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Yki J. Vallery v. T. Felker

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 4, 2011

YKI J. VALLERY, PETITIONER,
v.
T. FELKER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Dolly M. Gee United States District Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition, the Magistrate Judge's Report and Recommendation ("R&R"), the Objections to the R&R filed on February 25, 2011, and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge. Petitioner's objections are overruled.

In Ground Three, Petitioner argued there was insufficient evidence to support a gang enhancement pursuant to Cal. Penal Code § 186.22(b)(1). (R&R at 11.) The gravamen of Petitioner's argument was that the prosecution had failed to prove the predicate offenses required under the statute. (Id.) Petitioner now argues that there was insufficient evidence that he was an "active" member of a gang. (Objections at 10.) Petitioner's argument is without merit. People v. Bragg, 161 Cal. App. 4th 1385, 1402, 75 Cal. Rptr. 3d 200 (2008) ("[S]section 186.22 does not require that the defendant be an active member of the criminal street gang that benefits from his crime.").*fn1

Petitioner's argument that there was no evidence "of any offenses committed after September 1988, or within the requisite three-year window" is meritless. (Objections at 15.) Section 186.22(e) provides, in part, that a "'pattern of criminal gang activity' means the commission of, attempted commission of . . . two or more of [certain offenses], provided . . . the last of those offenses occurred within three years after a prior offense." The California Court of Appeal concluded that the two charged offenses, the murder of Ivy and the attempted murder of Herring, "satisfy the requirement of two or more predicate offenses." (Lodged Document 4 at 7 (citing to People v. Loeun, 17 Cal. 4th 1, 10, 69 Cal. Rptr. 2d 776 (1997)).) The two predicate offenses occurred within three years of each other.

Petitioner's remaining objections are without merit.

IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.


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