In the great state of California Judges have much power to limit the introduction of gang evidence in the guilt phase of a criminal trial. Indeed, it is within the court’s discretion to bifurcate the trial of a gang enhancement from the trial of the charged offense. In one recent criminal gang case, the Supreme Court noted that generally there is less need for bifurcation with a gang enhancement than with a prior conviction allegation, because a prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense, while a criminal street gang enhancement is attached to the charged offense and, by definition, is inextricably intertwined with that offense. Most judges will weigh the individual factors in any given case to justify the admission or exclusion of gang related testimony.

However, one Long Beach Criminal Attorney   points out that bifurcation may be warranted when the predicate offenses offered to establish a “pattern of criminal gang activity” under Penal Code section 186.22(e) are not related to the charged crime or to the defendant and, thus, evidence of these offenses may be unduly prejudicial. Bifurcation may also be warranted when the gang evidence, even as it relates to the defendant, is so extraordinarily prejudicial and of so little relevance to the defendant’s guilt that it might persuade the jury to convict regardless of the defendant’s actual guilt. Defense attorneys will likely file motions to exclude this type of evidence.

Bifurcation is not necessary, however, if evidence of the defendant’s gang membership is admissible at the trial of the charged offense, for example, to establish the defendant’s identity, motive, or intent.  Even if some of the evidence offered to prove the gang enhancement would be inadmissible at the trial of the charged offense, e.g., if some of this evidence might be excluded under Evidence Code §352 as being unduly prejudicial, a judge may still deny bifurcation if other factors favor a unitary trial.

A criminal court judge should consider the extent to which the gang evidence is relevant to the charged offense, whether the jury might be confused by introducing collateral matters, and whether evidence that can be admitted solely to prove the gang enhancement is so inflammatory that it might sway the jury to convict according to the CA Supreme Court. The party seeking severance of the gang enhancement from the charged offense has the burden of establishing “a substantial danger of prejudice” if charged offense and the gang enhancement are not tried before a jury separately.