dissenting:
I respectfully dissent to the majority opinion because I believe that there was insufficient evidence for a finding of probable cause on the charge of second-degree murder. Section 18-3-103(l)(a), 8B C.R.S. (1986), provides: “A person commits the crime of murder in the second degree if: (a) He causes the death of a person knowingly, but not after deliberation.” In People v. District Court, 662 P.2d 582 (Colo.1982), we stated that two factors must be established to prove second-degree murder. “First, the death must have been more than merely a probable result of the defendant’s actions. Second, the defendant must have been aware of the circumstances that made death practically certain. The first is an objective standard; the second, a subjective standard.” Id. at 586 (citations omitted). Because I do not believe that the prosecution has satisfied the second factor, I would affirm the district court.
With respect to the second factor, the prosecution need not provide direct evidence of the defendant’s state of mind since “the defendant’s subjective awareness may be inferred from his conduct and surrounding circumstances.” Id.; People v. District Court, 198 Colo. 70, 74, 595 P.2d 1045, 1048-49 (Colo.1979). A judge or a jury may presume an intent to cause the “natural and probable consequences of ... unlawful voluntary acts, knowingly performed.” People v. Mingo, 196 Colo. 315, 318, 584 P.2d 632, 634 (1978) (quoting Keller v. People, 153 Colo. 590, 387 P.2d 421 (1963)).
In Mingo, a struggle ensued between the victim and the defendant’s son. From a distance of three feet, the defendant shot the victim in the chest. The defendant admitted shooting the victim and stated that she “still hadn’t forgot about him trying to get in the back of my place to try to steal something.” Mingo, 196 Colo, at 317, 584 P.2d at 633. With respect to the second factor, the court held:
Like intent, subjective awareness of the probability of consequences is a matter which often must be inferred from defendant’s conduct and surrounding circumstances. Here there was no evidence or indication that the shooting was accidental or inadvertent. The jury might properly conclude that [the] defendant was aware of the high probability of death as the result of her admittedly deliberate shooting of the victim at a distance of three feet.
Id. at 318, 584 P.2d at 634. In this case, the evidence indicated that the gun was shot from a distance of more than three feet from the victim, but did not reflect the outer distance from which the gun might have been shot.
In People v. District Court, 198 Colo. 70, 595 P.2d 1045 (Colo.1979), another case involving the review of a preliminary hearing for second-degree murder, we stated that with respect to the second factor enunciated in Mingo: “the conduct of the accused— as established by the evidence — demonstrated that he was angry at the deceased; he threatened to ‘smash her face in’ and used various epithets in voicing his anger before and during the beating.” Id. at 75, 595 P.2d at 1048. Again, the court found that the beating was not accidental or inadvertent and concluded that “[o]ne who repeatedly strikes another for ten to fifteen minutes and inflicts a massive head injury on his victim can be held to be aware of the possible fatal consequences of his actions.”
More recently, we reviewed a trial court’s dismissal of attempted second-degree murder. In People v. District Court, 652 P.2d 582, 586 (Colo.1982) (District Court II), we analyzed the second factor as follows:
Testimony at the preliminary hearing shows that on the morning preceding the shooting the defendant had stated that he intended to use his gun that night. Moreover, the defendant stated sometime after the shooting'that “I went to shoot Toby, and the bullet I shot at Toby, got my Cindy.” The circumstances surrounding the shooting, including the statements [the defendant] is alleged to have made, are sufficient to establish probable cause that he was aware of the probable fatal consequences of his actions.
*40In this case, unlike Mingo and District Court II, there was no evidence presented at the preliminary hearing that the defendant intended to use the gun or deliberately shot the victim. Moreover, the circumstances surrounding the shooting do not reflect that the defendant was aware of the possible fatal consequences of her actions. She admitted that at the request of the defendant, she retrieved the gun from the camper and handed it to the victim. The victim returned the gun to the defendant and the next thing the defendant knew was that the gun made a “loud boom.” In my view, the majority extends the decision of Mingo and its progeny too far.
Under the majority’s analysis, shooting a pistol by itself is sufficient to establish probable cause for second-degree murder. This obliterates any distinction between the intent required for second-degree murder and that required for reckless manslaughter. Section 18-3-104, 8B C.R.S. (1986); see People v. Padilla, 638 P.2d 15 (Colo.1981); People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979). In viewing the evidence in the light most favorable to the prosecution, I do not believe the evidence established the defendant was aware that her acts were practically certain to cause the death of the victim. For that reason, probable cause for second-degree murder has not been established.1 Accordingly, I would affirm the district court’s affirmance of the county court.
. The district court, in my view, did not abuse its discretion when it made the following oral order:
Having reviewed all of the evidence, the transcript that was submitted for the preliminary hearing and the tape ... I do agree with [the county court judge], that there is not probable cause to believe that the defendant ... was aware that her actions were practically certain to cause the result that [they] did, and, therefore, the motion to file the charge directly in district court is denied.