler's check; and a blank check from Amanda Powell with the Katy Way address on it.
Detective Nyhus found a couple hundred dollars on the floorboard of Acosta's truck, and about $1,100 on Acosta's person.
In Acosta's truck, Detective Nyhus also found a green plastic folder containing three manila folders with paperwork inside them. The folders contained: a photocopy of Amanda Powell's California driver's license; a photocopy of Esther Rodriguez-Rodriguez's Social Security card; a letter from the Internal Revenue Service; employer identification number applications in the names of Maria Quinonez, Amanda Powell, and Katherine Shippen, all with the Kay Way address on them; a photocopy of a Social Security card in the name of Amanda Rene Powell; a handwritten piece of paper with names, driver's license numbers, and a Bank of America card number on it; TransUnion paperwork in the name of Katherine Shippen; a telephone bill for Rachel LaFontaine at the Katy Way address in Corona; U.S. Bank application center paperwork; a superior court payment receipt in Acosta's name; Citibank signature card paperwork in the names of Maria Quinonez and Katherine Shippen; a Mervyn's coupon for Katherine Shippen at the Katy Way address; blank Navy Federal Credit Union paperwork; an on-line receipt in the name of M.Q. Interior Decorating; several Car Care I applications; a Downey Savings receipt; Verizon paperwork; American Express paperwork in the name of Maria Quinonez; a withdrawal form dated September 5, 2007, from Downey Savings under the name of Herrera with an account number; an interim driver's license for Amy Katherine Black; and a utility bill for Jesse Quinonez.
Another folder that Detective Nyhus found in Acosta's truck contained (among other things) a credit keeper program pamphlet bearing Katherine Shippen's name and the Kay Way address; and a notice of fine and charges dated September 10, 2007, from Elsinore Valley Municipal Water District for Sorensen's home on Eagles Nest Drive in Corona.
At around 7:00 a.m. that same morning, September 14, 2007, a SWAT team executed a search warrant at Sorensen's home, and detained eight people inside the residence, including Sorensen and Michael Lee Starnes. Starnes wore a tank top with "22" printed in green on it, and he had an "LVDV" tattoo on his neck. Detective Nyhus, who had received training on outlaw motorcycle gangs and had talked with Vagos gang members, testified that the number "22" represented the 22d letter of the alphabet, which was "V" for Vago, and "LVDV" meant "Live Vagos, Die Vagos."
The SWAT team also detained Sorensen's then-girlfriend, Kelly Thomas, who was wearing a white T-shirt with "Green is good" printed on it in green. The SWAT team also detained Adam Michael Lannon, who had "LVDV" and "VFFV" tattooed on his knuckles, "Victorville" tattooed on his chest in green, and "green nation" tattoed in green on his forearm.
Sorensen's house had three upstairs bedrooms: a master bedroom, a second bedroom, and a third bedroom with a Jacuzzi. On top of a dresser in the master bedroom, Detective Carney found a Winnie-the-Pooh backpack. Inside the backpack were (1) three boxes of Washington Mutual checks, (2) a plastic baggie containing a number of check books bearing the names of different persons and the Katy Way address, (3) a plastic baggie containing 30 or 40 driver's licenses and credit cards bearing the names of different persons, and (4) a plastic baggie containing smaller-size cards.
In an armoire in the master bedroom, the detectives found small green "V" patches similar to patches commonly put on jackets. In the master bedroom closet, the detectives found a 9-millimeter gun, three methamphetamine pipes, methamphetamine residue, and two plastic drawer cabinets.
In a set of plastic drawers in the second bedroom, Detective Carney found a black pouch containing a plastic baggie containing 75.8 grams of suspected methamphetamine, and a baggie containing 19.4 grams of suspected methamphetamine. Under the pouch were a copy of the search warrant executed at Acosta's Lake Elsinore residence in June 2007, a photograph of a young boy and a dog, and a credit card application with the name "Alma Scheel" and the Katy Way address on it. At trial, Detective Nyhus testified he saw the young boy and dog depicted in the photograph at Acosta's Lake Elsinore residence during the execution of the search warrant in June 2007.
Detective Nyhus opined at trial that the two baggies of methamphetamine found in the second bedroom were possessed for sale. He stated that he based his opinion on his training and undercover experience in the sale of narcotics, the fact that a scale with methamphetamine residue was found in Acosta's truck, the fact that a photograph of Malverde was found in a wallet in Acosta's truck, the fact that Acosta had multiple cell phones, and the fact that a couple of hundred dollars were found in Acosta's truck and about $1,100 was found on her person.
The walls of the bedroom with the Jacuzzi were green; jackets, vests, and green handkerchiefs were hung on the walls; and the room had a shelf with pictures on it. A Norco Vagos roster listing names and telephone numbers hung on a thumbtack in the upstairs hallway; and titles, such as "pres., " secretary, treasurer, and sergeant at arms, followed the names. The roster listed Sorensen as "pres."
In the downstairs closet, Detective Nyhus found green plastic folders containing Vagos bylaws. Several of the folders had a sticker and the name of a person on the covers; and the first page inside each folder was a cover page that stated, "Vagos Motorcycle Club, international, national bylaws revised and in effect March 1993." The next few pages consisted of a member data form and a table of contents listing the duties, obligations, and rights of membership; and the following pages (among other things) described the duties, obligations, and rights of the membership, club-related tattoos, different fines, patches and related paraphernalia, "old ladies" of Vagos members, and club association and property patch requirements.
In the garage, Detective Nyhus found a motorcycle with green Vagos stickers on it, green Vagos patches, a green motorcycle helmet, a black motorcycle helmet that had "Vagos" printed in green on it, and white hats that had "Vagos" and the Vagos emblem (i.e., a devil and motorcycle wheel) printed on them in green.
Detective Nyhus also observed that the shutters to an upstairs window were painted green, and a light bulb over the porch was also green.
Riverside County Sheriff's Deputy Evangelina Marcum searched Acosta after Acosta was transported to the county jail. During the pat-down search, Deputy Marcum found a glass pipe inside the right cup of Acosta's brassiere, and a small baggie containing 1.92 grams of methamphetamine inside the left cup of the brassiere. During the strip search, Deputy Marcum also found different credit cards bearing the names of Amanda Powell, Rachel LaFontaine, and Katherine Shippen under the fold of Acosta's stomach, and another credit card in between her buttocks.
Amanda Powell testified her purse was stolen from her place of employment in September 2007; her purse contained her driver's license and some credit cards; she never lived at the Katy Way address; she never worked as an interior decorator; and some of the credit cards and checks found with her name on them did not belong to her.
Melissa McCray testified her purse was stolen from her car in 2007; and her checkbook, credit cards, and driver's license were in her purse.
Amy Black testified her purse was stolen from her ex-boyfriend's car at the end of 2007, and her Social Security card and driver's license were in her purse.
Katherine Stoll testified her purse was stolen from her place of employment in August 2007, and the driver's license found in the Winnie-the-Pooh backpack belonged to her.
Taylor Mabry testified her purse was stolen from her place of employment in 2007, and a driver's license and Wells Fargo automated teller machine card found in the Winnie-the-Pooh backpack belonged to her.
Sandra Garcia testified her purse was stolen from her place of employment on July 2, 2007; her driver's license, Social Security card, credit cards, checks and cash were in her purse; and a Bank of America credit card and four books of Washington Mutual checks bearing her name and the Katy Way address did not belong to her.
Katherine Shippen testified her purse was stolen from her place of employment in July 2007; and her checkbook, wallet, Social Security card, personal identification, and phone were in her purse. About two days after her purse was stolen, the address for her Bank of America checking account was changed to the Katy Way address. She indicated she did not open some of the credit card accounts bearing her name. She also testified she did not purchase any cell phones from Radio Shack on August 10, 2007.
Sorensen's former girlfriend, Thomas, testified that Sorensen's house was a Vagos clubhouse where the members "hung out" once or twice each week. She stated that Acosta was Sorensen's friend, and Acosta lived in the second bedroom at Sorensen's house. Thomas indicated that before Acosta moved into Sorensen's house, the plastic drawers in the second bedroom had nothing in them other than old pieces of papers and some compact discs; and nobody used the second bedroom or the plastic drawers before Acosta moved in. Thomas also testified that Acosta drove Sorensen's Dodge Magnum a handful of times, and Sorensen also drove Acosta's vehicles a handful of times. She also stated that nearly every time she saw her, Acosta was carrying the Winnie-the-Pooh backpack.
Investigator Corky Butler, a member of the special investigations bureau of the Riverside County Sheriff's Department, indicated he gathered information on outlaw motorcycle gangs. During his career, he had received over 100 hours of specialized gang training, had attended numerous meetings concerning gangs, attended national conferences on gangs, had been assigned to the violent crime task force of the Federal Bureau of Investigation for four years, had interacted with gang members, and was a member of the Southern California Outlaw Motorcycle Gang Investigators' Association.
Butler testified that the Riverside County chapters of the Vagos had more than 75 members; their symbol was Loki, the Norse god of mischief; and they associated with the color green and the number "22, " which stood for "V, " the 22d letter of the alphabet; and the members wore vests with a picture of Loki on them. He indicated that he participated in the execution of the search warrant at Sorensen's house and that the bedroom with the Jacuzzi was a Vagos room─a shrine to the Vagos and a collection of "all things Vago[s]"─and the garage contained lots of Vagos paraphernalia.
Butler also testified that Scott David Oper, who was convicted of witness intimidation in October 2003, and Roy Compton, who was convicted in March 2006 of being a felon in possession of a firearm, were Vagos members at the time of their convictions. He indicated that the primary criminal activities of the Vagos gang were identity theft, the possession and sale of methamphetamine and marijuana, assault, battery, and vehicle theft.
Butler opined that Acosta's crimes were committed for the benefit of, in association with, or at the direction of, the Vagos. He based his expert opinion on the fact that Acosta's financial situation assisted or helped members with whom she was associating or living by bringing money into the house. His opinion was also based on the fact that Sorensen was the president of the Norco chapter of the Vagos, Sorensen's association with other Vagos members, and the green folders found in his house.
The Defense Case
Acosta did not testify. Her gang expert, investigator Norman Neiman of the Riverside County Public Defender's Office, testified he was previously employed by the San Bernardino County Sheriff's Department. During his 20-year career with the San Bernardino County Sheriff's Department, Neiman received training on gangs and worked on cases with gang issues. He was previously qualified as an expert on the Vagos. He explained the Vagos bylaws prohibited women from being involved with club business. Neiman opined there was no nexus between Acosta's alleged crimes and the Vagos.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE (COUNT 1)
Acosta first contends her conviction of possession of methamphetamine for sale (count 1: Health & Saf. Code, § 11378) violates her right to due process under the federal and state Constitutions because there was insufficient evidence to support findings that she exercised dominion and control over the methamphetamine with knowledge of its presence and nature. We reject this contention.
B. Applicable Legal Principles
1. Possession of methamphetamine for sale
Health and Safety Code section 11378 states that "every person who possesses for sale any controlled substance... shall be punished by imprisonment in the state prison." The crime of possession of methamphetamine for sale (§ 11378) consists of six elements: (1) the defendant unlawfully possessed a controlled substance; (2) the defendant knew of its presence; (3) the defendant knew of the substance's nature or character as a controlled substance; (4) when the defendant possessed the controlled substance, she intended to sell it; (5) the controlled substance was methamphetamine; and (6) the controlled substance was in a usable amount. (See CALCRIM No. 2302.)
The essential element of unlawful possession requires proof that the defendant unlawfully exercised dominion and control over the controlled substance. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242; People v. Tripp (2007) 151 Cal.App.4th 951, 956 (Tripp).) Mere proof the defendant had access to a place where narcotics were found will not support a finding of unlawful possession. (Tripp, supra, 151 Cal.App.4th at pp. 956-957.) The possession need not be exclusive. (People v. Eckstrom (1986) 187 Cal.App.3d 323, 331.) " '[Possession] may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.' " (Ibid.)
"Actual possession of the drug is not required. Constructive possession may be proven by circumstantial evidence. [Citation.] Therefore, all that need be proven is that the contraband was deposited in a place under defendant's possession and control." (People v. Allen (1967) 254 Cal.App.2d 597, 603.) "All elements of the offense may be established by circumstantial evidence and any reasonable inferences drawn from such evidence." (People v. Eckstrom, supra, 187 Cal.App.3d at p. 331; see also Tripp, supra, 151 Cal.App.4th at p. 956.)
2. Standard of review
When assessing a challenge to the sufficiency of the evidence, we apply the substantial evidence standard of review, under which we view the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the charged crime or allegation proven beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Johnson (1980) 26 Cal.3d 557, 578; In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.) Stated differently, "the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson, supra, 26 Cal.3d at p. 578.) "The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence." (People v. Maury (2003) 30 Cal.4th 342, 396.)
"The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (People v. Scott (1978) 21 Cal.3d 284, 296.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.)
C. Analysis
Acosta maintains the evidence is insufficient to establish the first three elements (discussed, ante) of the crime of possession of methamphetamine for sale, of which she was convicted. Specifically, she asserts the evidence is insufficient to support the jury's findings that she exercised dominion and control over the methamphetamine the police found in the second bedroom and that she did so with knowledge of its presence and nature.
We first conclude the prosecution presented substantial circumstantial evidence from which a reasonable jury could find beyond a reasonable doubt that Acosta exercised dominion and control over the two baggies of methamphetamine the police found inside a set of plastic drawers in the second bedroom of Sorensen's house. Specifically, Detective Carney testified that when he searched the drawers, he found a black pouch containing the two plastic baggies. He also testified that, under the pouch, he found a copy of the search warrant executed at Acosta's Lake Elsinore residence. Detective Nyhus testified he saw in the plastic drawers both the search warrant and a photograph of a young boy and a dog. He also stated he saw the young boy and dog depicted in the photograph at Acosta's Lake Elsinore residence during the execution of the search warrant in June 2007.
Sorensen's former girlfriend, Thomas, testified for the prosecution that on September 14, 2007, the day the police searched Sorensen's house, she was living in Sorensen's house and kept her belongings in the master bedroom, and Acosta was also living in that house in the second bedroom. Thomas indicated that nobody used that bedroom before Acosta moved into the house and, although the plastic drawers were in the bedroom before Acosta started living there, they contained only old papers or CD's.
The foregoing substantial evidence establishes that the officers found the baggies containing the methamphetamine on top of Acosta's personal effects, inside a set of plastic drawers in the bedroom that only Acosta used. A reasonable jury could find beyond a reasonable doubt that Acosta constructively possessed the methamphetamine.
We also conclude the prosecution presented substantial circumstantial evidence from which a reasonable jury could conclude beyond a reasonable doubt that Acosta knew of the presence of the methamphetamine in her bedroom. As already discussed, the testimony of Detectives Carney and Nyhus established that the two baggies containing the methamphetamine were inside a pouch sitting on top of Acosta's personal effects in the bedroom that only Acosta used.
Last, we conclude the prosecution presented substantial circumstantial evidence from which a reasonable jury could conclude beyond a reasonable doubt that Acosta knew the illegal nature of the methamphetamine. Riverside County Sheriff's Deputy Marcum testified she searched Acosta after Acosta was transported to the county jail. Deputy Marcum indicated that when she conducted a pat-down search to determine whether Acosta had any contraband or weapons on her person, she found a glass pipe hidden inside the right cup of Acosta's brassiere, and a small baggie, later determined to contain 1.92 grams of methamphetamine, hidden inside the left cup of the brassiere. The jury could reasonably infer that Acosta knew methamphetamine was a controlled substance from the fact that she tried to hide methamphetamine and methamphetamine paraphernalia inside her undergarment.
In sum, we conclude substantial evidence supports the jury's findings that Acosta exercised dominion and control over the methamphetamine the police found in her bedroom, and she possessed the methamphetamine with knowledge of both its presence and nature. Accordingly, we affirm her conviction of count 1.
II. SUFFICIENCY OF THE EVIDENCE (GANG ENHANCEMENTS)
Acosta next contends the jury's true findings that she committed the felony offenses (counts 1, 3 and 4) for the benefit of, at the direction of, or in association with the criminal Vagos motorcycle street gang with the specific intent to promote, further or assist in any criminal conduct by the gang members, within the meaning of section 186.22(b), violate her right to due process because there was insufficient evidence to support the findings. Citing People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), she specifically asserts the evidence was insufficient to support the jury's findings because "the gang expert's [i.e., Butler's] testimony that the offenses were committed for the benefit of the Vagos gang was not coupled with other evidence from which the jury could reasonably infer the crime[s were] gang related or that [she] committed the offenses with the specific intent to promote, further, or assist in any criminal conduct by the Vagos gang members." We reject these contentions.
A. Background
The jury convicted Acosta and found true the section 186.22(b) gang enhancement allegations that accompanied the following three felony counts: (1) possession of methamphetamine for sale (Health & Saf. Code, § 11378) (count 1); (2) possession of a blank and unfinished check with the intent to complete and facilitate the completion of the check in order to defraud (Pen. Code, § 475, subd. (b)) (count 3); and (3) possession of a completed check with the intent to utter and pass and facilitate the utterance and passage of the check in order to defraud (Pen. Code, § 475, subd. (c)) (count 4).
In returning these true findings on the gang enhancement allegations in counts 1, 3, and 4, the jury found that Acosta committed the three corresponding offenses "for the benefit of, at the direction of, or in association with" the Vagos criminal street gang "with the specific intent to promote, further, or assist in any criminal conduct by gang members" within the meaning of section 186.22(b). At sentencing, the court imposed a three-year term for the count 1 gang enhancement, and stayed the remaining count 3 and count 4 gang enhancements.
B. Applicable Legal Principles
The California Street Terrorism Enforcement and Prevention Act (§ 186.20 et seq., hereafter the STEP Act) prescribes increased punishment (hereafter referred to as the gang enhancement) for a felony if it was related to a criminal street gang. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047 (Hernandez), citing § 186.22, subd. (b)(1), hereafter § 186.22(b)(1).)
To subject a defendant to the penal consequences of the STEP Act, the prosecution must prove beyond a reasonable doubt that the crimes for which he was convicted were 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." (§ 186.22(b)(1); see also Hernandez, supra, 33 Cal.4th at p. 1047; People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).) The first element of the gang enhancement is thus whether the crime was committed (1) for the benefit of any criminal street gang or (2) at the direction of any criminal street gang or (3) in association with any criminal street gang. (§ 186.22(b)(1).) The second element is whether the defendant committed the crime with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Ibid.)
To prevail on a gang enhancement, the prosecution must also prove beyond a reasonable doubt "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. (§ 186.22, subds. (e) & (f))." Hernandez, supra, 33 Cal.4th at p. 1047, italics omitted; Gardeley, supra, 14 Cal.4th at pp. 616-617.) Here, Acosta does not challenge the sufficiency of the evidence with respect to these additional elements of the gang enhancements at issue here.
The prosecution may meet its burden of establishing the statutory gang enhancement elements set forth in section 186.22 by presenting expert testimony about criminal street gangs. (Gardeley, supra, 14 Cal.4th at pp. 617-620; Hernandez, supra, 33 Cal.4th at pp. 1047-1048.) "It is well settled that a trier of fact may rely on expert testimony about gang culture and habits to reach a finding on a gang [enhancement] allegation." (In re Frank S., supra, 141 Cal.App.4th at p. 1196, citing People v. Ferraez (2003) 112 Cal.App.4th 925, 930-931.) Expert testimony about gang "culture and habits" may include, but is not limited to, testimony about the size, composition or existence of a gang; gang turf or territory; an individual defendant's membership in, or association with, a gang; the primary activities of a specific gang; motivation for a particular crime, generally retaliation or intimidation; whether and how a crime was committed to benefit or promote a gang; rivalries between gangs; and gang-related tattoos, graffiti, hand signs, colors, or attire. (In re Frank S., supra, 141 Cal.App.4th at p. 1197; People v. Killebrew (2002) 103 Cal.App.4th 644, 656-657.)
A gang expert "may render opinion testimony on the basis of facts given 'in a hypothetical question that asks the expert to assume their truth, ' [but s]uch a hypothetical question must be 'rooted in facts shown by the evidence.' " (Gardeley, supra, 14 Cal.4th at p. 618.)
1. Standard of review
As discussed, ante, we apply the substantial evidence standard of review to assess the sufficiency of the evidence and under that standard we view the entire record in the light most favorable to the judgment and determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─from which any rational trier of fact could have found the essential elements of the charged crime or allegation proven beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at p. 319; People v. Johnson, supra, 26 Cal.3d at p. 578; In re Frank S., supra, 141 Cal.App.4th at p. 1196.)
C. Analysis
1. Substantial evidence that Acosta's crimes benefited the Vagos gang
Applying the foregoing principles, we conclude with respect to the first element of each of the three gang enhancements that substantial evidence supports the jury's findings that each of the three corresponding felony offenses (counts 1, 3, and 4) of which Acosta was convicted in this matter were committed for the benefit of the Vagos criminal street gang within the meaning of section 186.22(b)(1). As discussed, ante, the prosecution may meet its burden of establishing the statutory gang enhancement elements set forth in section 186.22 by presenting expert testimony about criminal street gangs. (Gardeley, supra, 14 Cal.4th at pp. 617-620; Hernandez, supra, 33 Cal.4th at pp. 1047-1048.)
Here, the testimony of the prosecution's gang expert, Butler, supports the jury's findings that Acosta committed the crime of possessing methamphetamine for sale (count 1) and the identity theft-related offenses (counts 3 and 4) for the benefit of the Norco chapter of the Vagos criminal street gang within the meaning of section 186.22(b)(1). Specifically, Butler opined that Acosta committed her crimes for the benefit of, in association with, or at the direction of, the Vagos. The prosecutor then asked Butler, "Now as far as [Acosta] is concerned, if she cannot be a member of the Vagos because she's a female, is it still your opinion that she would have committed these crimes for the benefit of, in association with, or at the direction of, the Vagos?" Butler replied, "Yes." When the prosecutor asked Butler to explain the basis of his opinion, Butler responded: "If her financial situation assists or helps members that she is associating or living with[, t]hen that benefits them."
On appeal, Acosta does not challenge Butler's qualifications as an expert on the Norco chapter of the Vagos motorcycle gang, nor does she claim the evidence is insufficient to support the jury's finding that the gang is a criminal street gang within the meaning of section 186.22(b)(1).
The prosecutor then asked for Butler's opinion on essentially the same question based on the following assumed facts she presented in a hypothetical question:
"[L]et's assume in a hypothetical, that you have the president of the Norco chapter of the Vagos. He lives in a nice house and... the shutters outside are painted green, and the light bulb on the front porch is also green, you go to this home and there [are] Vagos shirts and hats and patches. And there [are] other Vagos memorabilia, little pictures, brochures from, I think you might have mentioned, a funeral, or the number 22 on the sign, the color green, there[ are] green shoes, green shirts, and you have─a woman living in this home, and let's assume that she is making profit, making money from selling drugs or stealing personal belongings, or using or committing ID theft, would you think that that woman would be committing crimes for the benefit of the Vagos?" (Italics added.)
Butler answered, "I would, yes, " indicating that on the assumed facts, such a woman would be committing crimes for the benefit of the Vagos gang.
When the prosecutor asked for the basis of Butler's opinion, Acosta's counsel objected that the question assumed facts not in evidence. The court allowed Butler to answer after it admonished the jury that, "this is his opinion. If you find that his opinion is not supported by the facts in this case, then obviously, you would evaluate his opinion accordingly."
In response to the prosecutor's question asking him for the basis of his expert opinion that the woman in the hypothetical question would be committing the drug sales and identity theft crimes for the benefit of the Vagos gang, Butler stated, "If it brings money into a residence where a chapter president lives, then that by itself benefits that chapter."
We conclude the prosecutor's hypothetical question was properly "rooted in facts" supported by substantial evidence. (See Gardeley, supra, 14 Cal.4th at p. 618.) Both Detective Nyhus and Sorensen's former girlfriend, Thomas, testified that Sorensen was the president of the Norco chapter of the Vagos. Thomas stated that Sorensen's house was a Vagos clubhouse where the members "hung out" once or twice each week.
Butler testified that the Riverside County chapters of the Vagos associated with the color green; he assisted in the warrant search of Sorensen's house; the shutters and the light bulb in the front area were green; one of the upstairs bedrooms was a "Vagos room, " which was a "shrine to the Vagos" with "[h]ats, pictures, a lot of green and black, " and a "collection of all things Vago"; and the garage contained lots of "Vagos merchandise or paraphernalia."
Acosta's support for, and affiliation and identity with, the Vagos gang is shown by Detective Nyhus's testimony that on the day of the search of Sorensen's house, he observed on the exterior of Acosta's truck a green and red Vagos sticker that read, "In memory of my Vago Brother Pomona Dave"; and by Thomas's testimony indicating that Acosta and Sorensen (the president of the Norco chapter of the Vagos gang) sometimes used each other's vehicles.
Thomas's testimony also established that Sorensen's house was a Vagos clubhouse: Acosta lived in the second upstairs bedroom at Sorensen's house; nobody had been using that bedroom before Acosta moved in; and only Sorensen, Acosta, and she (Thomas) lived in the house as of September 14, 2007 (the day the search warrant was executed there); and she and Sorensen used the master bedroom.
Detective Carney indicated that, in a set of plastic drawers in Acosta's bedroom at the Vagos clubhouse, he found on top of Acosta's personal effects the two baggies that were later determined to contain methamphetamine. Detective Nyhus opined, based (among other things) on his training and undercover experience in the sale of narcotics and the fact that a scale with methamphetamine residue was found in Acosta's truck, that the two baggies of methamphetamine found in Acosta's bedroom were possessed for sale. From this evidence, a reasonable jury could find that Acosta earned money from selling methamphetamine while she was living in the Vagos clubhouse.
Other substantial evidence supports the jury's findings that Acosta committed the offenses for the benefit of the Vagos criminal street gang within the meaning of section 186.22(b)(1). Butler testified that identity theft was one of the primary criminal activities of the Vagos gang. As we discussed at length in the factual background section of this opinion, the police found stolen driver's licenses, checks, bank records, Social Security cards, and other items containing confidential identification information of numerous victims of identity theft in Acosta's possession in August 2007 when they stopped her after she committed a speeding violation while driving Sorensen's white Dodge Magnum. Similar items were again found in her possession in September of that year when the police searched her truck after stopping her as she was driving away from Sorensen's house. Detective Carney testified that he found a Winnie-the-Pooh backpack on top of a dresser in Sorensen's master bedroom, and inside the backpack he found (among other things) a number of checkbooks and a baggie containing about 30 to 40 driver's licenses and credit cards, all bearing the names of other people. Thomas testified that Acosta was in possession of the Winnie-the-Pooh backpack "[p]retty much every time I saw her"; the backpack belonged to Acosta; and if the backpack was found anywhere in Sorensen's house, Acosta would have been the person who put it there. From the foregoing evidence, a reasonable jury could infer beyond a reasonable doubt that Acosta shared with Sorensen, the president of the Norco chapter of the Vagos gang, stolen confidential identification information for the purpose of assisting the gang in perpetrating one of its primary criminal activities.
2. Substantial evidence that Acosta committed her crimes with the requisite specific intent
With respect to the second element of each of the three gang enhancements, we conclude that substantial evidence supports the jury's findings that in committing the felony offenses, Acosta acted with the specific intent to "promote, further, or assist in any criminal conduct by gang members" within the meaning of section 186.22(b)(1). As already discussed, the prosecution presented substantial evidence from which a reasonable jury could infer beyond a reasonable doubt that Acosta, who was convicted of identity theft-related crimes in this matter, shared stolen confidential identity information with the president of the Norco chapter of the Vagos gang (Sorensen) for the purpose of assisting the gang in perpetrating one of its primary criminal activities.
In addition, Detective Nyhus testified that he found in Acosta's truck a water bill and a notice of fine and charges dated September 10, 2007, from the Elsinore Valley Municipal Water District pertaining to Sorensen's home on Eagles Nest Drive in Corona. From this evidence, a reasonable jury could infer that Acosta was assisting in running the Vagos clubhouse owned by Sorensen, the president of the Vagos gang who (like Acosta) was convicted in this case.
Acosta reliance on Albarran, supra, 149 Cal.App.4th 214, is unavailing because, as already discussed, Butler's expert testimony was based on, or corroborated by, other substantial evidence.
For all of the foregoing reasons, we reject Acosta's contention that there is insufficient evidence to support the jury's true findings she committed the offenses for the benefit of the Vagos criminal street gang with the specific intent to promote, further or assist in any criminal conduct by the gang members, within the meaning of section 186.22(b). We thus also reject, for the same reasons, Acosta's related claim that those jury's findings violate her right to due process.
III. ADMISSIBILITY OF THE GANG EVIDENCE
Acosta next contends the admission of the gang evidence violated her due process rights because the prejudicial effect of that evidence outweighed its probative value. We reject this contention.
A. Background
In her trial brief, Acosta requested that the trial court, in the exercise of its discretion, should bifurcate the section 186.22(b) gang enhancement allegations. In support of this request, Acosta claimed (among other things) that the gang evidence was inadmissible under Evidence Code section 352 because such evidence was extremely prejudicial, it had no probative value, and thus the prejudice "decisively outweigh[ed] the probative value." Following a hearing, the court denied Acosta's bifurcation request.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
B. Applicable Legal Principles
Gang evidence is generally admissible to address such matters as identity, intent, motive, inconsistent witness statements because of fear of retaliation, and commission of a crime to benefit or promote a gang to prove a gang enhancement. (People v. Gonzalez (2006) 38 Cal.4th 932, 945-946; People v. Carter (2003) 30 Cal.4th 1166, 1194; Albarran, supra, 149 Cal.App.4th at pp. 223-224; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Martinez (2003) 113 Cal.App.4th 400, 413-414.)
"Gang evidence, including expert testimony, is relevant and admissible to prove the elements of the substantive gang crime and gang enhancements." (People v. Williams (2009) 170 Cal.App.4th 587, 609, citing People v. Avitia (2005) 127 Cal.App.4th 185, 192.)
However, even relevant gang evidence should be excluded if the probative value is substantially outweighed by the probability that the evidence would be unduly prejudicial. (Evid. Code, § 352; People v. Carter, supra, 30 Cal.4th at p. 1194; People v. Avitia, supra, 127 Cal.App.4th at p. 192.) Undue prejudice does not exist merely because highly probative evidence is damaging to the defense case, but rather arises from evidence that uniquely tends to evoke an emotional bias against the defendant or to cause the jury to prejudge the issues based on extraneous factors. (People v. Jenkins (2000) 22 Cal.4th 900, 1008; People v. Branch (2001) 91 Cal.App.4th 274, 286.)
Trial courts are required to carefully scrutinize gang evidence under Evidence Code section 352 because it may have a highly inflammatory effect on the jury. (People v. Carter, supra, 30 Cal.4th at p. 1194; People v. Avitia, supra, 127 Cal.App.4th at pp. 192-193.) Given this high potential for prejudice, gang evidence should not be admitted "if it is only tangentially relevant to the charged offenses." (Albarran, supra, 149 Cal.App.4th at p. 223, italics omitted.) "[I]n cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal." (Ibid., italics added.)
1. Standard of review
We apply the abuse of discretion standard to evaluate the trial court's admission of the gang evidence. (People v. Gutierrez (2009) 45 Cal.4th 789, 819.) "The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason." (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369; see also People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.)
The admission of gang evidence, "even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted.)
B. Analysis
We reject Acosta's contention that the court abused its discretion and violated her due process right to a fair trial by admitting gang evidence in this case. In support of her contention, Acosta renews her claim that Butler's expert opinion testimony that she committed the charged offenses for the benefit of the Vagos gang "was not coupled with other evidence establishing a gang motive underlying the commission of the offenses." We have rejected that claim for reasons already discussed.
Acosta also complains that the court admitted "other inflammatory gang evidence, such as Butler's expert opinion testimony that the Vagos motorcycle gang was considered a criminal street gang for purposes of section 186.22(b)(1); that the primary activities of the Vagos gang included not just identity theft and the possession and sale of methamphetamine and marijuana, but also included assault, battery and vehicle theft; and that during the search of Sorensen's house he (Butler) found a "Loki" patch that Vagos gang members could earn by drawing blood or committing an act of violence.
While such gang evidence was undoubtedly prejudicial to some extent, the question presented is whether such evidence was unduly prejudicial. We conclude it was not. As already discussed, gang evidence, including expert testimony, is relevant and admissible to prove the elements of gang enhancements. (People v. Williams, supra, 170 Cal.App.4th at p. 609.) Here, the evidence that the Vagos motorcycle club was a "criminal street gang" within the meaning of section 186.22(b)(1) was relevant to the gang enhancements alleged under that subdivision, it was not unduly prejudicial, and thus it was admissible to prove an element of the alleged gang enhancements.
Evidence that assault, battery, and vehicle theft were among the primary activities of the Vagos gang was similarly relevant, not unduly prejudicial, and thus admissible to prove an element of the alleged gang enhancements. The California Supreme Court has explained that predicate offenses offered to establish a "pattern of criminal gang activity" within the meaning of section 186.22 need not be related to the charged crimes, or even the defendant. (Hernandez, supra, 33 Cal.4th at p. 1047.) Here, the predicate offenses in question were offered by the prosecution, through Butler's expert testimony, to establish a "pattern of criminal gang activity, " which is one of the elements of the alleged gang enhancements. Specifically, the prosecution was required to prove that the Vagos gang was a "criminal street gang" within the meaning of section 186.22(b)(1). The term "criminal street gang" is defined in subdivision (f) of section 186.22 as "any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity." (Italics added.) Section 186.22, subdivision (e), which is referenced in subdivision (f) of that section, provides that the term "pattern of criminal gang activity" "means the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of [33 specified] offenses, provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons." The "primary activities" of the Vagos gang at issue here─assault, battery, and vehicle theft─are among those listed in section 186.22, subdivision (e). (See § 186.22, subds. (e)(1), (10) & (25).)
Butler's testimony that a denim vest in Sorensen's house had a "Loki" patch that Vagos gang members could earn by drawing blood or committing an act of violence was also not unduly prejudicial. Butler's testimony on this point was brief. Butler stated, "That's a Loki patch. And you earn that patch by drawing blood for the club." The prosecutor asked, "What do you mean 'drawing blood' for the club?" Butler replied, "An act of violence against someone else." The prejudicial effect of this brief testimony was ameliorated by Sorensen's defense counsel's effective cross-examination, which elicited from Butler his acknowledgment that the Loki patches were available for purchase, and people who were not Vagos had bought, not earned, those patches.
The prejudicial effect of the challenged gang evidence was also ameliorated by the testimony of the defense's qualified Vagos expert, Investigator Neiman, who opined that there was no nexus between Acosta's crimes and the Vagos.
In sum, we conclude the probative value of the challenged gang evidence outweighed its prejudicial effect, and, by admitting that evidence, the court did not abuse its discretion or violate Acosta's due process right to a fair trial.
IV. DENIAL OF BIFURCATION OF THE GANG ALLEGATIONS
Last, Acosta contends the court's denial of her request to bifurcate the gang allegations from the charged offenses violated her rights to due process and a fair trial. We conclude the court did not abuse its discretion or violate Acosta's right to due process and a fair trial.
A. Background
In her trial brief, Acosta requested bifurcation (but not severance) of the gang enhancement allegations alleged in counts 1 through 5. Among other things, Acosta argued that (1) the gang enhancement evidence was inadmissible because "there is no evidence beyond the police detective 'expert' witness'[s] personal opinion that there's some link between the alleged crimes and gang activity, " and thus the prejudicial effect of the gang enhancement evidence "decisively outweigh[ed]" its probative value; (2) the police detective's "expert" testimony would be "highly inflammatory"; and (3) the "spillover effect" of the gang evidence would "strengthen the prosecution's weak case" against her "on the question of whether she in fact possessed methamphetamine with the intent to sell and whether she [was] culpable for the items found in [] Sorensen's house." Following a hearing, the court denied Acosta's bifurcation request, stating only that the request was "denied."
Acosta's codefendant, Sorensen, also requested bifurcation of gang enhancement allegations. The court denied his bifurcation request.
B. Applicable Legal Principles
A trial court has broad discretion to bifurcate trial issues, including enhancements. (People v. Calderon (1994) 9 Cal.4th 69, 74-75.) A defendant seeking bifurcation must " '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, quoting People v. Bean (1988) 46 Cal.3d 919, 938.)
In Hernandez, the court concluded the decision about whether to bifurcate a gang enhancement allegation differs from that about whether to bifurcate so-called status allegations, like a prior conviction, because "[a] gang enhancement is different from [a] prior conviction.... A prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation." (Hernandez, at p. 1048, second italics added.)
Hernandez cautioned that it was not holding "that a court should never bifurcate trial of the gang enhancement from trial of guilt.... The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be 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." (Hernandez, supra, 33 Cal.4th at p. 1049.)
Hernandez also recognized, however, that cross-admissibility considerations often will obviate issues of prejudice because, even in cases not involving a gang enhancement allegation, the evidence of gang membership "is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation─including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like─can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] 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." (Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)
Hernandez also explained that "[e]ven if some of the evidence offered 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─a court may still deny bifurcation." (Hernandez, supra, 33 Cal.4th at p. 1050.) Noting the benefits of unitary trials, the Hernandez court stated that a "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." (Ibid.)
We review a trial court's denial of a defense request for bifurcation of a gang enhancement allegation under the abuse of discretion standard, and we will not reverse absent an abuse of that discretion. (See Hernandez, supra, 33 Cal.4th at pp. 1048-1050.)
C. Analysis
For reasons discussed, ante, we have concluded the gang evidence admitted at trial in this matter was (1) probative regarding Acosta's motive in possessing the methamphetamine found in her bedroom in the Vagos clubhouse, the blank and completed checks bearing the names of other people, and the access cards without the consent of the cardholder and issuer to use or transfer them; and (2) not unduly prejudicial. We have also concluded that substantial evidence supports the jury's findings she exercised dominion and control over the methamphetamine with knowledge of its presence and nature. Thus, we reject Acosta's claim that the prosecution's case against her on the question of whether she possessed methamphetamine with the intent for sale was "weak."
Although the evidence of other crimes committed by members of the Vagos gang was relevant only to the gang enhancements, that evidence was brief and not unduly prejudicial. (See Hernandez, supra, 33 Cal.4th at p. 1050 ["Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself [, ] a court may still deny bifurcation."].) In sum, we conclude that in denying Acosta's request for bifurcation, the court did not abuse its discretion or violate her right to due process and a fair trial.
The prosecution's gang expert, Butler, testified that Scott David Oper, who was convicted of witness intimidation in October 2003, and Roy Compton, who was convicted for being a felon in possession of a firearm in March 2006, were Vagos gang members at the time of their convictions. For purposes of proving the truth of the gang enhancement allegations, the prosecution presented this evidence of predicate offenses to establish a "pattern of criminal gang activity" within the meaning of section 186.22, subdivision (f), and prove that the Vagos gang was a "criminal street gang" within the meaning of subdivisions (b)(1) and (f) of that section.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J.O'ROURKE, J.