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Name: People v. Vo
Case #: C034960
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 08/14/2003
Subsequent History: Rev. granted 7/27/05: S134173

The trial court erred in instructing on the “predicate offense” element of a criminal street gang enhancement (Pen. Code, sec. 186.22, subd.(b)(1)) because it allowed the jury to find a pattern of criminal gang activity based on the commission of only one offense by multiple participants. Under People v. Zermeno (1999) 21 Cal.4th 927, proof of a single crime established only one predicate offense, no matter how many aiders and abettors may assist the perpetrator in committing the crime and the statute requires two predicate offenses. However, the error was harmless under both the Watson and Chapman standards, because the jury convicted both codefendants of committing two different crimes during the incident (the murder of one victim and an assault on another), and thus two predicate offenses were established. In this pre-Proposition 21 case, when a defendant is convicted of a felony punishable by imprisonment for life (e.g., murder), an additional determinate term of imprisonment cannot be imposed as a gang enhancement under Penal Code section 186.22, subdivision (b)(1). Instead, the defendant is subject to a minimum term of 15 years under former subdivision (b)(4). Penal Code section 12022.53, subdivisions (d) permits an additional and consecutive term of 25 years to life for personal discharge of a firearm causing great bodily injury to be added to a sentence of life without possibility of parole.