CALCRIM No. 2542

(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.]

A criminal 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

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].]

A pattern 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.

As used here, members collectively engage in or have engaged in a

pattern of criminal gang activity when the crimes that make up the

pattern of criminal gang activity can be connected to the gang as a

whole. Collective engagement requires a connection between the crimes

WEAPONS CALCRIM No. 2542

and the gang’s organizational structure or manner of governance, its

primary activities, or its common goals and principles.

<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

<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.]

[Y ou may not consider evidence of the charged offense[s] in deciding

whether a pattern of criminal gang activity has been established.]

[Y ou 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.

CALCRIM No. 2542 WEAPONS

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, March 2022, March 2023,

September 2024