California Criminal Jury Instructions (CALCRIM) (2017)

2542. Carrying Firearm: Active Participant in Criminal Street Gang

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2542.Carrying Firearm: Active Participant in Criminal Street
Gang (Pen. Code, §§ 25400(c)(3), 25850(c)(3))
If you find the defendant guilty of unlawfully (carrying a concealed
firearm (on (his/her) person/within a vehicle)[,]/ causing a firearm to be
carried concealed within a vehicle[,]/ [or] carrying a loaded firearm)
[under Count[s] ], you must then decide whether the People have
proved the additional allegation that the defendant was an active
participant in a criminal street gang.
To prove this allegation, the People must prove that:
1. When the defendant (carried the firearm/ [or] caused the firearm
to be carried concealed in a vehicle), the defendant was an active
participant in a criminal street gang;
2. When the defendant participated in the gang, (he/she) knew that
members of the gang engage in or have engaged in a pattern of
criminal gang activity;
AND
3. The defendant willfully assisted, furthered, or promoted
felonious criminal conduct by members of the gang either by:
a. Directly and actively committing a felony offense;
a. OR
b. aiding and abetting a felony offense.
At least two members of that same gang must have participated in
committing the felony offense. The defendant may count as one of those
members if you find that the defendant was a member of the gang.
Active participation means involvement with a criminal street gang in a
way that is more than passive or in name only.
[The People do not have to prove that the defendant devoted all or a
substantial part of (his/her) time or efforts to the gang, or that (he/she)
was an actual member of the gang.]
Acriminal street gang is any ongoing organization, association, or group
of three or more persons, whether formal or informal:
1. That has a common name or common identifying sign or
symbol;
2. That has, as one or more of its primary activities, the
commission of <insert one or more crimes listed in
Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>;
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AND
3. Whose members, whether acting alone or together, engage in or
have engaged in a pattern of criminal gang activity.
In order to qualify as a primary activity, the crime must be one of the
group’s chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of the
group.
<Give this paragraph only when the conduct that establishes the primary
activity, i.e., predicate offenses, has not resulted in a conviction or sustained
juvenile petition.>
[To decide whether the organization, association, or group has, as one of
its primary activities, the commission of <insert felony or
felonies from Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>, please refer to
the separate instructions that I (will give/have given) you on (that/those)
crime[s].]
Apattern of criminal gang activity, as used here, means:
1. [The] (commission of[,]/ [or] attempted commission of[,]/ [or]
conspiracy to commit[,]/ [or] solicitation to commit[,]/ [or]
conviction of[,]/ [or] (Having/having) a juvenile petition sustained
for commission of)
<Give Alternative 1A if the crime or crimes are in Pen. Code,
§ 186.22(e)(1)–(25), (31)–(33).>
1A. (any combination of two or more of the following crimes/[,][or]
two or more occurrences of [one or more of the following
crimes]:) <insert one or more crimes listed in Pen.
Code, § 186.22(e)(1)–(25), (31)–(33)>;
[OR]
<Give Alternative 1B if one or more of the crimes are in Pen. Code,
§ 186.22(e)(26)–(30).>
1B. [at least one of the following crimes:] <insert one or
more crimes from Pen. Code, § 186.22(e)(1)–(25), (31)–(33)>
AND
1. [at least one of the following crimes:] <insert one or
more crimes in Pen. Code, § 186.22(e)(26)–(30)>;
2. At least one of those crimes was committed after September 26,
1988;
3. The most recent crime occurred within three years of one of the
earlier crimes;
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AND
4. The crimes were committed on separate occasions or were
personally committed by two or more persons.
<Give this paragraph only when the conduct that establishes the primary
activity, i.e., predicate offenses, has not resulted in a conviction or sustained
juvenile petition.>
[To decide whether a member of the gang [or the defendant] committed
<insert felony or felonies from Pen. Code,
§ 186.22(e)(1)–(33)>, please refer to the separate instructions that I (will
give/have given) you on (that/those) crime[s].]
[If you find the defendant guilty of a crime in this case, you may
consider that crime in deciding whether one of the group’s primary
activities was commission of that crime and whether a pattern of
criminal gang activity has been proved.]
[You may not find that there was a pattern of criminal gang activity
unless all of you agree that two or more crimes that satisfy these
requirements were committed, but you do not have to all agree on
which crimes were committed.]
As the term is used here, a willful act is one done willingly or on
purpose.
Felonious criminal conduct means committing or attempting to commit
[any of] the following crime[s]: <insert felony or felonies by
gang members that the defendant is alleged to have furthered, assisted, or
promoted>.
To decide whether a member of the gang [or the defendant] committed
<insert felony or felonies listed immediately above and crimes
from Pen. Code, § 186.22(e)(1)–(33) inserted in definition of pattern of
criminal gang activity>, please refer to the separate instructions that I
(will give/have given) you on (that/those) crime[s].
To prove that the defendant aided and abetted felonious criminal
conduct by a member of the gang, the People must prove that:
1. A member of the gang committed the crime;
2. The defendant knew that the gang member intended to commit
the crime;
3. Before or during the commission of the crime, the defendant
intended to aid and abet the gang member in committing the
crime;
AND
4. The defendant’s words or conduct did in fact aid and abet the
commission of the crime.
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Someone aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.
[If all of these requirements are proved, the defendant does not need to
actually have been present when the crime was committed to be guilty
as an aider and abettor.]
[If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining
whether the defendant was an aider and abettor. However, the fact that
a person is present at the scene of a crime or fails to prevent the crime
does not, by itself, make him or her an aider and abettor.]
[A person who aids and abets a crime is not guilty of that crime if he or
she withdraws before the crime is committed. To withdraw, a person
must do two things:
1. He or she must notify everyone else he or she knows is involved
in the commission of the crime that he or she is no longer
participating. The notification must be made early enough to
prevent the commission of the crime;
AND
2. He or she must do everything reasonably within his or her
power to prevent the crime from being committed. He or she
does not have to actually prevent the crime.
The People have the burden of proving beyond a reasonable doubt that
the defendant did not withdraw. If the People have not met this burden,
you may not find the defendant guilty under an aiding and abetting
theory.]
The People have the burden of proving this allegation beyond a
reasonable doubt. If the People have not met this burden, you must find
this allegation has not been proved.
New January 2006; Revised August 2006, June 2007, December 2008, February
2012, August 2013, February 2014, February 2016
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the sentencing factor. (People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [109
Cal.Rptr.2d 851, 27 P.3d 739]; People v. Robles (2000) 23 Cal.4th 1106, 1115 [99
Cal.Rptr.2d 120, 5 P.3d 176] [now-repealed Pen. Code, § 12031(a)(2)(C)
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incorporates entire substantive gang offense defined in section 186.22(a)]; see
Apprendi v. New Jersey (2000) 530 U.S. 466, 475–476, 490 [120 S.Ct. 2348, 147
L.Ed.2d 435].)
Give this instruction if the defendant is charged under Penal Code section
25400(c)(3) or 25850(c)(3) and the defendant does not stipulate to being an active
gang participant. (People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d
690].) This instruction must be given with the appropriate instruction defining the
elements of carrying a concealed firearm, CALCRIM No. 2520, 2521, or 2522,
carrying a loaded firearm, CALCRIM No. 2530. The court must provide the jury
with a verdict form on which the jury will indicate if the sentencing factor has
been proved.
If the defendant does stipulate that he or she is an active gang participant, this
instruction should not be given and that information should not be disclosed to the
jury. (See People v. Hall, supra, 67 Cal.App.4th at p. 135.)
In element 2 of the paragraph defining a “criminal street gang,” insert one or more
of the crimes listed in Penal Code section 186.22(e)(1)–(25), (31)–(33) that are
alleged to be the primary activities of the gang. (See People v. Sengpadychith,
supra, 26 Cal.4th at pp. 316, 323–324.)
In element 1A of the paragraph defining a “pattern of criminal gang activity,” insert
one or more of the crimes listed in Penal Code section 186.22(e) that have been
committed, attempted, or solicited two or more times (See In re Nathaniel C.
(1991) 228 Cal.App.3d 990, 1002–1003 [279 Cal.Rptr. 236] [two instances of same
offense, or single incident with multiple participants committing one or more
specified offenses, are sufficient]) if the alleged crime or crimes are listed in Penal
Code section 186.22(e)(1)–(25), (31)–(33). Give on request the bracketed phrase
“any combination of” if two or more different crimes are inserted in the blank. If
one or more of the alleged crimes are listed in Penal Code section
186.22(e)(26)–(30), give element 1B and insert that crime or crimes and one or
more of the crimes listed in Penal Code section 186.22(e)(1)–(25), (31)–(33). (See
Pen. Code, § 186.22(j) [“A pattern of gang activity cannot be established solely by
proof of commission of offenses enumerated in paragraphs (26) to (30), inclusive,
of subdivision (e), alone.”].)
In the definition of “felonious criminal conduct,” insert the felony or felonies the
defendant allegedly aided and abetted. (See People v. Green (1991) 227 Cal.App.3d
692, 704 [278 Cal.Rptr. 140].)
The court should also give the appropriate instructions defining the elements of all
crimes inserted in the definition of “criminal street gang,” “pattern of criminal gang
activity,” or “felonious criminal conduct.”
Note that a defendant’s misdemeanor conduct in the charged case, which is
elevated to a felony by operation of Penal Code section 186.22(a), is not sufficient
to satisfy the felonious criminal conduct requirement of an active gang participation
offense charged under subdivision (a) of section 186.22 or of active gang
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participation charged as an element of felony firearm charges under sections
25400(c)(3) or 25850(c)(3). People v. Lamas (2007) 42 Cal.4th 516, 524 [67
Cal.Rptr.3d 179, 169 P.3d 102].
On request, give the bracketed paragraph that begins with “The People do not need
to prove that the defendant devoted all or a substantial part of . . . .” (See Pen.
Code, § 186.22(i).)
On request, give the bracketed paragraph that begins with “If you find the
defendant guilty of a crime in this case.” (People v. Sengpadychith,supra, 26
Cal.4th at pp. 322–323; People v. Duran (2002) 97 Cal.App.4th 1448, 1464–1465
[119 Cal.Rptr.2d 272].)
On request, give the bracketed paragraph that begins with “You may not find that
there was a pattern of criminal gang activity.” (People v. Funes (1994) 23
Cal.App.4th 1506, 1527–1528 [28 Cal.Rptr.2d 758]; see also Related Issues section
to CALCRIM No. 1400, Active Participation in Criminal Street Gang.)
On request, the court must give a limiting instruction on the gang evidence.
(People v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052 [16 Cal.Rptr.3d 880, 94
P.3d 1080].) If requested, give CALCRIM No. 1403, Limited Purpose of Evidence
of Gang Activity.
Defenses—Instructional Duty
If there is evidence that the defendant was merely present at the scene or only had
knowledge that a crime was being committed, the court has a sua sponte duty to
give the bracketed paragraph that begins with “If you conclude that defendant was
present.” (People v. Boyd (1990) 222 Cal.App.3d 541, 557, fn. 14 [271 Cal.Rptr.
738]; In re Michael T. (1978) 84 Cal.App.3d 907, 911 [149 Cal.Rptr. 87].)
If there is sufficient evidence that the defendant withdrew, the court has a sua
sponte duty to give the final bracketed section on the defense of withdrawal.
Related Instructions
CALCRIM No. 1400, Active Participation in Criminal Street Gang.
CALCRIM No. 1401, Felony or Misdemeanor Committed for Benefit of Criminal
Street Gang (Pen. Code, § 186.22(b)(1) (Felony) and § 186.22(d) (Felony or
Misdemeanor)).
For additional instructions relating to liability as an aider and abettor, see series
400, Aiding and Abetting.
AUTHORITY
• Factors. Pen. Code, §§ 25400(c)(3), 25850(c)(3). Sentencing Factors, Not
Elements People v. Hall (1998) 67 Cal.App.4th 128, 135 [79 Cal.Rptr.2d 690].
• Elements of Gang Factor. Pen. Code, § 186.22(a); People v. Robles (2000) 23
Cal.4th 1106, 1115 [99 Cal.Rptr.2d 120, 5 P.3d 176].
• Active Participation Defined. Pen. Code, § 186.22(i); People v. Salcido (2007)
149 Cal.App.4th 356 [56 Cal.Rptr.3d 912]; People v. Castenada (2000) 23
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Cal.4th 743, 747 [97 Cal.Rptr.2d 906, 3 P.3d 278].
• Criminal Street Gang Defined. Pen. Code, § 186.22(f); see People v. Duran,
supra, 97 Cal.App.4th at pp. 1464–1465.
• Pattern of Criminal Gang Activity Defined. Pen. Code, §§ 186.22(e), (j);
People v. Gardeley (1996) 14 Cal.4th 605, 624–625 [59 Cal.Rptr.2d 356, 927
P.2d 713]; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 1002–1003 [279
Cal.Rptr. 236].
• Willfully Assisted, Furthered, or Promoted Felonious Criminal
Conduct. People v. Rodriguez (2012) 55 Cal.4th 1125, 1132–1138 [150
Cal.Rptr.3d 533, 290 P.3d 1143].
• Crimes Committed After Charged Offense Not Predicates. People v. Duran,
supra, 97 Cal.App.4th at p. 1458.
• Proof of Sufficient Connection Among Gang “Subsets” and Umbrella Gang
Required. People v. Prunty (2015) 62 Cal.4th 59, 81–85 [192 Cal.Rptr.3d 309,
355 P.3d 480].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Public
Peace and Welfare, §§ 31–46, 204, 249–250.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144,
Crimes Against Order, §§ 144.01[1], 144.03 (Matthew Bender).
RELATED ISSUES
Gang Expert Cannot Testify to Defendant’s Knowledge or Intent
In People v. Killebrew (2002) 103 Cal.App.4th 644, 658 [126 Cal.Rptr.2d 876], the
court held it was error to permit a gang expert to testify that the defendant knew
there was a loaded firearm in the vehicle:
[The gang expert] testified to the subjective knowledge and intent of each
occupant in each vehicle. Such testimony is much different from the
expectations of gang members in general when confronted with a specific
action . . . . ¶ . . . [The gang expert] simply informed the jury of his belief of
the suspects’ knowledge and intent on the night in question, issues properly
reserved to the trier of fact. [The expert’s] beliefs were irrelevant.
(Ibid. [emphasis in original].)
See also the Commentary and Related Issues sections of the Bench Notes for
CALCRIM No. 1400, Active Participation in Criminal Street Gang.
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