CALCRIM No. 2542. Carrying Firearm: Active Participant in Criminal Street Gang (Pen. Code, §§ 25400(c)(3), 25850(c)(3))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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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 an ongoing organized 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)>;
AND
412
3. Whose members collectively 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)>, 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) (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);
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 and within three years of the date of the currently
charged offense;
4. The crimes were committed on separate occasions or were
personally committed by two or more members;
5. The crimes commonly benefitted a criminal street gang;
AND
6. The common benefit from the crimes was more than reputational.
Examples of a common benefit that are more than reputational may
include, but are not limited to, financial gain or motivation, retaliation,
targeting a perceived or actual gang rival, or intimidation or silencing of
a potential current or previous witness or informant.
<Give this paragraph only when the conduct that establishes the pattern of
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
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<insert felony or felonies from Pen. Code, § 186.22(e)(1)>,
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.]
[You may not consider evidence of the charged offense[s] in deciding
whether a pattern of criminal gang activity has been established.]
[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) 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.
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
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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, March 2022, March 2023
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)
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
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690].) This instruction must be given with the appropriate instruction defining the
elements of carrying a concealed firearm, CALCRIM No. 2520, 2521, or 2522, or
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.)
There is a split in authority over the meaning of “collectively.” (Compare People v.
Delgado (2022) 74 Cal.App.5th 1067 [290 Cal.Rptr.3d 189] [two or more gang
members must have committed each predicate offense]; People v. Clark (2022) 81
Cal.App.5th 133 [296 Cal.Rptr.3d 153] [pattern of criminal gang activity may be
established either by (1) two gang members who separately committed crimes on
different occasions, or (2) two gang members who committed a crime together on a
single occasion], review granted October 19, 2022, S275746.)
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 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(j).)
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
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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, supra, 67 Cal.App.4th at p.
135.
• Elements of Gang Factor. Pen. Code, § 186.22(a); People v. Robles, supra, 23
Cal.4th at p. 1115.
• “Active Participation” Defined. People v. Salcido (2007) 149 Cal.App.4th 356
[56 Cal.Rptr.3d 912]; People v. Castenada (2000) 23 Cal.4th 743, 747 [97
Cal.Rptr.2d 906, 3 P.3d 278].
• “Criminal Street Gang” Defined. Pen. Code, § 186.22(f).
• “Pattern of Criminal Gang Activity” Defined. Pen. Code, §§ 186.22(e), (g).
• Examples of Common Benefit. Pen. Code, § 186.22(g).
• 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].
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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.
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).
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© Judicial Council of California.
