specially concurring.
Although I fully concur in the results reached in all parts of the majority opinion, I write separately because, in my view, a different rationale should be employed to arrive at the conclusion that attempted felony murder is not a cognizable offense.
Felony murder is defined by § 18-3-102, C.R.S. (1996 Cum.Supp.). As pertinent here, the statute states that a person commits the crime of murder in the first degree if:
he commits- ... arson ... and, in the course of or in furtherance of the crime that he is committing ... the death of a person, other than one of the participants, is caused by anyone....
Criminal attempt is defined by § 18-2-101(1), C.R.S. (1986 Repl.Vol. ■ 8B), which states in pertinent part:
A person commits criminal attempt if, acting with the kind of culpability otherwise required for the commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct ... which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.
At common law, felony murder was predicated on the proposition that inherent in the commission of felonies that were dangerous to life was the likelihood that death would occur. Thus, when a death did occur in the course of the commission of such a felony, the common law deemed that the intent necessary to support a conviction for murder could be inferred from the commission or attempted commission of the dangerous felony itself. See People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980).
The doctrine presupposes that the perpetrator of a specified felony, as a matter of law, necessarily acts with the culpability from which the mens rea requisite to a murder conviction can be inferred. See W. LaFave & A. Scott, Criminal Law § 71 (1972).
The doctrine has been greatly criticized because of the basic premise of criminal law that liability for an act should be commensurate with the culpability or mental state of the perpetrator. See Head v. State, 443 N.E.2d 44 (Ind.1982).
As the majority notes, most states have rejected the crime of attempted felony murder. Most of those states have reached that conclusion by determining that, because there is no necessity for an intention to kill for felony murder to be applicable, it is logically impossible to attempt to achieve an unintended result. See People v. Viser, 62 Ill.2d 568, 343 N.E.2d 903 (1975). That analysis, however, has not been the analysis used in this state in determining whether attempt liability should attach to a specific crime. See People v. Thomas, 729 P.2d 972 *779(Colo.l986)(attempted reckless manslaughter is a cognizable offense); People v. Castro, 657 P.2d 932 (Colo.1983) (attempted extreme indifference murder is a cognizable offense); cf. People v. Eggert, 923 P.2d 230 (Colo.App.1995) (attempt to commit criminally negligent homicide is not a cognizable crime). See also People v. Krovarz, 697 P.2d 378 (Colo.1985).
Nonetheless, I agree with the courts which conclude that the felony murder rule cannot be applied unless the death of another actually occurs by virtue of the commission or attempted commission of the underlying felony. See Head v. State, supra; State v. Price, 104 N.M. 703, 726 P.2d 857 (App.1986). Those courts reach that conclusion primarily because felony murder is a doctrine designed to make felons strictly liable for a result and thus should be narrowly applied.
Moreover, to hold otherwise would be to allow an actor to be charged with and convicted of attempted murder in every circumstance wherein the actor committed or attempted to commit the crimes enumerated in the felony murder statute, without the result of the death of another occurring. Thus, as a matter of law, any person who committed' or attempted to commit arson, burglary, sexual assault, or other crimes enumerated in the felony murder statute would, ipso facto, be guilty of attempted murder. See People v. Viser, supra.
If allowed, this result would also significantly reduce the prosecution’s burden of proof. If attempted felony murder were cognizable, the prosecution could merely prove the commission or attempted commission of the underlying felony, rather than proving attempted wilful, deliberate, or premeditated murder, and thereafter rely upon the presumption of intent inherent in the felony murder statute. See State v. Price, supra
Additionally, this conclusion does nothing to alter the traditional application of attempt principles to the crime of homicide. When an intent to murder is evident in the course of perpetrating any of the underlying felonies listed in the felony murder statute, but no death occurs, then attempted murder may still be charged and proven under other subsections of § 18-3-102, C.R.S. (1986 Repl. Vol. 8B). See also Head v. State, supra.
Accordingly, while I join in the result announced in part I of the majority opinion, I would reach that result by the reasoning set forth above.