Filed 4/24/13 P. v. Garcia CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B232129
                                                                            (Super. Ct. No. 1284555)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

GILBERT GARCIA, JR.,

     Defendant and Appellant.



                   Gilbert Garcia, Jr., appeals the judgment following his conviction for first
degree murder (Pen. Code, §§ 187/189)1, and shooting at an occupied vehicle (§ 246).
The jury found allegations to be true that the offenses were committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)), and that a principal personally and
intentionally discharged a firearm (§ 12022.53, subd. (e)). Garcia was sentenced to 25
years to life for the murder plus 25 years to life on the firearm enhancement. Sentences
of 15 years to life for shooting at an occupied vehicle offense and 10 years for the gang
enhancement were stayed.
                   Garcia contends there is insufficient evidence to support his convictions, to
support the convictions on an aiding and abetting theory, to establish premeditation and
deliberation, or to support imposition of a gang enhancement. He also claims


         1 All statutory references are to the Penal Code unless otherwise stated.
instructional error regarding aiding and abetting, prosecutorial misconduct, and error in
the denial of his motion to bifurcate trial of the gang enhancement. We affirm.
                                         FACTS
              During the early morning hours of August 9, 2008, George Robertson, an
African–American, was shot and killed inside his car. Robertson's car was located near
the driveway of his residence in Santa Maria.
              A few hours earlier, Garcia and his brother Roy Duran were in the
Coachman Bar which is also located in Santa Maria, less than two miles from the scene
of the murder. The bar was frequented by African-American, Hispanic and white
customers. Garcia appeared to be intoxicated. He flashed a gang sign and called out the
name of his gang. Jason Ross was also in the bar. Garcia is Hispanic and Ross is
African–American.
              The customers began to leave the bar as closing time approached. Ross
attempted to speak to an Hispanic woman and was threatened by an Hispanic man.
Garcia argued with Ross, again calling out the name of his gang. When Garcia directed a
racial slur at Ross, Garcia and Ross began fighting. The fight moved to the bar parking
lot. Garcia was wearing a blue Dodger jersey and a white tee shirt under it that became
visible during the fight. Duran was involved in the fight on Garcia's side but they were
outnumbered. Other people standing outside the bar joined the fighting along racial lines,
African–Americans against Hispanics. Garcia and Duran were losing when bar bouncers
broke up the fight. The crowd dispersed when police arrived.
              Jeannette Mack was victim George Robertson's girlfriend. They lived near
each other and had a child together. Mack had been at the Coachman Bar that night but
came home at closing time. Robertson, who had been sleeping at Mack's house, woke
up, and left to return to his home to get luggage for a trip he and Mack were going to
take. He said he would return.
              Bianca Rodriguez, an African-American, knew Robertson and lived a short
walk from Robertson's home. She also lived next door to Duran, and was in a romantic
relationship with Duran at the time of the shooting. Rodriguez expected Duran to come

                                             2
to her house that night and telephoned him several times to find out where he was. At
approximately 2:00 a.m., she spoke to Duran on the telephone. Duran told her about the
fight at the bar. Duran was upset because he thought Rodriguez's brother had been
involved in the bar fight.
              Shortly after the telephone call, Rodriguez heard two gunshots fired near
her driveway. She looked out the window and saw Garcia and Duran drive away in a
brown truck. A few minutes later, she heard loud music that sounded like it was coming
from a car. She knew that Robertson frequently played music in his car at a high volume.
She looked outside and saw Garcia and Duran. Garcia had a gun. She saw Garcia and
Duran approach Robertson's home and heard nine or ten gunshots, and the sound of a car
horn which lasted several minutes.
              Moments later, Rodriguez looked outside a third time and saw Garcia
holding a gun. She saw Garcia and Duran run towards Duran's home. Duran was
wearing a white Raiders jersey. Garcia was wearing a white shirt and jeans. Shortly
thereafter, Duran spoke to Rodriguez on the phone and indicated that he was upset
because an Hispanic had beaten up Garcia in the bar fight.
              Other witnesses heard the gunshots. When Genaro Cuevas heard the shots,
he looked out his window and saw two men running away from a vehicle. One man was
Hispanic, about 200 pounds, and was wearing a white tee shirt with dark pants. The
other man wore dark clothing. Witnesses Rick and Teresa Bautista also heard gunshots
and saw two people running. One was heavy and wore a white tee-shirt with black pants
and the other was wearing dark clothing. Other witnesses testified similarly but
disagreed on their descriptions of the men and the clothing they were wearing.
              Police found Robertson slumped over in the driver's seat of his car with the
engine still running. Robertson had died from a gunshot wound. Police recovered
numerous bullet casings in the area. All the casings had been fired from the same gun.
              Garcia and Duran did not appear at their employment the following
Monday, August 11, 2008, and did not contact their employers to provide an explanation.
Garcia was arrested on August 15, and Duran was arrested in October 2008.

                                            3
              At approximately 7:30 p.m. on the day of the early morning shooting,
Robertson's sister made a call to Rodriguez at the request of the police. Rodriguez told
Robertson's sister that she saw Garcia fire two shots in her driveway, and that Garcia and
Duran then walked towards Robertson's home. Rodriguez then heard nine shots and a car
horn, and saw Garcia and Duran drive away. Rodriguez told Robertson's sister that,
when she confronted Duran with the shooting, Duran said, "I'm sorry nigger."
              In a later interview with police, Rodriguez told the police that Garcia and
Duran were involved in the shooting. She stated that Garcia was wearing a white tee
shirt and gray pants and Duran was wearing a white Raider's jersey with black lettering.
Rodriguez also identified Garcia in a police lineup and indicated that he was holding a
gun at the time of the shooting.
              At trial, however, Rodriguez recanted her prior statements. She testified
that she did not see Garcia or Duran from her window, she did not see Garcia holding a
gun or fire any shots, and that she did not tell Robertson's sister anything to the contrary.
                                        DISCUSSION
                         Substantial Evidence Supports Convictions
              Garcia contends there was insufficient evidence to support his convictions
for first degree murder and shooting at an occupied motor vehicle.2 He argues that there
was no credible evidence that he was involved in the shooting, or acted as an aider and
abettor, or acted with premeditation and deliberation. We disagree.
              1. Standard of Review. In assessing a sufficiency of evidence claim, we
consider 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 rational trier of fact could find the defendant
guilty beyond a reasonable doubt."'" (People v. Burney (2009) 47 Cal.4th 203, 253.) We
presume all facts in support of the judgment which reasonably could be deduced from the
evidence, accord the judgment all reasonable inferences from the evidence, and do not

       2 Garcia’s contentions address the murder conviction and he makes no separate
arguments regarding the conviction for shooting at an occupied vehicle.
                                               4
reweigh the evidence or redetermine credibility. (People v. Wilson (2008) 44 Cal.4th
758, 806; People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Reversal is not
warranted simply because the evidence might also reasonably be reconciled with a
different verdict. (People v. Albillar (2010) 51 Cal.4th 47, 59-60; People v. Bolin (1998)
18 Cal.4th 297, 331.)
              2. Substantial Evidence Supports Convictions. Garcia argues that his
convictions were based entirely upon out-of-court statements by witness Bianca
Rodriguez which lacked sufficient reliability or credibility to constitute substantial
evidence, and which she later retracted during her trial testimony.
              Unless it is physically impossible or inherently improbable, the testimony
of a single witness is sufficient to support a conviction. (People v. Young (2005) 34
Cal.4th 1149, 1181.) More specifically, an out-of-court identification by a single
eyewitness may be sufficient to prove the defendant's identity as the perpetrator, even if
the witness does not confirm his or her identification at trial, and there is no corroborating
evidence. (People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Cuevas (1995) 12
Cal.4th 252, 257, 267-269, 271-272.) In assessing the sufficiency of an out-of-court
identification, we consider all relevant circumstances, including: "(1) the identifying
witness's prior familiarity with the defendant; (2) the witness's opportunity to observe the
perpetrator during the commission of the crime; (3) whether the witness has a motive to
falsely implicate the defendant; and (4) the level of detail given by the witness in the out-
of-court identification and any accompanying description of the crime." (Cuevas, at p.
267; see CALCRIM No. 315 [listing factors to consider in evaluating identification
evidence].)
              Here, the out-of-court statements made by Rodriguez were sufficiently
credible and reliable to constitute substantial evidence. Rodriguez had met Garcia on a
prior occasion and knew Duran very well. She looked out her window multiple times
and, although she did not see the shooting, she heard the gunshots and had an opportunity
to observe actions by Garcia immediately before and after the shooting. Although
Rodriguez had a motive to deny involvement by her boyfriend Duran or shift primary

                                              5
responsibility to Garcia, she did not do so in her statements. She described what she saw
in reasonable detail, and expressed no doubt in her out-of-court statements. She also saw
Garcia and Duran from her driveway close to her window, and had been made aware of
the bar fight in a telephone conversation with Duran.
               Moreover, although no other witness was able to identify Garcia or Duran,
several witnesses saw two men running away immediately after hearing shots fired.
Contrary to Garcia's argument, such evidence provides corroboration of portions of
Rodriguez's out-of-court statements. The jury could reasonably conclude that her pretrial
statements were credible and discount her trial testimony as the product of fear or a desire
to avoid involvement.
               3. Substantial Evidence Supports Aiding and Abetting Theory. The case
was tried on the theory that Garcia was the shooter,3 but the jury was instructed on both
direct perpetrator and aiding and abetting theories of liability. Garcia contends that there
was no substantial evidence that he aided and abetted the shooting of Robertson by
Duran. He also contends that the record indicates that one juror voted to convict Garcia
on a factually invalid theory. We conclude that there was substantial evidence to support
conviction on both a direct perpetrator and aider and abettor theory and, therefore, no
error.
               A person aids and abets a crime when he or she commits, encourages or
facilitates its commission with knowledge of the unlawful purpose of the perpetrator and
the intent or purpose of committing, encouraging, or facilitating the offense. (People v.
Beeman (1984) 35 Cal.3d 547, 560–561.) No particular factor is dispositive in
establishing knowledge and intent; the court must look at the totality of the
circumstances. (People v. Medina (2009) 46 Cal.4th 913, 922.) "Among the factors
which may be considered . . . are: presence at the scene of the crime, companionship, and
conduct before and after the offense." (In re Lynette G. (1976) 54 Cal.App.3d 1087,
1094; see also In re Juan G. (2003) 112 Cal.App.4th 1, 5.)

         3 Duran, who was convicted of second degree murder, was tried and convicted on
the theory that he aided and abetted Garcia. (People v. Duran, B228532 [nonpub. opn.].)
                                             6
              Here, substantial evidence shows that Duran and Garcia acted in concert
beginning with the fight in the Coachman Bar. Duran and Garcia were angry over the
fight which had strong racial overtones. Also, Duran was angry with Robertson because
he thought Robertson was too friendly with Duran's girlfriend. In addition, evidence
shows that Duran and Garcia travelled together from the bar to the area in which
Robertson lived which was approximately two miles away. They approached Robertson
together and one of them was carrying a gun. The evidence also shows that, after the
shooting, Garcia and Duran ran away together to Duran's home. The evidence shows that
Garcia and Duran were at the bar together and near Robertson's house both immediately
before and immediately after the shooting.
              Because both theories of liability are supported by the evidence, this
uncertainty is immaterial. "'[A]s long as each juror is convinced beyond a reasonable
doubt that defendant is guilty of murder as that offense is defined by statute, it need not
decide unanimously by which theory he is guilty. . . .'" (People v. Jenkins (2000) 22
Cal.4th 900, 1024-1025.) A jury "'. . . need not decide unanimously whether defendant
was guilty as the aider and abettor or as the direct perpetrator. . . . Not only is there no
unanimity requirement as to the theory of guilt, the individual jurors themselves need not
choose among the theories, so long as each is convinced of guilt. Sometimes, as probably
occurred here, the jury simply cannot decide beyond a reasonable doubt exactly who did
what. There may be a reasonable doubt that the defendant was the direct perpetrator, and
a similar doubt that he was the aider and abettor, but no such doubt that he was one or the
other.' . . . [Although] different facts would support aiding and abetting liability and
liability as a direct perpetrator, . . . the jury need not unanimously agree 'on the precise
factual details of how a killing under one or the other theory occurred in order to convict
defendant of first degree murder.'" (Ibid.; see also People v. Santamaria (1994) 8 Cal.4th
903, 918-919; Schad v. Arizona (1991) 501 U.S. 624, 631-632.)
              4. Substantial Evidence of Premeditation and Deliberation. Garcia also
claims there was no substantial evidence of the premeditation and deliberation required
for a first degree murder conviction. We disagree.

                                               7
              An intentional killing is premeditated and deliberate if it resulted from
preexisting thought and reflection rather than unconsidered or rash impulse. (People v.
Hughes (2002) 27 Cal.4th 287, 370-371.) The requisite reflection does not require a
specific or extended period of time. Thoughts may follow each other with great rapidity
and a calculated decision may be arrived at quickly. (People v. Mayfield (1997) 14
Cal.4th 668, 767; see also People v. Stitely (2005) 35 Cal.4th 514, 543.)
              Appellate courts typically rely on three kinds of evidence in resolving the
issue of premeditation and deliberation: motive, planning activity, and manner of killing.
(People v. San Nicolas (2004) 34 Cal.4th 614, 658, citing People v. Anderson (1968) 70
Cal.2d 15.) These factors, however, provide a framework and are not prerequisites for
premeditation or deliberation (People v. Hawkins (1995) 10 Cal.4th 920, 957) and need
not be present in any particular combination or degree. (People v. Burney, supra, 47
Cal.4th at p. 235.)
              Here, the record discloses evidence of motive, planning, and manner of
killing from which a reasonable jury could conclude that Garcia acted with premeditation
and deliberation. Evidence of planning includes the close proximity of the shooting to
the bar fight, possession of a gun prior to the shooting, and Duran's telephonic statements
to Rodriguez that he was upset about the beating of Garcia in the bar fight. In addition,
there is evidence that Garcia and Duran fired two gunshots outside Rodriguez's apartment
before they walked towards Robertson's home and shot him. Evidence that Garcia was a
gang member and the importance of retaliation and reputation in gang culture provides
evidence of motive.
              The manner of the shooting also shows premeditation and deliberation.
Garcia and Duran approached Robertson with a gun and fired several shots from close
range with the clear intent to kill. Such evidence "shows a calculated design to ensure
death rather than an unconsidered explosion of violence." (People v. Horning (2004) 34
Cal.4th 871, 902-903; People v. Koontz (2002) 27 Cal.4th 1041, 1082.) Considering this
evidence as a whole, the jury reasonably could conclude that Garcia "thought before he
acted." (People v. Villegas (2001) 92 Cal.App.4th 1217, 1224.)

                                             8
                        No Error in Aiding and Abetting Instruction
              Garcia contends that the trial court erred in instructing the jury on aiding
and abetting by failing to inform the jury that an aider and abettor's liability depends upon
his own mens rea. We disagree.
              Garcia has forfeited this contention on appeal because he did not object and
request a modification of the standard form CALCRIM No. 401 jury instruction. (People
v. Lopez (2011) 198 Cal.App.4th 1106, 1118-1119.) A party may not claim an
instruction that is generally correct is incomplete or misleading unless he has first
requested clarifying instructions in the trial court. (People v. Canizalez (2011) 197
Cal.App.4th 832, 849; Lopez, at pp. 1118-1119.)
              Even if the issue had not been forfeited, there was no instructional error. It
is undisputed that the guilt of an aider and abettor is determined by his own mental state
and an aider and abettor may be convicted of a greater or lesser crime than the
perpetrator. (People v. McCoy (2001) 25 Cal.4th 1111, 1114; People v. Lopez, supra,
198 Cal.App.4th at p. 1118.)
              "'Aider and abettor liability is premised on the combined acts of all the
principals, but on the aider and abettor's own mens rea.' [Citation.] We have defined the
required mental states and acts for aiding and abetting as: '(a) the direct perpetrator's
actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens
rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in
achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the
aider and abettor that in fact assists the achievement of the crime.'" (People v. Thompson
(2010) 49 Cal.4th 79, 116–117.) Here, the trial court instructed the jury with the standard
version of CALCRIM No. 401 which correctly informed the jury of these principles of
aider and abettor liability.4 There is nothing in the jury instructions as given which could


       4 CALCRIM No. 401 provides, in pertinent part: “To prove that the defendant is
guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶]
1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator
intended to commit the crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶]
                                              9
have confused the jury that an aider and abettor is equally guilty as the direct perpetrator
regardless of the aider and abettor's own mental state. We presume that jurors
understand, correlate, and follow the court's instructions. (People v. Castaneda (2011) 51
Cal.4th 1292, 1320-1321; People v. Lopez, supra, 198 Cal.App.4th at p. 1119.)
                               No Prosecutorial Misconduct
              Garcia contends the prosecutor committed misconduct by misstating the
evidence during argument, and by asking questions during his trial examination of
Rodriguez which insinuated the existence of facts for which there was no evidence. He
argues that the prosecutor falsely claimed that witnesses who saw men running from the
shooting corroborated Rodriguez's unsworn statements regarding the clothing worn by
Garcia. He also argues that the prosecutor asked Rodriguez questions at trial which
insinuated that she recanted her unsworn statements incriminating Garcia because of
threats against her when, in fact, there was no evidence of any threats. We conclude that
there was no misconduct by the prosecutor.
              As respondent argues, Garcia has forfeited both of his prosecutorial
misconduct claims by failing to object to the prosecutor's argument or questions at trial.
(People v. Thompson, supra, 49 Cal.4th at p. 121.) We reject Garcia's assertion that
objection in the trial court would have been futile and that an admonition would not have
cured any purported misconduct. Even if there had been misconduct, nothing in the
record supports the futility of objections or the inadequacy of admonitions. We will
address Garcia's contention on the merits, however, because he argues in the alternative
that his trial counsel's failure to object amounted to ineffective assistance of counsel.
              It is misconduct for a prosecutor to misstate or mischaracterize the evidence
during argument, or assert facts that are not based on the evidence at trial. (People v.
Davis (2005) 36 Cal.4th 510, 550.) A prosecutor's reference to facts not in evidence is


4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission
of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's
unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator's commission of that crime.”

                                             10
misconduct because it "'tend[s] to make the prosecutor his own witness—offering
unsworn testimony not subject to cross-examination. . . .'" (People v. Hill (1998) 17
Cal.4th 800, 827-828, overruled on another ground in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.) A prosecutor, however, "is given wide latitude to vigorously
argue his or her case and to make fair comment upon the evidence, including reasonable
inferences or deductions that may be drawn from the evidence." (People v. Ledesma
(2006) 39 Cal.4th 641, 726.) A prosecutor may argue points and draw reasonable
evidentiary inferences which are at odds with defendants' view of the evidence. (People
v. Dennis (1998) 17 Cal.4th 468, 522.)
              Garcia argues that there was misconduct when the prosecutor claimed that
testimony from witnesses supported the unsworn statement by Rodriguez that Garcia was
wearing a white tee shirt. Because testimony from other witnesses indicated that Garcia
was wearing a white or light-colored tee shirt, the prosecutor's argument fairly interpreted
and characterized the state of the evidence.
              Bartender Joshua Caldera testified that he thought Garcia was wearing a
white tee shirt during the bar fight. Genaro Cuevas testified that he saw an Hispanic man
wearing a white tee shirt running away. Teresa Bautista and her husband testified that
one of the two persons they saw running from the scene was wearing light clothing.
Although witness statements were not identical and the men running away were difficult
to see, there is ample testimony to support the prosecutor's argument that Garcia was
wearing a white tee shirt.
              It is also misconduct for a prosecutor to ask a witness questions which
suggest facts adverse to the defendant without a good faith belief that the facts are true
and could be proven. (People v. Bolden (2002) 29 Cal.4th 515, 562; People v.
Mooc (2001) 26 Cal.4th 1216, 1233.)
              Here, in response to trial testimony which was inconsistent with her
unsworn statements incriminating Garcia, the prosecutor asked Rodriguez whether she
had been threatened by anyone. On direct examination, the prosecutor asked Rodriguez
if she were afraid to testify. She said "no," but admitted that she may have told other

                                               11
people that she was afraid. The prosecutor also asked her what she meant by her pretrial
statement that "[you had] to live here." She answered that she did not want to get
involved, and that testifying might "put me and my girls in harm's way." Also, prior to
trial, Rodriguez said that she did not want to report threats to the police. When asked by
the prosecutor at trial about this statement, she said she had not received any threats but
"was feeling scared."
              The prosecutor's question did not constitute misconduct. There is no basis
in the record to conclude that the prosecutor did not have a good faith belief that
Rodriguez would testify that she had been threatened and, in essence, Rodriguez gave
testimony supporting that inference that she was afraid. Rodriguez admitted that she
feared testifying and was worried about retaliation against her and her family.
                    Substantial Evidence Supports Gang Enhancement
              Garcia contends that there was insufficient evidence to support imposition
of a gang enhancement. He concedes membership in a criminal street gang, but argues
that there was no substantial evidence that the murder was committed for the benefit of
his gang "with the specific intent to promote, further, or assist" criminal conduct by gang
members. (§ 186.22, subd. (b)(4).) We disagree and conclude that substantial evidence
supports the jury's finding.
              A gang enhancement requires proof of the existence of a criminal street
gang and that the offense was "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, subd. (b)(4).) Expert
testimony is admissible to prove these elements, including the motivation for a crime, and
whether a crime was committed to benefit or promote a gang. (People v. Albillar, supra,
51 Cal.4th at p. 63; People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.) But, an
expert's opinion must be based on the evidence, not on speculation or conjecture, and
more than mere gang membership is required. (People v. Gardeley (1996) 14 Cal.4th
605, 617-618.) We apply the substantial evidence standard in assessing the sufficiency of


                                             12
the evidence supporting a gang enhancement. (People v. Albillar, supra, 51 Cal.4th at
pp. 59-60.)
              Here, Santa Maria Police Officer Louis Tanore testified as the prosecution's
gang expert. He testified that he was familiar with the Tanglewood gang, Garcia was a
hard core member of that gang, and the murder was committed for the benefit of the
gang. He based his opinion upon evidence that (1) the murder closely followed a fight at
the Coachman Bar between Garcia and a much smaller African-American man, (2) at the
time of the fight, Garcia identified himself as a member of the Tanglewood gang to all
others in the bar by calling out the name "Wood" and flashing a gang sign, and (3) Garcia
had suffered a humiliating defeat at the hands of the smaller man in the fight.
              Tanore testified that respect is critical to gangs and that gang members tend
to react violently to individuals who disrespect the gang. Tanore testified that a hard core
gang member such as Garcia is expected to retaliate against violence in order to maintain
his status in the gang. Failure to retaliate would be viewed as a sign of weakness which
would damage the reputation of Garcia in the gang. Tanore testified that the combination
of Garcia being humiliated in the fight with a much smaller man and racial animosity
required immediate and extreme retaliation to protect his status in the gang. (See People
v. Albillar, supra, 51 Cal.4th at p. 63 [expert opinion that a crime benefited a gang by
enhancing its reputation for viciousness can be sufficient to show the crime was
committed for the benefit of the gang].)
              A gang enhancement also requires proof that the offense was committed
with the "specific intent to promote . . . criminal conduct by gang members." (§ 186.22,
subd. (b)(1).) Circumstantial evidence of intent is sufficient. Courts "'. . . routinely draw
inferences about intent from the predictable results of action. . . .'" (People v. Miranda
(2011) 192 Cal.App.4th 398, 411-412.) If substantial evidence otherwise establishes that
the offense was gang related, the jury reasonably may infer the required specific intent.
(See People v. Albillar, supra, 51 Cal.4th at pp. 67-68.)




                                             13
          No Abuse of Discretion in Denying Bifurcation of Gang Enhancement
              Garcia contends the trial court abused its discretion by refusing to bifurcate
the gang enhancement from the trial of the offenses. We disagree.
              A trial court has discretion to bifurcate gang enhancement allegations if it
determines that the probative value of the gang evidence is outweighed by a risk of undue
prejudice. (Evid. Code, § 352; People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Gang evidence always carries a potential for prejudice and, when gang enhancements are
not alleged, the probative value of such evidence is often minimal. Conversely, when an
offense is alleged to be gang related, gang evidence is relevant and highly probative to
prove elements of the charged offense. (Hernandez, at p. 1049.) Evidence of the
defendant's gang affiliation, the beliefs and practices of the gang, and the gang's criminal
enterprises "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." (Ibid.) To
the extent that evidence supporting a gang enhancement is admissible at a trial of the
offense, bifurcation is not necessary. (Id. at pp. 1049-1050.)
              We conclude that there was no abuse of discretion in this case. The
prejudicial effect of gang evidence did not outweigh its probative value to prove motive
and identity and explain the existence of fear and intimidation that could have caused
Rodriguez to recant her unsworn statements during her trial testimony.
              The gang evidence was intertwined with evidence of guilt and particularly
relevant to Garcia's identity, motive, and intent. (People v. Hernandez, supra, 33 Cal.4th
at p. 1048.) "'"[B]ecause a motive is ordinarily the incentive for criminal behavior, its
probative value generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence." . . .'" (People v. Samaniego (2009) 172 Cal.App.4th
1148, 1168; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
              Garcia argues that admission of evidence of a large number of predicate
offenses was prejudicial. We agree that admission of many predicate offenses provides a
potential for prejudice. (People v. Hernandez, supra, 33 Cal.4th at p. 1049.)
Nevertheless, the predicate offenses in this case were not more serious than the charged

                                             14
offenses, and the number offered into evidence was not so large as to cause significant
prejudice. The burden is on the defendant to establish a substantial danger of prejudice
requiring bifurcation. (Id. at p. 1051.) Garcia has failed to meet that burden.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.




                                          PERREN, J.


We concur:



              GILBERT, P. J.



              YEGAN, J.




                                            15
                               Edward H. Bullard, Judge

                       Superior Court County of Santa Barbara

                           ______________________________


             Robert Franklin Howell, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A.
Miyoshi, Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.




                                          16
