[214]*214Opinion
REYNOSO, J.
Convicted of robbery and murder,1 defendants Ernest Edward Caldwell and Warren Edwin Washington appeal, claiming that they should not have been found guilty of the murder of a cofelon killed by police in the course of a shootout. Defendants claim that the cofelon’s death proximately resulted from his own provocative conduct, for which, under our decisions, they cannot be held vicariously liable. More broadly, they wish us to reconsider the now settled rule that, though the felony-murder rule does not extend to killings by victims or police, such killings which proximately result from provocative conduct by one of the felons which exhibits a conscious disregard for life and a high probability of resulting in death constitute murder without the necessity of any “imputation” of malice. The record discloses substantial evidence of malicious conduct by the defendants themselves, and we decline their invitation to reconsider settled decisional law. Accordingly, we will affirm.
I
About 7:15 p.m. on January 28, 1980, a man wearing a gray overcoat and dark glasses, subsequently identified as Anthony Belvin (the murder victim), approached the patio window of a Church’s Fried Chicken outlet and placed an order, indicating that a companion would pay. The latter was wearing a blue jacket and was later identified as defendant Washington. Washington approached the window, then walked to the rear of the building, returned to speak to Belvin, and then walked to another window as though intending to pay for the order. Belvin then revealed a sawed-off shotgun, pointed it at one of the employees, and announced a holdup. Belvin ordered the employees to lie down on the ground and forced one of them to open one of the cash registers and hand over the contents ($24). While the employee attempted to open a second register at Belvin’s behest, Washington entered the building through one of the counter windows and approached the manager’s office carrying a handgun. The manager was already in telephone contact with the sheriff’s department, having retreated to his office when he saw the robbers (whom he thought he recognized from a previous robbery) approaching the place. When the manager failed to open his door, Washington returned to the front of the establishment and left with Belvin.
[215]*215Within seconds after the men fled, a patrol car containing Deputies Morris Boothroyd and Ronald Trujillo arrived. After one of the employees indicated in which direction the robbers had gone, Deputy Boothroyd saw a man in a blue jacket entering a brown automobile which pulled away from the curb very rapidly, so much so that the tires lost traction on the road’s surface. The deputies activated their lights and siren and gave chase.
The brown car, driven without headlights, was pursued by an increasing number of patrol cars over a twisting course for 5 to 10 miles at speeds up to 70 miles per hour. During the chase, it drove through several stop signs and red lights, once skidded out of control, and nearly collided with another car. At an intersection, the suspects’ auto struck a sheriff’s vehicle coming from a side street and continued. Two more radio cars containing Deputies Steven Maggiora and Robert Lopez and Deputies Milkey and Bruton, joined the pursuit.
A fourth sheriff’s vehicle, carrying Deputies James McSweeney and Patrick Hunter, came on the scene in front of the suspects’ car, traveling in the opposite direction. The brown car initially veered toward the patrol car, then slowed almost to a stop and pulled toward the opposite curb. Suddenly the deputies noticed that the passenger in the right front seat (Washington) was pointing a shotgun at them. Instinctively, Deputy Hunter accelerated and rammed the suspects’ car head-on. The shotgun discharged and flew out of Washington’s hands, skidding away from the auto. Deputy Boothroyd pulled up directly behind the brown car, which rolled backward a short distance and came to rest against the patrol car’s front bumper. The other sheriffs’ cars parked a little behind and to the right of Boothroyd’s and Trujillo’s car.
The deputies alighted immediately and took cover with guns drawn. A moment later, they saw the rear-seat passenger (Belvin) lean forward and put his hand out the window with a revolver in it. At the same time, Deputy McSweeney saw the driver (defendant Caldwell) open his door and crouch behind it carrying a recognizable handgun. Deputy Hunter watched Washington as he took cover behind a door post and formed the impression that he, too, had a weapon, in view of the way he kept watching the deputy rather than seeking better cover (but it is apparently undisputed that Washington was unarmed at this point). Belvin moved his gun back and forth in a sweeping motion, ignoring repeated orders to “freeze” and “drop the gun.” When Belvin took aim at two of the deputies and failed to respond to a last order to drop his weapon, Deputy Hunter fired at him, then at Washington. The rest of the deputies also fired at the car at about the same time (though Hunter is the only one of those who testified who did not state that he heard one or more shots before firing). When the shooting started, [216]*216Deputy McSweeney focused his attention on Caldwell and shot at him when, instead of dropping his gun, he looked in the direction of Me Sweeney’s partner. Estimates of the time between the ramming of the suspects’ car to the firing of the first shot ranged from 5 to 40 seconds.
After the gunfire ended the suspects were removed from their vehicle. Belvin had been wounded, and he died the next morning. Tests indicated that Deputy Lopez’ gun probably fired the fatal bullet. Belvin’s revolver had not been fired, and Caldwell’s was not found.
Both defendants testified in their own defense. Washington testified that he passed out from a PCP cigarette at Belvin’s residence sometime before the robbery and could recall nothing further until he woke up in the hospital several days later. Caldwell testified that Belvin induced him to drive him and Washington to the fried chicken outlet with a promise to pay Caldwell some money he owed him. Caldwell assertedly had no idea that Belvin had committed a robbery until the police arrived and Belvin pointed the shotgun at him and threatened to shoot him if he did not drive away in an effort to elude the police.
II
Defendants contend that their murder convictions are not supported by substantial evidence. Although the killing of their confederate, Belvin, occurred as a culmination of their unsuccessful attempt to escape after a robbery, it is conceded that the felony-murder rule has no application here since Belvin was not killed by defendants, but by a deputy sheriff in the pursuit of his duty. (People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130].) Defendants correctly point out that they could be found guilty of murder based on such a killing only if one or both of them were shown to have intentionally committed acts which it was highly probable would result in death, manifesting a conscious disregard of human life, or malice. (Id., at p. 782; People v. Gilbert (1965) 63 Cal.2d 690, 703-705 [47 Cal.Rptr. 909, 408 P.2d 365];2 Taylor v. Superior Court [217]*217(1970) 3 Cal.3d 578 [91 Cal.Rptr. 275, 477 P.2d 131].) They assert that it was Belvin’s act of pointing a gun out the window of the car that precipitated the deputies’ fire, and that they themselves did nothing which could be characterized as likely to result in death; since they are not liable for Belvin’s malicious conduct (People v. Antick (1975) 15 Cal.3d 79, 90-91 [123 Cal.Rptr. 475, 539 P.2d 43]), they insist the murder convictions cannot stand.
Their argument fails because the major premise is inaccurate. The fundamental problem with defendants’ contention is that it requires a misapplication of the “substantial evidence” rule to sustain it. In reviewing a claim of insufficiency of the evidence, an appellate court “ ‘must view the evidence in a light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.]” (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) “ ‘The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. Evidence, to be ‘substantial’ must be ‘of ponderable legal significance . . . reasonable in nature, credible, and of solid value.’ [Citations.]” (Ibid.) A review of the record discloses substantial evidence of malicious conduct on the part of both defendants.
Washington’s suggestion that he did not commit “any acts . . . which were likely to cause death” seems utterly fantastic. The record reflects that [218]*218he pointed a shotgun at Deputies Hunter and McSweeney as their patrol car approached from the front and was, from all that appears, prevented from shooting them only by Hunter’s reflexive acceleration and ramming of the suspects’ automobile. In fact, as previously noted, the shotgun discharged at about the moment of impact, though no one was hit, and it flew out of Washington’s hands and skittered across the pavement. (Washington’s more plausible argument that, malicious or not, his action with the shotgun was not a proximate cause of the subsequent shooting is considered, infra.)
Caldwell does not dispute the testimony that he drove the getaway car without headlights on a rainy evening at speeds up to 70 miles per hour and passed through a number of stop signs and red lights, losing control more than once and colliding with other cars. In view of the jury’s implicit rejection of his duress defense, this in itself could constitute substantial evidence of malice. (See People v. Fuller (1978) 86 Cal.App.3d 618, 628-629 [150 Cal.Rptr. 515]; see also People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279].) (Again, a more serious issue of proximate causation remains to be discussed.)
Beyond that, though, there is Deputy McSweeney’s testimony that, after the car was finally stopped (by a head-on collision with the car in which the deputy was riding) and Washington lost the shotgun, there was movement in the car, after which Caldwell exited the car and took a position of cover behind the door post with a gun in his hand, and then proceeded to ignore various commands to drop his gun, just as Belvin was doing. When the shooting started, McSweeney fired at Caldwell in response to the latter’s fixing his attention on McSweeney’s partner’s position. The jury could reasonably infer that by the foregoing conduct Caldwell and Belvin manifested a concerted determination not to surrender and a readiness instead to shoot it out with their pursuers. In People v. Reed (1969) 270 Cal.App.2d 37 [75 Cal.Rptr. 430], the defendant was held to have initiated a gun battle by pointing his gun toward a policeman and toward the robbery victim, the appellate court remarking that “[s]uch aggressive actions required immediate reaction unless an officer is to be held to the unreasonable requirement that an armed robber be given the courtesy of the first shot.” (Id., at p. 45.) Although Caldwell was not given a chance to do more than look toward Deputy Hunter’s position, the jury could reasonably conclude that he had already, by emerging from the car with a gun and taking cover and then refusing to drop the gun, exhibited unambiguously his aggressive intentions, so that it was plain to Deputy McSweeney, observing him, that when Caldwell looked toward McSweeney’s partner, it was because he was about to fire at him.
Recognizing the damaging effect of Detective McSweeney’s testimony, defendants diffidently suggest that we simply ignore it since none of the [219]*219other deputies who testified saw the gun, and it was not found at the scene. While the lack of corroboration undoubtedly might have alfected the weight of the witness’ testimony, it cannot be said that the fact that no gun was found renders it “physically impossible” or “inherently improbable.” (People v. Pearson (1969) 70 Cal.2d 218, 221 [74 Cal.Rptr. 281, 449 P.2d 217]; People v. Lyons (1956) 47 Cal.2d 311, 319-320 [303 P.2d 329]; People v. Huston (1943) 21 Cal.2d 690, 693 [134 P.2d 758].) We note that three of the officers involved, including Deputy Lopez whose gun probably fired the fatal bullet, did not testify at trial. The incidents in question occurred on a rainy winter evening, so a handgun thrown away some distance from the suspect’s car might conceivably have been missed.
The question remains whether the killing of Belvin was “attributable” to the malicious acts of either or both of the defendants—i.e., whether it proximately resulted from said conduct. (See Pizano v. Superior Court (1978) 21 Cal.3d 128, 136-138 [145 Cal.Rptr. 524, 577 P.2d 659]; see also People v. Gilbert, supra, 63 Cal.2d at pp. 704-705.) Defendants insist that Belvin’s actions, ignoring the commands to drop his gun, and aiming at two deputies, were the sole cause of his death, but for which the officers would not have fired. All of the deputies who testified cited Belvin’s actions as forming at least part of their reasons for opening fire. The jury might have concluded on the evidence that there was more than one proximate cause of the killing, however.
A difficult problem is presented when we examine the causal relationship between Caldwell’s dangerous getaway driving and Washington’s malicious and provocatory act of aiming a shotgun at Deputies Hunter and McSweeney and the shootout that followed. On one hand, it is undisputed that the deputies did not begin firing immediately, but gave the robbers a chance to surrender. Two of the four deputies who testified, Boothroyd and Maggiora, specifically testified that Washington’s act was not a motivating factor in their decisions to fire. Deputy McSweeney stated that Caldwell’s actions after the car stopped were the reason he fired. Though Deputy Hunter was concerned that Washington might have rearmed himself, even he did not cite the aiming of the shotgun as one of his reasons for opening fire. Therefore, to conclude that Caldwell’s driving or Washington’s act was a “but for” cause of Belvin’s death might require some rather heroic inferences on the part of the jury. On the other hand, as little as five or six seconds may have elapsed between the collision and Washington’s dropping of the shotgun and the deputies’ opening fire. Though the deputies did not begin firing immediately, but gave the suspects an opportunity to drop their guns, it can hardly be said that whatever provocative force the high-speed chase and Washington’s apparent attempt to shoot two policemen may have had dissipated, or “come to rest in a position of apparent safety.” (Perkins & [220]*220Boyce, Criminal Law (3d ed. 1982) at pp. 790-781.) The lull in the action was precarious and short-lived, and at least one deputy, Boothroyd, did count the chase and the fact that Washington had “produced” a weapon a few seconds before among his reasons for fearing for his and his compatriots’ safety just after the suspects’ car was stopped.3 Thus, a reasonable trier of fact could have concluded that the officers’ lethal response was provoked by a violent confrontation which was the product of the actions of both Caldwell and Washington, as well as those of Belvin.4
The jury might also 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. It may have concluded that the co-felons’ conduct reflected a common determination not to surrender, and the several acts of resistance were interdependent. Caldwell’s acts may thus also have been a “but for” cause (in fact) of the gun battle and Belvin’s death.
To be considered a proximate cause of Belvin’s death, the acts of the defendants must have been a “substantial factor” contributing to the result. (See People v. Scola (1976) 56 Cal.App.3d 723, 726 [128 Cal.Rptr. 477]; Perkins & Boyce, Criminal Law, supra, at pp. 779-780; see also People v. Vernon (1979) 89 Cal.App.3d 853, 864 [152 Cal.Rptr. 765] [a number of defendants concurrently contributed to victim’s death by kicking].) “[N]o cause will receive juridical recognition if the part it played was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result. This is merely a [221]*221special application of the general maxim—'de minimis non curat lex’ ...” (Perkins & Boyce, supra, at p. 779.) The fact that one of the deputies who testified was primarily concerned about Caldwell’s actions after the car stopped and their inferential importance to Belvin, and that another reacted to Washington’s brandishing of the shotgun, militate in favor of recognizing said acts as a substantial factor in bringing about the gun battle and Belvin’s death.
Decisions in cases involving conduct of more than one co-felon acting in concert reflect the settled view that the extent of an individual’s contribution to the resulting death need not be minutely determined.
Thus, in In re Tyrone B. (1976) 58 Cal.App.3d 884 [130 Cal.Rptr. 245], the defendant and an accomplice (the victim) entered a store intending to rob it. The accomplice hit the clerk in the head with a shovel handle, and the defendant shoved him into a display stand and stabbed him. As the accomplice continued to beat him, the clerk produced a pistol and killed him. The appellate court rejected a claim that the accomplice’s actions were the sole cause of his death, finding it sufficient that the defendant actively participated with his confederate in a simultaneous assault on the clerk. (Id., at pp. 888-890.)
Similarly, in People v. Velasquez (1975) 53 Cal.App.3d 547 [126 Cal.Rptr. 11], it did not matter that the defendant’s brother (the deceased) was not shot until he directly indicated, in response to repeated warnings, that he would not stop beating the deputy’s partner. The altercation began when the defendant resisted an arrest, and his brother soon appeared to try to rescue him. They managed to relieve both deputies of their batons and together set to beating one of the deputies senseless. The other, after repeated warnings to stop, shot the defendant’s brother. The appellate court stated that the latter did not alone cause his death; the defendant’s acts in initially resisting arrest and his participation in the assault on one of the deputies constituted malicious conduct.
Finally, and most helpfully, in People v. Claflin (1978) 87 Cal.App.3d 1 [150 Cal.Rptr. 693], an order setting aside under section 995 a portion of an information charging defendants with murder and attempted murder was reversed on the basis of the appellate court’s rejection of the superior court’s characterization of the defendants as essentially “peripheral.” Although their confederate who was killed was apparently the main motive force behind the confrontation which ended in his death, the court found sufficient evidence of malicious conduct by the defendants. After an initial altercation involving the three defendants and the deceased, one Moats, on one side, and two off-duty deputy sheriffs on the other, which arose out of a rock-[222]*222throwing incident and culminated in one of the deputies having to draw his gun, the deceased withdrew with the defendants, asking whether he should get his gun. The deputies called the police. Before they arrived, the defendants and Moats returned, the latter taking up a position behind a truck, aiming at one of the deputies, and the defendants charged him. The deputy sidestepped a blow by one of them and shot another who tried to take his gun, then shot Moats before the latter could shoot him. The appellate court held that inasmuch as all the defendants charged the deputy knowing that he and Moats both had guns, “each of them was engaging in conduct indisputably provocative of potentially lethal gunfire.” (Id., at p. 6.) Their conduct in attacking the deputy “set the stage for the shootout that followed,” and, critically, the court found the inference reasonable “that Moats would not have charged the [deputies’] location and attempted such a potentially dangerous confrontation had the defendants not accompanied him. . . .” (Ibid.)
The foregoing instructive decisions persuade us that defendants’ malicious conduct of fleeing in a dangerous high-speed chase, confronting the officers with a dangerous weapon when the chase ended and further preparing to shoot it out with the deputies was a proximate cause of Belvin’s death, Moreover, all of these acts were reasonably in furtherance of the robbery, as their evident purpose was to permit the robbers to escape. Consequently, the evidence supports a determination that Caldwell and Washington were liable for the murder of Belvin.5
Defendants invite us fundamentally to reconsider the Washington-Gilbert doctrine of liability for killings committed directly by persons other than the co-felons, in view of “the clear modern trend [of decisions] . . . away from the ‘proximate cause’ theory as a basis for felony-murder liability.” They unaccountably fail to note that our holding in People v. Washington, supra, 62 Cal.2d 777, was precisely that the felony-murder rule extends only to killings perpetrated by felons, notwithstanding the fact that killings by others might be a foreseeable risk of committing the underlying felony, so that it might be regarded as a proximate cause of the killing. (62 Cal.2d at p. 781.) In Washington, we recognized that “[t]he felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability.” (Id., at p. 783.) We have recognized that the felony-murder doctrine “expresses a highly artificial concept that de[223]*223serves no extension beyond its required application, ” in “imposing] malice as to one crime because of [a] defendant’s commission of another . . . (People v. Phillips (1966) 64 Cal.2d 574, 582-583; see People v. Dillon (1983) 34 Cal.3d 441 [194 Cal.Rptr. 390, 668 P.2d 697] [this court’s most recent discussion and affirmation of the felony-murder rule].) Although defendants argue that the Washington-Gilbert line of decisions results in a similar cleavage between culpability and criminal liability, their contention does not bear scrutiny. It is simply inaccurate to say, as they do, that under the Washington-Gilbert rule of liability, “where a causal chain can be drawn between a defendant’s course of conduct and the death, the homicide and malice are imputed to the defendant and the prosecution is relieved of its burden to establish proof of actus reus and mens rea for murder liability.” Contrary to their claim, a common sense recognition of the idea that an act should be considered in the light of its natural and foreseeable results when they occur (see Perkins & Boyce, supra, at p. 806) does not preclude inquiry into the felons’ subjective knowledge of the likely result of their actions; rather, it informs the inquiry. The proper focus on the individual culpability of accomplices is retained by the requirement that one or more of them engage in conduct which it is highly probable (not merely foreseeable) will result in death, evincing a conscious disregard of human life. (See Note, Criminal Liability of a Participant in Crime for the Death of a Fellow Participant (1970-1971) 22 Syracuse L.Rev. 1065, 1077.) Only where one or more of the co-felons has thus exhibited a culpable, murderous state of mind does a resulting death predicate liability for murder.
The fact that subtle distinctions sometimes have to be made in deciding whether conduct goes beyond commission of the underlying felony (see In re Joe R. (1980) 27 Cal.3d 496, 506, fn. 6, 508 [165 Cal.Rptr. 837, 612 P.2d 927]) does not require us to jettison the doctrine; certainly defendants’ suggestion that their own conduct did not go beyond commission of a robbery requires no discriminating analysis.
Ill
Defendant Caldwell also complains that the standard instructions given by the trial court on aider and abettor liability—CALJIC Nos. 3.006 [224]*224and 3.017—were erroneous in failing to inform the jury that an aider and abettor must have a “criminal intent,” in addition to having knowledge of the perpetrator’s purpose and aiding, promoting, encouraging or instigating the commission of the crime.
These instructions do not accurately reflect the intent required of an aider and abettor. (People v. Beeman (1984) 35 Cal.3d 547 [199 Cal.Rptr. 60, 674 P.2d 1318].) In this case, however, the error did not preclude the jury from considering and determining the question of Caldwell’s intent. The defense was duress, upon which principle the jury was properly instructed in accordance with CALJIC No. 4.40.8 The essence of his defense was that because he acted only because he had been threatened he did not have a criminal intent in driving Washington and Belvin away from the scene of the robbery and attempting to elude the pursuit; i.e., though he intended to facilitate the commission of the robbery, he did so only out of fear for his life. The jury evidently rejected this defense version of events in which Caldwell allegedly acted without criminal intent. Hence, the challenged instruction could not have affected the jury deliberation and verdict. (See People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal.Rptr. 1, 518 P.2d 913].)
IV
Defendants each raise an additional issue requiring no extended discussion.
Caldwell complains that the trial court erred in sustaining a prosecution objection to an inquiry of Deputy Boothroyd on cross-examination whether he would have opened fire on the suspects’ car “if [he] had not seen that handgun protruding ... out of the vehicle and pointing towards [his] fellow officers.” The question required the witness to speculate as to what his state of mind would have been in a hypothetical situation, and was properly objectionable.
[225]*225Washington contends that there is no substantial evidence that he possessed the requisite specific intent for robbery, characterizing defense evidence of diminished capacity (a sheriff’s sergeant’s testimony that three hours after he was captured defendant appeared lethargic and appeared to be drifting off to sleep, leading him to suspect him of being under the influence of a drug, perhaps PCP) as “uncontradicted. ” Mere consumption of drugs is insufficient to establish diminished capacity, however; the evidence must demonstrate the effect of such consumption on the defendant. (See People v. Carr (1972) 8 Cal.3d 287, 294 [104 Cal.Rptr. 705, 502 P.2d 513]; People v. Bandhauer (1967) 66 Cal.2d 524, 528 [58 Cal.Rptr. 332, 426 P.2d 900].) One of the employees of the robbed premises testified that Washington behaved in a calm, deliberate manner during the robbery. Moreover, the sheriff’s sergeant on whose testimony Washington relies also testified that the latter understood his questions, answered coherently, followed instructions, and appeared rational. A defendant’s actions may refute evidence of diminished capacity. (People v. Spencer (1963) 60 Cal.2d 64, 88-89 [31 Cal.Rptr. 782, 383 P.2d 134].)
The judgment is affirmed.
Mosk, J., Kaus, J., Broussard, J., and Grodin, J., concurred.