(concurring in part, dissenting in part).
(42) I concur with the majority’s decision on the double jeopardy issues presented in this case. I also agree with the Court’s conclusion that there is sufficient evidence to retry the Defendant' on each of the charges brought against him under accomplice liability. However, I respectfully dissent from the Court’s rejection of the natural and probable consequences test. Furthermore, if this Court were to apply the natural and probable consequences analysis, any sentence assigned to the Defendant for conspiracy could be enhanced using New Mexico’s “old-age enhancement” statute, NMSA 1978, § 31-18-16.1 (1993).
(43)Under New Mexico law, “A person may be charged with and convicted of the crime as an accessory if he procures, counsels, aids or abets in its commission and although he did not directly commit the crime....” NMSA 1978, § 30-1-13 (1972). In such a situation, the State must prove beyond a reasonable doubt that:
1. The defendant intended that the crime be committed;
2. The crime was committed;
3. The defendant helped, encouraged or caused the crime to be committed.
UJI 14-2822 NMRA1997.
(44)This Court has held that an accessory must share the criminal intent of the principal. State v. Ochoa, 41 N.M. 589, 599, 72 P.2d 609, 615 (1937).
(45)The majority in the present case holds that for a finding of accessory liability in this ease, there must be sufficient evidence in the record that the Defendant particularly intended each of the crimes carried out by his partners during the course of the robbery: aggravated assault, aggravated battery, and false imprisonment. In its analysis, the majority specifically rejected the natural and probable consequences test. The natural and probable consequences test of accessory liability states that a defendant is criminally liable for any crime which is the natural and probable consequence of the principal’s attempted criminal act. People v. Beeman, 35 Cal.3d 547, 199 Cal.Rptr. 60, 67, 674 P.2d 1318, 1326 (1984); Harris v. State, 425 N.E.2d 154, 156 (Ind.1981). The majority rejected the test but concluded that sufficient evidence existed on the record that a jury, upon retrial, could find beyond a reasonable doubt that the Defendant intended each of the crimes committed during the course of the robbery. I agree that sufficient evidence of intent existed with regard to the Defendant’s intent to aid or abet all of the crimes charged. However, rather than analyzing the intent associated with each specific crime, the majority should have employed the natural and probable consequences test.
(46) In addition to being favorably cited by other jurisdictions, see, e.g., Beeman, 199 Cal.Rptr. 60, 674 P.2d 1318; Harris, 425 N.E.2d 154, the rationale behind the natural and probable consequences test has been used by our Court of Appeals as accurately representing the law of accessory liability in New Mexico, see State v. O’Dell, 85 N.M. 536, 537, 514 P.2d 55, 56 (Ct.App.1973) (notwithstanding defendant’s claim that he did not know of the robbery until after its commission, he could be convicted as an accessory where he shot at pursuing police car; this demonstrated that defendant approved the robbery and the robbers’s intent); State v. Dominguez, 115 N.M. 445, 455, 853 P.2d 147, 157 (Ct.App.1993) (finding substantial evidence supporting conviction of defendant for aggravated battery as aider and abettor of codefendant who stabbed victim, even though defendant claimed he did not intend the stabbing and although defendant was not present when the knife wounds were inflicted).
(47) I agree with the rationale outlined by the authorities above and conclude that the natural and probable consequences test accurately reflects the analysis for determining accessory liability under New Mexico law. Under this analysis, upon retrial it would only be necessary to prove beyond a reasonable doubt that the Defendant intended that the robbery be carried out. Assuming such intent could be shown, the jury would be free to infer that the Defendant also intended the acts which took place during the course of the robbery.
[A] defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and'his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.
People v. Nguyen, 21 Cal.App.4th 518, 26 Cal.Rptr.2d 323, 330 (1993), quoting People v. Croy, 41 Cal.3d 1, 221 Cal.Rptr. 592, 597, 710 P.2d 392 (1985) (en banc). Such an approach recognizes that in carrying out a robbery, there is a high probability that harming the clerk, possibly for purposes of restraint, might be a necessary, natural and probable result flowing from the attempted crime. Hence, I dissent from the majority’s conclusion that a jury is not free to infer the requisite intent for the assault, battery, and false imprisonment from a finding that the Defendant intended to encourage and facilitate the robbery.
(48) If one applies the natural and probable consequences test, then the Defendant’s sentence was correctly enhanced under NMSA 1978, § 31-18-16.1 (1993). The enhancement statute states that “when a separate finding of fact by the court or jury shows that in the commission of a noncapital felony a person sixty years of age or older or who is handicapped was intentionally injured” a court may enhance the sentence by two years. The majority in this case rejects use of the enhancement, noting that the statute requires that the injury occur “in the commission of’ a noncapital felony and reasoning that the injury in this instance took place after the conspiracy and not during its commission.
(49) However, if a natural and probable consequences analysis is employed, the enhancement might apply in this case. If it were determined that the Defendant is guilty of conspiring to rob the store, he might also be deemed responsible for acts reasonably foreseeable from the execution of the group’s plan, including intentionally causing injury to the 62 year-old store clerk. Under the criminal law in New Mexico, a criminal actor takes his victim as is. Cf. State v. Compton, 104 N.M. 683, 692, 726 P.2d 837, 846 (1986). Thus, under the natural and probable consequences analysis, imposition of the sentencing enhancement might be appropriate upon retrial.
(50) For the aforementioned reasons, upon retrial, the natural and probable consequences test should be used to assess accessory liability. In the event that the jury finds accessory liability against the Defendant, his sentence should be amenable to imposition of the two year enhancement.