I concur in the majority opinion with the exception of sections V and VI in Luparello's appeal.1 As to those issues, I concur in the result reached by the majority under the compulsion ofPeople v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal.Rptr. 60,674 P.2d 1318] and People v. Croy (1985) 41 Cal.3d 1, 12, footnote 5 [221 Cal.Rptr. 592, 710 P.2d 392]. Those cases require a holding that an aider and abettor or coconspirator is liable not only for those crimes committed by a cofelon which he intended or agreed to facilitate but also for any additional crimes which are "reasonably foreseeable."2 The majority, citing Professor Kadish's recent article,3 recognize a doctrinal tension in extending accomplice and conspiratorial liability beyond intended acts but conclude, based on Croy, that this principle of extended criminal liability does not suffer from any "theoretical infirmit[y]." (Maj. opn., ante, p. 441.)
The fact that the Supreme Court has announced a principle of law certainly requires that as an intermediate appellate court we follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) This does not mean however, that the announced principle is either logically consistent or theoretically sound. On a prior occasion I expressed my concern with the legal principle at issue. My dissent in People v. Martin (1983) 150 Cal.App.3d 148, 170 [197 Cal.Rptr. 655], written before either Beeman or Croy was decided, failed to attract the attention of a majority of the Supreme Court. I will therefore not repeat *Page 453 my discussion in Martin, which basically stated what I thought the law should be. Instead, I will briefly comment on what I perceive to be the serious incongruities created by the "foreseeable consequence" doctrine.
Professor Kadish argues that the theory underlying accomplice liability does not permit liability to attach to an accomplice or coconspirator for the acts of another unless the accomplice or coconspirator intended such acts. He explains that the "foreseeable consequence" doctrine "would seem to allow holding the accomplice for a crime of knowledge or purpose committed by the principal as long as he should have anticipated the principal's actions." (73 Cal.L.Rev. at p. 352.)
The major fallacy I see in the "foreseeable consequence" doctrine is not so much that it attributes an unintended act to the accomplice/coconspirator but rather that it assesses the degree of his culpability for that act not by his own mental state but rather by the mental state of the perpetrator and/or the circumstances of the crime. The present case provides an appropriate example. The assault on Mark Martin contemplated by the conspiracy involved a foreseeable risk of death or serious injury. We can assume (although there was no jury finding on the issue) that Luparello was criminally negligent in failing to appreciate the degree of risk. Under usual circumstances, a person negligently causing the death of another is guilty, at most, of involuntary manslaughter. Here, however, Luparello's liability is not based on his individual mental state but instead turns on the jury's finding that the unidentified shooter intentionally killed Martin while lying in wait. Thus, Luparello is guilty of first degree murder. If the circumstances of Luparello's participation were exactly the same but the shooter did not "lie in wait," Luparello could only be convicted of second degree murder. I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter. And to take it a step further, if it turned out the shooter was insane, would Luparello have no liability at all for Martin's homicide? As I explained in my Martin dissent, I find such fortuity of result irrational. So too, apparently, do Professors LaFave and Scott in their treatise on criminal law: "The `natural and probable consequence' rule of accomplice liability, if viewed as a broad generalization, is inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel." (LaFave Scott, Handbook on Criminal Law (1972 ed.) p. 516.) *Page 454
The drafters of the Model Penal Code reached a similar conclusion. Section 2.06(3)(a) establishes a standard for accomplice liability which, like California's governing Beeman standard, requires that the accomplice act "with the purpose of promoting or facilitating the commission of the offense, . . ." Missing from the Model Penal Code, however, is any reference to the "foreseeable consequence" doctrine. The Comment to the section addresses the issue as follows: "[The accomplice] must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose. [¶] This does not mean, of course, that the precise means used in the commission of the crime must have been fixed or contemplated or, when they have been, that liability is limited to their employment. One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a whollydifferent crime has been committed, thus involving conduct notwithin the conscious objectives of the accomplice, he is notliable for it. . . ." (Model Pen. Code Commentaries, com. 6(b) to § 2.06, pp. 310-311, italics added.) In support of this reasoning the drafters quoted from a conspiracy decision written by Judge Learned Hand: "At times it seemed to be supposed that, once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does, and even for what those do who join later. Nothing could be more untrue. Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change; . . . ." (United States v. Peoni (2d Cir. 1938) 100 F.2d 401, 403.)
In contrast to the majority, which seeks to distinguish the "forseeable consequence" doctrine from the "disfavored" felony-murder rule (see maj. opn., ante, p. 437), I view both as being founded on the same outmoded and logically indefensible proposition that if a person exhibits some intent to violate the law, we need not be terribly concerned that the contemplated crime was far less serious than the crime which actually took place. Consider the following discussion in the Supreme Court'sCroy decision: "It follows that 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. It is the intent to encourage and bring aboutconduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury." (41 Cal.3d at p. 12, fn. *Page 455 5, italics added.) Contrast it with the following description of the theoretical basis for the felony-murder rule in LaFave and Scott's treatise: "The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended." (LaFave Scott, op. cit. supra, at p. 560.)
In our means-oriented society, to have the end alone justify the punishment is unconscionable. The artificial imputation of stepped-up intent, inherent in both the felony-murder rule and the "foreseeable consequence" doctrine, is inconsistent with the "universal and persistent" notion that criminal punishment must be proportional to the defendant's culpable mental state. (SeeMorissette v. United States (1952) 342 U.S. 246, 250-251 [96 L.Ed. 288, 293-294, 72 S.Ct. 240].) Justice Mosk's dissent inTaylor v. Superior Court (1970) 3 Cal.3d 578, 593 [91 Cal.Rptr. 275, 477 P.2d 131] expressed it well: "Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination." The fact that the accomplice or coconspirator intended to facilitate some less serious criminal act does not render these fundamental principles inapplicable. As the United States Supreme Court has explained, "The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E.g., Mullaney v.Wilbur, 421 U.S. at 697-698 (requirement of proof beyond a reasonable doubt is not `limit[ed] to those facts which, if not proved, would wholly exonerate' the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." (Jackson v. Virginia (1979) 443 U.S. 307, 323-324 [61 L.Ed.2d 560, 576-577, 99 S.Ct. 2781].)
By these references I do not mean to suggest that the "foreseeable consequence" doctrine is unconstitutional, although an argument can be made in that regard. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 495-498 [194 Cal.Rptr. 390, 668 P.2d 697] (conc. opn. of Bird, C.J.).) Here, however, Luparello has been convicted of first degree murder under circumstances where, in the absence of the "foreseeable consequence" doctrine, he would be guilty at most of involuntary manslaughter. As to the felony-murder rule, the Supreme Court has concluded the rule is a creature of statute, codified by the Legislature in Penal Code section 189 and, as such, must be applied by the courts. (SeePeople v. Dillon, supra, 34 Cal.3d at pp. 450, 472.) No similar impediment appears with respect to the "foreseeable consequence" doctrine. It is purely a creature of judicial interpretation subject *Page 456 to the thoughtful evolution of the common law. As scholars and commentators have consistently concluded, the time for considered reevaluation is long overdue.
The petition of appellant Luparello for review by the Supreme Court was denied February 11, 1987.