DISCUSSION

I There Was Sufficient Evidence Of The Gang Enhancement Defendant contends there was insufficient evidence of the gang enhancement. He argues the record is “complete[ly] lack[ing] of any evidence that the shooting was gang related or gang motivated, or that [defendant‟s] conduct was in any way gang-related.” Not so. We begin with the words of the gang enhancement, which applies an increased term of incarceration to: “[A]ny person who is convicted of a felony 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.” (Pen. Code, § 186.22, subd. (b)(1).) The facts, in the light most favorable to the judgment (which is the standard of review for a sufficiency-of-evidence argument) (Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 573]), provided sufficient evidentiary support for this enhancement. The victim‟s fiancé and the gang expert both testified the victim was a 29th Street Crip. The mother of defendant‟s son and the gang expert testified defendant and Newsome were both members of the rival Oak Park Bloods. The victim verbally acknowledged his gang affiliation before the shooting began when he stated, “29th Street.” After this acknowledgement, and before the victim was shot, Newsome and defendant yelled out, “nigga, this is Oak Park.” Based on this evidence, the jury could reasonably conclude the victim was shot because he was a rival Crip and that defendant orally proclaiming his membership in a rival street

3 gang before the shooting demonstrated that the murder was an act specifically intended to benefit the rival Oak Park Blood street gang.3 II The Trial Court Did Not Err In Refusing To Bifurcate The Gang Enhancement Because The Gang Evidence Was Relevant To Prove Motive And Make Sense Of The Shooting Defendant contends his due process right to a fair trial was violated when the court admitted gang evidence and failed to bifurcate the gang enhancement allegation. We review an order denying bifurcation for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.) The burden is on the party seeking bifurcation (here, defendant) to show a substantial danger of prejudice. (Id. at p. 1049.) The trial court properly concluded that the evidence of defendant‟s gang membership was admissible to show motive, was not unduly prejudicial, and therefore no purpose would be served by bifurcation. (Id. at pp. 1049-1050.) In Hernandez, the California Supreme Court upheld the denial of bifurcation where a gang member told a woman just before robbing her and her friend, “ „[Y]ou don't know who you are dealing with,‟ ” naming a street gang. (Id. at p. 1045.) The court found: “Much of the gang evidence here was relevant to the charged offense. Indeed, defendant Hernandez himself injected his gang status into the crime. He identified himself as a gang member and attempted to use that status in demanding money from the victim.” (Id. at pp. 1050-1051.) Here, as the trial court noted, this case presented a “classic [case of] gang retaliation.” The victim verbally identified as being from 29th Street, which is an affiliate of the Crip street gang. Defendant then yelled out this was Oak Park, which was the rival Oak Park Blood street gang. Without this evidence, the shooting would have made no

3 Defendant‟s argument that expert testimony alone cannot prove the gang enhancement is a non-starter because the gang expert did not provide all the evidence regarding the gang enhancement.

4 sense. Thus, because the evidence supporting the gang enhancement was admissible at trial to make sense of the shooting and thus would have come in anyway, an inference of prejudice was dispelled and bifurcation was not necessary. (People v. Hernandez, supra, 33 Cal.4th at pp. 1049-1050.)

III

Defendant Has Forfeited His Sixth Amendment Contention By Failing To Raise It In The Trial Court Defendant contends police deliberately violated his Sixth Amendment right to counsel when it recorded and used statements of a police station conversation between him and McCoy, who was the mother of defendant‟s son. Defendant has forfeited this contention by failing to raise it in the trial court. (People v. Viray (2005) 134 Cal.App.4th 1186, 1208.) IV The Trial Court Did Not Abuse Its Discretion In Denying Defendant’s Motion To Sever His Trial From Newsome’s Defendant contends the trial court erred in denying his request to sever his trial from Newsome‟s. As we explain, the court did not abuse its discretion in denying defendant‟s request. The Legislature has expressed a preference for joint trials. (People v. Lewis (2008) 43 Cal.4th 415, 452.) “The court may, in its discretion, order separate trials if, among other reasons, there is an incriminating confession by one defendant that implicates a codefendant, or if the defendants will present conflicting defenses.” (Ibid.) “We review a trial court‟s denial of a severance motion for abuse of discretion based on the facts as they appeared when the court ruled on the motion.” (Ibid.) Here, there were no conflicting defenses, as defendant‟s defense when the motion was argued was simply that he was not present at the shooting. Moreover, there was no incriminating confession by one defendant implicating the other. Finally, as the trial

5 court noted, the evidence in both cases was cross-admissible, including (importantly) that many of the same witnesses would have to be called in both trials. Thus, the trial court did not abuse its discretion in denying defendant‟s request to sever his case from Newsome‟s. V Trial Counsel Was Not Ineffective For Failing To Raise A Meritless Miranda Claim Defendant contends trial counsel was ineffective for failing to suppress the recording of his conversation with McCoy in which he made incriminating statements to McCoy. He argues counsel had no tactical reason for not making an argument pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]) (Miranda) and that the recording violated his Fifth Amendment rights. “Miranda requires that a suspect be given certain advisements to preserve the privilege against self-incrimination, or to ensure its voluntary and intelligent waiver, during the inherently coercive circumstances of a „custodial interrogation.‟ ” (People v. Webb (1993) 6 Cal.4th 494, 525-526.) Counsel was not ineffective because her performance was not deficient. (See People v. Waidla (2000) 22 Cal.4th 690, 718 [counsel's deficient performance is the first prong of an ineffective assistance of counsel analysis].) Miranda warnings do not apply even when a suspect‟s girlfriend, at police direction, tape records conversations in which she elicited admissions concerning the homicide. (People v. Webb, supra, 6 Cal.4th at pp. 524-526.) Here, the situation was even more remote than in Webb. McCoy did not record the conversation and elicit incriminating statements at police direction. Rather, she talked to defendant because police told her (incorrectly) that defendant said he wanted to talk with her, so she went to the police station to talk with him.

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DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P. J.

MAURO , J.

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