Section 402 | CALCRIM (Jury Instructions)

should also be given. If both the target and non-target crimes are charged, give
CALCRIM No. 402, Natural and Probable Consequences Doctrine (Target and
Non-Target Offenses Charged). In some cases, the prosecution may not charge the
target crime but only the non-target crime. In that case, give CALCRIM No. 403,
Natural and Probable Consequences (Only Non-Target Offense Charged).
AUTHORITY
•
Aiding and Abetting Defined. People v. Beeman (1984) 35 Cal.3d 547, 560–561
[199 Cal.Rptr. 60, 674 P.2d 1318].
•
Murder Not Complete Until Victim Dies. People v. Celis (2006) 141 Cal.App.4th
466, 471–474 [46 Cal.Rptr.3d 139].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Introduction to Crimes,
§§ 94–97.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.03[2][d] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.10 (Matthew Bender).
CALCRIM No. 400
AIDING AND ABETTING
162

AUTHORITY
•
Aiding and Abetting Defined. People v. Beeman, supra, 35 Cal.3d at pp.
560–561.
•
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, supra, 14 Cal.4th at p. 268, 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 and Attempted Murder
A verdict of murder or attempted murder may not be based on the natural and
probable consequences doctrine. (Pen. Code, § 188(a)(3); People v. Gentile (2020)
10 Cal.5th 830, 849 [272 Cal.Rptr.3d 814, 477 P.3d 539] [murder]; People v.
Sanchez (2022) 75 Cal.App.5th 191, 196 [290 Cal.Rptr.3d 390] [attempted murder].)
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 deg