OPINION
{1} This сase presents a novel set of facts that requires us to examine the limits of the depraved mind murder and felony murder statutes. Defendant was charged with false imprisonment, kidnapping, aggravated battery, felony murder, and depraved mind murder. He moved to dismiss both murder charges because neither he nor his accomplice committed the lethal act. The trial court dismissed the depraved mind murder charge, which the State appeals, and did not dismiss the felony murder charge, which Defendant appeals pursuant to our grant of his application for interlocutory appeal. First, we discuss the decision to dismiss the depraved mind murder chаrge and affirm the dismissal. Second, we discuss the decision not to dismiss the felony murder charge and reverse the denial of the motion to dismiss it.
FACTS AND PROCEEDINGS
{2} The parties stipulated to the following facts for the purposes of this appeal. There was a party in a Las Cruces apartment complex. Hellaman Tellez lived in a first floor apartment directly beneath the apartment where the party occurred. Tellez’s friend, Jose Campos, visited Tellez and then attended the party. By 1:30 a.m., the party had spread to the parking lot, and many of the party-goers were rowdy and violent.
{3} Two unidentified men from the party repeatedly rang the doorbell for Tellez’s apartment. When Tellez opened the door, they forced their way inside. They scuffled with Tellez, hit him over the head with a bottle, and left the apartment. Tellez got his two loaded handguns and went out of his apartment to the first floor balcony.
{4} At the same time, a group of people in the parking lot had surrounded Jose Campos and were attacking him while Defendant h'eld a gun to his head to prevent him from fleeing. The group severely beat, pistol-whipped, kicked, and punched Campos, breaking bottles over his head and giving him serious lacerations and other injuries.
{5} When Tellez came out of his apartment with his loaded guns, hе witnessed Campos’s attack. He pleaded with Defendant and his companions to stop the beating. As the beating continued, Defendant turned to point his gun at Tellez. Tellez fired at Defendant and Defendant fired back. In the ensuing gun battle, Defendant fired four shots. Tellez, who returned to his apartment at one point for more ammunition, fired 20 shots. One of Tellez’s shots hit and fatally wounded Gerald Pettes, an innocent bystander. Tellez also injured Defendant and two or three others. None of Defendant’s shots hit anybody.
{6} A grand jury indicted Defendant on counts of first degree (felony) murder, first degree kidnapping with a firearm enhancement, aggravated assault (deadly weapon) with a firearm enhancement, shooting at a dwelling or occupied building (no great bodily harm), and possession of a firearm or destructive device by a felon. Another grand jury issued a separate indictment of Defendant for first degree (depraved mind) murder, arising from the same incident. The trial court joined the indictments.
{7} Defendant moved to dismiss both murder charges. The trial court heard Defendant’s motion to dismiss and ruled that the facts were not legally sufficient to support the depraved mind murder charge, but did suffice to support the felony murder charge. The court further certified the order denying the motion to dismiss the felony murder charge for interlocutory appeal.
{8} Defendant filed an application for interlocutory appeal of the trial court’s decision not to dismiss the felony murder charge. See NMSA 1978, § 39-3-3 (1972). The State filed an interlocutory appeal as of right of the dismissal of the depraved mind murder charge. See § 39-3-3(B)(l). We assigned the consolidated appeal to the general calendar.
DISCUSSION
1.Depraved Mind Murder
{9} The State appeals the trial court’s dismissal of the depraved mind murder charge. The issue of whether Defendant may be held liable for depraved mind murder when he or his accomplice did not commit the lethal act that killed the innocent bystander is one оf first impression. The State argues that the depraved mind murder charge should stand because Defendant “initiate[d] a gun battle in a public place” and therefore meets the intent and causation requirements. We disagree.
{10} As a matter of statutory interpretation and construction, we review the issue de novo. State v. Pearson,
{11} NMSA 1978, § 30-2-l(A)(3) (1994) defines first degree murder as “the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused ... by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.” The jury instructions require the State to prove beyond a reasonable doubt that:
2. The defendant’s act caused the death of [the victim];
3. The act of the defendant was greatly dangerous to the lives of others, indicating a depraved mind without regard for human life;
4.The defendant knew that his act was greatly dangerous to the lives of others[.]
UJI 14-203 NMRA 2003 (footnote omitted).
{12} The intent element of depraved mind murder “encompass[es] an intensified malice or evil intent.” State v. Brown,
{13} In depraved mind murder cases, defendants usually manifest their intent in one of two ways. First, depraved mind murder can apply to cases where there is intent to kill a specific person and bystanders are killed as a result of depraved acts flowing from this intent. State v. Sena,
{14} There is also a causation element to depraved mind murder. Courts generally employ the jury instruction for causation in homicide cases which reads:
1. The death was a foreseeable result of the defendant’s act;
2. The act of the defendant was a significant cause of the death of [the victim]. The defendant’s act was a significant cause of death if it was an act which, in a natural and continuous chаin of events, uninterrupted by an outside event, resulted in the death and without which the death would not have occurred.
[There may be more than one significant cause of death. If the acts of two or more persons significantly contribute to the cause of death, each act is a significant cause of death.]
UJI 14-251 NMRA 2003 (Homicide; “proximate cause”; defined.); see State v. Trujillo,
{15} Applying these requirements, New Mexico courts have upheld depraved mind murder convictions for shooting from a balcony into a group of people; committing multiple shootings, some fatal, in a crowded house; and shooting with intent to kill a doorman, but resulting in thе deaths of bystanders. Id. at ¶¶ 31-32; State v. Abeyta,
{16} In the present case, the issue is whether Defendant can be found to possess the depraved mind intent and to have been the proximate cause of an innocent bystander’s death, given the fact that he did not fire the lethal bullet. The State argues that we should extend the depraved mind murder statute to include cases where the defendant sets in motion a chain of events that leads to the accidental death of a bystander. We disagree.
{17} New Mexico is one of only three states, along with Maine and Washingtоn, to codify depraved mind murder as first degree murder. 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.7(d), at 244-45 & n. 65 (1986) (“Less defensible is placing depraved [mind] murder into this category [of first degree murder], as a few states have done.”). Only New Mexico and Washington make it punishable by death. See John T. Rago, “Truth or Consequences” and Postr-Conviction DNA Testing: Have You Reached Your Verdict?, 107 Dick. L.Rev. 845, 850, n. 21 (2003) (listing the states that have the death penalty). As a result, our courts have noted the necessity of construing depraved mind murder to “sufficiently distinguish the offense of first-degree depraved mind murder from second-degree murder.” Brown,
{18} The State urges us to follow the lead of California and other states who use a “provocative act murder” doctrine to find liability in these attenuated situations. We do not agree that New Mexico should adopt the standards of other states that include depraved mind murder as second degree murder, and whose depraved mind murder convictions do not carry the potentially capital consequences that New Mexico’s statute imposes.
{19} In applying this limitation to the present case, it is clear that the trial court was correct to dismiss the depraved mind murder conviction. Defendant did not commit the lethal act, and Tellez, who did fire the lethal shot, was not Defendant’s accomplice. We therefore affirm the dismissal of the depraved mind murder charge.
2. Felony Murder
{20} Defendant challenges the trial court’s failure to dismiss the felony murder charge on the grounds that he lacked the requisite intent, he was not the actual or proximate cause of the victim’s death, and the potential for a capital sentence indicates that the felony murder charge is disproportionate to his actions. These claims raise legal issues and require us to interpret the felony murder statute, and we review them de novo. Pearson,
{21} Felony murder is the common law crime that makes a defendant liable for murder when a killing occurs in the commission or attempted commission of a crime. See LaFave, swpra, § 7.5, at 206. The crime is generally said to have originated with Lord Coke’s 1644 statement, “a death caused by any unlawful act is murder.” 2 Charles E. Torcía, Wharton’s Criminal Laiv § 147, at 296 (15th ed.1994) (internal quotation marks and citation omitted). Blackstone echoed this sentiment, stating that “if one intends to do another felony, and undesignedly kills a man, this is also murder.” 4 William Blackstone, Commentaries on the Laws of England 201 (1769) (University of Chicago Press ed., 1979). In England, courts limited felony murder by requiring that the predicate felony be violent, or that the death be “the natural and prоbable consequence of the defendant’s conduct in committing the felony.” LaFave, supra, § 7.5, at 207.
{22} The general trend towards limiting the felony murder rule has continued in America, as courts and legislatures have limited the permissible predicate felonies, eliminated liability for deaths of accomplices, and created causation and intent requirements. LaFave, supra, § 7.5, at 208. These limitations have often come in response to criticisms that felony murder is “unfair, unprincipled and inconsistent with other criminal and civil standards.” Rudolph J. Gerber, The Felony Murder Rule: Conundrum Without Principle, 31 Ariz. St. L.J. 763, 763 (1999). But, although England abolished felony murder in 1957, only three American states (Hawaii, Kentucky, and Michigan) have completely abolished the rule. LaFave, supra, § 7.5, at 233 & nn. 136-37.
{23} New Mexico’s felony murder rule states, “Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused ... in the commission of or attempt to commit any felony[J” Section 30-2-l(A)(2). The root of our felony murder doctrine was a legislative determination “that a killing in the commission or attempted commission of a felony is deserving of more serious punishment than other killings in which the killer’s mental state might be similar but the circumstances of the killing are not as grave.” State v. Ortega,
{24} There are five main limitations to New Mexico’s felony murder rule. First, the predicate felony must be the actual and proximate cause of the death. State v. Harrison,
{25} New Mexico’s first felony murder limitation was the causation requirement, which our Supreme Court announced in the 1977 case of Harrison. As a basis for this holding, the Court noted that the exact meaning of causation in the felony murder context had been the subject of much debate and confusion among academies and in other jurisdictions. Harrison,
{26} The Harrison Court also created the requirement that the felony upon which the felony murder charge is based must be inherently dangerous. Id. at 442,
{27} Two years after Harrison established the causation requirement and the inherently dangerous felony test, our Supreme Court created a per se rule that felony murder charges are not permitted when the felony victim kills the defendant’s accomplice. Jackson,
{28} Twelve years later, in Ortega,
[A]ny presumption which establishes a fact essential fоr conviction of the crime by proof of another fact, or which shifts to the defendant the burden of persuasion that the essential fact is not true, runs afoul of the Due Process Clause by conflicting with “the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.”
Ortega,
{29} Most recently, our Supreme Court incorporated a collateral felony requirement, which states that “the predicate felony cannot be a lesser-included offense of second-degree murder.” Campos,
{30} These limitations have been codified in the Uniform Jury Instructions for felony murder:
For you to find the defendant ... guilty of felony murder, which is first degree murder, ... the state must рrove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant_ (name of defendant) [committed] [attempted to commit] [the underlying felony] [under circumstances or in a manner dangerous to human life];
2. [The defendant] caused the death of [the victim] during [the commission of] [the attempt to commit]_(name of felony);
3. [The defendant] intended to kill or knew that [his] [her] acts created a strong probability of death or great bodily harm[.]
UJI14-202 NMRA 2003.
{31} In summary, all of New Mexico’s felony murder limitations work together to ensure that defendants convicted of felony murder have a culpable mental statе consistent with the legislature’s retributive and punitive goals. Other states, like Kansas and California, use their felony murder statutes more broadly, “to deter negligent or accidental killings that may occur in the course of committing a felony.” Campos, 1996— NMSC-043, ¶ 18. In contrast, New Mexico aims to punish those who commit an inherently dangerous felony with “malice” that results in death. See Ortega,
{32} Defendant’s claims all arise from the unusual set of facts presented in this case. It is uncontested that Defendant did not fire the shot that killed Pettes, the deceased victim. Tellez, the individual who did fire the lethal shot, was not Defendant’s accomplice. Furthermore, unlike in Jackson, Pettes was not Defendant’s accomplice either. The stipulated facts characterize him as an “innocent bystander,” although Defendant asserts that Pettes was Defendant’s “close friend.” Under these unusual circumstances, Defendant claims that he cannot be liable for Pettes’s death because he lacked the intent, and because Tellez was an independent intervening force. None of the reported facts in any prior New Mexico case indicate whether a defendant can be charged with felony murder based on the lethal acts of another person who is not an accomplice. Thus, this is a case of first impression and requires us to determine which approach is in keeping with New Mexico precedent and policy. Defendant basically invites us to extend Jackson to cases where a third party, who is not engaged in a common plan with the defendant, commits the lethal act and the victim is not the defendant’s accomplice. We agree that this is the proper application of New Mexico law.
{33} The approaches that exist in this area of the law can be divided into two camps. The states that do not hold defendants liable for the acts of non-accomplices follow an “agency theory,” where a defendant is only liable for murder “if the defendant or her co-felon actually performed the lethal act.” James W. Hilliard, Felony Murder in Illinois-The “Agency Theory” v. the “Proximate Cause Theory”: The Debate Continues, 25 S. Ill. U. L.J. 331, 332 (2001). The states that do hold defendants liable for third party acts do so under the “proximate cause theory” that a defendant is responsible “for any death proximately resulting from the forcible felony or attempted forcible felony.” Id.
{34} Although many jurisdictions expressly adopt one of these theories in their cases dealing with liability for the death of an accomplice, as discussed below, our Supreme Court did not espouse either theory in Jackson. However, it is useful to examine the rationale for the four cases that the Court cited in Jackson to support the proposition that a defendant cannot be liable for the death of an accomplice. All four cases use the agency theory as the basis for their holdings.
{35} The earliest two cases on which Jackson relied are from Pennsylvania: the seminal Commonwealth v. Redline,
{36} The third case on which Jackson relied, State v. Canola,
{37} In the most recent case, People v. Antick,
When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be fоreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words murder ... which is committed in the perpetration ... [of] robbery ... beyond common understanding.
Id. at 48 (internal quotation marks and citation omitted).
{38} These cases exemplify the national trend towards adopting the agency theory. A review of New Mexico ease law and policy reveals that our courts havе followed this trend, and that the agency approach fits with New Mexico’s unique felony murder doctrine.
{39} As stated earlier, no prior New Mexico case has ever raised this particular issue on appeal. However, in Harrison, our Supreme Court explained the difference between an independent intervening force and a dependent intervening force using these examples:
A policeman who shoots at an escaping robber but misses and kills an innocent bystander would be considered a dependent, intervening force, and the robber would be criminally liable for felony murder under this test. Lightning striking and killing the bystander would be an independent, intervening force.
Harrison,
{40} However, Harrison was decided before New Mexico imposed its felony murder intent requirement, and its dicta are not enough to overcome the overwhelming trend towards limiting New Mexico’s felony murder rule. Our unique configuration of felony murder limitations emphasizes that a defendant must possess the intent to kill in order to be charged with felony murder. As the Pennsylvania court explained in Redline, the agency approach ensures that the intent of another actor is only imputed to the defendant when they are engaged in a common criminal enterprise. We also believe that an agency approach follows our Supreme Court’s edict against any expansion of the felony murder doctrine. See Jackson,
{41} The State urges us to rely on the Wisconsin case of State v. Oimen,
{42} The State also refers us to the New York case People v. Hernandez,
The basic tenet of felony murder liability is that the mens rea of the underlying felony is imputed to the participant responsible for the killing. By operation of that legal fiction, the transferred intent allows the law to characterize a homicide, though unintended and not in the common design of the felons, as an intentional killing.
Id. at 665 (internal citation and emphasis omitted). This imputed intent approach, whiсh implies the intent for felony murder from the underlying felony, was expressly rejected by our Supreme Court in Ortega. Ortega,
{43} In summary, the agency approach is the logical extension of existing New Mexico felony murder law. Our Supreme Court’s decision in Jackson relied on cases espousing the agency approach. Our precedents directly conflict with the underpinnings of a proximate cause approach. Our existing limitations to the felony murder doctrine counsel against its expansion.
{44} In the instant ease, the State argues: [I]t was entirely foreseeable that when [Defendant], who was apparently leading a group of his friends in brutally beating, and pistol whipping ... Tellez’s friend, responded to ... Tellez’s pleas to stop the beating by pointing his gun at an obviously armed ... Tellez, ... Tellez would, fearing for his life, respond by firing at [Defendant].
The State further argues, “[Defendant knew that when he threatened an armed ... Tellez with his weapon that that act created a strong probability of death of or of great bodily harm to ... Tellez or another.” This view of the facts arguably creates sufficient jury questions of intent and causation to support a felony murder charge under a strict reading of Harrison and Ortega. A narrow reading of the jury instructions might also suggest that these facts could support a felony murder charge.
{45} However, under the agency rule we announce today for the reasons discussed above, this is not enough to overcome the facts that Tellez was not Defendant’s accomplice and that they were not engaged in any common enterprise. Without an accomplice relationship between Defendant and the person who committed the lethal act, there is not enough to support a charge of felony murder under an agency view.
{46} We hold that the Defendant’s felony murder charge cannot stand, and we reverse the trial court’s failure to dismiss the charge.
CONCLUSION
{47} We affirm the dismissal of the depraved mind murder charge and reverse the failure to dismiss the felony murder charge.
{48} IT IS SO ORDERED.