403. Natural and Probable Consequences (Only Non-Target Offense Charged)
[Before you may decide whether the defendant is guilty of <insert non-target offense>, you must decide whether (he/she) is guilty of <insert target offense>.]
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 the <insert target offense>, the crime of <insert non-target offense> was committed;
3. Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the <insert non-target offense> was a natural and probable consequence of the commission of the <insert target offense>.
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 of the circumstances established by the evidence. If the <insert non-target offense> was committed for a reason independent of the common plan to commit the <insert target offense>, then the commission of <insert non-target offense> was not a natural and probable consequence of <insert target offense>.
To decide whether crime of <insert non-target offense> was committed, please refer to the separate instructions that I (will give/have given) you on (that/those) crime[s].
[The People are alleging that the defendant originally intended to aid and abet either <insert target offense> or <insert alternative target offense>.
The defendant is guilty of <insert non-target offense> if you decide that the defendant aided and abetted one of these crimes and that <insert non-target offense> was the natural and probable result of one of these crimes. However, you do not need to agree about which of these two crimes the defendant aided and abetted.]
The court has a sua sponte duty to instruct on aiding and abetting when the prosecution relies on it as a 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.
Do not give the first bracketed paragraph in cases in which the prosecution is also pursuing a conspiracy theory.
This instruction should be used when the prosecution relies on the Natural and Probable Consequences Doctrine and charges only non-target crimes. If both target and non-target crimes are charged, give CALCRIM No. 402.
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].
No Unanimity Required. People v. Prettyman (1996) 14 Cal.4th 248, 267-268 [58 Cal.Rptr.2d 827, 926 P.2d 1013].
Presence or Knowledge Insufficient. 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.2d 827, 926 P.2d 1013].
Withdrawal. People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 1013]; People v. Ross (1979) 92 Cal.App.3d 391, 404-405 [154 Cal.Rptr. 783].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Introduction to Crimes, §§ 82, 84, 88.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.10 (Matthew Bender).
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 pp. 248, 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."])
See the Related Issues section under CALCRIM No. 401, Aiding and Abetting, and CALCRIM No. 402, Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged).
(New January 2006)