P. v. Carrillo

Filed 4/4/07 P. v. Carrillo CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Defendant Jesus Carrillo appeals following his conviction for possession of methamphetamine for sale (Health & Saf. Code, 11378) and active criminal street gang participation (Pen. Code, 186.22, subd. (a)),^[1]with a finding that a principal to the gang offense was armed with a firearm ( 12022, subd. (a)(1).) Carrillo was placed on probation. On appeal, he contends (1) ineffective assistance of counsel denied him a full and fair determination of a motion to suppress evidence; (2) the trial courts refusal to bifurcate trial of the gang charges deprived him of his federal due process right to a fair trial; and (3) the trial court misinstructed on the arming enhancement. We shall affirm the judgment.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

Carrillo and codefendant Alisha Miller were charged as follows:

Count One - unlawful possession of methamphetamine for sale (Health & Saf. Code, 11378), while personally armed with a firearm ( 12022, subd. (c)).

Count Two - active participation in a criminal street gang and promotion/assistance in felony conduct by gang members ( 186.22, subd. (a)^[3]), where a principal was armed with a firearm not an element of the offense ( 12022, subd. (a)(1)).

Miller alone was charged with a third count for possession of a firearm by a felon ( 12021, subd. (a)(1)), with a gang enhancement ( 186.22, subd. (b)(1)).

The trial court denied a motion to suppress evidence seized in a warrantless search of a house based on Millers searchable probation status, as we describe post.

Evidence adduced at the trial of Miller and Carrillo included the following:

On March 9, 2005, law enforcement detectives Jason Ramos and Raymon Mendoza went to a residence at 7324 Pritchard Road to ask Miller some follow-up questions concerning a drive-by shooting that occurred on February 24, 2005, at that address (where Miller resided at the time of the shooting). The detectives had information indicating that Miller and Carrillo were Sureo gang members and were at the house at the time of the shooting. Detective Ramos first encountered Carrillo at a Florin Road apartment on March 2, 2005, in the course of investigating the shooting, and believed Carrillo was a Sureo gang member based on his gang tattoos and his being in the company of known gang members. Carrillo stated at that time that he had just moved from Los Angeles and used to be a Sureo gang member.

Upon arrival at the house, the detectives knocked on the door. It opened slightly, then closed. The detectives announced themselves as law enforcement. The door opened, and the detectives entered. The interior of the house was small, about 500 square feet. In the living room were Scott Silliman, Peter Wijesekara, David Kuhl, and Carol Parel-Filary. Miller was standing inside the bedroom doorway, with Carrillo in the open doorway of the adjoining bathroom.

A search of the house yielded (1) in the bathroom trashcan, 24.2 grams of methamphetamine packaged in envelopes, an electronic scale, a small bowl containing white powder residue, and a wallet containing photographs but no identification (which Carrillo claimed as his); (2) a loaded .22 caliber revolver under one of two mattresses in the bedroom; (3) Carrillos identification on the living room table; and (4) under that table, a black case containing 13 plastic baggies and a bag with 60 rounds of live .22 caliber ammunition. No fingerprints were recovered.

Silliman testified (under a grant of immunity) that he was a methamphetamine addict and went to the Pritchard address with his girlfriend (Parel-Filary) to buy methamphetamine from Carrillo. Silliman had previously met with Carrillo at a different location to discuss buying methamphetamine, but Carrillo did not have any. When Silliman and Parel-Filary arrived at the Pritchard Road house, Miller was cleaning the kitchen (according to the testimony of both Silliman and Parel-Filary). Carrillo said he did not have anything but they (he and Wijesekara) were going to get it and invited the couple along. Wijesekara dropped off Carrillo (who gave him a wad of cash), Silliman and Parel-Filary at a market, picked them up 15 minutes later, and drove back to Pritchard. Wijesekara handed Carrillo a bag of methamphetamine. Inside the house, Carrillo gave bags of groceries to Miller. Silliman testified Miller asked Carrillo, did you get it or did you get the shit. Carrillo said yes, and Miller said, oh great or oh yeah. Miller approached the bag of methamphetamine in Carrillos hand and looked at it. As some of those present discussed smoking some of the methamphetamine, the detectives knocked on the door.

At the scene, Carrillo acknowledged the methamphetamine belonged to him.

Wijesekara, who also testified under immunity, denied seeing or supplying any contraband. He gave Carrillo and the others a ride to the store and went to visit his sister before returning to pick them up.

A narcotics expert testified the possession of 24.2 grams of methamphetamine (which could furnish 240 doses), along with the electronic scale, cellular phone, baggies and loaded revolver, was consistent with possession for sale. Drug traffickers commonly carry guns.

Scot Wilson, a probation officer specializing in Hispanic gangs, testified that in March 2002, he encountered Miller during a search of a Sureo crash pad where she then resided. He found a tablecloth on which was written, Lonely Girl (which is Millers street name) and a roll call of 145 members of various Sureo subsets. Miller told Wilson the tablecloth belonged to her.

Robert Tette testified he was assigned as Millers probation officer in July 2004, after she was convicted of assault. In January 2005, Miller reported her address as 7324 Pritchard Road, indicating she would live there with her sister. Tette visited Miller at that address on February 7, 2005. She was with a known Sureo gang member. She sported gang tattoos and previously admitted to other officers that she was an active member of the Sureos.^[4]

Tette also testified as an expert on Sureos, the primary functions of which include shootings, theft, burglary, murder, and drug trafficking. Miller and Carrillo are Sureo gang members. Tette testified about the Sureos pattern of criminal activity, including crimes in which Miller had participated. Thus, in February 2002, Miller and others (who were known to be Sureo members or associates) were drinking at her (former) residence and decided to take revenge for the shooting of a Sureo gang member. They drove to a house, with Miller guiding the driver. One of the cars occupants, Jerry Egure, shot at a person standing in front of the house. Police stopped the car in which Miller was riding and found .38 caliber shell casings. They found a gun nearby. Egure, a Sureo gang member, was convicted of assault with a firearm. In July 2003, Miller and other Sureo members confronted one Gordie Adomie, who they perceived to be a member of the rival Norteo gang. Miller accused him of invading the Sureos turf. Millers group hit Adomie in the head with a bottle, chased him, beat him, and stabbed him 17 times. Miller was arrested in February 2004 and was later convicted of assault with a deadly weapon. Miller was also investigated for three separate auto thefts.

Among other incidents not directly involving Miller, Sureo member Brandon Ruiz was convicted of double murder after he stabbed and shot Rene Herrera and Ian Duarte in September 2002 in revenge for their using counterfeit money to buy methamphetamine from Sureo Andrew Limones. Ruiz and other Sureos lured the victims to a house, stabbed and shot them, dumped the bodies in the victims car, and tried unsuccessfully to set the bodies on fire.

In other incidents, Sureo member Gerardo Rodrigues was convicted of a September 2003 assault with a firearm on Frederick Nuez, who referred to himself as a rival gang member. Sureo gang member Pancho Betancourt was convicted for the December 2003 attempted murder of Elena Estrada, who was shot in the stomach when Betancourt shot a gun into a crowd of persons, one of which said something derogatory about Sureos. Two Sureos were convicted of assault with great bodily injury in the stabbing of a Norteo in January 2005.

Neither Carrillo nor Miller testified at trial.

Millers step-sister Amanda Biagi testified she rented the Pritchard house with her ex-boyfriend Edgar Garcia. Miller was not on the lease but at some point moved in. Miller usually slept on the sofa but sometimes slept in Biagis bed. Biagi said she and Miller moved out a few days after the shooting. Biagi found someone to take over her lease. Biagi went to the house to meet with the new tenant (Victor, last name unknown) a few days before Millers arrest. Biagi denied telling the police that Miller was living at the Pritchard house at any time after the February 24 shooting.

Millers gang expert, university professor James Hernandez, testified to his opinion that if six people were in a house with less than an ounce^[5]of methamphetamine and a gun in the bedroom, and four of the persons were not gang members, he (the expert) could not say that possession of the drugs and the gun were for the benefit of the gang.

Carrillo did not call any witnesses at trial.

The jury found Carrillo guilty of the drug offense (Count One) and the gang offense (Count Two). The jury found true the armed principal enhancement as to Count Two, but the jury found not true the personal arming enhancement in Count One.^[6]

The trial court suspended imposition of sentence and placed Carrillo on five years formal probation, with 300 days in county jail.

DISCUSSION

I. Suppression Motion

Carrillo contends prejudicial ineffective assistance of counsel denied him a full and fair determination of his Fourth Amendment motion to suppress evidence. We disagree.

Carrillo did not make a motion to suppress evidence but claims on appeal that he joined in Millers suppression motion. However, he did not do so. Thus, the record shows Miller made an in limine motion to suppress evidence, along with various other motions in limine, e.g. a motion to exclude evidence of other crimes, and a motion to bifurcate the gang charges. The reporters transcript shows:

THE COURT: [] . . . [] Lets do the Motion to Suppress first.

Mr. De La Rosa [Carrillos attorney], let me ask: With respect to any of the motions that Ms. Hart [Millers attorney] has referenced thus far, are you joining in those?

MR. DE LA ROSA: I am with regard to the other crimes and motion to bifurcate. [] In the motion to bifurcate, we are not included in Count Three, we wouldnt be inclined [sic] in the substantive, in Count Two.

At the end of the hearing, the trial court asked Carrillos attorney is there something that you wanted to add? to which the attorney responded, I have reconsidered it. Again, I submit.

Thus, Carrillo did not join in the suppression motion. Carrillo cites nothing supporting his appellate argument that the parties below acted as if Carrillo had joined in the suppression motion.

Having failed in the trial court to challenge the search as to his own rights, Carrillo has forfeited his challenge to the search. ( 1538.5, subd. (m); People v. Hoffman (2001) 88 Cal.App.4th 1, 2-3.) Insofar as Carrillo claims to be aggrieved by the trial courts denial of Millers suppression motion, and assuming he has standing on appeal to challenge denial of her motion, he fails to show grounds for reversal. Insofar as Carrillo claims his attorney was ineffective for failing to challenge the search on Carrillos behalf, Carrillo fails to show ineffective assistance of counsel warranting reversal of the judgment.

Thus, in response to Millers suppression motion, the prosecution defended the warrantless search on the basis of Millers searchable probation status. It is undisputed that Miller lived at the Pritchard address on the day of the shooting (two weeks before the search), but she claimed she moved out after the shooting.

Evidence adduced at the hearing on the suppression motion included the following:

Detectives Jason Ramos and Raymon Mendoza conducted a warrantless search of the Pritchard house on March 9, 2005. Detective Ramos testified he went to the house looking for Miller as part of his follow-up investigation into the February 24, 2005, shooting at that address. He previously interviewed her around March 1, and she told him she resided at that location. Detective Ramos knocked on the screen door and observed the front door open slightly and then close. He knocked again and announced he was with the sheriffs department. After about 15 seconds, the door opened. He entered and observed four persons seated in the living room. The house was very small. The living room and adjoining kitchen were not separated by any walls. A doorway led into an adjoining bedroom and bathroom. Detective Ramos heard movement and saw Miller standing in the bedroom and Carrillo in the bathroom area (which could be reached only by going through the bedroom).

Detective Mendoza and other officers conducted a search and discovered the drugs and the gun. Though there was no testimony at the suppression hearing about where the items were found, it was noted (by Millers attorney during argument of the suppression motion) that police reports indicated the drugs were found in the bathroom trash can, and the gun was found under a mattress in the bedroom. (Testimony concerning the location of the items was adduced at trial, as was testimony that nothing found in the search established the Pritchard house as the address of Carrillo or Miller.)

Before conducting the search, Detective Ramos was aware from a prior contact with Miller and her probation officer that Miller was on formal searchable probation. Detective Ramos said the probation officer told him what the terms and conditions of her probation were. The trial court read into the record from the probation order: [Miller] shall submit person, property, automobile, any object under her control to search and seizure in or out of the presence of [Miller] by law enforcement officer and/or probation officer, any time day or night, with or without her consent, with or without a warrant. []. . . [] Appears to be standard searchable probation conditions. (The court noted there did not appear to be any limitations on the search conditions.

Miller testified at the suppression hearing that she was not living at the Pritchard house on the day of the search (March 9, 2005). She had stayed there off and on with her sister (sometimes sleeping in the bedroom sharing the sole bed^[7]with her sister) but stopped after the shooting. She had no permanent address. She stayed off and on with her father or with friends.

Miller slept on the couch at Pritchard the night before the search. She arrived around 1:30 a.m. The house was open to anyone; the door was broken. Five other people were at the house, including Carrillo. Miller kind of associated with the people who were at the house but did not really know them. Her purpose for being at the house was to clean the house up after everything had happened. Miller started cleaning when she woke up around 2:00 p.m. (the detectives arrived at 5:45 p.m.). When asked why she took it upon herself to clean the house, Miller said, Well, for one, my sister had her Cadillac parked there, so I went to go check up on her car too and stuff inside the car. Get whatever I could find left in the house and clean out the house. And just get it ready for whoever was going to move in next. Miller did not have to ask permission from anyone in the house. She had asked her sister. As far as Miller was concerned, her sister was still the leaseholder of the house, and so Miller had the right of access to the house.

Detective Ramos testified that, in his prior interview with Miller on March 1, 2005, he asked if she slept at the Pritchard address and called that place home. She said yes. She stated she lived there with her stepsister Amanda Biagi. These statements referred to her living at Pritchard at the time of the February 2005 shooting. Detective Ramos testified that, at the end of that interview, when he tried to confirm where he could reach her, Miller said something along the lines of now that you guys keep going there, I dont have a home. Ill sleep . . . in the street, in a car[,] whatever I can find. She said she did not know where she was going to be and had no place to go. At this point, Detective Ramos did not know for sure where Miller was going to be living.

Millers stepsister, Amanda Biagi, testified she and her boyfriend Edgar Garcia signed a lease and moved into the house in November or December 2004. In January 2005, Miller moved in. Miller usually slept on the sofa but sometimes slept in bed with her sister. After the shooting, everyone moved out. Biagi moved in with her mother. Biagi told the landlord she would try to find someone to take over the lease. Biagi testified she did find someone to take over the lease (a friend named Victor whose last name she claimed not to remember), but she did not tell the landlord. She gave Victor the landlords phone number and told him to contact the landlord. About five days before the police search, Biagi was at the house and saw the door handle had been changed. Biagi testified neither she nor her boyfriend returned their keys to the landlord. She thought she gave the landlord notice of her move shortly after the shooting, and she could not explain why her landlord said she did not give notice until April or May 2005. (The trial court did not rule on a [l]ack of foundation objection.)

Millers father testified she stayed with him off and on in February and March 2005. He received her mail, and her probation officer came to his house looking for her twice.

The trial court denied the suppression motion, ruling the search was authorized by Millers probation. The court said Miller could not have [her] cake and eat it too. If she had abandoned her occupancy and was at the house only to clean it, then the court would find she could have no expectation of privacy. On the other hand, if she was residing there, then the court would find the search fell within the permissible scope of her probation search conditions. The court said it was inclined to conclude the search was justified as a probation search. The court made no express reference to Carrillo.

On appeal, Carrillo complains the trial court did not resolve any factual issue about Millers expectation of privacy. Carrillo notes the trial court said, (1) if Miller was there only to clean the house, then the court would find she did not have an expectation of privacy, and (2) if Miller resided there, the search was valid as a probation search. Carrillo argues the first alternative would invalidate the search as to him, because if Miller did not have possessory interests in the bedroom and adjoining bathroom, then there was no basis for searching areas not under her control and/or under Carrillos exclusive control. Carrillo argues the second alternative (that if Miller resided there, the search was a valid probation search) did not provide a basis for validating the search as to him, because the court make no findings about his interests or the issue of joint-versus-exclusive control by co-occupants.

However, we disagree with the trial courts statement that Miller would have no expectation of privacy if she was there only to clean the house. If she was there only to clean the house, it was as a former resident. A person who has a possessory interest in real property does not necessarily lose that interest upon physical removal of their belongings with an intent to move out. (People v. Tillery (1979) 99 Cal.App.3d 975, 979 [tenant or invited guest has legitimate expectation of privacy as long as the occupancy is permitted by the landlord].) It is not at all unusual for tenants to move out their belongings, then clean the premises before relinquishing their possessory interest to the landlord. Here, all indications are that Miller was helping her stepsister (the tenant) end the tenancy. Although the stepsister testified at the suppression hearing that she made unspecified arrangements for a man called Victor to take over the lease and the locks were changed sometime between March 1 and 4, the stepsister did not contact the landlord or return the keys. Miller testified the house was open, and as far as she knew, she still had the right of access based on her sisters tenancy.

Thus, regardless of whether Miller had just moved out or was still residing there, she still retained sufficient interest to justify the search as a probation search. This is particularly so, given the evidence that she admitted she had nowhere to go, and given the absence of any evidence that she reported a change of address to her probation officer (as was required by her probation terms).

Carrillo argues the search was not justifiable as a probation search, because the detectives (1) did not know the terms of Millers search condition, and even if they did, (2) their search was not reasonably related to a probationary purpose and lacked probable cause or even an articulated suspicion. However, as to the first point, Detective Ramos testified he had been told previously by Millers probation officer what the terms and conditions of her probation were. As to the second point, Carrillo cites no authority that the search was improper because it was not reasonably related to a probationary purpose. Instead, Carrillo cites case law that the privacy expectations of those persons who have not waived their Fourth Amendment rights remains measurably greater than those subject to search conditions. This does not render the search invalid as to Carrillo on the basis that it was not reasonably related to a probationary purpose with respect to Miller. Moreover, we note the United States Supreme Court recently held in Samson v. California (2006) _ U.S. _ [165 L.Ed.2d 250] that the Fourth Amendment did not prohibit law enforcement officers from conducting a suspicionless search of a parolee who is subject to a search condition.

Carrillo argues that if this search passes muster, then the police could search an entire restaurant just because Miller was eating there. Carrillos baseless argument overlooks Millers ties to the house.

As to Carrillos claim that his attorney rendered ineffective assistance of counsel in failing to press for a ruling as to Carrillos rights in a suppression motion, Carrillo fails to show grounds for reversal.

A defendant claiming ineffective assistance of counsel must show that (1) counsels performance was deficient, and (2) there is a reasonable probability the defendant would have obtained a more favorable result but for counsels deficiency. (Strickland v. Washington (1984) 466 U.S. 668, 688-692 [80 L.Ed.2d 674]; People v. Pope (1979) 23 Cal.3d 412, 422.)

On this record, Carrillo fails to meet his burden. He cites trial testimony which might arguably support a finding that he had been staying at the Pritchard Road house for several days at the time of the search. As Carrillo observes, when persons who are subject to probation search (such as Miller) are present and/or share premises with persons who are not subject to such searches, the common or shared areas of a residence may be searched by officers aware of an applicable search condition; however those who live with a probationer maintain normal expectations of privacy over their persons [and] retain valid privacy expectations in residential areas subject to their exclusive access or control, so long as there is no basis for officers to reasonably believe the probationer has authority over those areas. (People v. Robles (2000) 23 Cal.4th 789, 797-799.)

However, the gun was found under a mattress in the sole bedroom of the tiny house, the drugs were found in the bathrooms trash can, and bullets were found in the living room. Carrillo does not argue (and no evidence suggests) that any of these locations was subject to Carrillos exclusive access/control--which is what it would take to invalidate the search as to him under Robles. He suggests Miller would not have used the bathroom because the toilet was inoperative and was taped shut. However, inoperability of the toilet does not indicate she did not use or have access to the bathroom. That she could just as easily wash using the kitchen sink, as Carrillo asserts, does not indicate she did not share access to the bathroom. It is clear Miller had access to the bedroom where the gun was found, because she was standing there when the detectives entered, and there was testimony she sometimes slept there during her occupancy.

We conclude Carrillo fails to show grounds for reversal of the judgment with respect to the suppression motion.

Under the same heading challenging denial of the suppression motion, Carrillo presents extensive argument that he was unlawfully detained and subjected to an unlawful de facto arrest without probable cause. Carrillo cites witness Sillimans testimony that the detention lasted maybe three hours total, that the police who conducted the search entered the house with guns drawn, and that the officers handcuffed Carrillo and others (but not Silliman or his girlfriend). However, no issue of unlawful detention/arrest was presented in the trial court, hence there was no need for the prosecution to justify the detention/arrest, and Carrillo cannot assert the prosecutions failure to justify the detention/arrest as a basis for reversal of the judgment. Nor has Carrillo shown a reasonable probability that a challenge to the detention/arrest would have been successful so as to show ineffective assistance of counsel.

We conclude Carrillo fails to show grounds for reversal based on denial of the suppression motion or based on the detention/arrest.

II. Bifurcation

Carrillo argues the trial courts refusal to bifurcate the trial of the gang charges deprived him of his federal due process right to a fair trial. Although the heading in Carrillos appellate brief complains only about the trial of the gang enhancement (which was alleged against Miller only), his argument is that the trial court should have granted Millers motion (in which Carrillo joined) to try the drug charge and firearm possession charge separately from both the active gang participation charged as Count Two and the gang enhancement alleged against Miller as an enhancement to the charge against her for being a felon in possession of a firearm (Count Three). Even assuming for the sake of argument that Carrillo has standing to challenge the denial of bifurcation of the enhancement alleged against Miller only (where Carrillo did not seek a separate trial from Miller), we shall conclude Carrillo fails to show grounds for reversal.

Carrillo joined in Millers motion to bifurcate the gang participation charge (Count Two) and the gang enhancement (attached to Count Three) from the remaining charges. Miller sought bifurcation because the remaining charges (drug possession for sale and possession of a gun) were relatively minor in comparison with the vast majority of gang cases (which involve assaults), and the gang evidence (which involved violence) would be especially prejudicial.

The trial court noted counsel failed to provide any authority for bifurcating a count, and there was no motion before the court to sever the count, and there is a difference in that severance would require a separate jury.

The trial court ruled: With respect to the motion to bifurcate the gang enhancement as it relates to Count Three and the substance [sic] charge related to Count Two, Im aware of no specific authority that permits me to bifurcate the substantive charge in Count Two. [] If I had that discretion, I would not in fact have bifurcated that count. In consideration [sic] for warranting a bifurcation are similar, but in some ways different than a motion to sever as well. [] In the instant case, the defendants are charged with a gang enhancement, also with the substantive violation of . . . Section 186.22(a). [] The Court is not inclined to grant bifurcation of the charge in Count Two. To do so would essentially result in a trial of the same case twice before the same jury. [] In order to establish the offense alleged in Count Two, the People would be required to basically present the same evidence it would have presented in a trial on Counts One and Three. [] The evidence is intertwined as to all counts. Count Two is based upon the same evidence as that alleged in [C]ounts One and Three.

If this had been a motion to sever, the Court would utilize the same analysis. And the Court finds that it would not have granted a severance even if requested. There are no facts present in this case that would justify severance. Defendants [sic] had not met their burden to justify a bifurcation.

In light of the fact that the evidence on Count Two is the same evidence that will be presented to the jury as the enhancement alleged in Count Three, request to bifurcate the enhancement alleged in Count Three is similarly denied.

On appeal, Carrillo argues the trial court was misinformed in believing it lacked authority to bifurcate trial of the several counts. Carrillo argues that nothing prevents a trial court from bifurcating (rather than severing) counts and having separate trials and separate verdicts on separate counts with a single jury. Carrillo argues no mention of severance, as opposed to bifurcation is made in section 954, which provides in part that [a]n accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts . . . [but] the court in which a case is triable, in the interest of justice and for good cause shown, may, in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. Carrillo cites inapposite authority where juries separately returned verdicts on separately-charged counts in a single trial. (E.g., People v. Rigney (1961) 55 Cal.2d 236, 246.)

Carrillo cites no authority for separate trials of separate counts against the same defendant with the same jury. He argues there is no authority prohibiting it. However, it appears a separate verdict on a separate count in a separate trial would be a complete verdict requiring discharge of the jury. (See  1164;^[8]see also, People v. Hernandez (2004) 33 Cal.4th 1040, 1050 [stating in dictum that severance requires selection of separate juries, and the severed charges . . . have to be tried separately [whereas] a bifurcated trial is held before the same jury].) In any event, we need not resolve this issue whether counts can be bifurcated rather than severed because the trial court said that, even if it had authority to bifurcate counts, it would not do so in this case. This circumstance distinguishes and renders inapposite Carrillos cited case law that remand is required where a trial court erroneously believes it lacks discretion unless the declined act would have been an abuse of discretion. (People v. Meloney (2003) 30 Cal.4th 1145, 1151, 1165 [sentencing court never clearly declined to exercise discretion and appeared unaware of its authority to do so]; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 507, 530-532 [trial courts failure to explain reasons for discretionary dismissal of prior conviction allegations, as required by statute, rendered dismissal ineffective]; People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1236, 1248 [trial court applied wrong statute in determining defendant was ineligible for probation]; People v. Aubrey (1998) 65 Cal.App.4th 279, 282-283 [trial court indicated it was otherwise inclined to grant probation but believed it lacked discretion to do so].)

Carrillo argues the trial court abused its discretion. We disagree.

The California Supreme Court has said that a trial court, pursuant to its general supervisory powers ( 1044^[9]) has authority to bifurcate the trial of issues, including bifurcation of a gang enhancement. (Hernandez, supra, 33 Cal.4th at pp. 1048-1049; People v. Calderon (1994) 9 Cal.4th 69, 80.) However, unlike bifurcation of a prior conviction (which relates to the defendants status and may have no connection to the charged offense), a 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. (Hernandez, supra, 33 Cal.4th 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 . . . a court may still deny bifurcation. . . . [A]dditional 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. [Citation.] (Id. at p. 1050.) The burden is on the moving party to establish clearly that there is a substantial danger of prejudice requiring that the charges be separately tried. (Id. at p. 1050.)

In reviewing whether or not a trial court abused its discretion in denying severance, the pertinent factors are (1) would the evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges usually likely to inflame the jury against the defendant; and (3) has a weak case been joined with a strong case or another weak case so that the total evidence on the joined charges may alter the outcome of some or all of the charged offenses. (People v. Marshall (1997) 15 Cal.4th 1, 27-28.) A fourth factor, relating to death penalty cases, is inapplicable here. A determination that the evidence was cross-admissible ordinarily dispels any inference of prejudice. (Id. at p. 28.)

Carrillo argues the trial court abused its discretion in denying bifurcation. He cites case law that gang evidence is extremely inflammatory. (People v. Kennedy (2005) 36 Cal.4th 595, 624 [evidence of gang affiliation creates a risk that the jury will infer a defendants criminal disposition from the evidence and decide guilt of the charged offense based on that inference].) Carrillo argues the prejudicial nature of the gang allegation with respect to the drug offense charged in Count One was evident. He says the disputed issue was exclusive or joint possession of the drugs in circumstances where several people were implicated (present) and where there was no evidence of gang affiliation as to three of those persons. He says the fact that only two of these people were gang members had the nearly reflexive effect of focusing suspicion on them. He says this prejudice was particularly pronounced as to him, because the prosecution had minimal evidence of gang involvement as to him. He says the evidence shows he had just moved to the area. He says that, upon his first contact with law enforcement officers at another location, Carrillo told the officers he used to be associated with Sureos in Los Angeles. He says the detective belatedly entered him into the police database as a gang member after the March 9, 2005, search, based on that admission plus his gang tattoos and his association with gang member Miller. Carrillo says mere knowing association with gang members is not criminal, and there was no strong evidence that he was presently a gang participant. Carrillo further notes the case against Miller was far stronger, and the court allowed the prosecution to introduce evidence of six predicate crimes of serious violence involving Miller and/or the local area Sureos--(1) a February 17, 2002, shooting in which Miller was personally present; (2) a July 20, 2003, stabbing of which Miller herself was convicted; (3) a September 6, 2003, gang fight involving assault with a firearm; (4) a December 3, 2003, shooting which led to an attempted murder conviction of a gang member known to Miller; (5) a January 30, 2005, assault with a deadly weapon by local Sureos; and (6) a September 18, 2002, drug-related murder by local Sureos.

However, Carrillos argument proves too much. He admits identity of the perpetrator of the drug offense (possession of methamphetamine for sale) was at issue because there were several people present. Thus, evidence that Carrillo and Miller were members of a gang which involved itself in drug activity would have been admissible to identify Carrillo as a perpetrator of the drug offense. Cross-admissibility ordinarily dispels any inference of prejudice. (Marshall, supra, 15 Cal.4th at p. 28.)

Moreover, the drug offense was not a weak case joined with a strong case or another weak case so that the total evidence on the joined charges could alter the outcome. (Marshall, supra, 15 Cal.4th at pp. 27-28.) Before the police arrived, Carrillo was in the living room with others. When the police entered the house, Carrillo was in the bathroom, where the drugs and his wallet were found. There was testimony that Carrillo admitted to the police at the scene that the drugs belonged to him. Thus, contrary to Carrillos appellate argument, his trial counsels remarks to the jury (admitting simple possession by Carrillo) was not unquestionably the result of being left no alternative given the courts refusal to bifurcate the counts. It was the result of the state of the evidence. That some of the witnesses testified under grant of immunity does not alter this conclusion.

Carrillo argues the gang evidence was devastatingly prejudicial to him, because the Sureos are not a single, uniform, coordinated gang, and Carrillos past or even present involvement in a Los Angeles gang did not connect him to or give him knowledge of the predicate acts in the Sacramento area. However, the evidence in this case was that Carrillo had just moved to Sacramento, and he associated with and was involved in gang activity with Sacramento area Sureos. Moreover, Carrillo is wrong on the law. He cites In re Jose P. (2003) 106 Cal.App.4th 458, and People v. Valdez (1997) 58 Cal.App.4th 494. Neither case helps him. Valdez, which affirmed a gang enhancement, indicated in dictum that the trial court properly allowed expert opinion where the defendant was riding in a caravan of vehicles, the participants of which (in the experts opinion) were affiliated with seven different Norteo gangs that were part of a larger group identified with Northern California. (Id. at p. 508.) The expert testified there were 20 to 30 Norteo gangs and 10 to 15 Sureo gangs. (Id. at p. 502.) The Norteos in the caravan united for one day to attack Sureos. (Id. at p. 508.) Valdez said, their common identification as Norteos did not establish them as a street gang, for, as [the expert] testified, Norteo and Sureo are not the names of gangs. (Ibid.) This comment was addressed in the other case cited by Carrillo--Jose P., which also affirmed a gang enhancement and substantive count and which said: The minor cites this courts [the Sixth Appellate Districts] opinion in Valdez for the proposition that the evidence of gang activity must be specific to a particular local street gang, not to the larger Norteo organization. In Valdez, one issue . . . was whether the court erred in permitting expert testimony concerning whether the defendants conduct was committed for the benefit of a criminal street gang. In that case, a group of individuals from a number of different Norteo cliques or gangs in San Jose came together one day and formed a caravan to attack Sureos. Given the expert testimony, [Valdez] stated, At the time it assembled, the caravan was not a criminal street gang within the meaning of the [gang] enhancement allegation. Moreover, their common identification as Norteos did not establish them as a street gang, for, as [the expert] testified, Norteo and Sureo are not the names of gangs. [Citation.] [Valdez] concluded that the expert testimony was admissible because it could help the jury understand that joint conduct by such a diverse group could benefit each of the gangs. [Citation.] Valdez does not hold that there is no criminal street gang called Norteo. Moreover, the expert testimony in Valdez was evidence in that case, not this one. It is irrelevant to our determination of whether there is substantial evidence to support the gang findings here. (Jose P., supra, 106 Cal.App.4th at p. 467.) Jose P. concluded substantial evidence supported the finding that the minor was an active participant in the Norteo criminal street gang. (Ibid.)

Additionally, in People v. Ortega (2006) 145 Cal.App.4th 1344, we recently rejected a defendants assertion that the prosecution had to prove which subset of the Norteo gang was involved in the crimes there at issue. (Id. at pp. 1356-1357.) No evidence indicated the goals and activities of a particular subset were not shared by others. (Ibid.) There was sufficient evidence that Norteo was a criminal street gang, the murder was related to activity of that gang, and the defendant actively participated in that gang. (Ibid.)

Here, there was sufficient evidence that Sureo is a criminal street gang, the drug offense was related to the activity of that gang, and Carrillo actively participated in that gang.

Thus, Carrillos ties to Los Angeles before he moved to Sacramento afford him no basis for reversal of the judgment.

In a footnote, Carrillo argues, [i]n the alternative that the trial court abused its discretion in denying a motion to limit the number of predicate acts proved under Evidence Code section 352. Carrillo says this issue involves the same considerations as bifurcation and therefore need not be repetitively discussed. To the extent the considerations are the same, our rejection of Carrillos argument regarding bifurcation also disposes of this new argument. To the extent the considerations differ, Carrillo has forfeited the contention by failing to brief it adequately under a separate heading, supported by authority. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.)

We conclude Carrillo fails to show grounds for reversal of the judgment based on the trial courts denial of bifurcation or severance.

III. Jury Instructions

Carrillo contends the trial court misinstructed the jury regarding the arming enhancements, lightening the prosecutions burden of proof and depriving defendant of his federal due process rights to a fair trial and to a jury determination on all facts punished. We see no basis for reversal.

Carrillo and Miller were both charged with enhancements for being personally armed ( 12022, subd. (c)) with respect to the drug offense in Count One and for a principal being armed ( 12022, subd. (a)(1)), with respect to the gang offense in Count Two.

With respect to the personal arming alleged in the Count One drug offense (an enhancement which the jury ultimately found not true with respect to Carrillo), the trial court instructed the jury pursuant to CALJIC No. 17.16.1 to determine whether the defendant was personally armed with a firearm at the time of the commission of the crime. [] The term armed with a firearm means knowingly to carry a firearm or have it available for offensive or defensive use.^[10]

With respect to a principal being armed as alleged in connection with the gang participation in Count Two (an enhancement which the jury found true), the trial court instructed the jury pursuant to CALJIC No. 17.15 to determine whether a principal in that crime was armed with a firearm at the time of the commission or attempted commission of the crime[]. . . . The term armed with a firearm means knowingly to carry a firearm or have it available for offensive or defensive use.

The gun was found under a mattress in the bedroom adjacent to the living room. When the detectives entered the house, Miller was standing just inside the bedroom doorway, and Carrillo was in the open adjacent bathroom. No fingerprints were found on the gun. Bullets were found in the living room.

Miller argued to the jury that she had no possession or control over the premises or the gun. Carrillo argued to the jury there was no evidence linking him to the gun or even showing he knew of its presence. As to the allegation that a principal was armed, Carrillo adopted Millers argument that there was no showing Miller knew of or possessed the gun.

During jury deliberations, the jury requested a readback of testimony of witness Parel-Filary RE HER TESTIMONY ABOUT THE BOX IN WHICH THE BULLETS WERE FOUND.

The jury found Carrillo guilty on both Count One (drug offense) and Count Two (gang offense). The jury found true the armed principal enhancement (Count Two) but found not true the personal armed enhancement (Count One) as to Carrillo.

Carrillo contends the trial courts instructions failed to require the jury to find the existence of a facilitative nexus and the absence of accident or coincidence between the arming enhancement and the underlying crime, as assertedly required by People v. Bland (1995) 10 Cal.4th 991 (Bland).^[11] Carrillo argues the court should have instructed the jury that, in order to prove the enhancement, the prosecutor was required to prove not only contemporaneous possession of illegal drugs and a gun but also evidence showing a nexus or link between the firearm and the drugs.

Even assuming Carrillo has not forfeited this contention by failing to request an instruction in the trial court, he fails to show grounds for reversal.

Bland, supra, 10 Cal.4th 991, held the trial court properly enhanced a defendants sentence for being armed with a firearm under section 12022, subdivision (a)(2), where the defendant was outside the house when the police found the gun under the defendants bed, in the same room where they found the drugs. Bland said drug possession is a crime that continues throughout the time the defendant has possession of the drugs, and the enhancement applies to a defendant who has been found guilty of drug possession and who, at some point during the illegal drug possession, had a gun available for use in furtherance of the drug offense. (Id. at p. 1001.)

Bland said: Of course, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being armed with a firearm in the commission of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs. The federal courts, in interpreting the federal counterpart to Californias weapons enhancement law [citation] have described this link as a facilitative nexus between the drugs and the gun. [Citation.] Under federal law, which imposes specified prison terms for using or carrying a firearm during and in relation to a crime of drug trafficking, the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence. [Citation.] So too in California.

. . . With respect to felony drug possession, a defendant is armed in the commission of that crime so long as the defendant had the firearm available for use in furtherance of the drug offense at some point during the defendants possession of the drugs. Thus, by specifying that the added penalty applies only if the defendant is armed with a firearm in the commission of the felony offense, section 12022 implicitly requires both that the arming take place during the underlying crime and that it have some facilitative nexus to that offense. Evidence that a firearm is kept in close proximity to illegal drugs satisfies this facilitative nexus requirement: a firearms presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for ready access to aid in the drug offense.

To summarize, when the prosecution has proved a charge of felony drug possession, and the evidence at trial shows that a firearm was found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer (1) that the defendant knew of the firearms presence, (2) that its presence together with the drugs was not accidental or coincidental, and (3) that, at some point during the period of illegal drug possession, the defendant was present with both the drugs and the firearm and thus that the firearm was available for the defendant to put to immediate use to aid in the drug possession. These reasonable inferences, if not refuted by defense evidence, are sufficient to warrant a determination that the defendant was armed with a firearm in the commission of a felony within the meaning of section 12022. (Bland, supra, 10 Cal.4th at pp. 1002-1003, fn. omitted.) Bland noted the facilitative nexus is not an intent requirement. (Id. at p. 1003, fn. 5.)

Carrillo cites case law that the failure to instruct on an element of an enhancement is federal constitutional error, requiring reversal unless it can be shown beyond a reasonable doubt that the error did not contribute to the verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-328 [failure to instruct on primary activities element of criminal street gang enhancement provision was subject to standard of Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705], because the enhancement increased the penalties for the underlying crimes].)

However, facilitative nexus is not an element of the enhancement. Even assuming it is and the Chapman standard applies, the absence of an instruction on facilitative nexus was harmless beyond a reasonable doubt. The only firearm enhancement found true by the jury with respect to Carrillo was that a principal was armed, not that he personally was armed. Thus, Carrillos asserted lack of knowledge of the gun or lack of purpose to avail himself of the gun are without consequence. The evidence was that a firearm was kept in close proximity to illegal drugs, and illegal drug activity was one of the purposes of the gang. The evidence indicated Carrillo and Miller were both involved in the drug activity which took place in the tiny shelter provided by Miller and furnished with a gun.

Carrillo argues that, as charged in Count Two (the active gang participation offense), the arming enhancement related not to possession of drugs, but to active participation in a gang. Carrillo complains the instructions provided no basis for the jury to determine when this active participation began, when it ended, and when it may have coincided with having a firearm available for use. Defendant argues the vicarious arming enhancement based on active participation in a gang is overly broad and vague. However, the drug offense was part of the gang participation. Thus, the jurors were instructed that, in order to find a principal was armed in Count Two (the active gang participation offense), they must determine whether a principal to that offense was armed at the time of the commission or attempted commission of the crime. The jurors were further instructed that in order to find Carrillo guilty of the gang offense in Count Two, they had to find, among other things, that he either directly and actively committed or aided and abetted other members of that gang in committing the crimes of possession of a controlled substance, possession for sale of a controlled substance, and felonious possession of a firearm by an ex-felon [sic]. Moreover, the evidence showed a drug sale was occurring when the detectives entered and seized the drugs and the gun.

Thus, we find unpersuasive and inconsequential Carrillos complaint that the instructions did not specify which of the two primary elements of the gang offense -- active participation or willful promotion -- was to be used to determine the temporal duration of the offense during which the arming had to have occurred.

Carrillo cites People v. Herrera (1999) 70 Cal.App.4th 1456 at pages 1467 through 1468, that the gang offense (the gravamen of which is participation in the gang itself) requires a separate intent and objective from the underlying felony committed on behalf of the gang. Carrillo argues that under one reading of the jury instructions, the culpable arming could have occurred at any time during his active participation in the gang, while under an alternative reading of the instructions the arming could have taken place during the time the drugs were being possessed and/or the time Miller was a felon in possession of a gun. However, Herrera merely held that section 654s prohibition against multiple punishment did not apply to a defendants conviction for gang participation and attempted murder because the gang offense had an element (intent to participate in and promote the gang) different from the attempted murder, and the evidence supported the finding that the defendant intended to aid his gang in felonious conduct, irrespective of his independent objective to murder. (Ibid.) Here, the circumstance that the gang offense required a separate intent (to participate in the gang) in addition to the intent required for possession of methamphetamine for sale does not render the instructions confusing.

We conclude Carrillo fails to show any reversible instructional error.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

HULL, J.

ROBIE , J.

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^[1]Undesignated statutory references are to the Penal Code.

^[2]Codefendant Alisha Miller is not a party to this appeal but filed a separate appeal (C051082).

^[3]Section 186.22, subdivision (a), provides: Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by im