PEOPLE v. MARROQUIN

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Court of Appeal, First District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Miguel A. MARROQUIN, Defendant and Appellant.

No. A065808.

Decided: June 26, 1997

Cotsirilos & Campisano, Guy A. Campisano, Jr., under appointment by the Court of Appeal, San Francisco, for defendant and appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Stan M. Helfman, Violet M. Lee, Christopher W. Grove, Deputy Attorneys General, for plaintiff and respondent.

Defendant asserts the trial court erred by refusing judicial use immunity to a prospective defense witness, failing to admit evidence of that witness's prior statement to police, admitting evidence of his former codefendant's guilty plea and admissions, admitting evidence of a prosecution witness's prior statement to police, and sentencing him in violation of Penal Code section 654.   We reject these assertions.   Additionally, defendant claims his conviction for participation in a criminal street gang is barred by the double jeopardy clause.   He is correct, and his conviction on that count is reversed.

Statement of Facts

The North Side Posse (NSP), also known as 22d and Bryant, is a street gang that claims Bryant Street between 22d and 23d Streets in San Francisco as part of its territory.   The Folsom Street Posse (FSP), also known as 22d and Folsom, is a street gang that claims a nearby territory.

On the evening of April 7, 1993, defendant met with three other young men at a Taco Bell. Defendant knew one of them as a fellow FSP member, Rafael Garcia.   Defendant testified that he met the other two men for the first time that night and knew them only as “Dago” and “J.C.” After buying beer, defendant suggested they drive down Bryant between 22d and 23d to see what the NSP was doing.   Defendant testified that he was curious about the rival gang, because he had been away in prison.1  He claimed there was no plan to antagonize the NSP. As the four men drove north on Bryant in Dago's Honda, many members of the NSP were out on the street, also drinking beer.

The events that followed were described variously by several witnesses.   Most of the young men on either side of the conflict had been drinking heavily.   However, the assaultive conduct of that evening can be divided into four incidents.   Each was characterized differently by the rival groups.

The First Incident (Count II)

NSP Version

The occupants of the Honda were yelling insults out of the car, disparaging NSP and championing FSP. NSP members began shouting insults in reply.   The Honda stopped, and defendant emerged holding a pistol that he fired several times.   The witnesses were in conflict as to whether defendant fired the gun into the air or at NSP members.   Ariel Gutierrez testified that he retrieved a sawed-off shotgun from a nearby house when he saw defendant approach with the pistol.   He handed the shotgun to Walter Villanueva, who fired several times at defendant.

Villanueva did not testify.   Defendant successfully admitted a portion of Villanueva's prior statement through cross-examination of an officer.   As we shall discuss in greater detail below, Villanueva's entire statement was eventually admitted on the prosecutor's motion.   That statement related the facts as follows.   Villanueva obtained the shotgun only after he saw that a rival gang member was armed.   After that person, whom he could not identify, pointed the handgun at him, Villanueva tried to shoot but the shotgun would not fire.   Villanueva told police the rival gang member with the gun never fired:  “Yes, they were pointing it at me.   But they didn't fire.   I guess they didn't feel like shooting at me.”   When they saw that Villanueva had the shotgun, the FSP members got back into the Honda.   Villanueva then fired the shotgun twice.

FSP Version

Defendant testified he knew the NSP would be hostile toward him and might try to kill him when he went to Bryant Street.   However, he claimed he and his friends were only showing their presence to the NSP and did not intend to assault them.   Defendant contended no one in the car said anything to the rival gang members before they began throwing various objects at the car.   When Dago stopped the car, defendant and Garcia got out to confront the NSP members.   Defendant testified he was unarmed at that time.   According to defendant, when he emerged from the car, Villanueva fired two rounds at him from the sawed-off shotgun.   He believed Villanueva had obtained the shotgun from a blue car parked at the scene.   Defendant and Garcia got back in the Honda, and Dago sped away.   Garcia essentially corroborated defendant's version of this incident, confirming that neither he nor defendant possessed a weapon.   However, Garcia could not identify who fired the shotgun at them.

The Second Incident (Count III)

NSP Version

Approximately 45 minutes later, defendant and his companions returned to Bryant Street.   They attempted to sneak up on NSP members, using a family walking along the sidewalk as a shield.   Defendant then fired a handgun several times at fleeing NSP members.   Gutierrez testified that the shotgun had been returned to the house and no shots were fired by NSP members during this encounter.   Eventually, they chased defendant and his companions back to the Honda using bottles and sticks.   Villanueva corroborated Gutierrez's version in his statement to police, though he could not say which of the FSP members had the gun.

FSP Version

Defendant testified that between incidents they had returned to the Taco Bell and continued drinking.   He was angry about the shooting but returned to Bryant Street only to recover his jacket, which had fallen out of the car during the first incident.   Defendant again claimed he had no weapons other than beer cans, which he intended to throw at the NSP if necessary.   He also claimed he was not aware that any of his companions was armed.   To the contrary, Garcia testified that they discussed going back to Bryant Street in order to get even with the NSP, though he claimed they never discussed shooting anyone because he did not know anyone in the group had a gun.

Dago remained with the car around the corner, while defendant, Garcia, and J.C. approached the NSP on foot.   Defendant assumed his jacket was in the blue car from which the shotgun had been produced earlier, though he admitted he had not seen the jacket placed there.   Before they could reach the car, someone from the NSP fired the shotgun at them.   Defendant first became aware that one of his companions had a gun when J.C. returned fire.   Defendant and his companions ran back toward the waiting Honda, as the rival gang continued to fire shotgun blasts at them.

The Third Incident (Counts IV and V)

NSP Version

Approximately a half-hour later, defendant and his companions returned on foot.   Villanueva and others were getting into the blue car to drive home when defendant fired several shots at Villanueva, hitting him in the stomach.   Garcia opened the car door and kicked Villanueva.   Gutierrez retrieved his shotgun from the house and chased defendant and Garcia as they fled.   Gutierrez fired the shotgun several times at the rival gang members.

FSP Version

Defendant claimed it was only when they returned to the scene on this third occasion that he took the handgun from J.C. in order to protect himself.   As he approached the blue car in which Villanueva was now seated, defendant saw Villanueva reach down as if to get a weapon.   Defendant then fired several shots into the windshield of the car.   Defendant claimed he was merely attempting to retrieve his jacket and fired only in self-defense.   Defendant testified that J.C. opened the car door in order to look for the jacket.   Defendant and his companions then ran toward the corner where Dago was waiting in the Honda.   As they did so, another NSP member fired a shotgun at them.

The Fourth Incident (Counts VI and VII)

Both sides agreed that a fourth incident occurred and that shots were fired from the Honda.   However, there was a dispute over the timing and other circumstances of this incident.

NSP Version

Approximately five minutes after the third incident, defendant and his companions returned in the Honda.   The car drove rapidly down Bryant Street, with the lights off.   Defendant then fired several shots at a parked car against which Edwin Mejia, an NSP member, was leaning.   Mejia dropped to the ground and was uninjured.

FSP Version

According to defendant, the fourth incident followed the third immediately.   As they were running from the shotgun blasts of the third incident, Dago picked them up in the Honda.   The car drove rapidly down Bryant Street.   Someone from NSP continued to fire the shotgun at them, so defendant fired back with the handgun.   He testified he did not aim.   He was not trying to shoot anyone but only trying to protect himself.

Independent Witness

Joel Spiewak, who lives in the neighborhood, corroborated the NSP version of events, though he could not say who the shooters were.   Significantly, Spiewak contradicted defendant's version, confirming that there was a gap in time between the third and fourth incidents and that when the Honda first turned the corner it did so slowly.   Spiewak also testified that the car's headlights were not on.

Procedural History

Defendant and Rafael Garcia were jointly charged by indictment with conspiracy to commit both assault with a firearm and first degree murder (count I), negligent discharge of a firearm (count II), assault with a firearm on (counts III and VII) and attempted first degree murder of Edwin Mejia (count VI), and assault with a firearm on (count V) and attempted first degree murder of Walter Villanueva (count IV).   Each count included an enhancement alleging the promotion of gang activity (Pen.Code, § 186.22, subd. (b)), and each count, except the negligent discharge of a firearm, included an enhancement alleging firearm use.   Defendant alone was charged with possession of a firearm by a felon (count VIII), participation in a criminal street gang (count IX;  Pen.Code, § 186.22, subd. (a)), and a prior serious felony conviction.

Before the trial began, Garcia pled guilty to assault with a firearm and admitted the gang enhancement.   At trial, he was called as a witness by the prosecution and testified.   Ariel Gutierrez and Edwin Mejia testified for the prosecution under grants of immunity pursuant to Penal Code section 1324.   Walter Villanueva and Eluterio Ramos, another NSP member, both invoked their privilege against self-incrimination.   Defendant's request for judicial use immunity for Villanueva and Ramos was denied.

Defendant then sought to admit a transcript of a statement Ramos had given to police.   The court ruled the statement was inadmissible hearsay.   Ramos had given that statement in exchange for the reduction of perjury charges arising out of his testimony before the grand jury in this matter.   His attorney was present when the statement was given, and Ramos was told the statement would not be used against him.   According to the statement, Ramos essentially corroborated Gutierrez and Villanueva as to the first incident, except that Ramos claimed that none of the rival FSP members displayed a gun on the street at that time.   Ramos told police that, as the Honda fled from the first encounter, Garcia fired several shots from the car.   As to the second incident, Ramos corroborated that defendant snuck up on the NSP and fired several shots at them with a handgun.   Ramos added that defendant verbally threatened Villanueva in particular.   During the third incident, Ramos saw defendant shoot at Villanueva through the windshield of the blue car.   He then saw Garcia shoot at and kick Villanueva through the open car door.   Finally, Ramos corroborated the NSP version of the fourth incident, relating that the Honda returned to the scene after several minutes, with its lights off, and defendant fired at the crowd several times from the passenger seat.

Defendant stipulated that three earlier crimes were motivated by rivalry between the two gangs and as such constituted predicate crimes under Penal Code section 186.22, subdivision (e).   Defendant stipulated that he had been involved in two of these crimes.   On October 5, 1990, defendant stabbed Juan Sanchez, a member of NSP, and on November 25, 1990, defendant attempted to kill Sanchez by shooting him in the face.   Both actions were motivated by gang rivalry.   The third crime was a shooting of NSP members by FSP members on April 6, 1991.   Defendant stipulated to having knowledge of that crime.

On the first day of deliberations, the jury asked the court to clarify the relationship between the various counts and the four incidents.   The record contains no evidence of the court's direct response to the jury.   However, a note sent by the jury two days later indicates the court had attributed count III to the second incident.   In that note, the jury expressed confusion as to why there were two counts of assault on Edwin Mejia (counts III and VI), particularly when there was no evidence that Mejia was present during the second incident.   At this point, the record contains a written response from the court, indicating that count II applied to the first incident, count III to the second, counts IV and V to the third, and counts VI and VII to the fourth.   The court further indicated that counts I, VIII, and IX did not correspond to a specific incident.

Over the course of three days, the jury returned verdicts on each count.   They convicted defendant of two counts of negligent discharge of a firearm:  one as charged in count II, and a second as a lesser offense of the attempted first degree murder of Mejia charged in count VI. Additionally, the jury found defendant guilty of the attempted voluntary manslaughter of Villanueva (a lesser offense to attempted first degree murder charged in count IV), assault with a firearm on Villanueva (count V), possession of a firearm by a felon (count VIII), and participation in a criminal street gang (count IX).   The use-of-a-firearm allegations were found true as to counts IV, V, and VI. The jury rejected all the gang enhancement allegations.   Defendant was found not guilty of the conspiracy charged in count I and of the two counts of assault with a firearm on Mejia (counts III and VII).   Following a waiver of jury trial, the court found defendant's prior serious felony conviction true.

At sentencing, the court selected the attempted voluntary manslaughter of Villanueva as the principal offense and imposed an aggravated base term of five years and six months.   The court then imposed four consecutive eight-month sentences for the two counts of reckless discharge of a firearm, possession of a firearm by a felon, and participation in a criminal street gang.   The court stayed imposition of sentence for the assault with a firearm on Villanueva.   The court imposed one consecutive five-year term for use of a firearm and stayed sentencing on the remaining use clauses.   Finally, the court imposed five years for the prior serious felony conviction, for a total sentence of eighteen years and two months in prison.

Discussion

I.-IV.***

V. Conviction for Participating in a Criminal Street Gang

 Defendant was convicted in count IX of participating in a criminal street gang, a violation of Penal Code section 186.22, subdivision (a).   He argues correctly that, on the facts of this case, his conviction violates the double jeopardy clause of the Fifth Amendment to the United States Constitution.

As of April 7, 1993, Penal Code section 186.22,11 subdivision (a) read as follows:  “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 for a period not to exceed one year, or by imprisonment in the state prison for one, two, or three years.” 12

A “criminal street gang” is defined as “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (7), [ 13 ] inclusive, of subdivision (e), which has a common name or common identifying sign or symbol, whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.”  (Pen.Code, § 186.22, subd. (f).)

“Pattern of criminal gang activity” is defined as “the commission, attempted commission, or solicitation of two or more of the following offenses, provided at least one of those offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses are committed on separate occasions, or by two or more persons:  ․” A list of predicate offenses is then provided.  (Pen.Code, § 186.22, subd. (e).)

The phrase “willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang” (Pen.Code, § 186.22, subd. (a)) has been interpreted to mean that the defendant must be liable, at least as an aider or abettor, in the commission of a felony by a member of the gang.  (People v. Green (1991) 227 Cal.App.3d 692, 703-704, 278 Cal.Rptr. 140 (Green ).)

At trial, defendant stipulated that his brother, Francisco, would testify that the FSP was a criminal street gang of which he, defendant, and Garcia were members.14  Additionally, defendant stipulated that three crimes, as enumerated in Penal Code section 186.22, subdivision (e), had been committed by the FSP. Defendant participated in two of these crimes:  the October 5, 1990, stabbing of Juan Sanchez and the November 25, 1990, shooting and attempted murder of Sanchez.   Defendant had knowledge of the third crime:  the April 6, 1991, shooting of several NSP members.

As to counts I to VII, defendant was also charged with an enhancement under Penal Code section 186.22, subdivision (b), which reads in part:  “․ any person who is convicted of a felony which is committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished by an additional term of one, two, or three years at the court's discretion.”  (Id., subd. (b)(1).)15  The jury did not find any of the enhancement allegations true.

Defendant's stipulation established that he was a member of FSP, a criminal street gang, and that he had knowledge that its members engaged in a pattern of criminal activity.   The statute does not make gang membership alone a crime.   Active participation is required.   Defendant contends that, because the jury did not find the gang enhancements true, he must have been found guilty in count IX based upon his earlier criminal conduct and not upon any active participation.   In 1990, defendant was arrested for the shooting of Sanchez.   At his first trial for the shooting, the jury deadlocked on that charge.   However, they found him guilty of participating in a criminal street gang in violation of Penal Code section 186.22, subdivision (a).   In that case, the prosecutor argued that 10 separate incidents constituted the predicate offenses under the statute.16  Three of those incidents were the three predicate offenses to which defendant stipulated here.

 The same gang-related felony may be relied upon at different times in separate prosecutions as a predicate crime to establish a pattern of criminal activity under Penal Code section 186.22, subdivision (a).   However, to sustain separate convictions of that charge, defendant must have actively participated in the gang at both times.   Defendant argues that, because the jury found that none of the current offenses was gang related, there was no finding that he actively participated in the gang.   Consequently, his conviction in count IX could only have been attributable to his earlier gang participation, for which he has already been prosecuted and punished.   We agree.

 In order to support a conviction of violating Penal Code section 186.22, subdivision (a), there must be current active participation in a criminal street gang.   This requirement establishes a distinction between current active participation and active participation at some earlier time.   A defendant once convicted of participating in a criminal street gang may either continue that participation or end it.   If he no longer participates, he becomes inactive or only nominally associated with the group.   If, on the other hand, he continues that participation, he could be prosecuted again for participating in a criminal street gang.   In this second prosecution, the pattern of criminal activity that defines the gang may be established by the same predicate crimes relied on in the first prosecution, but his current active participation in the gang would have to be proven by evidence of some new gang-related conduct.   Otherwise, a defendant could be subjected to a series of prosecutions based upon the same predicate crimes and nothing more.   Additionally, the requirement of willful promotion, furtherance, or assistance also connotes current actions by the defendant, not merely actions taken sometime in the past.  “Current” would mean on or about the date alleged in the charging document.

In this case, the jury was essentially instructed in the language of the statute, set forth above.   The court then outlined the requisite elements of a violation of Penal Code section 186.22, subdivision (a):  “1. A person actively participated in a criminal street gang, [¶] 2. The members of such gang are engaged in or have engaged in a pattern of criminal gang activity, [¶] 3. That person had knowledge that the gang members engage in or have engaged in a pattern of criminal gang activity, [¶] 4. That person aided and abetted a member of that gang in committing the crimes of assault with a firearm, wrongful discharge of a firearm or attempted murder, and [¶] 5. That person with the specific intent to do so willfully promoted, furthered, or assisted in felonious criminal conduct by members of that gang.”

Even if we accept, as we must, that the jury found each of the requisite elements as set forth by the court, we cannot say these elements include an implicit finding that defendant's participation in the gang was current.   The fourth element of the instruction required the jury to find defendant aided and abetted a member of the gang in committing assault with a firearm, wrongful discharge of a firearm, or attempted murder.   As part of his stipulation, defendant admitted attempting to murder a rival gang member in 1990.   Thus, the jury could have found the fourth element based upon defendant's stipulation to an earlier offense.   The instructional deficiency coupled with the jury's failure to find the gang enhancement as to any of the current offenses suggests the jury did not find that defendant's participation in the gang was current.17

 The Attorney General argues, to the extent the jury's verdict of guilt in count IX is inconsistent with its failure to find any of the gang enhancements true, inconsistent verdicts or findings do not require reversal.  “The jury may have been convinced of guilt but arrived at an inconsistent acquittal or not true finding ‘through mistake, compromise, or lenity․’ ” (People v. Santamaria (1994) 8 Cal.4th 903, 911, 35 Cal.Rptr.2d 624, 884 P.2d 81, quoting United States v. Powell (1984) 469 U.S. 57, 65, 105 S.Ct. 471, 476, 83 L.Ed.2d 461.)   Generally, inconsistent verdicts will not be disturbed.   However, this case does not present irreconcilable verdicts the contrary nature of which can only be attributed to some measure of jury error, compromise, or lenity.   Here, the verdict in count IX is undermined by instructional deficiency.   That verdict and the not-true findings on the gang enhancements can be reconciled by the very real possibility that the jury misunderstood the fact they were required to find.   That misunderstanding is attributable to the court's instructions.   Consequently, the jury may well have convicted defendant in count IX based solely upon his earlier gang participation in violation of the principle of double jeopardy.

 The Attorney General contends that the instructions given needed no further elaboration because “active” is a commonly understood term, citing Green, supra, 227 Cal.App.3d at pages 699-700, 278 Cal.Rptr. 140.   However, upon closer examination, Green does not support the Attorney General's contention.   In Green, the court upheld Penal Code section 186.22, subdivision (a) against a challenge of unconstitutional vagueness.   Green argued that the term “actively participates” was “uncertain.”  (Green, supra, at p. 699, 278 Cal.Rptr. 140.)   In order to uphold the statute, the court construed that term in accordance with language found in Scales v. United States (1961) 367 U.S. 203, 223, 81 S.Ct. 1469, 1483, 6 L.Ed.2d 782 (Scales ).

In Scales, the Supreme Court considered the constitutionality of the Smith Act (18 U.S.C. § 2385) which, in part, criminalized membership in any organization advocating the violent overthrow of the federal government.  (367 U.S. at pp. 205, 219-230, 81 S.Ct. at pp. 1473-1474, 1481-1487.)   The Supreme Court approved the trial court's instruction to the jury that in order to convict Scales it must find that he was an “ ‘active’ ‘member of the Communist Party’ and not merely ‘a nominal, passive, inactive or purely technical’ ” ․ one.  (Id. at p. 220, 81 S.Ct. at p. 1481.) 18  The court held the instruction was adequate because “[t]he distinction between ‘active’ and ‘nominal’ membership is well understood in common parlance [citations]․”  (Id. at p. 223, 81 S.Ct. at p. 1483.)   Notably, the Scales court did not suggest that the distinction between the terms “active” and “current” was well understood in common parlance.

Drawing upon the instruction given by the trial court in Scales, the Green court concluded that in order to actively participate in a criminal street gang, a defendant's relationship must be “․ (1) more than nominal, passive, inactive or purely technical, and (2) the person must devote all, or a substantial part of his time and efforts to the criminal street gang.”  (227 Cal.App.3d at p. 700, 278 Cal.Rptr. 140.)   While the court in Green said that “active” was a term understood in common parlance, it went on to adopt a construction of “active” that involves a great deal more than the common understanding of that term.   The court set forth specific elements that must be proven if the statute is to survive constitutional scrutiny.   Thus, the Green court imposed a sua sponte duty to instruct the jury as to this constitutionally required definition of “active.”   Although the jury here was not so instructed, defendant has not raised this particular issue on appeal.   Instead, he argues that the jury should have been instructed that the active participation in a gang required for a violation of the statute must be current.   Even if the jury understood the term “active” in accord with the definition set forth in Green, on these facts, it is not clear that they would have understood “active” to mean “current” as well.

Here, the jury's potential confusion implicates the constitutional right against double jeopardy.   In that context, the word “active” takes on a specialized meaning which includes within it the sense of being current.   The court should have instructed the jury that they could not base a verdict in count IX only upon earlier offenses for which defendant had already been punished, i.e., that defendant's active participation in the gang must have been current.   In these circumstances, there is a reasonable likelihood that the jury misunderstood what they were required to find.  (People v. Kelly (1992) 1 Cal.4th 495, 525, 3 Cal.Rptr.2d 677, 822 P.2d 385.)

Count IX must be reversed.

VI. Penal Code Section 654†

Disposition

We reverse the judgment as to count IX, a conviction of participation in a criminal street gang under Penal Code section 186.22, subdivision (a).   The remainder of the judgment is affirmed.   We remand the matter for retrial on count IX and/or resentencing.

FOOTNOTES

1.   Defendant served a year and a half in prison for earlier gang-related crimes.   He was paroled in December 1992.

FOOTNOTE.   See footnote *, ante.

11.   Hereafter, we continue to reference the version of Penal Code section 186.22 in effect on the date of the offense (Stats.1991, ch. 661, § 2, p. 3039, operative Jan. 1, 1993).   We will note subsequent amendments that may be of interest to the reader.

12.   The prescribed range of punishment was amended to sixteen months, two or three years in 1994.  (Stats.1994, ch. 47, § 1, No. 3 West's Cal. Legis. Service, p. 305.)

13.   The list of enumerated offenses has since been expanded from seven to twenty-three.   The subsequent additions are not relevant here.

14.   The stipulation read in part:  “Number 3. On April 7th, 1993 the Folsom Street Posse was an ongoing association of three or more persons including Rafael Garcia, Francisco, [sic ] Marroquin and Miguel Marroquin.  [¶] Number 4. A primary purpose of the Folsom Street Posse has been the commission of activities enumerated in Penal Code section 186.22(e).”

15.   Amendments to this subdivision since 1993 are not relevant here.  (See Stats.1995, ch. 377, § 2, No. 6 West's Cal. Legis. Service, p. 1691;  Stats.1994, ch. 47, § 1, No. 3 West's Cal. Legis. Service, p. 305.)

16.   Defendant's second trial for the shooting also ended in a mistrial.   During the third trial, he pled guilty to an unrelated assault.   This unrelated assault was one of the ten predicate offenses supporting the first jury's verdict but not one of the three predicate offenses here.

17.   The Attorney General also notes that the jury was instructed on the meaning of the term “felonious criminal conduct,” used in Penal Code section 186.22, subdivision (a), as follows:  “Felonious criminal conduct includes those felonies charged in the indictment or any lesser included felonies on which you have been instructed.”  (Italics added.)   While this instruction permits the jury to find the requisite felonious criminal conduct based upon the charged offenses, it does not so require.

18.   The relevant instruction read in pertinent part:  “ ‘For his membership to be criminal, however, it is not sufficient that he be simply a member.   It must be more than a nominal, passive, inactive, or purely technical membership.   In determining whether he was an active or inactive member, consider how much of his time and efforts he devoted to the [Communist] Party.   To be active he must have devoted all, or a substantial part, of his time and efforts to the Party.’ ”  (Scales, supra, 367 U.S. at p. 255, fn. 29, 81 S.Ct. at p. 1499, fn. 29.)

FOOTNOTE.  FN††<

CORRIGAN, Acting Presiding Justice.

PARRILLI and WALKER, JJ., concur.

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