NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

CORNELL, J.

A jury convicted appellant Maximino Camacho Acosta of several felonies, including residential robbery, and found a Penal Code section 186.221 gang enhancement true. He challenges his convictions on the grounds that insufficient evidence supported the gang enhancement, and the trial court erred in admitting evidence and refusing to bifurcate the trial on the gang enhancement. We reject all of Acosta's contentions and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On January 12, 2008, Jose Martinez was at Elizabeth Gonzales's apartment, along with several other friends. At one point, Elizabeth's cousin, Carlos Gonzales (hereafter Gonzales), arrived at the apartment. Gonzales asked Martinez where he was from and then left. Shortly after leaving, Gonzales returned with Acosta; both men had guns. Gonzales held a gun to Martinez's head and told him to empty his pockets. Martinez complied and handed over an MP3 player. Another man in the apartment, Eduardo Vidales, also was told to empty his pockets.

During the robbery, the women in the apartment were trying to get Acosta and Gonzales to stop what they were doing and leave. The women also sat on top of Martinez and Vidales, trying to protect them. One woman said she was going to call the police; another, Rosalinda Duarte, ran outside to call her brother. Duarte recovered the MP3 player before Gonzales and Acosta left; the two men went to another apartment in the complex.

Fresno Police Officer Daniel Gonzalez responded to the scene. The officer received information that Gonzales and Acosta were hiding in another apartment and a perimeter was established around the apartment. The officer looked into a window of the apartment, saw the two men, and observed Gonzales holding a semiautomatic weapon. After about an hour, officers began using a public address system to ask Acosta and Gonzales to exit the apartment. After several hours Acosta and Gonzales exited the apartment and were taken into custody.

Detective Leo Martinez also was at the scene. The detective spoke to Duarte, who told him that Acosta had a "long gun with a brown handle" and Gonzales had a ".45." After Acosta and Gonzales were taken into custody, the detective took part in a search of the apartment. During the search, officers recovered a handgun and a sawed-off shotgun.

Officer Michael White took statements from several witnesses, including Duarte, Vidales, and Martinez. Duarte told White that Acosta and Gonzales were the two men who had committed the robbery. Duarte stated that when Acosta and Gonzales got to the apartment, they went up to Vidales and Martinez and threatened them, demanded they empty their pockets, and then went back to their own apartment. Duarte said both Acosta and Gonzlez had guns and that she heard them ask Martinez and Vidales "where they were from, and if they claimed anything or anyone." Vidales and Martinez were scared and nervous but corroborated Duarte's description of events.

Acosta was charged with first degree residential robbery, attempted first degree residential robbery, first degree residential burglary, possession of a firearm by a felon, and street terrorism. Enhancements also were alleged, including personal use of a firearm and that the offenses were committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Acosta pled not guilty to all counts and denied all enhancements. The parties stipulated that Acosta had a prior felony conviction.

Detective Anthony Gates testified as an expert on gangs in Fresno County. He testified that the Bulldogs were an "active criminal street gang" and that their primary activities included murder, assault, robbery, carjacking, car thefts, witness intimidation, and drug sales. Gates opined that Acosta and Gonzales were validated members of the Bulldog gang. He based this opinion on their tattoos, that they both had been arrested with other known gang members, and that they both had admitted being members of the Bulldog gang.

Gates further testified that the offenses committed by Acosta would bolster his individual reputation based upon his willingness to commit a crime and help his fellow gang member. Gates was of the opinion the Bulldog gang as a whole would benefit from the offenses for the same reasons.

Shelly Williams, the mother of one of Acosta's friends, testified for Acosta. Williams admitted her son was a Bulldog gang member and that she knew Acosta was a part of the gang. Williams claimed Acosta had been at her home until shortly before the robbery took place and that he left her home on foot. An investigator for defense counsel testified that the distance between Williams's home and the apartment where the robbery occurred was between 1.7 and 2.1 miles.

The jury convicted Acosta on all counts, except the burglary charge, and found all enhancements true. The trial court sentenced Acosta to a term of 24 years in state prison.

DISCUSSION

Acosta raises three issues in this appeal. He contends the trial court erred in allowing White to testify regarding the statement he took from Duarte. Acosta also claims the evidence was insufficient to support the gang enhancement. Lastly, Acosta contends the trial court erred in denying his motion to bifurcate the trial on the gang enhancement.

I. Admissibility of Statement

Acosta contends it was improper for the trial court to permit White to testify that Duarte had told him Acosta and Gonzales asked the victims, "where they were from, and if they claimed anything or anyone." We disagree. The trial court properly admitted the statement as a prior inconsistent statement.

When Duarte was called to testify at trial, she acknowledged being "scared," and she repeatedly responded that she could not remember when asked about the robbery. Duarte claimed she could not remember (1) the guns, (2) if Acosta and Gonzales said anything to the victims, (3) if the two men took anything from the victims, and (4) telling police Acosta and Gonzales threatened to shoot the victims if they failed to comply. Moreover, Duarte claimed at trial that she left the apartment immediately after Acosta and Gonzales entered.

Duarte's testimony was either evasive or an absence of recollection in that she claimed she was unable to recall anything about the robbery. It also was inconsistent with her prior statement to White in which she described what transpired during the robbery.

The California Supreme Court has held that "testimony may be considered inconsistent with prior statements when it reflects absence of recollection or evasiveness. [Citations.]" (People v. Dykes (2009) 46 Cal.4th 731, 758.) Duarte's testimony clearly falls within the category of evasive or absence of recollection, as well as directly inconsistent with her prior statement.

The Evidence Code permits prior inconsistent statements to be admitted into evidence if the witness is given an opportunity to explain or deny the prior statement or if the witness has not been excused from giving further testimony in the case. (Evid. Code, §§ 770, 1235.) Here, Duarte repeatedly was asked about statements she made to officers at the time of the robbery on direct examination; she claimed she could not remember. On cross-examination she offered the testimony that she left the apartment within "two seconds" of Acosta and Gonzales's entering. At the conclusion of her testimony, the trial court told Duarte she was "subject to recall until the conclusion of the trial." The requirements of Evidence Code sections 770 and 1235 were met.

The trial court did not err in permitting White to testify regarding the prior inconsistent statements made by Duarte to law enforcement. (People v. Sapp (2003) 31 Cal.4th 240, 296; People v. Green (1971) 3 Cal.3d 981, 988.)

II. Sufficiency of the Evidence

Acosta contends the evidence was insufficient to support the true finding on the gang enhancement in that the evidence failed to establish the crimes were committed for the "`benefit of, at the direction of, or in association with any criminal street gang'" or that he harbored the requisite intent to "promote, further, or assist in any criminal conduct" by the gang. He is mistaken.

Standard of Review

In reviewing the sufficiency of the evidence, we view the evidence in a light most favorable to the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Augborne (2002) 104 Cal.App.4th 362, 371 [standard of review of sufficiency of the evidence applies to criminal street gang enhancement].) We discard evidence that does not support the judgment as having been rejected by the trier of fact for lack of sufficient verity. (People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) We have no power on appeal to reweigh the evidence or judge the credibility of witnesses. (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) We must affirm if we determine that any rational trier of fact could find the elements of the crime or enhancement beyond a reasonable doubt. (Johnson, at p. 578.)

Analysis

The criminal street gang enhancement of section 186.22, subdivision (b)(1) applies if the crime for which the defendant was convicted was "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."

The first prong of Acosta's attack on the gang enhancement is that the evidence failed to establish the crimes were committed in association with any criminal street gang. This element of the enhancement may be satisfied if the evidence establishes that the defendant intended to commit the crime in association with other gang members. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198 (Morales) [jury may "reasonably infer the requisite association from the very fact that defendant committed the charged crimes in association with fellow gang members"].) "[O]ne gang member would choose to commit a crime in association with other gang members because he could count on their loyalty." (Id. at p. 1197.)

The California Supreme Court recently issued People v. Albillar (2010) 51 Cal.4th 47 (Albillar), addressing the section 186.22, subdivision (b) gang enhancement. In Albillar, the defendants sexually assaulted the victim inside an apartment; the three gang members who committed the crimes were related to each other. (Albillar, at p. 51.) There was no gang graffiti left in the apartment and no throwing of gang signs. (Id. at pp. 51-53.)

The California Supreme Court concluded the evidence was sufficient to support a finding that the crimes were committed in association with the gang: "Defendants not only actively assisted each other in committing these crimes, but their common gang membership ensured that they could rely on each other's cooperation in committing these crimes and that they would benefit from committing them together." (Albillar, supra, 51 Cal.4th at pp. 61-61.) By committing crimes together, gang members increase their status among those participating in the crimes and among the entire gang. (Id. at p. 61.)

Here, Acosta committed the crimes in association with a fellow gang member, Gonzales. Both men had Bulldog gang tattoos and both men were acknowledged members of the Bulldog gang. Consequently, Acosta committed the crimes in association with a criminal street gang. (Albillar, supra, 51 Cal.4th at pp. 61-62; Morales, supra, 112 Cal.App.4th at pp. 1197-1198.)

The second prong of Acosta's attack on the gang enhancement is that the evidence failed to establish he had the requisite intent to promote or assist in criminal conduct by the gang. "[S]pecific intent to benefit the gang is not required. What is required is the `specific intent to promote, further, or assist in any criminal conduct by gang members ...." (Morales, supra, 112 Cal.App.4th at p. 1198.)

Acosta entered the apartment with another known gang member, Gonzales; both men carried guns; both men then proceeded in concert to rob or attempt to rob Martinez and Vidales. The specific intent to promote, further, or assist in any criminal conduct by gang members is satisfied when there is an intent to assist in committing the current offenses, not just other criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at pp. 64-65.)

When it is demonstrated that a gang member intended to commit the current offenses, intended to commit them in association with another person, and knew the other person to be a member of his gang, then the specific intent requirement of section 186.22, subdivision (b)(1) has been met. (People v. Villalobos (2006) 145 Cal.App.4th 310, 322.) As the court stated in Albillar, the specific intent requirement "is unambiguous and applies to any criminal conduct, without a further requirement that the conduct be `apart from' the criminal conduct underlying the offense of conviction sought to be enhanced." (Albillar, supra, 51 Cal.4th at p. 66.)

Acosta's case is similar to People v. Zepeda (2001) 87 Cal.App.4th 1183 where the defendant asked the victim "`where are you from'" before shooting the victim. (Id. at p. 1190.) Expert testimony then established that the question typically was used to establish gang affiliation; attacking the victim would enhance the reputation of the defendant's gang and provide a motive for the crime. (Id. at pp. 1207-1208.)

Conclusion

The substantial evidence standard of review applies to the section 186.22 gang enhancement. (People v. Maury (2003) 30 Cal.4th 342, 396.) Gonzales inquired of the victims if they had any gang affiliation; Acosta and Gonzales were admitted Bulldog gang members, with visible gang tattoos, and Acosta committed the crimes with a fellow Bulldog gang member, Gonzales. These facts provided substantial evidence from which a reasonable jury could render a true finding on the section 186.22, subdivision (b)(1) gang enhancement. (Albillar, supra, 51 Cal.4th at p. 68.)

III. Bifurcation of Gang Enhancement

Prior to the start of the trial, Acosta moved to bifurcate the trial of the gang enhancement from the substantive offenses. The trial court denied the motion. Acosta contends the trial court erred in denying the motion. We disagree.

Standard of Review

The denial of a motion to bifurcate the trial of a gang enhancement is reviewed for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) Even if some of the evidence offered to prove a gang enhancement would be inadmissible at a trial of the substantive offense, a trial court may still properly deny bifurcation. (Id. at p. 1050.)

Analysis

Gang evidence may be relevant to establish "identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (Hernandez, supra, 33 Cal.4th at p. 1049.) Under these circumstances, a gang enhancement is inextricably intertwined with the substantive offense and bifurcation would not be necessary. (Id. at pp. 1048-1050.)

In this case, gang evidence was inextricably intertwined with the substantive offenses. The evidence clearly was relevant to the substantive crime to establish motive, modus operandi, and identity. Acosta and Gonzales questioned the victims on whether they claimed any affiliation and acted to rob the victims after receiving a response indicating the victims were not members of the Bulldog gang. This evidence permeated the preliminary hearing. Acosta was identified by his visible gang tattoos, including a Bulldog on his forehead. Acosta committed the crime in conjunction with another person with identifiable Bulldog tattoos, a method of operating that is consistent with gang membership.

Here, the trial court noted for the record that it had reviewed the Hernandez case and was exercising its discretion not to sever the gang enhancement from the trial of the substantive offenses. As the trial court noted, Acosta himself injected his gang status into the substantive offense by identifying himself as a gang member, asking the victims if they claimed any affiliation, and then demanding money or goods when the victims acknowledged they were not Bulldog gang members.

Under these facts, we conclude the court acted within its discretion in refusing to bifurcate trial of the gang enhancement from trial of the charged offenses. (Hernandez, supra, 33 Cal.4th at p. 1050.)

DISPOSITION

The judgment is affirmed.

WE CONCUR:

WISEMAN, Acting P.J.

LEVY, J.