I concur with the majority in affirming Martin’s convictions of conspiracy to commit extortion, conspiracy to commit assault with a deadly weapon and simple assault. However, I believe instructional error requires reversal of Martin’s conviction of second degree murder. Martin was neither charged with nor tried for conspiracy to commit murder, reflecting the district attorney’s assessment before trial that there was insufficient evidence to establish an agreement between Martin and Powell that Powell was to murder Crake. The deputy district attorney who tried the case did so consistently, but incorrectly, with these pleadings on the theory that the unintended killing was the objectively foreseeable result of the charged conspiracies, neither of which can legally support a finding of second degree murder.
Jury instructions may not be considered in the abstract. They must be evaluated in the context of the actual trial, considering the theories advanced and the evidence presented. In the case before us the jury was directed to limit its consideration of Martin’s guilt on the murder count to “the con*171spiracy theory if at all.” (See ante, p. 158, italics supplied.) In effect, the jury was told to disregard the instructions on aiding and abetting. My assessment of the record is shared by the Attorney General who asserts: “The plain language of the above instruction indicates the jury was not to consider an aiding and abetting theory when they evaluated the murder count.” “[They were told to] evaluate the murder count using a conspiracy theory exclusively. ” (Italics supplied.)
Excising the aiding and abetting instructions, it appears the jury convicted Martin on the following instructions. The jury first determined Martin was guilty of the conspiracies to commit extortion and to commit assault with a deadly weapon. As a coconspirator, the jury was then told, Martin had the same culpability as Powell: “Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if said act or said declaration is in furtherance of the object of the conspiracy. [¶] The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. Every conspirator is legally responsible for the act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as a part of the original plan and even though he was not present at the time of the commission of such act.” (CALJIC No. 6.11.) Finally, in determining whether second degree murder was a “probable and natural consequence of the object of the conspiracy,” the jury was permitted to apply part of CALJIC No. 8.30 and all of CALJIC No. 8.31 (1981 rev.): “Murder of the second degree is [also] the unlawful killing of a human being with malice aforethought when there is manifested an intention unlawfully to kill a human being . . . .[1] [¶] Murder of the second degree is [also] the unlawful killing of a human being as the direct causal result of an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with wanton disregard for human life. [¶] When the killing is the direct result of such an intentional act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.”
None of these instructions informed the jury they were to focus on Martin’s state of mind in determining whether he harbored the malice necessary for conviction of second degree murder. To complicate matters further, the case was tried and argued in a manner which allowed the jury to substitute Powell’s state of mind for that of Martin’s in finding Martin guilty of second degree murder.
*172The deputy district attorney argued that if the jury decided Powell acted for a base, antisocial purpose and with wanton disregard for human life, then Martin was guilty as a coconspirator since murder was a natural and probable consequence of the conspiracy. After saying he wanted to talk about “homicide law,” the prosecutor argued:
“With respect to Count III [murder], this jury must decide the case of the People of the State of California versus Andrew Powell. You have to decide without regard to Herman Martin or any—just take him out of the picture for a minute. You have seen the evidence about Andrew Powell killing Richard Crake. You have to decide what kind of a killing that was, because the only thing that is important with respect to this conspiracy theory is, Andrew Powell, his state of mind and what kind of a homicide did he commit when he killed Crake.
“First of all, the only instructions you are going to hear, the only choices you are going to get are between second degree murder and voluntary manslaughter or not guilty. The evidence is going to show this is a second degree murder. Homicide is the unlawful killing of someone. . . .
“Well, the first two of those you don’t have any problem with. Mr. Crake was killed, and it was clearly an unlawful killing. The question is, did Andrew Powell have a state of mind that we described as malice aforethought? Because the difference between murder and manslaughter is the presence or absence of malice aforethought. If it is an unlawful killing and there is malice aforethought, it is murder. If there is no malice aforethought, it is manslaughter. That is it simply.” The deputy district attorney proceeded to focus on Powell’s state of mind, arguing:
“You tell us what he [Andrew Powell] intended to do. Don’t let Andrew Powell tell you what his state of mind was. You tell him. . . . The jury can tell Herman Martin what Andrew Powell’s state of mind was.
“I suggest to you Andrew Powell was full of malice, and the killing that resulted in this case clearly shows that. This is a second degree murder. Murder of a second degree is the unlawful killing of a human being with malice aforethought when there is manifested an intention to unlawfully kill a human being. That is called unpremeditated murder of the second degree. You will get that instruction.
"
“Was there manifested an intention on Powell’s part to kill Mr. Crake? *173Clearly, there was. I mean, he beat him. He shot him. That manifested an intent to kill. Powell did second degree murder.”
The court’s instructions to the jury, consistent with the prosecutor’s argument, failed to inform the jury that in order to convict Martin of second degree murder it was Martin who had to act with either express or implied malice.
The court’s error in permitting Powell’s malice to be attributed to Martin was exacerbated by the court’s error in partially instructing on felony murder. The court inexplicably gave part of CALJIC No. 8.51. The giving of that instruction seems “inexplicable” because the court rejected CALJIC Nos. 8.32 and 8.33. Those instructions present the basic second degree felony-murder rule and further provide that if a killing is done to further the common purpose of a conspiracy to commit a felony inherently dangerous to human life, all of the coconspirators are deemed to be equally guilty of murder of the second degree whether the killing is intentional, unintentional or accidental. The court’s rejection of those instructions and the fact the prosecutor was prevented from arguing a felony-murder theory suggests the giving of part of CALJIC No. 8.51 was due to an oversight. Nonetheless, the jury was instructed; “If a person while committing a felony inherently dangerous to human life causes another’s death, malice is implied, and the crime is murder. If while committing a misdemeanor inherently dangerous to human life he causes another’s death, there is no malice, and he is guilty of manslaughter.”2 (Italics supplied.) The instruction was not supplemented, nor could it have been, by instructions defining the underlying dangerous felony or misdemeanor. Pursuant to the rationale of People v. Ireland (1969) 70 Cal.2d 522, 538-540 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323], the felony of assault with a deadly weapon cannot be used to support a second degree murder conviction on a felony-murder theory. Extortion also is unavailable as the underlying felony because it is not inherently dangerous to human life.3 From the above instructions the jury could have erroneously found Powell guilty of felony murder. Combined *174with the preceding conspiracy and second degree murder instructions and the prosecutor’s argument focusing on Powell’s rather than Martin’s state of mind, the jury then could have erroneously concluded Martin, as Powell’s coconspirator, was guilty of implied malice second degree murder.
Courts and commentators continue to question the mechanical application of artificial formulae to establish criminal liability. For example, the California Supreme Court “. . . has repeatedly criticized the felony-murder rule as a ‘highly artificial’ and ‘barbaric’ concept which ‘. . . “erodes the relation between criminal liability and moral culpability”. . .' " (People v. Dillon (1983) 34 Cal.3d 441, 494 [194 Cal.Rptr. 390, 668 P.2d 697] (conc. opn. of Bird, C. J.).) Courts have historically equated the degree of criminal liability with the actor’s state of mind. Mens rea has always been stressed to insure that punishment which society prescribes for a specific crime is directly related to the criminal purpose of the perpetrator. (See Pen. Code, § 20; 1 Witkin, Cal. Crimes (1963, and 1978 supp.) Elements of Crime, § 52.) Only recently, for example, this court held the objective standard of CALJIC No. 8.31 for implied malice second degree murder was inadequate because the instruction failed to require a finding the defendant acted with a subjective awareness that his conduct endangered the life of another. (People v. Smith* (Cal.App.).)
Paradoxically, the majority here affirms Martin’s conviction of second degree murder on a conspiracy theory which allowed the jury to disregard Martin’s state of mind. Instead, guilt was based on a simple but incorrect formula: conspiracy (of any felony) plus death equals second degree murder provided the death (1) was an objectively foreseeable event and (2) was caused by the coconspirator’s death-resulting act.
In this case, there was ample evidence to convict Martin of aiding and abetting Powell’s commission of second degree murder. The fact that Martin used a mercenary as an intermediary rather than acting himself does not immunize him from culpability. Accordingly, had the jury been asked to decide whether Martin, under all of the circumstances, acted with implied malice4 in intentionally instigating a chain of events which directly resulted in Crake’s death, it may well have answered affirmatively. Unfortunately, the jury was never given that opportunity. Accordingly, I conclude Martin’s second degree murder conviction must be reversed. Regardless of Martin’s apparent guilt of second degree murder, he is nonetheless entitled to a fac*175tual determination of each of the elements of that crime. (See People v. Kent (1981) 125 Cal.App.3d 207, 213, 214, fn. 7 [178 Cal.Rptr. 28].)
A petition for a rehearing was denied January 13, 1984, and appellant’s petition for a hearing by the Supreme Court was denied April 19, 1984. Bird, C. J., and Kaus, J., were of the opinion that the petition should be granted.
The court omitted the concluding phrase of CALJIC No. 8.30, as follows: “. . . but the evidence is insufficient to establish deliberation and premeditation.”
Although this instruction is included in the packet of requested instructions submitted by Martin’s counsel, the record does not indicate whether it was actually requested and rejected. Unlike other requested instructions upon which “rejected” is written, only a question mark appears on this instruction. Whether the question mark means the defense lawyer and/or the court had concern with the instruction or were undecided whether to request or reject the instruction is not clear from the record. Accordingly, the doctrine of invited error is inapplicable.
In determining whether a felony is inherently dangerous to human life the elements of the felony must be considered in the abstract, not the particular facts of the case. (People v. Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1, 560 P.2d 1180].) Clearly, obtaining property from another with his consent by wrongful use of force or fear (Pen. Code, § 518) may be accomplished without inflicting mortal or life-threatening physical harm.
Reporter’s Note: Deleted on direction of Supreme Court by order dated December 22, 1983.
The deputy district attorney in argument acknowledged Martin did not act with express malice. He said “Herman Martin probably didn’t want Richard Crake killed, didn’t intend that to happen at all.”