I respectfully dissent.
Today’s majority opinion holds that an accused may be convicted of murder for the killing of his accomplice by a police officer on the basis of (1) malicious acts that posed no threat at the time of the killing and (2) the “malicious” act of holding—but not pointing—a gun. In so ruling, the majority distort the prior decisions of this court and seriously undermine the well-established principle that the felony-murder rule does not apply to killings committed by persons other than the felons themselves. (See People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130].)
I.
As the majority assertedly recognize, neither appellant Caldwell nor appellant Washington could be convicted of murder under the felony-murder rule, since the victim was killed not by either of them, but by a deputy sheriff. (People v. Washington, supra, 62 Cal.2d at p. 783.) Nor could either appellant be convicted on the basis of the acts of Belvin, their deceased accomplice, because Belvin’s malicious conduct “did not result in the unlawful killing of another human being, but rather in [his] own death.” (People v. Antick (1975) 15 Cal.3d 79, 91 [123 Cal.Rptr. 475, 539 P.2d 43].)
It is agreed, then, that appellants could only be convicted of murder for their own actions under the rule of People v. Gilbert (1965) 63 Cal.2d 690, 704-705 [47 Cal.Rptr. 909, 408 P.2d 365], vacated on other grounds sub nom., Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]. To establish liability under Gilbert, the prosecution must prove that the accused or a surviving accomplice “intentionally commit[ted] an act that [was] likely to cause death, and [that] his victim or a police officer kill[ed] in reasonable response to such act ... .” (Id., at p. 704.)
This test contains two components corresponding to the two elements of the crime of murder, mens rea, or guilty state of mind, and actus reus, the *227physical act of killing a human being. (People v. Antick, supra, 15 Cal.3d at pp. 86-87.)
Malice, the mens rea of murder, may be implied from the intentional commission of “ ' “an act that involves a high degree of probability that it will result in death . . . ” (People v. Gilbert, supra, 63 Cal.2d at p. 704.) The “central inquiry” is whether “the conduct of a defendant or his accomplices was sufficiently provocative of lethal resistance to support a finding of implied malice.” (Taylor v. Superior Court (1970) 3 Cal.3d 578, 583 [91 Cal.Rptr. 275, 477 P.2d 131], italics omitted, disapproved on another point, People v. Antick, supra, 15 Cal.3d at p. 92, fn. 12.)
A malicious act integral to the underlying felony is not enough for a finding of implied malice. The killing must be attributable “not merely to the commission of a felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard for life.” (People v. Gilbert, supra, 63 Cal.2d at p. 704.) A threat “already inherent in the dangerous felony” is “insufficient for a finding of Washington-Gilbert murder even when it helped provoke the victim’s lethal response.” (In re Joe R. (1980) 27 Cal.3d 496, 508 [165 Cal.Rptr. 837, 612 P.2d 927].) It is this requirement of a malicious act over and above the underlying felony which most significantly differentiates liability under Gilbert from felony murder.1
The physical act of killing or “actus reus,” though performed by a non-felon, may nevertheless be attributed to the accused provided his malicious act “proximately caused” the victim’s death. (Pizano v. Superior Court (1978) 21 Cal.3d 128, 131 [145 Cal.Rptr. 524, 577 P.2d 659]; Taylor v. Superior Court, supra, 3 Cal.3d at p. 583.) To establish proximate cause, the prosecution must show that the malicious act of the accused or his surviving accomplice posed such a threat of harm as to provoke a reasonable lethal response. In such a case, the action of the third party “cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice. ” (Gilbert, supra, 63 Cal.2d at p. 705, italics added.)
Although a malicious act may be morally reprehensible in and of itself, it does not constitute murder unless the third party killed “in reasonable response to such act . . . .” (People v. Gilbert, supra, 63 Cal.2d at p. 704, italics added; see also In re Joe R., supra, 27 Cal.3d at p. 506, fn. 6.) *228Conversely, the commission of an act which contributes causally to the accused’s death, but is not itself malicious, cannot support a murder conviction.2
II.
Today’s majority opinion upholds appellants’ murder convictions under the Gilbert rule. The majority point to three acts in support of the convictions: (1) appellant Caldwell drove the getaway car without headlights and at high speed through stop signs and red lights, (2) appellant Washington pointed a shotgun at two deputies prior to the crash, and (3) appellant Caldwell emerged from the car and crouched behind the open door, holding— but not pointing—a gun.
However, these acts could not have supported the findings of implied malice and proximate causation necessary to convict appellants of murder for the killing of their accomplice by the officers. Under the case law, the first two of these acts were indeed malicious, but could not conceivably have caused the victim’s death. The third was neither malicious nor a proximate cause of the death.
It is true that Caldwell’s driving and Washington’s shotgun pointing were “sufficiently provocative of lethal resistance to support a finding of implied malice.” (Taylor v. Superior Court, supra, 3 Cal.3d at p. 583, italics omitted.) However, no reasonable jury could find that either of those acts proximately caused Belvin’s death.
At least five seconds before the deputies opened fire, the robbers’ car was at rest, trapped between two police cars. Washington’s shotgun was lying in the street out of reach. Both the car and the shotgun had “[come] to rest in a position of apparent safety.” (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 780; maj. opn., ante, at p. 219.)
These facts make it abundantly clear that the deputies did not fire “in reasonable response” to the threats posed by Caldwell’s reckless driving or by Washington’s shotgun pointing. (Gilbert, supra, 63 Cal.2d at p. 704.) At the time of the shooting, neither act posed the kind of “dilemma” (id., *229at p. 705) that could negate the conduct of the deputies as an independent intervening cause of Belvin’s death.3
Furthermore, as to the shotgun, the jury expressly found that Washington did not personally use a firearm in the commission of robbery or murder. (Pen. Code, §§ 12022.5, 1203.06, subd. (a)(1).4) Thus, it is apparent that the jury did not find that Washington’s brandishing of the shotgun proximately caused Belvin’s death.5
Faced with the undeniable fact that any threat from the driving and shotgun pointing had completely dissipated by the time of the shooting, the majority acknowledge that the causal relationship does present a “difficult problem.” (Maj. opn., ante, at p. 219.) The majority purport to solve this problem by relying on two highly questionable grounds to support the finding of proximate cause: (1) one deputy’s testimony that the driving and shotgun pointing influenced his decision to fire, and (2) the jury’s possible inference that in the absence of those two acts, Belvin may not have pointed his gun.
The first ground introduces into the law a creative and dangerous expansion of vicarious murder liability. No longer will it be required that a third party have fired in reasonable response to the accused’s malicious act. Now, an accused may be convicted of murder for such an act even when the third party fires in reasonable response to the threat posed by some other danger. According to the majority, an accused may face potential murder liability *230for his malicious act as long as the impact of that act lingers on in the fears of the third party.6
The error of the majority’s new rule is highlighted by the facts of this case. Only Deputy Boothroyd mentioned the driving or shotgun pointing as factors in his decision to fire. He testified that he fired because of his “whole frame of mind due to the circumstances leading up that point.” Those circumstances included: “the pursuit [and] the evasiveness of the driver during the pursuit[.] [OJne gun [Washington’s] had been seen and was no longer a problem at that time but, then, another handgun [Belvin’s] comes out. There are still three people in the vehicle, and the possibility of having more guns in the car at that time went through my mind and the fact that the other two persons in the vehicle [appellants] were out of sight at that time.” Boothroyd further testified that some 12 to 13 seconds after the shotgun had dropped to the street a shot—the first he had heard—triggered his firing.
On this testimony, a jury could certainly have found that Deputy Boothroyd’s decision to fire was reasonable. However, such a finding does not mean that appellants were guilty of murder. Deputy Boothroyd considered many factors that were extraneous to appellants’ guilt, such as Belvin’s pistol pointing and the fact that both appellants were out of his sight. No reasonable jury could have found that appellants’ acts confronted Boothroyd with the life-threatening “dilemma” (Gilbert, supra, 63 Cal.2d at p. 705) that eliminated his firing as an independent intervening cause. Rather, the record points inescapably to the conclusion that Belvin’s own pistol pointing posed the only immediate threat visible to Boothroyd.
According to the majority’s second theory of causation, the jury might have found that Belvin would not have been willing to provoke a gun battle had appellants not continued to resist. According to this view, the “inferential importance” of the shotgun waving to Belvin militates in favor of a finding of proximate cause.
This theory neatly overrules People v. Antick, supra, 15 Cal.3d 79, on the issue of causation. Antick held that an accused cannot be held liable for the provocative acts of an accomplice who himself becomes the victim of the police response. (Id., at p. 91.) However, under today’s majority opinion, an accused may be held responsible for the provocative acts of his deceased accomplice on the assumption that the deceased might have ceased his provocative conduct had the accused surrendered. (Maj. opn., ante, at p. 220.)
*231This exception swallows the Antick rule. It is difficult to imagine a situation in which the actions of co-felons are not sufficiently interconnected to support a jury finding that one might not have acted but for the continued resistance of others.
In support of its relaxed approach to causation, the majority cite a number of cases involving multiple causation. (Maj. opn., ante, at pp. 220-222.) These cases, however, support appellants’ position. In each case, a third party killed in reasonable response to the immediate threat posed by a malicious act of the accused or his surviving accomplice. For example, the appellant in In re Tyrone B. (1976) 58 Cal.App.3d 884 [130 Cal.Rptr. 245], shoved and stabbed the robbery victim while the accomplice beat him with a shovel handle. In response, the robbery victim shot the accomplice. (Id., at pp. 886-887.) In People v. Velasquez (1975) 53 Cal.App.3d 547 [126 Cal.Rptr. 11], the accused and his brother both repeatedly struck an officer with batons and persisted in their attack despite a second officer’s warnings to stop. The second officer then shot and killed the accused’s brother. (Id., at pp. 551-552.) Finally, in People v. Claflin (1978) 87 Cal.App.3d 1, one of the appellants charged a police officer, struck him, and grabbed the barrel of his gun. (Id., at pp. 3-4.)
In marked contrast to the malicious acts in those cases, neither the driving nor the shotgun pointing in the present case posed an immediate threat at the time of the killing.
In addition to the driving and shotgun pointing, the majority rely on Caldwell’s post-crash conduct to support these convictions. They assert that appellants may be convicted of murder for Caldwell’s “malicious” act of taking cover and assertedly holding, but not pointing, a gun. This theory fails for two reasons.
First, the record does not support a finding that Caldwell was holding a gun when he stepped out of the car. There were eight officers on the scene, but only one, Deputy McSweeney, testified to having caught a brief glimpse of something “recognizable” as a gun when Caldwell left the car.7 The alleged gun was never found. A search of the area and of the robbers’ car turned up only Washington’s shotgun and Belvin’s handgun.
To survive appeal, a criminal conviction must be supported by “substantial evidence.” (People v. Johnson (1980) 26 Cal.3d 557, 562 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) The reviewing court *232must assess the record “in the light most favorable to the judgment below.” (Id., at p. 578.) However, “[t]he court does not . . . limit its review to the evidence favorable to the respondent.” (Id., at p. 577.) Instead, “our task in this regard is twofold. First, we must resolve the issue in the light of the whole record . . . and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements constituting the higher degree of the crime is substantial, it is not enough for the respondent simply to point to ‘some’ evidence supporting the finding, for ‘Not every surface conflict of evidence remains substantial in the light of other facts.’” (People v. Bassett (1968) 69 Cal.2d 122, 137-138 [70 Cal.Rptr. 193, 443 P.2d 777], fn. omitted; see People v. Johnson, supra, 26 Cal.3d at p. 577.)
To conclude that Caldwell had a gun, a jury would have had to find beyond a reasonable doubt: (1) that the object glimpsed by Deputy McSweeney but by no other officer was a gun, (2) that Caldwell managed to throw it away without being observed, and (3) that he hurled it far enough to evade the officers’ subsequent search. But the robbers’ car was under continuous observation from the moment Caldwell left it to the moment of surrender seconds later. Eight officers and four squad cars were grouped within a few yards of the robbers’ car. No officer testified to having seen Caldwell dispose of the gun or make any rapid movement. The entire area around the scene of the shootout was searched by police officers, as was appellants’ car. No trace of the alleged weapon was found. This is not substantial evidence—i.e., “evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined” (People v. Conner (1983) 34 Cal.3d 141, 149 [193 Cal.Rptr. 148, 666 P.2d 5])—that Caldwell possessed a gun as he emerged from the car.
Second, even accepting arguendo the majority’s conclusions as to the “substantial” nature of the evidence, Caldwell’s conduct after the crash cannot—as a matter of law—support these murder convictions. In sum toto, Caldwell left the car, crouched behind the open door, and looked at a deputy-all while carrying a handgun. He did not point the gun, issue a threat, move toward the deputies, or make any other affirmative gesture of an intent to inflict harm. At most, this conduct indicates that he had not yet decided to surrender.8 It adds nothing of significance to the original felony of armed robbery. Moreover, the jury found that Caldwell’s conduct did not even amount to assault.9
*233Until today, California courts have uniformly required evidence of some affirmatively aggressive action by the accused or his surviving accomplice to support a finding of implied malice under Gilbert. In Gilbert, a surviving felon shot a policeman, initiating a gun battle.10 Similarly, in Pizano v. Superior Court, supra, 21 Cal.3d 128, a robber pointed a pistol at the robbery victim, threatened to shoot him if the police intervened, and used him as a shield. (Id., at pp. 132-133.) In Taylor v. Superior Court, supra, 3 Cal.3d 578, one of the robbers threatened a storeowner with death and “‘chattered insanely.’” (Id., at p. 581.)11 And in People v. Reed (1969) 270 Cal.App.2d 37 [75 Cal.Rptr. 430], the accused pointed his gun toward one of the officers and toward the victim. (Id., at p. 42.)12
Nevertheless, a majority of this court assert that Caldwell’s departure from the car amounted to a malicious act. They reason that the jury could have found this act to have provoked a reasonable, lethal response. This reasoning ignores the requirement that, regardless of the reasonableness of the police response, the accused’s conduct must be “sufficiently provocative of lethal resistance to support a finding of implied malice.” (Taylor v. Superior Court, supra, 3 Cal.3d at p. 583, italics added.)
The majority confuse the reasonableness of the deputies’ response, which goes to the proximate cause issue,13 with the question of implied malice, which goes to appellant’s state of mind. In so doing, they bypass Caldwell’s state of mind, or mens rea, which is one of the basic elements of murder. In effect, this omission reestablishes the felony-murder rule for killings by third parties and directly contravenes this court’s holding in People v. Washington, supra, 62 Cal.2d at page 783.
*234The reasonableness of the police response had no bearing on Caldwell’s state of mind. It is one thing to say that a police response was reasonable. It is quite another to say that the defendant should be held liable for murder. As noted above, in deciding whether to fire, an officer must consider many factors that are extraneous to the accused’s culpability. Here, for example, a deputy apparently concluded that Caldwell’s failure to surrender or to drop his alleged gun, combined with Belvin’s threatening gestures, required preemptive action. Even remaining in the car could have been interpreted by the police as indicating an intent to resist.14 Such conclusions could arguably be considered reasonable, but they cannot substitute for a finding of intentional conduct by Caldwell which affirmatively establishes a malicious intent on his part.
To equate the reasonableness of the police response with the element of the accused’s implied malice is to subvert the requirement that a jury convict an accused only if all the elements of murder are proven beyond a reasonable doubt. Instead of finding beyond a reasonable doubt that the accused or his surviving accomplice actually committed malicious acts, a jury now need only determine that a deputy reasonably believed that lethal force was appropriate to prevent possible harm or escape. Hence, an accused’s culpability for murder would hinge not on his own actions or state of mind, but on an officer’s subjective impression of the situation, including factors extraneous to the actions of the defendants.
Not only was Caldwell’s post-crash conduct insufficiently provocative to support a finding of implied malice, but it also could not conceivably have caused Belvin’s death. Deputy McSweeney, the only officer who testified to having seen Caldwell with a gun, fired not at Belvin (the decedent), but at Caldwell.
Evidently sensing the weakness of this causal connection, the majority attempt to bolster their position by suggesting that the robbers might have acted “in concert’’ to provoke the shooting. According to this theory, the jury might “reasonably have inferred that Belvin would have been unwilling to provoke a gun battle if Caldwell had not similarly adopted an aggressive stance, refusing to drop his gun.’’ (Maj. opn., ante, at p. 220.) However, as explained above, the majority’s attempt to run the causal link through the deceased accomplice’s subjective state of mind effectively overrules the sound holding of People v. Antick, supra, 15 Cal.3d 79. (See ante, at pp. 217-219.)
*235III.
In People v. Washington, supra, 62 Cal.2d at page 783, this court held that the felony-murder rule does not apply to killings not physically committed by the felons themselves. Today’s majority opinion takes a big step toward overturning that sound holding.
What differentiates Gilbert murder from traditional felony murder is the requirement of a malicious act by one of the surviving accomplices. (See LaVaute, Criminal Liability of a Participant in Crime for the Death of a Fellow Participant (1971) 22 Syracuse L.Rev. 1065, 1074-1077.) However, under the majority’s approach, malice may be so easily implied that the distinction is now more apparent than real. Malice may be implied from acts that no longer posed a threat at the time of the killing. It may be implied from the mere holding—but not pointing—of a gun. It may be implied from acts that did not themselves provoke a lethal response, but that influenced the deceased felon to provoke his own death.
I respectfully dissent from this unsupported expansion of vicarious murder liability.
Appellant’s petitions for a rehearing were denied August 31, 1984. Bird, C. J., was of the opinion that the petitions should be granted.
The felony-murder rule relieves the prosecution of proving the element of malice for a killing committed in the course of a felony by one of the perpetrators. (People v. Dillon (1983) 34 Cal.3d 441, 473-476 [194 Cal.Rptr. 390, 668 P.2d 697].)
See In re Joe R., supra, 27 Cal.3d 496. There, the accused assisted his accomplice in moving the robbery victim from a relatively safe lighted area to a dark area, where the victim seized the accomplice’s gun and killed him. This court held that the accused’s act of assistance could not support a murder conviction because there was no indication that the purpose of moving the robbery victim was anything more than facilitating the safe completion of the robbery. (Id., at p. 508.)
It is noteworthy that this case does not present the situation where a person sets off a chain of provoked responses. In that case, a person might be convicted of murder even though his gun lay in the street at the moment of the actual killing. In the present case, however, the lull between appellants’ malicious acts and the gun battle was sufficient to break any chain that might have commenced. Moreover, Deputy Boothroyd—the only deputy to testify that the driving or shotgun pointing figured in his decision to fire—stated that the lull lasted at least 12 seconds, and that the shotgun was “no longer a problem” at the time of the shooting.
Hereafter, all statutory references are to the Penal Code.
The majority attempt to explain away this problem by suggesting that the jury “may have decided that Washington was prevented from ‘using’ the shotgun when the patrol car rammed the suspects’ vehicle and it flew out of his hands.” (Maj. opn., ante, at p. 220, fn. 3.) Having thus made Washington’s argument for him, the majority proceed to misconstrue the term “use” in a manner totally unfounded in law or logic: “It is true that a criminal can ‘use’ a gun merely by displaying it, but that was evidently not what Washington had in mind; merely displaying it would have served no purpose—i.e., would have been ‘use’less—in the circumstances.” (Ibid.) Where this construction of personal use came from or what relevance it has to the proximate cause issue is left unexplained. In any case, the jury was clearly instructed that the term “used a firearm” means “to display a firearm in a menacing manner, intentionally to fire it, or intentionally to strike or hit a human being with it.” (Italics added.)
The majority find a significant causal connection in the fact that one deputy counted Washington’s shotgun pointing “among his reasons for fearing for his and his compatriots’ safety.” (Maj. opn., ante, at pp. 219-220.)
AIso, in his written report of the shootout, Deputy McSweeney stated that Caldwell exited the car holding what “appeared to be a gun.”
By all accounts, appellant maintained this indecisive posture for less than a minute.
The jury found Caldwell not guilty of assault with a deadly weapon on a peace officer (§ 245, subd. (b)).
The officer in Gilbert shot and killed Weaver, an accomplice, after appellant Gilbert shot another officer. The court reversed the surviving felons’ convictions because the jury had not been instructed that appellants could only be convicted if the officer shot Weaver in response to Gilbert’s firing. (63 Cal.2d at pp. 696-698, 703-704.)
In addition, another robber, who became the victim, pointed a gun at the store owner. To the extent that the Taylor opinion relied on this factor, it was disapproved in People v. Antick, supra, 15 Cal.3d at page 92, footnote 12.
See also People v. Claflin, supra, 87 Cal.App.3d at pages 3-4 (one of the appellants charged a police officer, struck him, and grabbed the barrel of his gun); In re Tyrone B., supra, 58 Cal.App.3d at pages 886-887 (appellant shoved and stabbed the robbery victim); People v. Velasquez, supra, 53 Cal.App.3d at pages 551-552 (appellant repeatedly struck an officer with a billy club).
If the deputies had opened fire unreasonably, their firing would have constituted an intervening cause sufficient to relieve appellants of liability for the killing. “[T]he victim’s self-defensive killing or the police officer’s killing in the performance of his duty cannot be considered an independent intervening cause for which the defendant is not liable, for it is a reasonable response to the dilemma thrust upon the victim or the policeman by the intentional act of the defendant or his accomplice.” (People v. Gilbert, supra, 63 Cal.2d at p. 705, italics added.)
This is borne out by the deputies’ reaction to Washington, who remained inside the car and appeared to be groping around for something while looking at the deputies. The deputies, perhaps reasonably, considered this conduct to be threatening. But it can scarcely be considered a “malicious” act sufficient to support a murder conviction.