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Name: People v. Vy
Case #: H025873
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/01/2004
Subsequent History: Revw. denied 1/19/05

The court did not err in permitted the jury to consider attempted murder as a predicate crime in determining the “primary activities” prong of a gang enhancement, and sufficient evidence supported the jury’s finding. The Court of Appeal concluded that three violent assaults by the defendant’s gang, including the attack on the victim in the instant case, constituted sufficient evidence that the commission of such predicate crimes was one of the primary activities of the gang within the meaning of Penal Code section 186.22, subdivision (f). The court further held that the trial court did not err in including attempted murder in the jury instructions explaining the predicate crimes the jury could consider in determining the primary activities of the gang. The defendant had argued that only the successful commission of one of the predicate crimes listed in section 186.22, subdivision (e), could properly be considered by the jury, because the statute did not specify that an attempt could qualify as a predicate offense. The court rejected this interpretation of the statute because it conflicted with clearly expressed legislative intent.