CALCRIM No. 402. Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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402.Natural and Probable Consequences Doctrine
(Target and Non-Target Offenses Charged)
The defendant is charged in Count[s] with <insert
target offense> and in Counts[s] with <insert non-
target offense>.
You must first decide whether the defendant is guilty of
<insert target offense>. If you find the defendant is guilty of this crime,
you must then decide whether (he/she) is guilty of <insert
non-target offense>.
Under certain circumstances, a person who is guilty of one crime may
also be guilty of other crimes that were committed at the same time.
To prove that the defendant is guilty of <insert non-target
offense>, the People must prove that:
1. The defendant is guilty of <insert target offense>;
2. During the commission of <insert target offense> a
coparticipant in that <insert target offense>
committed the crime of <insert non-target offense>;
AND
3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of
<insert non-target offense> was a natural and
probable consequence of the commission of the
<insert target offense>.
Acoparticipant in a crime is the perpetrator or anyone who aided and
abetted the perpetrator. It does not include a victim or innocent
bystander.
Anatural 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 of
the circumstances established by the evidence.
[Do not consider evidence of defendant’s intoxication in deciding whether
<insert non-target offense> was a natural and probable
consequence of <insert target offense>.]
To decide whether the crime of <insert non-target offense>
was committed, please refer to the separate instructions that I (will give/
have given) you on that crime.
[The People allege that the defendant originally intended to aid and abet
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the commission of either <insert target offense> or
<insert other target offense>. The defendant is guilty of
<insert non-target offense> if the People have proved that
the defendant aided and abetted either <insert target
offense> or <insert other target offense> and that
<insert non-target offense> was the natural and probable
consequence of either <insert target offense> or
<insert other target offense>. However, you do not need to
agree on which of these two crimes the defendant aided and abetted.]
New January 2006; Revised June 2007, April 2010, February 2013, August 2014,
February 2015, September 2019
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on aiding and abetting when the
prosecution relies on that theory of culpability. (People v. Beeman (1984) 35 Cal.3d
547, 560-561 [199 Cal.Rptr. 60, 674 P.2d 1318].)
The court has a sua sponte duty to identify and instruct on any target offense relied
on by the prosecution as a predicate offense when substantial evidence supports the
theory. Give all relevant instructions on the alleged target offense or offenses. The
court, however, does not have to instruct on all potential target offenses supported
by the evidence if the prosecution does not rely on those offenses. (People v.
Prettyman (1996) 14 Cal.4th 248, 267-268 [58 Cal.Rptr.2d 827, 926 P.2d 1013]; see
People v. Huynh (2002) 99 Cal.App.4th 662, 677-678 [121 Cal.Rptr.2d 340] [no sua
sponte duty to instruct on simple assault when prosecutor never asked court to
consider it as target offense].)
The target offense is the crime that the accused parties intended to commit. The
non-target is an additional unintended crime that occurs during the commission of
the target.
Give the bracketed paragraph beginning, “Do not consider evidence of defendant’s
intoxication” when instructing on aiding and abetting liability for a non-target
offense. (People v. Mendoza (1998) 18 Cal.4th 1114, 1134 [77 Cal.Rptr.2d 428, 959
P.2d 735].)
Related Instructions
Give CALCRIM No. 400, Aiding and Abetting: General Principles, and CALCRIM
No. 401, Aiding and Abetting: Intended Crimes, before this instruction.
This instruction should be used when the prosecution relies on the natural and
probable consequences doctrine and charges both target and non-target crimes. If
only non-target crimes are charged, give CALCRIM No. 403, Natural and Probable
Consequences Doctrine (Only Non-Target Offense Charged).
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AUTHORITY
• Aiding and Abetting Defined. People v. Beeman (1984) 35 Cal.3d 547, 560-561
[199 Cal.Rptr. 60, 674 P.2d 1318].
• Natural and Probable Consequences, Reasonable Person Standard. People v.
Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323].
• Reasonably Foreseeable Crime Need Not Be Committed for Reason Within
Common Plan. People v. Smith (2014) 60 Cal.4th 603, 616-617 [180 Cal.Rptr.3d
100, 337 P.3d 1159].
COMMENTARY
In People v. Prettyman (1996) 14 Cal.4th 248, 268 [58 Cal.Rptr.2d 827, 926 P.2d
1013], the court concluded that the trial court must sua sponte identify and describe
for the jury any target offenses allegedly aided and abetted by the defendant.
Although no published case to date gives a clear definition of the terms “natural”
and “probable,” nor holds that there is a sua sponte duty to define them, we have
included a suggested definition. (See People v. Prettyman, supra, 14 Cal.4th at p.
291 (conc. & dis. opn. of Brown, J.); see also People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 107-109 [17 Cal.Rptr.3d 710, 96 P.3d 30] [court did not err in
failing to define “natural and probable”].)
RELATED ISSUES
Murder
A verdict of murder may not be based on the natural and probable consequences
doctrine. Pen. Code, § 188(a)(3). (Penal Code section 188, as amended by Statutes
2018, ch. 1015 (S.B. 1437), became effective January 1, 2019.) The amendment
added “malice shall not be imputed to a person based solely on his or her
participation in a crime.” The question whether this amendment abolished the
natural and probable consequences doctrine as to attempted murder is unresolved.
Lesser Included Offenses
The court has a duty to instruct on lesser included offenses that could be the natural
and probable consequence of the intended offense when the evidence raises a
question whether the greater offense is a natural and probable consequence of the
original, intended criminal act. (People v. Woods (1992) 8 Cal.App.4th 1570,
1586-1588 [11 Cal.Rptr.2d 231] [aider and abettor may be found guilty of second
degree murder under doctrine of natural and probable consequences although the
principal was convicted of first degree murder].)
Specific Intent - Non-Target Crimes
Before an aider and abettor may be found guilty of a specific intent crime under the
natural and probable consequences doctrine, the jury must first find that the
perpetrator possessed the required specific intent. (People v. Patterson (1989) 209
Cal.App.3d 610, 614 [257 Cal.Rptr. 407] [trial court erroneously failed to instruct
the jury that they must find that the perpetrator had the specific intent to kill
necessary for attempted murder before they could find the defendant guilty as an
CALCRIM No. 402 AIDING AND ABETTING
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aider and abettor under the “natural and probable” consequences doctrine],
disagreeing with People v. Hammond (1986) 181 Cal.App.3d 463 [226 Cal.Rptr.
475] to the extent it held otherwise.) However, it is not necessary that the jury find
that the aider and abettor had the specific intent; the jury must only determine that
the specific intent crime was a natural and probable consequence of the original
crime aided and abetted. (People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587
[11 Cal.Rptr. 2d 231].)
Target and Non-Target Offense May Consist of Same Act
Although generally, non-target offenses charged under the natural and probable
consequences doctrine will be different and typically more serious criminal acts than
the target offense alleged, they may consist of the same act with differing mental
states. (People v. Laster (1997) 52 Cal.App.4th 1450, 1463-1466 [61 Cal.Rptr.2d
680] [defendants were properly convicted of attempted murder as natural and
probable consequence of aiding and abetting discharge of firearm from vehicle.
Although both crimes consist of same act, attempted murder requires more culpable
mental state].)
Target Offense Not Committed
The Supreme Court has left open the question whether a person may be liable under
the natural and probable consequences doctrine for a non-target offense, if the target
offense was not committed. (People v. Prettyman (1996) 14 Cal.4th 248, 262, fn. 4
[58 Cal.Rptr.2d 827, 926 P.2d 1013], but see People v. Ayala (2010) 181
Cal.App.4th 1440, 1452 [105 Cal.Rptr.3d 575]; People v. Laster (1997) 52
Cal.App.4th 1450, 1464-1465 [61 Cal.Rptr.2d 680].)
See generally, the related issues under CALCRIM No. 401, Aiding and Abetting:
Intended Crimes.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 102, 104-106, 110.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, §§ 85.02[1A][a], 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3] (Matthew Bender).
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