Stanford Law School - Robert Crown Law Library

Filed 8/9/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S117651
v.
Ct.App. 2/3 B150342
JOSE PABLO HERNANDEZ et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. YA045206

The punishment for certain crimes can be enhanced if the crime involves a
criminal street gang. (Pen. Code, § 186.22, subd. (b)(1); see generally People v.
Gardeley (1996) 14 Cal.4th 605.)1 To establish this criminal street gang
enhancement, the prosecution must prove some facts in addition to the elements of
the underlying crime, for example, that the criminal street gang has engaged in a
“pattern of criminal gang activity.” (§ 186.22, subds. (e) and (f).) Accordingly,
when the prosecution charges the criminal street gang enhancement, it will often
present evidence that would be inadmissible in a trial limited to the charged
offense. We have held that a trial court may bifurcate trial of a prior conviction
from trial of the charged offense. (People v. Calderon (1994) 9 Cal.4th 69
(Calderon).) Defendants contend the court here should similarly have bifurcated

1
All further statutory references are to the Penal Code unless otherwise
indicated.
1

---

trial of the gang enhancement from trial of the charged offense. They also contend
the court should at least have given a limiting instruction regarding the permissible
uses the jury may make of evidence admitted solely to support the criminal street
gang enhancement.
We conclude the court acted within its discretion in refusing to bifurcate
trial of the gang enhancement from trial of the charged offense. We also conclude
that on request, the court should give a limiting instruction regarding the jury’s use
of evidence supporting the criminal street gang enhancement, but because
defendants did not request a limiting instruction in this case, the court did not err
in failing to give one.
I. FACTS AND PROCEDURAL HISTORY
Because no party petitioned the Court of Appeal for rehearing, we take the
facts largely from that court’s opinion. (See Cal. Rules of Court, rule 28(c)(2);
Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 415.)
A. The Robbery
Around 8:00 p.m. on August 15, 2000, Blanca Rodriguez and Armen
Stepanyan were sitting in a Honda parked in front of Rodriguez’s home in
Hawthorne. Defendants Jose Pablo Hernandez and Jonathon Fuentes approached
the passenger side of the car and asked Rodriguez for a cigarette. Rodriguez
handed Hernandez a cigarette, but Hernandez said, “I need another cigarette. You
better give me another cigarette . . . .” When Rodriguez indicated she had no
more, Hernandez demanded a dollar. He said, “[Y]ou don’t know who you are
dealing with,” and told her that she was dealing with “Hawthorne Little Watts.”
Rodriguez suspected Hernandez was referring to a gang. Hernandez said if they
did not get money, they were going to take the Honda. Defendants opened the
passenger door and pulled Rodriguez from the car. Fuentes grabbed her by the
2

---

neck, choked her, and took her necklace while Hernandez pointed a knife at her
neck. Rodriguez observed Stepanyan obtain a wooden stick and challenge the
attackers. She screamed, “Somebody call 911.” Defendants then fled.
Stepanyan’s testimony was slightly different from Rodriguez’s. He
recalled that Fuentes reached into the Honda and grabbed Rodriguez’s necklace
before they pulled her from the car.
The police detained both defendants shortly after the robbery. Hernandez
ran from one second story roof to another and jumped to the ground to avoid one
officer. Fuentes attempted to flee on a bicycle from another officer and later
provided that officer a false name. Rodriguez identified both defendants in field
showups the evening of the robbery and again at trial. Stepanyan identified
Fuentes in a photographic lineup a few days after the robbery and again at trial.
B. Gang Evidence
Hawthorne Police Detective Peter Goetz testified at trial as an expert on
criminal street gangs. He stated that Little Watts is the largest Hispanic gang in
Hawthorne with about 275 members. He interviewed Hernandez on the street
with other Little Watts gang members in March 2000. Goetz took a picture of
Hernandez and his associates making gang signs. Hernandez admitted gang
membership and said his Little Watts moniker was Smiley. Goetz interviewed
Fuentes on the street in 1997. Fuentes admitted membership in the 106 clique of
the 18th Street gang and said his moniker was Looney. Fuentes had no tattoos in
1997 but by the time of trial had a tattoo of the number 18 that covered most of his
back and had “West Side” tattooed on his stomach. Eighteenth Street is the largest
gang in California and is “continually expanding throughout the United States.”
The gang’s 106 clique is located just north of where the robbery occurred. The
3

---

106 clique and Little Watts appear to have begun an association in July or August
2000.
Goetz explained that gang members reveal the name of their gang during
the commission of crimes because they want the victims to know who committed
the offense in order to gain respect for the gang, to instill fear in the community,
and to increase their own level of respect within the gang. The 18th Street gang
has been known to permit smaller gangs to take credit for joint gang activities. By
working together, 18th Street and Little Watts expand their alliances and territory.
In the event of a gang war, each gang could call on a larger number of members.
Goetz testified that gang members commit crimes and that they are criminals, not
law abiding citizens. He opined that gang members commit crimes to “buy dope,
and to purchase weapons to commit more crimes or defend their territory.”
To establish a “pattern of criminal gang activity” as defined in
section 186.22, subdivision (e), the prosecution introduced evidence that two
members of Little Watts had been convicted of driving a vehicle without the
owner’s consent in March 2000, and another suffered a sustained juvenile petition
for driving a vehicle without the owner’s consent in October 1999.
C. Procedural History
Defendants were charged with robbing Rodriguez, during which Hernandez
used a dangerous or deadly weapon, and with another offense that was later
dismissed. (§§ 211, 12022, subd. (b)(1).) The prosecution also alleged that the
robbery was committed for the benefit of a criminal street gang. (§ 186.22, subd.
(b)(1).) Before trial, defendants moved to bifurcate trial of the criminal street
gang enhancement from that of the underlying offenses. The court denied the
motion, ruling as follows: “I recognize there is prejudice, but there will be
evidence in the trial without that allegation of gang membership which creates a
4

---

prejudice to begin with. Its probative value seems to outweigh . . . what additional
prejudice there might be, so the motion is denied.”
A jury convicted defendants of the charged robbery and found the criminal
street gang enhancement true. The Court of Appeal affirmed the judgment. It
held that the trial court abused its discretion in denying the bifurcation motion but
found the error harmless. It did not decide whether the court was obligated to give
a limiting instruction on how the jury could use the gang evidence but instead
found the failure to give such an instruction in this case harmless. We granted
defendants’ petitions for review limited to the questions whether the trial court
prejudicially erred by (1) denying defendants’ bifurcation motion and (2) failing to
give the jury a limiting instruction on the permissible uses of the gang evidence.
II. DISCUSSION
A. Background
In 1988, the Legislature enacted the California Street Terrorism
Enforcement and Prevention Act (the STEP Act). (§ 186.20 et seq.) “The impetus
behind the STEP Act . . . was the Legislature’s recognition that ‘California is in a
state of crisis which has been caused by violent street gangs whose members
threaten, terrorize, and commit a multitude of crimes against the peaceful citizens
of their neighborhoods. These activities, both individually and collectively,
present a clear and present danger to the public order and safety and are not
constitutionally protected.’ (§ 186.21.)” (People v. Montes (2003) 31 Cal.4th 350,
354.)
As relevant here, the STEP Act prescribes increased punishment for a
felony if it was related to a criminal street gang. (§ 186.22, subd. (b)(1).) “[T]o
subject a defendant to the penal consequences of the STEP Act, the prosecution
must prove that the crime for which the defendant was convicted had been
5

---

‘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)(1) . . . .)[2] In addition,
the prosecution must prove that the gang (1) is an ongoing association of three or
more persons with a common name or common identifying sign or symbol; (2) has
as one of its primary activities the commission of one or more of the criminal acts
enumerated in the statute; and (3) includes members who either individually or
collectively have engaged in a ‘pattern of criminal gang activity’ by committing,
attempting to commit, or soliciting two or more of the enumerated offenses (the
so-called ‘predicate offenses’) during the statutorily defined period. (§ 186.22,
subds. (e) and (f).)” (People v. Gardeley, supra, 14 Cal.4th at pp. 616-617.)
In order to prove the elements of the criminal street gang enhancement, the
prosecution may, as in this case, present expert testimony on criminal street gangs.
(People v. Gardeley, supra, 14 Cal.4th at pp. 617-620.) Some of the evidence
produced to establish this enhancement may be inadmissible to prove the
underlying crime. Because of this circumstance, defendants asked the trial court
to bifurcate the trial, with the jury first determining guilt and then, if the jury
found defendants guilty, hearing evidence on, and deciding the truth of, the gang
enhancement allegation. They argue the court erred (1) in refusing to bifurcate the
trial and (2) in failing at least to instruct the jury on the permissible use it might
make of the gang evidence. We consider both questions.

2
The STEP Act has been amended many times since it was first enacted.
The ellipsis here deletes an obsolete statutory reference. In all other respects, the
current version is as described in the text.
6

---

B. Bifurcation
In Calderon, supra, 9 Cal.4th 69, we held “that a trial court has the
discretion, in a jury trial, to bifurcate the determination of the truth of an alleged
prior conviction from the determination of the defendant’s guilt of the charged
offense . . . .” (Id. at p. 72.) Although no statute requires bifurcation, we found
authority to bifurcate trial issues “in section 1044, which vests the trial court with
broad discretion to control the conduct of a criminal trial: ‘It shall be the duty of
the judge to control all proceedings during the trial . . . with a view to the
expeditious and effective ascertainment of the truth regarding the matters
involved.’ ” (Id. at pp. 74-75.) Defendants argue that the trial court should have
ordered a similar bifurcation, with guilt of the underlying charge tried first and the
truth of the gang enhancement allegation tried only if, and after, the jury found
them guilty. We disagree.
The court here did not deny bifurcation because it believed it lacked
authority to bifurcate but as an exercise of its discretion. We see no abuse of that
discretion. In Calderon we emphasized the unique prejudice that may ensue if the
jury that determines guilt also learns of the defendant’s status as a person with one
or more prior convictions. “In fact, the value of bifurcating the determination of
the truth of a prior conviction from the determination of guilt of the charged
offense has been widely recognized.” (Calderon, supra, 9 Cal.4th at pp. 75-76;
see id. at pp. 76-77 [citing the American Bar Association’s Standards for Criminal
Justice, various decisions and statutes around the country, and the Model Penal
Code].) A gang enhancement is different than the prior conviction at issue in
Calderon. A prior conviction allegation relates to the defendant’s status and may
have no connection to the charged offense; by contrast, 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
7

---

the gang enhancement than with a prior conviction allegation. (See People v.
Martin (1994) 23 Cal.App.4th 76, 81.)
The Legislature itself has specifically recognized the potential for prejudice
when a jury deciding guilt hears of a prior conviction. It has provided that if the
defendant admits the prior conviction, “the charge of the prior conviction shall
neither be read to the jury nor alluded to during trial, except as otherwise provided
by law.” (§ 1025, subd. (e); see Calderon, supra, 9 Cal.4th at p. 73.) Although no
statute specifically requires bifurcation when the defendant does not admit the
conviction, section 1025 shows the Legislature is concerned with the problem of
prejudice when a jury learns of a prior conviction. But the Legislature has given
no indication of a similar concern regarding enhancements related to the charged
offense, such as a street gang enhancement. Nothing in section 186.22 suggests
the street gang enhancement should receive special treatment of the kind given
prior convictions. (See also §§ 190.1, subds. (a), (b), 190.2, subd. (a)(2), (22)
[requiring the truth of a prior murder conviction special circumstance be tried only
after the guilt determination, but other special circumstances, including a gang
special circumstance like the gang enhancement of this case, be determined at the
same time as the guilt determination].)
This is not to say that a court should never bifurcate trial of the gang
enhancement from trial of guilt. The authorization we found in Calderon, supra, 9
Cal.4th 69, for bifurcation of a prior conviction allegation also permits bifurcation
of the gang enhancement. The predicate offenses offered to establish a “pattern of
criminal gang activity” (§ 186.22, subd. (e)) need not be related to the crime, or
even the defendant, and evidence of such offenses may be unduly prejudicial, thus
warranting bifurcation. Moreover, some of the other gang evidence, even as it
relates to the defendant, may be so extraordinarily prejudicial, and of so little
8

---

relevance to guilt, that it threatens to sway the jury to convict regardless of the
defendant’s actual guilt.
In cases not involving the gang enhancement, we have held that evidence of
gang membership is potentially prejudicial and should not be admitted if its
probative value is minimal. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-
905.) But evidence of gang membership is often relevant to, and admissible
regarding, the charged offense. Evidence of the defendant’s gang affiliation—
including evidence of the gang’s territory, membership, signs, symbols, beliefs
and practices, criminal enterprises, rivalries, and the like—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. (See, e.g., People v. Mendoza
(2000) 24 Cal.4th 130, 178 [element of fear]; People v. Williams (1997) 16 Cal.4th
153, 193 [motive and identity]; People v. Champion (1995) 9 Cal.4th 879, 922-
923 [identity].) 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. (See People v. Balderas (1985)
41 Cal.3d 144, 171-172 [discussing severance of charged offenses].)
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. In the
context of severing charged offenses, we have explained that “additional factors
favor joinder. Trial of the counts together ordinarily avoids the increased
expenditure of funds and judicial resources which may result if the charges were
to be tried in two or more separate trials.” ( Frank v. Superior Court (1989) 48
Cal.3d 632, 639.) Accordingly, when the evidence sought to be severed relates to
a charged offense, the “burden is on the party seeking severance to clearly
9

---

establish that there is a substantial danger of prejudice requiring that the charges
be separately tried. [Citations.] When the offenses are joined for trial the
defendant’s guilt of all the offenses is at issue and the problem of confusing the
jury with collateral matters does not arise. The other-crimes evidence does not
relate to [an] offense for which the defendant may have escaped punishment. That
the evidence would otherwise be inadmissible may be considered as a factor
suggesting possible prejudice, but countervailing considerations that are not
present when evidence of uncharged offenses is offered must be weighed in ruling
on a severance motion. The burden is on the defendant therefore to persuade the
court that these countervailing considerations are outweighed by a substantial
danger of undue prejudice.” (People v. Bean (1988) 46 Cal.3d 919, 938-939.)
The analogy between bifurcation and severance is not perfect. Severance
of charged offenses is more inefficient of judicial resources than bifurcation
because severance requires selection of separate juries, and the severed charges
would always have to be tried separately; a bifurcated trial is held before the same
jury, and the gang enhancement would have to be tried only if the jury found the
defendant guilty. But much of what we have said about severance is relevant here,
and we conclude that the trial court’s discretion to deny bifurcation of a charged
gang enhancement is similarly broader than its discretion to admit gang evidence
when the gang enhancement is not charged. (See People v. Balderas, supra, 41
Cal.3d at p. 173.) We also find no abuse of discretion in this case.
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. Although Fuentes did not specifically identify himself as
a gang member, the evidence showed the robbery was a coordinated effort by two
gang members who used gang membership as a means to accomplish the robbery.
10

---

Detective Goetz’s expert testimony helped the jury understand the significance of
Hernandez’s announcement of his gang affiliation, which was relevant to motive
and the use of fear. Evidence concerning the alliance between Hawthorne Little
Watts and the 106 clique of the 18th Street gang served to explain why Hernandez
and Fuentes were acting together in the commission of this crime, thus buttressing
such guilt issues as motive and intent.
Even if some of the expert testimony would not have been admitted at a
trial limited to guilt, the countervailing considerations that apply when the
enhancement is charged permitted a unitary trial. The evidence that some
members of Little Watts had been convicted of driving a vehicle without the
owner’s consent would certainly not have been admissible at a trial limited to the
charged offense, but that evidence was also not particularly inflammatory. Those
convictions were offered to prove the charged gang enhancement, so no problem
of confusion with collateral matters would arise, and they were not evidence of
offenses for which a defendant might have escaped punishment. Any 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. Accordingly, defendants
did not meet their burden “to clearly establish that there is a substantial danger of
prejudice requiring that the charges be separately tried.” (People v. Bean, supra,
46 Cal.3d at p. 938.) The court acted within its discretion in denying bifurcation.
C. Limiting Instruction
Defendants contend the court should at least have instructed the jury on the
limited use it could make of the gang evidence. “When evidence is admissible as
to one party or for one purpose and is inadmissible as to another party or for
another purpose, the court upon request shall restrict the evidence to its proper
11

---

scope and instruct the jury accordingly.” (Evid. Code, § 355, italics added.) Thus,
although a court should give a limiting instruction on request, it has no sua sponte
duty to give one. (People v. Jones (2003) 30 Cal.4th 1084, 1116 [no sua sponte
duty to give instruction limiting gang membership evidence]; People v. Collie
(1981) 30 Cal.3d 43, 63-64 [no sua sponte duty to give limiting instruction on
evidence of past criminal conduct].) Collie, supra, at page 64, recognizes a
possible exception in “an occasional extraordinary case in which unprotested
evidence . . . is a dominant part of the evidence against the accused, and is both
highly prejudicial and minimally relevant to any legitimate purpose.” (See People
v. Farnum (2002) 28 Cal.4th 107, 163-164.) This is no such extraordinary case.
All of the gang evidence was relevant to the gang enhancement, which was a
legitimate purpose for the jury to consider it. Accordingly, the trial court must
give a limiting instruction on evidence admitted to support the gang enhancement
only on request.3
In this case, after the court denied defendants’ severance motion, counsel
for Fuentes asked, “Is the court going to read any cautionary instructions or pre-
instruct the jury about how they are to use the gang evidence?” The court
responded, “I don’t have any problem with saying that when the time comes.”
Counsel for Fuentes said, “But even just in terms of reading the information.” The

3
Defendant Fuentes cites three Court of Appeal decisions for the proposition
that a sua sponte duty exists to give a limiting instruction. We disapproved one of
those cases (People v. Williams (1970) 11 Cal.App.3d 970) in People v. Collie,
supra, 30 Cal.3d at page 64, footnote 19. Of the other two cases, one (People v.
Mayfield (1972) 23 Cal.App.3d 236) predated Collie, and the other (People v.
Lomeli (1993) 19 Cal.App.4th 649) relied entirely on Mayfield. Neither opinion
mentions Evidence Code section 355. We also disapprove of People v. Mayfield,
supra, 23 Cal.App.3d 236, and People v. Lomeli, supra, 19 Cal.App.4th 649, to
the extent they are inconsistent with Evidence Code section 355 and our decisions.
12

---

court said, “Not at the time of reading the information but at the time the evidence
is to be presented.” Counsel for Fuentes ascertained that the court would not yet
be making any ruling on the admissibility of expert gang testimony because it had
not been asked to do so. No one renewed the question of a limiting instruction,
not even when the parties discussed in detail what instructions the court would
give. The court did not give a limiting instruction, and neither defendant asked for
one or proposed any specific language. Indeed, after the parties and court finished
going over the instructions to be given, the attorneys remained silent when the
court specifically said, “Let me know of anything you suggest.” Under these
circumstances, a question asked of the court before the evidence portion of trial,
and before any gang evidence was offered or ruled on, was not an adequate
request for a limiting instruction. Neither defendant specifically made clear he
wanted such an instruction in light of the evidence actually admitted or requested
any specific language regarding that evidence. Because defendants did not
specifically request a limiting instruction at the appropriate time, the court had no
sua sponte duty to give one.
Defendants contend counsel were ineffective in not requesting a limiting
instruction. “To establish ineffective assistance, defendant bears the burden of
showing, first, that counsel’s performance was deficient, falling below an
objective standard of reasonableness under prevailing professional norms.
Second, a defendant must establish that, absent counsel’s error, it is reasonably
probable that the verdict would have been more favorable to him.” (People v.
Hawkins (1995) 10 Cal.4th 920, 940.) “If the record does not shed light on why
counsel acted or failed to act in the challenged manner, we must reject the claim
on appeal unless counsel was asked for and failed to provide a satisfactory
explanation, or there simply can be no satisfactory explanation.” (People v. Scott
(1997) 15 Cal.4th 1188, 1212.) On this record, we cannot say that counsel were
13

---

deficient for not requesting a limiting instruction. “A reasonable attorney may
have tactically concluded that the risk of a limiting instruction . . . outweighed the
questionable benefits such instruction would provide.” (People v. Maury (2003)
30 Cal.4th 342, 394; see also Hawkins, supra, at p. 942.)
Once the gang evidence was admitted in this case, much of it was relevant
to, and could be considered regarding, the charged offense. Hernandez himself
told the robbery victim she was “dealing with” a gang member, specifically
“Hawthorne Little Watts.” Gang testimony was relevant to permit the jury to
understand Hernandez’s statement, to show intent to steal, to show a motive for
the crime, to explain how Hernandez’s statement could induce fear in the victim,
and to explain how the two defendants were working together, all of which were
relevant to defendants’ guilt. The gang evidence was not admissible, and the jury
could not consider it, solely to show that defendants were persons of bad character
or had a disposition to commit crimes, but an instruction on use of this testimony
properly might explain how it could be used as well as how it could not be used.
(Cf. CALJIC No. 2.50 [explaining that evidence of other crimes may not be
considered to show the defendant is a bad person or has a disposition to commit
crimes but also outlining the proper purposes for which the evidence may be
considered].) In this case, no one suggested the evidence could be used to show
defendants were bad persons. Under the circumstances, defense counsel might
reasonably have concluded it best if the court did not explain how the evidence
could be used.
Some of the evidence was irrelevant, and could not be considered for any
purpose, to show guilt of the charged offense. The evidence that other members of
the Little Watts gang had been convicted of driving a vehicle without the owner’s
consent was certainly irrelevant to defendants’ guilt of the charged offense,
although it was relevant to establish the gang enhancement. But counsel might
14

---

reasonably not have wanted the court to emphasize this evidence either,
“especially since it was obvious for what purpose it was being admitted.” (People
v. Freeman (1994) 8 Cal.4th 450, 495.) This record presents no basis for finding
that counsel acted ineffectively.
We also agree with the Court of Appeal that the failure to give a limiting
instruction was harmless. As noted, the jury could properly consider most of the
gang evidence on guilt, although not merely as showing that defendants were bad
people. No one suggested that defendants should be found guilty solely because
they were bad people. Even absent an instruction, it would have been obvious to
the jury that the other gang members’ convictions of driving a vehicle without the
owner’s consent were not relevant to and, accordingly, could not be considered
regarding, defendants’ guilt of this robbery. Those convictions were also not
particularly inflammatory. Accordingly, a limiting instruction would not have
significantly aided defendants under these facts or weakened the strength of the
evidence of guilt the jury properly could consider.
III. CONCLUSION
The Court of Appeal held that the trial court erred in denying bifurcation,
but it found the error harmless. As explained, we conclude that the trial court
acted within its discretion in denying bifurcation. The Court of Appeal also found
harmless the trial court’s failure to give a limiting instruction. We conclude the
15

---

court had no duty to give a limiting instruction. Because we conclude the Court of
Appeal reached the correct result, we affirm the judgment of the Court of Appeal.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.

16

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hernandez
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 109 Cal.App.4th 1338
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S117651
Date Filed: August 9, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: William R. Hollingsworth, Jr.*

__________________________________________________________________________________

Attorneys for Appellant:

Susan K. Keiser, under appointment by the Supreme Court, for Defendant and Appellant Jose Pablo
Hernandez.

Jill Lansing, under appointment by the Supreme Court, for Defendant and Appellant Jonathan Fuentes.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Robert F. Katz, Lauren E. Dana and Stephanie A. Miyoshi, Deputy
Attorneys General, for Plaintiff and Respondent.

Steve Cooley, District Attorney (Los Angeles), Patrick Moran, Acting Head Deputy District Attorney,
Brent Riggs and Phyllis C. Asayama, Deputy District Attorneys, for California District Attorneys
Association as Amicus Curiae on behalf of Plaintiff and Respondent.

*Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
17

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Susan K. Keiser
P.O. Box 635
LaJolla, CA 92038
(858) 456-6626

Jill Lansing
1902 Westwood Blvd., #207
Los Angeles, CA 90025
(310) 470-4317

Stephanie A. Miyoshi
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2249

18

---

Opinion Information

Date:	Docket Number:
Mon, 08/09/2004	S117651

Disposition
Aug 9 2004	Opinion: Affirmed

Dockets
Jul 17 2003	Received premature petition for review   by counsel for defendant and appellant (Jose Pablo Hernandez)
Jul 24 2003	Received Court of Appeal record   one doghouse
Jul 24 2003	Case start: Petition for review filed
Jul 28 2003	2nd petition for review filed   By counsel for appellant {Jonathan Fuentes}.
Jul 28 2003	Record requested
Aug 8 2003	Received Court of Appeal record   one doghouse
Sep 10 2003	Petition for Review Granted; issues limited (criminal case)   The issues to be briefed and argued are limited to the following: (1) Did the trial court commit prejudicial error by denying a defense request to bifurcate trial on the criminal street gang allegation from trial on the substantive offenses? (2) Did the trial court commit prejudicial error by failing to give the jury a limiting instruction on the permissible uses of evidence of defendants'gang membership? Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Oct 1 2003	Counsel appointment order filed   Upon request of appellant JONATHAN FUENTES for appointment of counsel, Jill Lansing is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Oct 1 2003	Counsel appointment order filed   Upon request of appellant JOSE PABLO HERNANDEZ for appointment of counsel, Susan Keiser is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Oct 27 2003	Motion filed (in non-AA proceeding)   by counsel for aplt. (J. Hernandez) Clarification for Scope of Aplt's briefing and to permit briefing on both issues pending before the court
Oct 28 2003	Request for extension of time filed   to file opening brief/merits to 12-1-03>>appellant Jonathan Fuentes
Oct 28 2003	2nd record request   remaining records
Oct 29 2003	Order filed   Appellant Jose Pablo Hernandez is granted permission to brief both issues pending before this court.
Oct 29 2003	Request for extension of time filed   counsel for aplt. JOSE HERNANDEZ requests extension of time to December 1, 2003 to file the opening brief on the merits.
Nov 4 2003	Extension of time granted   Appellant's (JOSE PABLO HERNANDEZ) time to serve and file the opening brief on the merits is extended to and including December 1, 2003.
Nov 4 2003	Extension of time granted   Appellant's (JONATHAN FUENTES) time to serve and file the opening brief on the merits is extended to and including December 1, 2003.
Nov 20 2003	Opening brief on the merits filed   appellant Jonathan Fuentes
Dec 8 2003	Opening brief on the merits filed   by counsel for aplt. (Jose P. Hernandez) (40k)
Dec 22 2003	Request for extension of time filed   to file answer breif/merits asking to Jan. 30, 2004.
Dec 23 2003	Compensation awarded counsel   Atty Keiser
Dec 24 2003	Extension of time granted   to 1-30-04 for resp to file the answer brief on the merits. No further extensions of time are contemplated.
Jan 29 2004	Answer brief on the merits filed   respondent People
Feb 13 2004	Reply brief filed (case not yet fully briefed)   by appellant Jonathan Fuentes
Feb 17 2004	Reply brief filed (case fully briefed)   by counsel for aplt.(Jose P. Hernandez)
Mar 18 2004	Received application to file Amicus Curiae Brief   California District Attys Association [in support of respondent]
Mar 30 2004	Permission to file amicus curiae brief granted   Calif. District Attys Association (non-party)
Mar 30 2004	Amicus curiae brief filed   California District Attorneys Association in support of respondent. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 15 2004	Response to amicus curiae brief filed   to ac brief of Calif District Attorneys' Assn>>appellant Jonathan Fuentes
Apr 22 2004	Response to amicus curiae brief filed   by counsel for aplt. (Jose P. Hernandez) (40k)
Apr 28 2004	Case ordered on calendar   6-2-04, 9am, L.A.
May 19 2004	Filed:   reqt for division of oral argument>>appellant Jonathan Fuentes
May 26 2004	Order filed   Permission granted for two counsel to present oral argument on behalf of appellants.
May 26 2004	Order filed   the request to allocate 15minutes to Jill Lansing for aplt Fuentes and 15minutes to Susan Keiser for aplt Hernandez of aplts' 30-min. allotted time for oral argument is granted.
Jun 2 2004	Cause argued and submitted
Aug 9 2004	Opinion filed: Judgment affirmed in full   OPINION BY: Chin, J ---joined by: George, C. J., Kennard, Baxter, Werdegar, Brown, Moreno, JJ.
Sep 9 2004	Remittitur issued (criminal case)
Sep 15 2004	Compensation awarded counsel   Atty Keiser
Sep 20 2004	Received:   receipt for remittitur from CA 2/3
Oct 13 2004	Compensation awarded counsel   Atty Lansing

Briefs
Nov 20 2003	Opening brief on the merits filed
Dec 8 2003	Opening brief on the merits filed
Jan 29 2004	Answer brief on the merits filed
Feb 13 2004	Reply brief filed (case not yet fully briefed)
Feb 17 2004	Reply brief filed (case fully briefed)
Mar 30 2004	Amicus curiae brief filed
Apr 15 2004	Response to amicus curiae brief filed
Apr 22 2004	Response to amicus curiae brief filed

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website