CALCRIM No. 403. Natural and Probable Consequences (Only Non-Target Offense Charged)
Judicial Council of California Criminal Jury Instructions (2023 edition)
Download PDF
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 <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
the <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 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 <insert target offenses>.
If you decide that the defendant aided and abetted one of these crimes
and that <insert non-target offense> was a natural and
probable consequence of that crime, the defendant is guilty of
<insert non-target offense>. You do not need to agree about
which of these crimes the defendant aided and abetted.]
170
New January 2006; Revised June 2007, April 2010, 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 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.
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 only non-target crimes. If both target
and non-target crimes are charged, give CALCRIM No. 402, Natural and Probable
Consequences Doctrine (Target and Non-Target Offenses Charged).
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].
• 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. 87, 926 P.2d 1013].
AIDING AND ABETTING CALCRIM No. 403
171
• Withdrawal. People v. Norton (1958) 161 Cal.App.2d 399, 403 [327 P.2d 87];
People v. Ross (1979) 92 Cal.App.3d 391, 404-405 [154 Cal.Rptr. 783].
• 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.) This amendment
added “malice shall not be imputed to a person based solely on his or her
participation in a crime.” The question whether this legislation abolished the natural
and probable consequences doctrine as to attempted murder is unresolved.
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).
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 102, 104-106, 110.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10[3] (Matthew Bender).
CALCRIM No. 403 AIDING AND ABETTING
172
© Judicial Council of California.
