Yes, if the case includes a covered gang allegation. Penal Code section 1109(a) requires a defense request to separate a charged gang enhancement under section 186.22(b) or (d): the factfinder decides the underlying offense first, and reaches the enhancement only after a guilty finding on that offense. Section 1109(b) separately requires a section 186.22(a) participation count to be tried apart from other counts that do not require gang evidence as an element; it does not state the same defense-request condition. Confirm the exact subsection in the charging document; the statute does not automatically cover every gang-related allegation. (Penal Code § 1109; Penal Code § 186.22)
What the phases separate
For a covered enhancement, the underlying guilt decision comes first. If the jury does not find guilt on the underlying offense, it does not proceed to decide that enhancement. For a section 186.22(a) count, the statute provides a separate phase from other counts that do not require gang evidence as an element; the participation count may be tried with the enhancement phase. This is a sequencing rule, not a guarantee that all gang evidence stays out of the guilt phase. (Penal Code § 1109)
Gang evidence may still be offered for a purpose tied to the underlying charge, such as identity or motive. The court evaluates that evidence separately under the applicable rules. Evidence Code section 352 permits exclusion when probative value is substantially outweighed by undue prejudice, confusion, misleading the jury, or undue consumption of time; section 1101 addresses when other-act evidence may be used for a noncharacter purpose. Ask counsel to identify the evidence, the prosecution’s stated purpose, and any requested limiting instruction. Bifurcation alone does not decide admissibility. (Evidence Code § 352; Evidence Code § 1101)
What to review with counsel
Compare the information or indictment, the charged section 186.22 subsection, the proposed gang evidence, and the current trial schedule. Make a clear request before the first phase is tried and keep the ruling in the record. A section 1109 request is different from severing unrelated charges or codefendants under Penal Code section 954, and it does not automatically apply to a gang-murder special circumstance under section 190.2. The California Supreme Court has also held that section 1109 does not apply retroactively to trials completed before it took effect. (Penal Code § 954; Penal Code § 190.2; People v. Burgos)
For help evaluating a gang allegation in a California trial, contact the Law Offices of David S. Chesley at (800) 755-5174.