Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. RIF133350, Jeffrey Prevost, Judge.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Rolando Tavarez Garcia appeals from his conviction following a jury trial for robbery, assault with a deadly weapon, and dissuading a witness. Although associated gang enhancement allegations were found to be not true, and Garcia was acquitted on a substantive count of participation in a criminal street gang, Garcia contends trial on the gang charges should have been bifurcated, He also argues admission of the gang evidence deprived him of his due process rights to a fair trial. We reject his contentions and affirm the judgment.
FACTS
On May 12, 2006, about 1:00 p.m., Dovisi Zuniga was working at his job as a delivery truck driver for Gate City Beverage Company (Gate City). As he unloaded cases of beer outside a convenience store in Moreno Valley, Zuniga heard a gun clicking behind him. He turned around and saw a man, who he did not recognize, pointing a gun at him. The man demanded money. Zuniga said he had none, begged the man to not kill him, and offered to let him take the truck.
Zuniga was then struck from behind on the back and shoulder. He turned and saw Garcia holding a metal baseball bat. Zuniga immediately recognized Garcia as his assailant because he had worked with Garcia at Gate City. When Zuniga started working at Gate City in 2004, Garcia was already employed there. Although Zuniga did not know Garcia’s full name, he knew him by his workplace nickname, “Homie” or “Lil Homie,” Zuniga told his employer he thought Garcia’s first name was “Roland.” Zuniga saw and had passing conversations with Garcia almost daily at work. He understood Garcia had been fired from Gate City a couple months before the May 2006 events. Zuniga was “100 percent” certain it was Garcia who struck him, and immediately identified Garcia as the culprit when he spoke to police later that day.
When Zuniga saw Garcia with the baseball bat, he asked him, “What’s going on Lil Homie? Why you doing this to me?” Garcia demanded money. Zuniga replied that Garcia knew Gate City’s rules—Zuniga had no accessible cash because all money was immediately placed into the truck’s “safe box.” Garcia reached around Zuniga, grabbed a case of beer, and warned Zuniga, “‘Don’t tell Gate City or don’t call the police’” or else Garcia would find Zuniga and shoot him. Garcia and the other man ran away and departed in a burgundy Dodge Ram pickup truck.
Defense Case
Garcia denied he was the culprit. Garcia, his mother, and grandmother all testified Garcia was at home all day. Police searched Garcia’s home after the robbery. Although there was a burgundy pickup truck parked in the driveway, police found no other evidence during the search linking Garcia to the robbery.
Robert Shomer testified as a defense expert on eyewitness identification. He opined eyewitness identification is the least reliable method of identification and its accuracy can be negatively influenced by many factors including stress. Shomer testified there was no correlation between an eyewitness’s degree of confidence in his or her identification and its accuracy. Once a witness has made a misidentification he or she will become more likely to repeat it and become more convinced of its accuracy. On cross-examination, Shomer agreed there was a difference between identifying a stranger and identifying someone the witness already knew.
The Charges
Garcia was charged with robbery (Pen. Code, § 211) (count 1), assault with a deadly weapon with force likely to cause great bodily injury (§ 245, subd. (a)(1)) (count 2), and dissuading a witness (§ 136.1, subd. (a)(1)) (count 3), with attendant gang benefit enhancement allegations (§ 186.22, subd. (b)(1)), as to counts 1, 2, and 3, and a firearm use allegation (§ 12022.53, subd. (b)), as to count 1. Garcia was also charged with active participation in a criminal street gang (§ 186.22, subd. (a)) (count 4).
All statutory references are to the Penal Code, unless otherwise indicated.
Motion to Exclude Gang Evidence/Bifurcation
Prior to trial, Garcia moved to exclude expert testimony regarding Garcia’s gang membership, or in the alternative to bifurcate trial on the gang enhancement allegations and sever the substantive gang offense to ensure Garcia received a fair trial. Citing People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), In re Frank S. (2006) 141 Cal.App.4th 1192 (Frank S.), and People v. Martinez (2004) 116 Cal.App.4th 753 (Martinez), Garcia argued expert testimony regarding his gang activities was irrelevant absent some independent evidence the current offenses were gang related.
The court conducted an Evidence Code section 402 hearing at which it heard the proposed testimony of the prosecution gang expert, Orange Police Detective Joel Nigro, and the defense gang expert, Steven Strong, a private investigator. The court denied the defense motions. As to the motion to exclude the expert testimony, the court concluded the proffered evidence would be sufficient to put before the jury the street terrorism count and the issue of whether the other offenses were committed for the benefit of a gang. As to the request to bifurcate and sever the gang charges, the court concluded the evidence was otherwise admissible and bifurcation would only confuse the jury. The court stated it had “confidence in the jury’s ability to differentiate between the conduct alleged to have occurred substantively on the part of... Garcia and the argument which might be made that at most, [he] was a mere passive egger-on or inactive participant in the gang at the time of this occurrence.”
The Gang Evidence
The prosecution’s expert, Nigro, testified about the importance of respect in gang culture. People join gangs to earn respect and seek respect through violence. Nigro testified that on the day the Zuniga robbery occurred, “Orange County Criminals” (OCC) was a criminal street gang with 20 to 30 members. The color burgundy was associated with OCC and its members sometimes wore baseball caps with Chicago Cubs, Houston Astros, or Atlanta Braves logos. Nigro testified OCC was associated with other street gangs and the prison gang “La Eme” also known as the “Mexican Mafia.” The primary activities of OCC were robbery, assault with a deadly weapon, murder, narcotics sales, and vandalism. Nigro testified about two offenses committed by other OCC members—a robbery in 2003 and an assault with a deadly weapon in 2004. When the Zuniga robbery occurred, OCC members were moving outside their gang territory and there were six known OCC members living in Moreno Valley.
Nigro had known Garcia since 2002 and opined Garcia was an active member of OCC when the Zuniga robbery occurred in May 2006. Garcia had been given multiple street terrorist enforcement program (“STEP”) cards, and had repeatedly admitted to police he was a member of OCC. In 2001, Garcia was involved in an automobile burglary with another OCC member, and was present in a car with other OCC members during a drive-by shooting, but he was not charged with any crimes. In a 2002 juvenile proceeding, Garcia admitted committing vandalism and being an OCC member—at the time he possessed OCC paraphernalia including items with gang graffiti including his gang moniker, “Bandit.” In late 2002, Garcia went to Mexico and Nigro did not hear he had returned until late 2005.
Nigro testified that in July 2006 (two months after the Zuniga robbery), Garcia was arrested for being in possession of a knife. When his home was searched, OCC gang paraphernalia was found, including items with Garcia’s gang moniker “Bandit” written on them, photographs of Garcia with other known OCC members, and a cellular telephone containing telephone numbers of numerous OCC members identified by their monikers. In December 2006, Garcia pled guilty to possession of a knife and admitted being an active participant of OCC.
Nigro opined the Zuniga robbery was committed to benefit OCC. Committing the robbery earned Garcia respect within the gang and provided a possible monetary benefit for the gang. The lack of display of gang indicia (e.g., gang names, slogans, hand signs, attire), during the commission of the crime did not change Nigro’s opinion. He testified when gangs commit crimes outside their territory, gang members do not always identify themselves so as to avoid detection by police and retaliation from rival gangs.
The defense expert, Strong, testified that although Garcia was “obviously” an active OCC member in 2001 and 2002, he was no longer an active gang member when the Zuniga robbery occurred. Garcia had no police contacts between 2002 and 2006, and the recent photographs of Garcia making gang signs and his possession of a cellular telephone with gang members’ telephone numbers did not change Strong’s opinion. Strong believed Garcia’s recent guilty plea admitting he was an active OCC member was likely made to get a lighter sentence.
Garcia testified he had moved to Mexico in 2002 to get away from gangs. He denied any current gang involvement and testified he only admitted being a current OCC gang member in the August 2006 knife possession case to avoid a lengthy sentence.
The Verdicts & Sentence
The jury convicted Garcia of robbery (count 1), assault with a deadly weapon with force likely to cause great bodily injury (count 2), and dissuading a witness (count 3), and found the firearm use allegation as to count 1 to be true. The jury acquitted Garcia of active participation in a criminal street gang (count 4), and found gang benefit enhancement allegations as to counts 1, 2, and 3, to be not true. The trial court dismissed the firearm allegation and placed Garcia on three years formal probation.
DISCUSSION
Although he was acquitted on the gang charges, and does not challenge the sufficiency of the evidence to support his convictions for robbery, assault with a deadly weapon and dissuading a witness, Garcia contends the admission of gang evidence deprived him of his due process rights to a fair trial requiring reversal. He argues gang evidence should not have been admitted at all and was so prejudicial his due process rights were violated. Alternatively, Garcia contends that even if gang evidence was arguably admissible, the trial court should have bifurcated trial on the gang charges so as to preserve his due process rights.
A. Admission of gang evidence did not violate Garcia’s due process rights.
“California courts have long recognized the potential prejudicial effect of gang evidence.... [¶] Due to its potential prejudicial impact on a jury, our Supreme Court has condemned the introduction of ‘evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.’ [Citation.] Gang evidence should not be admitted at trial where its sole relevance is to show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.] Such evidence is only admissible when it is logically relevant to some material issue at trial other than character trait evidence. [Citation.]” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.)
When reviewing the trial court’s ruling on the admissibility of the evidence, we generally apply the abuse of discretion standard. (People v. Carter (2003) 30 Cal.4th 1166, 1194 [admission of gang evidence reviewed for abuse of discretion].) And if admission of the evidence was erroneous, we generally apply the familiar reasonable probability standard for assessing prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Erroneous admission of gang evidence amounts to a due process violation only if it renders a defendant’s trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.) Whether a due process violation in turn leads us to affirm or reverse rests on our application of Chapman v. California (1967) 386 U.S. 18, 23-24. Thus, we must reverse unless the state can demonstrate beyond a reasonable doubt that the due process violation did not contribute to the verdict. (Albarran, supra, 149 Cal.App.4th at p. 229.)
Garcia’s argument is premised on Albarran, supra, 149 Cal.App.4th 214. In Albarran, two men described by witnesses as “Hispanics with shaved heads” fired shots at the victim’s house during a party in the middle of the night. The victim and another witness to the actual shooting were unable to identify either man. (Id. at pp. 217-218.) Three witnesses to the shooters’ flight, who got only momentary (one to two seconds) glances at them, identified defendant as one of the shooters and upon his arrest defendant made a comment indicating he had been present at the shooting. Defendant was a member of a criminal street gang, but there was no apparent connection between him and the victim. He was charged with attempted murder, shooting at an inhabited dwelling, and attempted kidnapping for carjacking, with gang enhancements for each count. Defendant filed a pretrial motion to exclude the gang evidence as irrelevant and prejudicial, but the court found the evidence relevant on motive and intent for the underlying offenses. (Id. at pp. 217-220.)
After defendant was convicted of the substantive offenses, and gang enhancements were found true, he moved for a new trial on the grounds the gang enhancements were not supported by substantial evidence. He also argued the admission of prejudicial gang evidence required reversal of the substantive offenses. The trial court granted the new trial motion, finding the gang benefit enhancement allegations were not supported by the evidence, but it found the gang evidence was still properly admitted to prove motive and intent on the substantive offenses. (Albarran, supra, 149 Cal.App.4th at p. 217.)
On appeal, the Albarran court held the trial court should have excluded the gang evidence as irrelevant and prejudicial because of the absence of any connection between the shooting and gang activities, and the new trial motion should have been granted as to the substantive offenses because of the inflammatory nature of the inadmissible gang evidence. “There is nothing inherent in the facts of the shooting to suggest any specific gang motive. In the final analysis, the only evidence to support the ‘respect’ motive is the fact of [defendant’s] gang affiliation.” (Albarran, supra, 149 Cal.App.4th at p. 227, fn. omitted.) Albarran concluded “[t]he paramount function” of the extensive gang evidence “was to show [defendant’s] criminal disposition” and the erroneous admission of the gang evidence was so serious that defendant’s due process rights to a fair trial were violated. (Id. at pp. 228-229.)
“To prove a deprivation of federal due process rights, [defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. ‘Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must “be of such quality as necessarily prevents a fair trial.” [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue is... whether the trial court committed an error which rendered the trial “so ‘arbitrary and fundamentally unfair’ that it violated federal due process.” [Citation.]’ [Citation.]” (Albarran, supra, 149 Cal.App.4th at pp. 229-230, fn. omitted.)
The Albarran case presented “one of those rare and unusual occasions where the admission of evidence has violated federal due process and rendered the defendant’s trial fundamentally unfair.” (Albarran, supra, 149 Cal.App.4th at p. 232.) The court concluded the gang evidence had no legitimate purpose in the trial, it was not sufficient to establish the crimes were committed for the benefit of the criminal street gang, and had no logical bearing on the issues of intent and motive. Thus, there were “‘no permissible inferences’ that could be drawn by the jury from [the] evidence. [Citation.] From [the] evidence there was a real danger that the jury would improperly infer that whether or not [defendant] was involved in these shootings, he had committed other crimes, would commit crimes in the future, and posed a danger to the police and society in general and thus he should be punished. Furthermore, this gang evidence was extremely and uniquely inflammatory, such that the prejudice arising from the jury’s exposure to it could only have served to cloud their resolution of the issues. In our view, looking at the effect of this evidence on the trial as a whole, we believe that this prejudicial gang evidence was ‘“of such quality as necessarily prevents a fair trial.’” [Citation.]” (Albarran, supra, 149 Cal.App.4th at pp. 230-231, fns. omitted.)
Garcia argues that similar to Albarran, the admission of gang evidence here was of no or minimal value, extremely inflammatory, and thus violated his federal constitutional rights. He contends the only evidence the current offenses were committed to benefit the OCC gang was Nigro’s testimony regarding Garcia’s gang affiliation and his opinion this crime was committed to benefit the gang, neither of which are sufficient to prove the gang benefit allegations. (See Frank S., supra, 141 Cal.App.4th 1192 [expert testimony regarding minor’s gang affiliation and opinion offense was committed to benefit gang insufficient to prove gang benefit allegation]; Martinez, supra, 116 Cal.App.4th 753 [defendant’s criminal history and gang affiliations not sufficient to support finding crime was gang related under section 186.22 for purposes of requiring gang registration under section 186.30].)
But Albarran is distinguishable in that it involved only gang benefit enhancements allegations under section 186.22, subdivision (b)(1). Here, Garcia was also charged with a substantive street terrorism count under section 186.22, subdivision (a). The elements of the substantive street terrorism offense are: (1) active participation in a criminal street gang; (2) knowledge the gang’s members have engaged in a pattern of criminal gang activity; and (3) willfully promoting, furthering, or assisting in any felonious criminal conduct by members of the gang. (People v. Lamas (2007) 42 Cal.4th 516, 523.)
That section provides: “Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”
Albarran was premised on the conclusion the gang expert’s testimony concerning defendant’s gang membership was not sufficient to prove the current offense was committed to benefit the gang. But unlike the enhancement in section 186.22, subdivision (b)(1), street terrorism “does not require the crime be for the benefit of the gang. Rather, it ‘punishes active gang participation where the defendant promotes or assists in felonious conduct by the gang. It is a substantive offense whose gravamen is the participation in the gang itself.’ [Citation.]” (People v. Martinez (2008) 158 Cal.App.4th 1324, 1334.)
In cases where gang offenses and enhancements are alleged, expert testimony regarding the culture, habits, and psychology of gangs is generally permissible because these subjects are “‘“sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. [Citations.]” [Citation.]’ [Citation.]” (People v. Killebrew (2002) 103 Cal.App.4th 644, 656.) Thus unlike Albarran, here there were were permissible inferences that could be drawn from the gang expert’s testimony—the gang expert testimony was relevant and necessary to establish the elements of the substantive street terrorism offense.
Accordingly, because the gang testimony was relevant to prove the substantive street terrorism charge, even if its admission was erroneous under Evidence Code section 352, its admission would not constitute a due process violation and we review under the reasonably probable standard of Watson, i.e., “‘[A] miscarriage of justice’ should be declared only when the court ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.)
We are satisfied that under either the Watson or even the more stringent Chapman standard, Garcia’s convictions were not the result of the alleged prejudicial impact of the gang evidence. This is not a case like Albarran, based on weak eyewitness identification. Garcia’s conviction was based upon extremely strong direct evidence. The victim, Zuniga, identified Garcia as the person who hit him with a metal baseball bat. Zuniga immediately knew it was Garcia because he worked with Garcia at Gate City for a lengthy period of time where he saw and spoke to Garcia on a daily basis. Although Zuniga did not know Garcia’s full name, he knew him by his workplace nickname of “Homie” or “Lil Homie,” and thought his first name was Roland. Garcia points to his expert’s testimony regarding the vagaries of eyewitness identification. But the expert conceded there is a difference between identifying a stranger and identifying a person with whom the witness is familiar. Furthermore, the fact the jury acquitted Garcia on the substantive gang charges, and found the gang benefit allegations not true, indicates the jury was not inflamed by the evidence.
B. Denial of severance/bifurcation of gang charges did not violate Garcia’s due process rights.
For the same reasons we conclude Garcia was not unfairly prejudiced by admission of the gang evidence, we cannot say the court’s refusal to sever the substantive street terrorism count (count 4) from the other charges and to bifurcate the street terrorism enhancement allegations deprived him of his due process rights.
Although Garcia discusses this point in terms of “bifurcation,” the Attorney General correctly notes as to the substantive street terrorism count (§ 186, subd. (a)) the issue must be viewed in terms of severance. (See People v. Burnell (2005) 132 Cal.App.4th 938, 946, fn. 5 (Burnell) [“defendant confuses ‘severance’ of a substantive count with ‘bifurcation’ of an enhancement by arguing defendant’s counsel should have moved to ‘bifurcate’ both the street terrorism count and the gang enhancements attached to other counts”].)
We ordinarily review a trial court’s denial of a motion to bifurcate gang enhancement allegations, or to sever substantive street terrorism charges for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez) [bifurcation of enhancement]; People v. Marshall (1997) 15 Cal.4th 1, 27 (Marshall) [severance of charges].) Our review of the trial court’s denial of a severance request is confined to the facts before the court at the time the motion was decided. (People v. Price (1991) 1 Cal.4th 324, 388.) The standard for reversing a trial court’s order denying severance or bifurcation is high. “When the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish an abuse of discretion by the trial court. [Citations.] We review the trial court’s decision ‘in light of the showings then made and the facts then known.’ [Citation.]” (Marshall, supra, 15 Cal.4th at p. 27.) “[A] party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial. [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 127.) Reversal of an order denying a motion to sever requires the defendant to show the joinder of the charges “resulted in ‘gross unfairness,’ amounting to a denial of due process. [Citation.]” (Ibid.)
The trial court did not abuse its discretion by denying the motion to sever. Section 954 provides that an information may charge “two or more different offenses connected together in their commission,” but the trial court, in the interests of justice and upon a showing of good cause, may order the different offenses or counts be tried separately. “[A] defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant’s severance motion. [Citations.] In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. [Citation.] The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citation.]” (People v. Mendoza (2000) 24 Cal.4th 130, 160-161 (Mendoza).) The fourth factor is not relevant here.
As to the first factor, the court concluded the gang evidence was arguably cross-admissible. Evidence of Garcia’s committing the robbery, assault, and dissuasion counts would be necessary to prove the third element of the substantive section 186.22, subdivision (a), street terrorism count (promoting, furthering, or assisting felonious criminal conduct). Similarly, the gang evidence, although not necessary to prove the robbery, assault, and dissuasion counts, was necessary to prove the attendant enhancements and established a motive (i.e., earning respect in the gang). Furthermore, the absence of cross-admissibility by itself does not demonstrate prejudice. (Mendoza, supra, 24 Cal.4th at p. 162.)
As to the second factor, Nigro testified about OCC—that it was a criminal street gang with 20 to 30 members, was associated with other street gangs and the prison gang “Mexican Mafia,” had as its primary activities robbery, assault with a deadly weapon, murder, narcotics sales, and vandalism. He testified to two predicate offenses committed by other OCC members—a robbery in 2003 and an assault with a deadly weapon in 2004. But we cannot say this testimony was overly inflammatory—Nigro did not provide any details about OCC activities or the predicate offenses.
And finally, as to the third factor, this is not a case where a weak case was joined with a strong case so as to alter the outcome. Garcia’s conviction was based on the unequivocal eyewitness testimony of the victim, Zuniga, who had known and worked with Garcia for well over a year.
Turning to bifurcation of the gang enhancements, in Hernandez, supra, 33 Cal.4th 1040, the court held the legal basis for bifurcation of a prior conviction allegation also permits bifurcation of a gang allegation. (Id. at p. 1049.) However, “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. [Citation.]” (Id. at p. 1048.)
Hernandez noted gang evidence may be relevant to “identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (Hernandez, supra, 33 Cal.4th at p. 1049.) “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. [Citation.]” (Id. at pp. 1049-1050.) However, “[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.” (Id. at p. 1050.)
Noting the benefits of unitary trials, Hernandez explained 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. [Citation.]” (Hernandez, supra, 33 Cal.4th at p. 1050.) Bifurcation is required only where a defendant can “‘clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]” (Id. at p. 1051.)
Applying Hernandez, we find no abuse of discretion in the denial of Garcia’s motion to bifurcate the gang enhancements. As noted above, the evidence concerning Garcia’s participation in the OCC gang was relevant to prove street terrorism and as we have already explained, severance of the substantive counts was unnecessary in this case. Burnell, supra, 132 Cal.App.4th at page 948, is instructive. In that case, this court held trial counsel was not ineffective for having failed to request severance/bifurcation of substantive street terrorism counts and gang enhancements because it was unlikely such a motion would have been granted. After explaining why severance of the substantive street terrorism counts was not necessary, the court observed, “If a severance of the street terrorism charge was highly unlikely, the bifurcation of the gang enhancements was even more unlikely. Virtually all of the gang evidence which would be admissible on the gang enhancements would also be admissible on the street terrorism charge. Thus the jury would hear the evidence during trial of the substantive gang offense. Further, ‘[a]ny evidence admitted solely to prove the gang enhancement was not so minimally probative on the charged offense, and so inflammatory in comparison, that it threatened to sway the jury to convict regardless of defendants’ actual guilt.’ [Citation.]” (Id. at p. 948.)
In sum, we cannot say the court abused its discretion by refusing to sever and bifurcate the gang charges. Furthermore, even were we to conclude the request should have been granted, we cannot say Garcia was prejudiced. The jury acquitted him of the gang charges. And as already explained, even absent the gang evidence, the case against him, was based the strong eyewitness identification of a victim who had known Garcia for a substantial period of time.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.