enabling that person to commit a felony), section 12022.6 (taking property in the commission of a felony of a certain value with the intent to cause such taking), section 12022.7 (intentional infliction of great bodily injury), or section 12022.9 (knowingly inflicting injury resulting in termination of a pregnancy), all of which are tried jointly with the underlying offense. (People v. Martin, supra, 23 Cal.App.4th at p. 81.)
However, proof of the mental state required for the gang enhancement frequently is shown by expert gang testimony that is unrelated to the underlying offense. Further, the mental state required for the criminal street gang enhancement is not an element of any substantive offense except participating in criminal street gang activity, an offense that was created by the STEP Act. (See § 186.22, subd. (a).) 4 Thus, the fact the criminal street gang enhancement involves a mental state held at the time the offense is committed does not appear to be a valid basis, without more, upon which to deny bifurcation in every instance. Because Martin’s rationale appears to be overbroad in this respect, Martin’s result appropriately is limited to its facts, a gang related shooting, that necessarily involved evidence of gang motivation.
d. Analogy to motions for severance a more practical model.
4 Section 186.22, subdivision (a), states: “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 imprisonment in the county jail . . . or . . . state prison . . . .”