CALCRIM No. 1402

If you find the defendant guilty of the crime[s] charged in Count[s]

[,] [or of attempting to commit (that/those) crime[s]] [or the lesser

crime[s] of <insert name[s] of alleged lesser offense[s]>] and

you find that the defendant committed (that/those) crime[s] for the

benefit of, at the direction of, or in association with a criminal street

gang with the intent to promote, further, or assist in any criminal

conduct by gang members, you must then decide whether[, for each

crime,] the People have proved the additional allegation that one of the

principals (personally used/personally and intentionally discharged) a

firearm during that crime [and caused (great bodily injury/ [or] death)].

[Y ou must decide whether the People have proved this allegation for

each crime and return a separate finding for each crime.]

To prove this allegation, the People must prove that:

[1.] Someone who was a principal in the crime personally (used/

discharged) a firearm during the commission [or attempted

commission] of the <insert appropriate crime listed in

Penal Code section 12022.53(a)>(./;)

[AND]

[2. That person intended to discharge the firearm(./;)]

[AND

3. That person’s act caused (great bodily injury to/ [or] the death

of) another person [who was not an accomplice to the crime].]

A person is a principal in a crime if he or she directly commits [or

attempts to commit] the crime or if he or she aids and abets someone

else who commits [or attempts to commit] the crime.

[A firearm is any device designed to be used as a weapon, from which a

projectile is discharged or expelled through a barrel by the force of an

explosion or other form of combustion.]

[The term firearm is defined in another instruction.]

[A firearm does not need to be in working order if it was designed to

shoot and appears capable of shooting.] [A firearm does not need to be

loaded.]

[A principal personally uses a firearm if he or she intentionally does any

of the following:

1. Displays the firearm in a menacing manner.

2. Hits someone with the firearm.

OR

3. Fires the firearm.]

[Great bodily injury means significant or substantial physical injury. It is

an injury that is greater than moderate harm.]

[An act causes (great bodily injury/ [or] death) if the (injury/ [or] death)

is the direct, natural, and probable consequence of the act and the

(injury/ [or] death) would not have happened without the act. A natural

and probable consequence is one that a reasonable person would know is

likely to happen if nothing unusual intervenes. In deciding whether a

consequence is natural and probable, consider all the circumstances

established by the evidence.]

[There may be more than one cause of (great bodily injury/ [or] death).

An act causes (injury/ [or] death) only if it is a substantial factor in

causing the (injury/ [or] death). A substantial factor is more than a trivial

or remote factor. However, it does not need to be the only factor that

causes the (injury/ [or] death).]

[A person is an accomplice if he or she is subject to prosecution for the

identical crime charged against the defendant. A person is subject to

prosecution if he or she committed the crime or if:

1. He or she knew of the criminal purpose of the person who

committed the crime;

AND

2. He or she intended to, and did in fact, (aid, facilitate, promote,

encourage, or instigate the commission of the crime/ [or]

participate in a criminal conspiracy to commit the crime).]

<If there is an issue in the case over whether the defendant used the firearm

“during the commission of” the offense, see Bench Notes.>

The People have the burden of proving each allegation beyond a

reasonable doubt. If the People have not met this burden, you must find

that the allegation has not been proved.

New January 2006; Revised June 2007, April 2010, February 2012, September

2020, October 2025