Does Section 186.22(b)(1) of the California Criminal Code criminalize active membership of an organization that advocates the overthrow of the federal government by force or violence?

We also reject the argument, advanced by all three defendants, that the constitutional requirement of personal guilt would compel the inclusion in the enhancement of a specific intent to aid the gang. The claim is specious. The enhancement set forth in section 186.22(b)(1) does not risk conviction for mere nominal or passive involvement with a gang. Indeed, it does not

[51 Cal.4th 68]

depend on membership in a gang at all. Rather, it applies when a defendant has personally committed a gang-related felony with the specific intent to aid members of that gang. Defendants cite no authority to suggest that this would run afoul of Scales v. United States, supra, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782, which upheld a statute criminalizing active membership in an organization that advocates the overthrow of the federal government by force or violence even in the absence of a specific act of criminality. ( Id. at p. 225, 81 S.Ct. 1469; cf. People v. Gardeley, supra, 14 Cal.4th at pp. 623-624, 59 Cal.Rptr.2d 356, 927 P.2d 713.)

[51 Cal.4th 68]