Does the natural and probable consequences doctrine apply to a defendant who is not a direct perpetrator of the crime?

Defendant asserts that the natural and probable consequences doctrine violates equal protection because an aider and abettor or a co-conspirator may be convicted of murder, without any finding of malice, while the actual killer may be convicted of murder only if there is a finding of malice. He cites People v. Chun (2009) 45 Cal.4th 1172, which held that "[w]hen the underlying felony is assaultive in nature, . . . the felony merges with the homicide and cannot be the basis of a felony-murder instruction." (Id. at p. 1200.) Defendant asserts that the disparate treatment of direct perpetrators and aiders and abettors violates equal protection.

"The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." (In re Eric J. (1979) 25 Cal.3d 522, 530.) "If persons are not similarly situated for purposes of the law, an equal protection claim fails at the threshold." (People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)

Direct perpetrators and aider and abettors are equally culpable under the law ( 31); however, they are not similarly situated for purposes of the law. The mental state necessary for conviction as an aider and abettor is different from the mental state necessary for conviction as the actual perpetrator. "The actual perpetrator must have whatever mental state is required for each crime charged. . . . An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.] The jury must find 'the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense . . . .' [Citations.] Once the necessary mental state is established, the aider and abettor is guilty not only of the intended, or target, offense, but also of any crime the direct perpetrator actually commits that is a natural and probable consequence of the target offense. [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)

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