Filed 7/17/15 P. v. Martinez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


THE PEOPLE,

         Plaintiff and Respondent,                                       E060393

v.                                                                       (Super.Ct.No. FSB050723)

JOSHUA MARTINEZ,                                                         OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. William Jefferson

Powell IV, Judge. Affirmed.

         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, and William M. Wood and Brendon W. Marshall, Deputy Attorneys General, for

Plaintiff and Respondent.




                                                             1
       Defendant Joshua Martinez gave Christopher Powers some methamphetamine in

exchange for a beat-up old pickup truck. Defendant then enlisted Ravenna Waters to help

him sell the truck. Thus, Waters was present when Powers admitted to defendant that he

did not have the pink slip to the truck and, minutes later, when defendant shot Powers,

killing him.

       About a day after the shooting, Waters’s car broke down. Five or six cars started

circling her. Defendant was in one of the cars; he rolled down his window and stared at

her. Defendant was a member of the North Side Colton gang; a gang expert testified that

defendant’s act of surrounding and intimidating Waters was committed for the benefit of

the gang.

       After a jury trial, defendant was found guilty as follows:

       Count 1: First degree murder (Pen. Code, §§ 187, subd. (a), 189), with an

enhancement for personally and intentionally discharging a firearm and causing great

bodily injury (Pen. Code, § 12022.53, subd. (d)).

       Count 2: Dissuading a witness by force or threat (Pen. Code, § 136.1, subd.

(c)(1)), with a gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)).

       As a result, defendant was sentenced to a total of 61 years to life in prison, along

with the usual fines, fees, and directives.




                                              2
       Defendant now contends:

       1. The trial court erred by admitting statements that were the result of custodial

interrogation after defendant had invoked his right to remain silent and his right to

counsel.

       2. There was insufficient evidence to support the gang enhancement.

       3. The trial court erred by denying defendant’s motion to bifurcate the trial of the

gang enhancement.

       4. The trial court erred by imposing a restitution fine without considering

defendant’s ability to pay.

       We find no reversible error. Hence, we will affirm.

                                              I

                               FACTUAL BACKGROUND

       A.     Prosecution Evidence Regarding the Crimes.

       Ravenna Waters was in the business of buying and selling vehicles. She lived with

Charles Dedrick; they had a one-year-old son together. Waters also had two older sons

who were friends with defendant and who had introduced him to her. Waters knew

defendant only as “Cartoon.”

       On June 15, 2005, defendant came to Waters’s house in Muscoy. He asked her to

help him sell a truck. He said the truck belonged to someone else, who would provide the

pink slip.




                                             3
       Later that day, defendant came back. He was in a gray late 1980’s Nissan pickup

truck, which had some front-end damage. He was accompanied by Christopher Powers,

who was identified to Waters as the owner of the truck.

       Defendant left the truck with Waters. At his request, Waters gave him and Powers

a ride to Powers’s girlfriend’s house. Waters was driving her red Ford van. The gas

gauge was broken, and the van had to be started with a screwdriver.

       During the drive, Powers told defendant that he did not have the pink slip to the

truck. Defendant got angry.

       When they got to the girlfriend’s house, defendant told Powers to “go get some

dope.” Powers went in and asked his girlfriend if she had any methamphetamine. She

said no.1 When Powers came back and said “he couldn’t get any dope,” once again,

defendant was angry.

       Waters said she was going home; she refused to drive defendant and Powers

anywhere else, so they went with her. When they were on Cajon Boulevard near Kendall

Drive, the van “sputtered and died.” Waters assumed it was out of gas. Defendant

suggested they all go back to the girlfriend’s house and siphon some gas. Waters refused

to leave her van unattended.

       Defendant got upset. However, he said that just he and Powers would go. As soon

as they got out, defendant pulled out a gun and shot Powers in the head four times.

       1   Powers also told his girlfriend that he had sold his truck for an eight-ball of
methamphetamine.



                                             4
       Waters tried frantically to restart the van. She thought that, unless she drove away,

defendant was going to kill her. Once she managed to get it restarted, however, she

realized that he was already in the van, sitting next to her.

       Waters testified that defendant told her that “he wasn’t letting me out of his sight,

he was going to rape me, kill me. When he was done, that he was going to fuck the man

that I was with and then kill him, that he was going to kill my grown sons, and that he

was going to keep my baby.” Defendant ordered her to drive to his house. She said,

“[N]o, I’m going to check on my son.” He “looked at [her] like, you brave bitch.”

       They got back to Waters’s house several hours after they had left. Defendant

followed Waters in. He acted “like he owned the place[.]” He washed his hands and

made himself a sandwich. Waters could not tell Dedrick about the shooting because

defendant “was sitting right there.”

       Defendant wanted Waters to go with him to help him sell the truck, but Dedrick

said it was too late. Defendant left, but he asked Dedrick to follow him home; he

explained that the truck had expired tags. Dedrick did so. After about five minutes,

defendant pulled over and waved to Dedrick to go on. Dedrick went to a grocery store

before going back home. Meanwhile, Waters did not call the police, because she was

“scared.”

       Just minutes after Dedrick got back home, defendant came back again. Once

again, defendant wanted Waters to go with him, and once again, Dedrick said it was too

late. Defendant left. Thus, Waters finally managed to tell Dedrick about the shooting.



                                               5
       Around 2:00 or 3:00 a.m., defendant returned yet again. This time, he was

accompanied by another Hispanic man. Defendant still wanted Waters to go with him,

but Dedrick said no. Defendant and the Hispanic man “[p]rowl[ed] around the yard” for

maybe 15 minutes before finally leaving. Waters “felt that they were trying to get [her]

outside.”

       Around 6:00 a.m., Waters and Dedrick took their baby, left their house, and went

to stay with a friend.

       Meanwhile, around 2:00 a.m., a bicyclist found Powers’s dead body lying by the

side of Cajon Boulevard, near Kendall Drive; he called 911. Powers had

methamphetamine in his system when he died.

       On June 17, 2005, Waters’s van broke down again near H and Marshall Streets in

San Bernardino. Some five or six cars started circling her. Defendant was in one of these

cars; he rolled down his window and made eye contact with her.

       Later that day, Dedrick went back to his house to get some clothing. While he was

there, defendant showed up. To mislead defendant, Dedrick asked if he knew where

Waters and the baby were. Defendant asked Dedrick to come outside and talk to him.

Dedrick declined, saying he had to meet up with some people.

       Defendant went and talked to Waters’s adult sons. Later, a friend told Dedrick

that defendant and “the boys” (meaning Waters’s sons) were at Waters’s house, taking

items from their house, their shed, and their cars. Dedrick called the police and had one




                                             6
of Waters’s sons arrested. Waters wanted her son to be in custody so he would be safe

from defendant.

       Waters then contacted the police and reported the shooting. In a photo lineup, she

identified defendant as the shooter.

       On June 20, 2005, the police searched defendant’s house. They did not find the

gray pickup truck. However, they did find .22 long-rifle caliber rim-fire bullets. Bullet

fragments recovered from Powers’s head were also .22 long-rifle caliber rim-fire.

       Waters’s van was fingerprinted, but defendant’s fingerprints were not found.

       Meanwhile, on June 18, 2005, defendant had been arrested for absconding. On

June 23, 2005, the police interviewed him. They told him that they were there to talk

about a gray Nissan pickup truck. He said he had bought the truck from a short, five foot

seven inch2 White or Hispanic guy in exchange for a quarter of an ounce of

methamphetamine. He claimed the truck was parked behind his house.

       B.     Prosecution Gang Evidence.

       According to a gang expert, defendant was an active member of a gang called

North Side Colton, as shown by his tattoos, his associations, and his own admissions. His

moniker was Cartoon.

       North Side Colton had common signs or symbols, including NSC, NC, and

University of North Carolina logos. Their primary activities included robberies,



       2      Powers was five feet five inches tall.



                                             7
methamphetamine sales, and marijuana sales. Gang members had been convicted of at

least five predicate offenses: (1) an assault with a deadly weapon committed in January

2002, (2) a carjacking committed in December 2002, (3) an assault with a deadly weapon

committed in October 2003, (4) unlawful taking or driving of a vehicle committed in

November 2003, and (5) an assault with a deadly weapon committed in January 2004.

       The gang expert opined, in hypothetical form, that the incident in which defendant

and others circled Waters was committed for the benefit of his gang.

       C.     Defense and Rebuttal Evidence.

       As of 2005, Sheila Rodarte was defendant’s girlfriend. On June 15, 2005,

Rodarte’s daughter Erica had eye surgery. Shortly after Erica was anesthetized, Rodarte

drove to her house, picked up defendant, and brought him to the hospital. The whole trip

took 20 or 25 minutes. When they got back, Erica was still in surgery. Defendant stayed

in Erica’s room with her until she was discharged the next morning.

       According to hospital records, Erica Rodarte was in the hospital from 6:00 p.m. on

June 15, 2005 until 6:45 a.m. on June 16, 2005. She was anesthetized at 7:00 p.m., and

she had an operation that lasted from 7:23 p.m. until 8:07 p.m.

       When the police interviewed Rodarte, she did not tell them that defendant had an

alibi for the time when the shooting occurred.

       Rodarte also testified that defendant used to have a long-barreled revolver that he

carried around in his pocket. About a week after the shooting, however, he told her that

he no longer had the gun.



                                             8
       On July 19, 2005, defendant spoke to Rodarte on the phone from jail. In that call,

defendant said that he had bought a truck for a quarter-ounce of dope. The seller did not

have the “bill of sale” and was going to give it to defendant later. Defendant said the

truck was parked behind his house.

       In addition, defendant said that, when Erica had her surgery, he got to the hospital

around 3:45 a.m.

                                                II

    CONTINUED QUESTIONING AFTER DEFENDANT INVOKED HIS RIGHTS

       Defendant contends that the trial court erred by admitting statements that he made

to the police after he had invoked his right to remain silent and his right to counsel.

       A.      Additional Factual Background.

       The following facts are taken from the evidence that was before the trial court

when it ruled on defendant’s motion to suppress. (See part II.B, post.)

       On June 23, 2005, two sheriff’s deputies interviewed defendant. At the time,

defendant was in custody on a parole violation. (In our quotations from the transcript of

the interview, all ellipses are in the original; brackets indicate alterations.)

       Defendant asked if he was going to be “cut loose[.]” A deputy replied, “No, I

don’t know, I don’t work . . . I’m not your parole officer or nothing like that, I’m a

[d]eputy so . . . I . . . I don’t have anything to do with that.”

       The deputies gave defendant Miranda warnings (see generally Miranda v. Arizona

(1966) 384 U.S. 436); defendant said he understood them. This discussion followed:



                                                9
       “[DEFENDANT]: I . . . I . . . I really if this isn’t pertain to my . . . my . . . my

parole then I really don’t have nothing to say to anybody.

       “[DEPUTY]: [O]k . . . well let me . . . let me tell you what’s up. Where here . . .

all’s we[’]re here to talk to you about is a . . . a truck. A [g]ray truck ok? And how you

ended up with the truck over in . . . in Muscoy at the pad. That’s all . . . [w]e want to

know about. The [t]ruck so how did you end up with the truck?

       “[DEFENDANT]: It was through a dope deal.

       “[DEPUTY]: Ok, just telling . . . I’m not . . . look I’m not from parole, I don’t

really care about that part of it, I[’]m not gonna run and make a big report ok? Ok? But I

just want to know about how the truck got on there, ok so it[’]s through a dope deal . . .

What ha . . . what happened? Or what . . . what . . . what kind of dope deal?

       “[DEFENDANT]: Ha . . . this is gonna fuck my parole up.

       “[DEPUTY]: No, I’m not gonna even . . . I’m not gonna contact your parole

officer[.]

       “[OTHER DEPUTY]: (Unintelligible)

       “[DEPUTY]: I’m not, we just need the info on the truck and how you got it and

all that stuff we need to track it . . . you know what I’m saying? Ok? Just be straight with

us, that’s it.” (Italics added.)

       The deputies proceeded to question defendant. Defendant confirmed that he had

been staying at 2455 Second Avenue in Muscoy. He said that he gave a quarter of an

ounce of dope to a Mexican “dude,” who was short, about five feet seven inches tall, in



                                               10
exchange for the truck. Defendant confirmed that he was referring to “the truck that’s in

the . . . in the back of my house.”

       Then there was this exchange:

       “[DEFENDANT:] [C]an I get a lawyer? Or something like that? Cause am I . . .

am I a GTA now? Cause of the damn truck . . . has to do with the truck stolen? Cause I

didn’t steal the damn truck[,] I bought the truck.

       “[DEPUTY]: You bought it?

       “[DEFENDANT]: Yah, well it’s not legal (Unintelligible) dope but . . . still it[’]s

(Unintelligible)[.]

       “[DEPUTY]: (laughing) [W]ell yah a quarter ounce of dope[.]

       “[DEFENDANT]: It’s still a quarter ounce[.]”

       “[DEPUTY]: Yah . . . a quarter . . . I understand, ok[,] look we need to know your

story cause uh we’re hearing some other stuff about the truck and about . . . and about

how you got the truck.

       “[DEFENDANT]: (Unintelligible)

       “[DEPUTY]: We’re hearing something else about how you got that truck.

       “[DEFENDANT]: [A]s in what?

       “[DEPUTY]: As in this little White dude’s dead, shot in the head and we have

people saying that you’re the one who shot him for the truck. And that’s why we’re here

to find out your side of the story.

       “[DEFENDANT]: Man, I need a lawyer.



                                             11
       “[DEPUTY]: [Y]ou need a lawyer?

       “[DEFENDANT]: [Y]ah, this is . . . this is bullshit.

       “[DEPUTY]: Well it’s your right. I mean . . . yah definitely we just want to hear

your side of the story.

       “[DEFENDANT]: That’s . . . that’s what’s going on man that’s . . . that’s how it

went down.

       “[DEPUTY]: Okay.

       “[DEFENDANT]: I got 6 . . . 6, 7 cars right there on my property I don’t need to

shoot nobody for no god damn truck.” (Italics added.)

       The deputies assured defendant that they had to “respect” his request for an

attorney; however, they repeatedly insisted that they wanted to hear his “side of the

story.” Defendant said, “I have nothing to do with it.” He added, “You going after the

wrong guy.”

       B.     Additional Procedural Background.

       Defense counsel filed a written motion to suppress defendant’s statements. After

hearing argument, the trial court denied the motion.

       With respect to defendant’s statement, “[I]f this isn’t pertain to my . . . my . . . my

parole then I really don’t have nothing to say to anybody,” it ruled: “[T]hat is not an

assertion of silence, but equivocal statements. It’s not certain that he does not want to

talk. He uses terminology that indicates that he kind of doesn’t want to talk, but hasn’t

really made up his mind yet is how I read that statement.”



                                              12
       With respect to defendant’s statement, “[C]an I get a lawyer?,” it ruled: “He is

giving more information after asking for a lawyer, continuing to talk, indicating that he

was not firmly asserting his right to counsel, but rather as part of an ongoing colloquy.”

       Accordingly, defendant’s statements that (1) he lived at 2455 Second Avenue in

Muscoy, (2) he gave a quarter of an ounce of methamphetamine to a short, five foot seven

inch White or Hispanic guy3 in exchange for a gray truck, and (3) the truck was parked

behind his home, were admitted into evidence.

       C.     Discussion.

       “In reviewing a trial court’s Miranda ruling, we accept the court’s resolution of

disputed facts and inferences and its evaluations of credibility, if supported by substantial

evidence, and we independently determine, from the undisputed facts and facts properly

found by the trial court, whether the challenged statement was illegally obtained.

[Citation.] Where, as here, a defendant’s statements to the police are undisputed, ‘we

engage in a de novo review of the legal question of whether the statement at issue was

[admissible].” (People v. Shamblin (2015) 236 Cal.App.4th 1 [Fourth Dist., Div. Two],

petn. for rev. filed May 26, 2015.)

       “Under Miranda and its progeny, ‘a suspect [may] not be subjected to custodial

interrogation unless he or she knowingly and intelligently has waived the right to remain



       3     According to the transcript of the interview, defendant said the guy looked
Mexican. Nevertheless, the testimony at trial was that defendant described him as “some
[W]hite guy,” “he could have been Hispanic or [W]hite.”



                                             13
silent, to the presence of an attorney, and, if indigent, to appointed counsel.’ [Citation.]

If at any point in the interview the suspect invokes the right to remain silent or the right to

counsel, ‘the interrogation must cease.’ [Citations.]” (People v. Bacon (2010) 50 Cal.4th

1082, 1104-1105.)

       “The prohibition against further questioning in these circumstances is not a

constitutional requirement, but rather a prophylactic rule ‘“designed to prevent police

from badgering a defendant into waiving his previously asserted Miranda rights.”’

[Citation.]” (People v. Nelson (2012) 53 Cal.4th 367, 376.)

       A suspect’s invocation of the right to silence must be “unambiguous and

unequivocal.” (People v. Nelson, supra, 53 Cal.4th at p. 377.) “‘[I]f an ambiguous act,

omission, or statement could require police to end the interrogation, police would be

required to make difficult decisions about an accused’s unclear intent and face the

consequence of suppression “if they guess wrong.”’ [Citation.] In such circumstances,

suppression of a voluntary confession ‘would place a significant burden on society’s

interest in prosecuting criminal activity.’ [Citation.]” (Id. at p. 378.)

       “A defendant . . . ‘may indicate an unwillingness to discuss certain subjects

without manifesting a desire to terminate “an interrogation already in progress.”’

[Citation.]” (People v. Thomas (2012) 211 Cal.App.4th 987, 1005.) “A defendant has

not unambiguously and unequivocally invoked his right to remain silent when his

statements . . . amount only to a refusal to discuss a particular subject. [Citations.]” (Id.

at pp. 1005-1006.)



                                              14
        For example, in People v. Silva (1988) 45 Cal.3d 604, the defendant was

Mirandized. He answered some questions, but when asked if he was driving the truck

involved in the homicide (see id. at p. 615), he said, “I really don’t want to talk about

that.” (Id. at p. 629.) The interview continued, and he did answer some questions, but he

avoided answering questions that “concentrat[ed] [on] the[] homicide.” (Ibid.) The

Supreme Court held that the defendant had not refused to continue the interrogation, and

thus he had not exercised his privilege against self-incrimination. (Ibid.) It observed: “A

defendant may indicate an unwillingness to discuss certain subjects without manifesting a

desire to terminate ‘an interrogation already in progress.’ [Citation.]” (Id. at pp. 629-

630.)

        Here, defendant’s statement, “if this isn’t pertain to . . . my parole then I really

don’t have nothing to say to anybody,” was merely a refusal to discuss certain subjects.

By necessary implication, it meant that, if the interrogation did pertain to defendant’s

parole, defendant did not want to end it. Hence, the officers were not required to

terminate the interrogation at that point.4

        4     Under Doyle v. Ohio (1976) 426 U.S. 610, the fact that a defendant who
received Miranda warnings remained silent cannot be used to impeach the defendant’s
testimony at trial.

       Some federal courts have held that, for purposes of Doyle, a defendant’s post-
warning silence on some but not all subjects cannot be used to impeach him or her. (E.g.,
Hurd v. Terhune (9th Cir. 2010) 619 F.3d 1080, 1087-1088; United States v. Harrold
(10th Cir. 1986) 796 F.2d 1275, 1279, fn. 3.)

     These cases are not controlling here. The United States Supreme Court has
emphasized the need for bright-line rules on when questioning must cease: “A
                                                                    [footnote continued on next page]


                                               15
        Separately and alternatively, even assuming the continued interrogation was

unconstitutional, the admission of defendant’s subsequent statements was harmless

beyond a reasonable doubt. The statements that were admitted were to the effect that (1)

defendant lived at 2455 Second Avenue in Muscoy, (2) defendant gave a quarter of an

ounce of methamphetamine to a person meeting Powers’s description in exchange for a

gray truck, and (3) the truck was parked behind defendant’s house.

        However, in the jailhouse phone call with his girlfriend — which was audiotaped

and played for the jury — defendant made essentially identical statements. He said, “I

bought a truck for some dope.” “I gave em . . . they wanted . . . they wanted a quarter

ounce for it right?” He indicated that it was Waters who “brings this dude over,” and the

two of them “want to sell this truck.” He also said, “It was there the night I got busted.

. . . [I]t was parked in the back.” Finally, there was ample other evidence, including the

testimony of defendant’s ex-girlfriend, that he was staying at 2455 Second Avenue.



[footnote continued from previous page]
requirement of an unambiguous invocation of Miranda rights results in an objective
inquiry that ‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how
to proceed in the face of ambiguity. [Citation.] If an ambiguous act, omission, or
statement could require police to end the interrogation, police would be required to make
difficult decisions about an accused’s unclear intent and face the consequence of
suppression ‘if they guess wrong.’ [Citation.] Suppression of a voluntary confession in
these circumstances would place a significant burden on society’s interest in prosecuting
criminal activity. [Citations.]” (Berghuis v. Thompkins (2010) 560 U.S. 370, 381-382.)
Accordingly, even if a defendant’s partial silence or refusal to answer particular questions
is deemed an invocation of the right to remain silent for purposes of Doyle, it does not
necessarily require the police to terminate questioning at that time. (Hurd v. Terhune,
supra, 619 F.3d at p. 1088.)



                                             16
Accordingly, the statements assertedly admitted in violation of Miranda added nothing to

the other evidence at trial.

       It could be argued that, once defendant made statements to the police, he felt that

he had to use the jailhouse phone call to explain those statements. He has never argued,

however, that the jailhouse phone call was the product of the asserted Miranda violation.

He never objected to nor moved to suppress the jailhouse phone call; his motion to

suppress was directed exclusively toward his statements to the police.

       Finally, we may assume, without deciding, that defendant’s statements, “[C]an I

get a lawyer?” and “Man, I need a lawyer” were clear and unequivocal invocations of his

right to counsel. However, none of the statements that defendant made after that point

were admitted at trial. Accordingly, even if the trial court erred by finding that defendant

did not unequivocally invoke the right to counsel, the error was plainly harmless.

                                             III

                        THE SUFFICIENCY OF THE EVIDENCE

                      TO SUPPORT THE GANG ENHANCEMENT

       Defendant contends that there was insufficient evidence to support the gang

enhancement to count 2 (dissuading a witness).

       “‘In considering a challenge to the sufficiency of the evidence to support an

enhancement, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence — that is, evidence that is reasonable,

credible, and of solid value — from which a reasonable trier of fact could find the



                                             17
defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in

support of the judgment the trier of fact could have reasonably deduced from the

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,

reversal of the judgment is not warranted simply because the circumstances might also

reasonably be reconciled with a contrary finding. [Citation.] “A reviewing court neither

reweighs evidence nor reevaluates a witness’s credibility.” [Citation.]’ [Citation.]”

(People v. Livingston (2012) 53 Cal.4th 1145, 1170.)

       One of the elements of a gang enhancement is that the underlying crime was

“committed for the benefit of, at the direction of, or in association with a[] criminal street

gang” (the benefit/direction/association element). (Pen. Code, § 186.22, subd. (b)(1).)

Another element is that the defendant committed the underlying crime “with the specific

intent to promote, further, or assist in any criminal conduct by gang members” (the

specific intent element). (Ibid.)5

       “‘Expert opinion that particular criminal conduct benefited a gang’ is not only

permissible but can be sufficient to support the Penal Code section 186.22, subdivision

(b)(1), gang enhancement. [Citation.]” (People v. Vang (2011) 52 Cal.4th 1038, 1048.)

       With respect to the benefit/direction/association element, the gang expert testified

that defendant’s crime of dissuading a witness was committed for the benefit of the gang.



       5      Defendant’s briefs tend to lump these two elements together. Thus, for
example, he asserts that there was insufficient “proof of the defendant’s specific intent to
benefit a gang by committing the crime.”



                                              18
He explained that gang members “want the public or the community that they occupy or

frequent to fear and respect them. And a lot of times they glean or garner that respect

through intimidation.” He added that instilling fear and intimidation in victims also tends

to prevent the prosecution of gang members.

       Defendant contends that the expert’s opinion lacked support in the evidence. The

only evidence that he claims was missing, however, was (1) evidence that Waters knew

that defendant was a gang member and (2) evidence that the people in the other cars were

gang members.

       Admittedly, Waters did testify that she did not know defendant was a gang

member “until after the fact.” However, the jury did not have to believe her. The gang

expert testified that defendant had multiple North Side Colton tattoos, including at least

two that were readily visible — “NSC” on his middle finger and “NS Colton” on his

forearm. Dedrick testified that he did not believe the police could protect him from

defendant “[b]ecause of the ties he has with certain people.” Waters’s two adult sons

were friendly with defendant. Waters knew defendant by his gang moniker, Cartoon.

The gang expert testified that “the fact [Waters] knew [defendant] by Cartoon leads me to

believe there was . . . knowledge of him in regards to a gang capacity.” This was

sufficient evidence that Waters actually knew that defendant was a gang member.

       There was also sufficient evidence that the people in the other cars were members

of North Side Colton. The gang expert testified, “Gangs work in groups. That is how

they have strength in numbers.” In any event, it seems pretty obvious that a gang member



                                             19
in need of five or six accomplices to help him intimidate a witness would turn to his

fellow gang members.

       Separately and alternatively, even leaving aside whether the crime was committed

for the benefit of the gang, there was also substantial evidence that the crime was

committed in association with the gang. As just discussed, it was reasonably inferable

that the people in the other cars were gang members. “[T]he jury could reasonably infer

the requisite association from the very fact that defendant committed the charged crimes

in association with fellow gang members.” (People v. Morales (2003) 112 Cal.App.4th

1176, 1198 [Fourth Dist., Div. Two].)

       With respect to the specific intent element, “specific intent to benefit the gang is

not required. What is required is the ‘specific intent to promote, further, or assist in any

criminal conduct by gang members . . . .’” (People v. Morales, supra, 112 Cal.App.4th at

p. 1198.) Moreover, “[Penal Code] section 186.22(b)(1) encompasses the specific intent

to promote, further, or assist in any criminal conduct by gang members — including the

current offenses — and not merely other criminal conduct by gang members.” (People v.

Albillar (2010) 51 Cal.4th 47, 65; see also id. at pp. 65-66.)

       Here, defendant and some accomplices, who were all inferably members of the

same gang, circled Waters for the evident purpose of dissuading her from reporting

defendant’s prior crime. They were all committing a crime together. “‘Commission of a

crime in concert with known gang members is substantial evidence which supports the

inference that the defendant acted with the specific intent to promote, further or assist



                                             20
gang members in the commission of the crime.’ [Citations.]” (People v. Miranda (2011)

192 Cal.App.4th 398, 412.)

       We therefore conclude that there was sufficient evidence to support the gang

enhancement.

                                               IV

            THE REFUSAL TO BIFURCATE THE GANG ENHANCEMENT

       Defendant contends that the trial court erred by denying his motion to bifurcate the

trial of the gang enhancement.

       A.      Additional Factual and Procedural Background.

       In its trial brief, the prosecution argued that it should be allowed to introduce

evidence that witnesses were afraid of retaliation. The prosecution asserted that Waters

and Dedrick knew that defendant was a gang member.

       Defense counsel disputed this, claiming there would be no evidence that any of the

witnesses knew that defendant was a gang member. He then asked the trial court to

bifurcate the trial of the gang allegations.

       The trial court denied the bifurcation request. It explained: “Well, don’t forget

352 does not prohibit prejudicial information. . . . The question is whether it is illegally

prejudicial, unduly prejudicial . . . . It is a balancing act, not whether it is harmful to the

defendant. It is whether or not it is somehow untoward.

       “In this case it appears that it is inexorably tied to the underlying offense, the

underlying conduct of the defendant, and the underlying conduct of the witnesses. . . . I



                                               21
think it would be a misleading view of the facts to try to separate the sterile facts from the

gang involved facts.”

       B.      Discussion.

       The trial court has the authority to bifurcate the trial of a gang enhancement in an

appropriate case. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) The defendant

has the “burden ‘to clearly establish that there is a substantial danger of prejudice

requiring that the charges be separately tried.’ [Citation.]” (Id. at p. 1051.)

       However, “the trial court’s discretion to deny bifurcation of a charged gang

enhancement is . . . broader than its discretion to admit gang evidence when the gang

enhancement is not charged. [Citation.]” (People v. Hernandez, supra, 33 Cal.4th at

p. 1050.) A “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.) “Even 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.)

       We review the denial of a motion to bifurcate for abuse of discretion. (See People

v. Hernandez, supra, 33 Cal.4th at p. 1048.)




                                              22
       Here, the gang evidence was relevant to the underlying charge of dissuading a

witness. As already discussed (see part III, ante), there was substantial evidence that

Waters knew that defendant was a gang member; there was also substantial evidence that

the people in the other cars were defendant’s fellow gang members. The gang expert

testified that gang members may threaten a witness by surrounding him or her, without

making any verbal threat. Waters’s awareness that defendant and his accomplices were

gang members would make the threat more potent. Thus, the gang evidence was relevant

to show the intent to dissuade. (See People v. Navarro (2013) 212 Cal.App.4th 1336,

1347.) It was also relevant to show that the attempted dissuasion was carried out by

means of an implied threat of force or violence. (See Pen. Code, § 136.1, subd. (c)(1).)

       At the same time, the gang evidence was not particularly inflammatory. There was

no evidence that defendant was an “OG” or a “shot-caller.” Defendant’s home had been

searched, but no gang paraphernalia had been found there. The gang expert testified to

convictions for five predicate offenses — a carjacking, three assaults with a deadly

weapon, and unlawful taking or driving of a vehicle. They were not described in detail.

The expert specifically testified that they did not involve defendant.

       We therefore conclude that the trial court did not abuse its discretion by declining

to bifurcate the gang allegation.




                                             23
                                              V

                     THE AMOUNT OF THE RESTITUTION FINE

       Defendant contends that the trial court erred by imposing the maximum $10,000

restitution fine under Penal Code section 1202.4 without considering his ability to pay.

       Under California Supreme Court authority directly on point, defense counsel

forfeited this contention by failing to raise it at trial. (People v. Nelson (2011) 51 Cal.4th

198, 227.)

                                              VI

                                       DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 RAMIREZ
                                                                                          P. J.

We concur:


McKINSTER
                           J.


MILLER
                           J.




                                              24
