IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES LEO CARNEY et al.,
Defendants and Appellants.
S260063
Third Appellate District
C077558
Sacramento County Superior Court
11F00700
July 20, 2023
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Groban, and Evans concurred.
PEOPLE v. CARNEY
S260063
Opinion of the Court by Jenkins, J.
In People v. Sanchez (2001) 26 Cal.4th 834 (Sanchez), this
court upheld the first degree murder conviction of a defendant
who had engaged in a gang-related shootout that left an
innocent bystander dead. Though it was unclear whether the
defendant or a rival gang member had fired the fatal shot, we
held that the defendant’s “commission of life-threatening deadly
acts in connection with his attempt on [the rival gang member’s]
life was a substantial concurrent, hence proximate, cause of [the
victim’s] death.” (Id. at pp. 848–849.
The instant case similarly involves a gun battle among
rivals, but unlike in Sanchez, the evidence here conclusively
established that the fatal shot was fired by someone other than
the two defendants whose first degree murder convictions are at
issue. The question now before us is whether Sanchez’s
“substantial concurrent cause” analysis of proximate cause
permits the defendants’ convictions. The Court of Appeal
answered this question in the affirmative, emphasizing that in
Sanchez, each defendant’s liability for first degree murder was
not based on the mere possibility that he had fired the fatal shot.
Rather, the court explained, both defendants in Sanchez “ ‘had
equally culpable mental states and engaged in precisely the
same conduct at the same time and place in exchanging shots’
such that it was not unfair to hold them equally responsible for
the victim’s death.” (People v. Carney (Dec. 10, 2019, C077558
[nonpub. opn.].) Based on that reasoning, the Court of Appeal
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Opinion of the Court by Jenkins, J.
concluded that the actions of defendants Lonnie Orlando
Mitchell and Louis James Mitchell (collectively, the Mitchells
were sufficient to demonstrate that each proximately caused the
victim’s death, regardless of who actually shot the victim.
For reasons that follow, we agree with the Court of Appeal
that, although neither of the Mitchells fired the fatal shot, their
life-threatening deadly actions constituted proximate cause
consistent with our holding in Sanchez, supra, 26 Cal.4th 834.
We affirm the Court of Appeal’s judgment.1
FACTUAL AND PROCEDURAL BACKGROUND
In the early afternoon of December 14, 2010, the Mitchells
entered a South Sacramento barbershop frequented by
members of the G-Mobb street gang. The Mitchells were not
members of G-Mobb and had a history of confrontation with
several G-Mobb gang members. Lonnie Mitchell entered the
barbershop with a TEC-9 assault weapon hanging from a cord
around his neck; the outline of the weapon was visible under his
hoodie. He spoke on his cell phone while he paced back and forth
inside the barbershop, explaining to his caller that he wanted to
“shoot the place up.” Witnesses reported that Louis Mitchell,
who appeared to be carrying a gun, put on a barbershop cape
and sat in a chair, as if waiting for a haircut.
1
Our grant of review also included the following question:
“What impact, if any, do People v. Chiu (2014) 59 Cal.4th 155
and Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1, subd. (f)
have on the rule of Sanchez?” As we explain below (see post, at
pp. 19–22), neither Chiu nor Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill No. 1437) has any impact on whether
our holding in Sanchez applies in this case.
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Opinion of the Court by Jenkins, J.
Larry Jones and Ernest S. — friends of defendant James
Leo Carney — were both inside the barbershop when the
Mitchells entered. Ernest was seated in a barber’s chair
wearing a cape while his son, who sat adjacent to him, was
getting a haircut. Concerned about the Mitchells’ hostile armed
presence in the shop, Jones called Carney and asked him to pick
him up, along with Ernest and Ernest’s son. Carney then called
Marvion Barksdale. Lonnie Mitchell had recently threatened to
kill Barksdale over a dispute involving a robbery.
Armed with a revolver, Carney drove to the barbershop.
When he arrived, he parked across the street from the
barbershop and stood outside his car. Ernest quickly left the
shop with his son and placed him in Carney’s car.
Barksdale also drove to the barbershop with several
passengers including Dominique Marcell Lott. When they
arrived, Barksdale and Lott exited the vehicle, and armed with
guns, began walking toward the barbershop. The Mitchells
were standing outside the shop. Gunfire erupted. Louis
Mitchell, who was still wearing the barber’s cape, fired shots
towards Carney and Ernest. Lonnie Mitchell fired the assault
weapon wildly, according to one witness. Barksdale and Lott
were both shot; Barksdale later died. The evidence was
inconclusive as to who fired the first shots.
During the exchange of gunfire, a shot fired by Carney
struck and killed a bystander, Monique N., as she stood at the
open rear door of her SUV shielding her two-year-old son.
Monique and her son had just posed for Christmas photos at a
studio next door to the barbershop. She was pronounced dead
at the scene.
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Opinion of the Court by Jenkins, J.
Before fleeing the scene in a waiting car, the Mitchells
fired several more shots from the front of the barbershop, hitting
and injuring four other bystanders inside the shop (John E.,
Adam W., Joshua B., Gralin M.). Jones who was still in the
barbershop, fled out the back while firing his handgun at the
Mitchells. Jones escaped without injury.
As relevant here, the Sacramento County District
Attorney filed an information charging the Mitchells, Carney,
and Jones with murder (Pen. Code,2 § 187, subd. (a)) for the
death of Monique, and with four counts of assault with a firearm
(§ 245, subd. (a)(2)) for the four injured victims in the
barbershop. The information further alleged that Carney and
Jones committed the murder for the benefit of a criminal street
gang. (§ 186.22, subd. (b)(1).) Before trial, Lott pleaded guilty
to voluntary manslaughter and was sentenced to 21 years in
prison.
At trial, all four defendants asserted they had acted in
self-defense — i.e., that participants on the other side were the
aggressors who shot first. When the evidentiary portion of the
trial concluded, the trial court instructed that “[a] defendant is
guilty of first degree murder if the People have proved that he
acted willfully, deliberately, and with premeditation. The
defendant acted willfully if he intended to kill. The defendant
acted deliberately if he carefully weighed the considerations for
and against his choice and, knowing the consequences, decided
to kill. The defendant acted with premeditation if he decided to
kill before completing the acts that caused death.” (See
CALCRIM No. 521.) The court also instructed the jury with
2
All statutory references are to the Penal Code unless
otherwise noted.
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Opinion of the Court by Jenkins, J.
CALCRIM No. 520,3 which, as given, explained in part that
“[w]hen the conduct of two or more persons contributes
concurrently as a cause of the death, the conduct of each is a
cause of the death if that conduct was also a substantial factor
contributing to the death.” This instruction also provided that
“[m]urder under natural and probable consequences is murder
in the second degree.” Additionally, the court gave CALCRIM
No. 562, which provided that “[i]f the defendant intended to kill
one person, but by mistake or accident killed someone else, then
the crime, if any, is the same for the unintended killing as it is
for the intended killing.” A second paragraph of this instruction
explained that any defenses “which apply to the intended
killing, also apply to an unintended killing,” including “defenses
that decrease the level of homicide.”
The jury found both of the Mitchells guilty of first degree
murder. It acquitted Carney of murder but found him guilty of
voluntary manslaughter. As to the four assault victims, the jury
found the Mitchells guilty of the charges but found Carney not
guilty. It acquitted Jones on all counts.
The Mitchells appealed their first degree murder
convictions. They argued that because neither had fired the
shot that killed Monique, the jury must have found them guilty
of murder based on their alleged status as accomplices. Citing
3
Though the standard instruction CALCRIM No. 520
explains that “[t]here may be more than one cause of death,” it
does not include language regarding “concurrent” causes, which
is contained in CALJIC No. 3.41. (See post, at p. 8.) CALCRIM
No. 520 provides that a substantial factor, which is “more than
a trivial or remote factor,” “does not have to be the only factor
that causes the death.” The trial court here instructed the jury
in language virtually identical to CALJIC No. 3.41.
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Opinion of the Court by Jenkins, J.
our then-recent Chiu opinion, they argued their culpability was
limited to second degree murder. The Court of Appeal rejected
the Mitchells’ contentions. Relying on Sanchez, supra, 26
Cal.4th 834, it explained that the Mitchells’ first degree murder
convictions were based on their own “ ‘culpable mens rea
(malice),’ not on vicarious liability for aiding and abetting,”
which, coupled with the evidence that their actions proximately
caused the victim’s death, provided sufficient evidence for their
convictions.
The Mitchells filed petitions for review in this court, which
we granted in part as to the question of Sanchez’s applicability
in this case.4 For reasons explained below, we reject the
Mitchells’ assertion that Sanchez’s “substantial concurrent
cause” analysis is limited to situations in which it is unclear who
among the participants in a gun battle actually fired the shot
that killed the victim. Rather, Sanchez establishes that the
conduct of a participant in a gun battle who did not fire the fatal
shot may contribute substantially and concurrently to — and be
a proximate cause of — the victim’s death. (Sanchez, supra, 26
Cal.4th at pp. 845–849.
DISCUSSION
A. Proximate Cause
“Murder includes both actus reus and mens rea elements.
To satisfy the actus reus element of murder, an act of either the
defendant or an accomplice must be the proximate cause of
death.” (People v. Concha (2009) 47 Cal.4th 653, 660, italics
4
The Court of Appeal also affirmed Carney’s manslaughter
conviction. He petitioned for review in this court, but we denied
his petition.
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Opinion of the Court by Jenkins, J.
omitted.) Specifically, “a ‘cause of the death of [the victim] is an
act or omission that sets in motion a chain of events that
produces as a direct, natural and probable consequence of the
act or omission the death of [the decedent] and without which
the death would not occur.’ (See CALJIC No. 3.40.) In general,
‘[p]roximate cause is clearly established where the act is directly
connected with the resulting injury, with no intervening force
operating.’ (1 Witkin & Epstein, Cal. Criminal Law (3d ed.
2000) Elements, § 36, p. 242.)” (People v. Cervantes (2001) 26
Cal.4th 860, 866 (Cervantes).) An intervening force, in turn, “is
one which actively operates in producing harm to another after
the actor’s . . . act or omission has been committed.” (Rest.2d
Torts, § 441, subd. (1); see People v. Schmies (1996) 44
Cal.App.4th 38, 46 (Schmies) [“principles of causation apply to
crimes as well as torts”].
Broadly speaking, proximate cause consists of two
components. One is cause in fact (also called actual or direct
causation). “ ‘ “An act is a cause in fact if it is a necessary
antecedent of an event” ’ ” (State Dept. of State Hospitals v.
Superior Court (2015) 61 Cal.4th 339, 352 (State Dept. of State
Hospitals)), and it is commonly referred to as the “but-for” cause
of death. (See CALJIC No. 3.40; CALCRIM No. 240 [Causation];
CALCRIM No. 520 [First or Second Degree Murder with Malice
Aforethought (Pen. Code, § 187)].) The second component
“ ‘focuses on public policy considerations. Because the purported
[factual] causes of an event may be traced back to the dawn of
humanity, the law has imposed additional “limitations on
liability other than simple causality.” [Citation.] “These
additional limitations are related not only to the degree of
connection between the conduct and the injury, but also with
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Opinion of the Court by Jenkins, J.
public policy.” ’ ” (State Dept. of State Hospitals, supra, 61
Cal.4th at p. 353.)5
As relevant here, when there is evidence of concurrent
causes, we have held that “ ‘[t]o be considered the proximate
cause of the victim’s death, the defendant’s act must have been
a substantial factor contributing to the result, rather than
insignificant or merely theoretical.’ ” (People v. Jennings (2010
50 Cal.4th 616, 643 (Jennings); see CALJIC No. 3.41; see also
CALCRIM No. 520.) “[A] cause is concurrent if it was ‘operative
at the time of the murder and acted with another cause to
produce the murder.’ ” (People v. Crew (2003) 31 Cal.4th 822,
846 (Crew), quoting CALJIC No. 3.41.) “ ‘[A]s long as the jury
finds that without the criminal act the death would not have
occurred when it did, it need not determine which of the
concurrent causes was the principal or primary cause of death.’ ”
(Jennings, at p. 643.
The limitation on liability under the second component of
proximate cause comes down to the question of foreseeability.
(See People v. Roberts (1992) 2 Cal.4th 271, 321 (Roberts).) “The
object of the criminal law is to deter the individual from
committing acts that injure society by harming others, their
property, or the public welfare, and to express society’s
5
When referred to generally, the term “ ‘ “proximate cause
‘is ordinarily concerned, not with the fact of causation [i.e., cause
in fact], but with the various considerations of policy that limit
an actor’s responsibility for the consequences of his conduct.’ ” ’
[Citation.]” [Citation.] As Witkin puts it, ‘[t]he doctrine of
proximate cause limits liability; i.e., in certain situations where
the defendant’s conduct is an actual cause of the harm, the
defendant will nevertheless be absolved because of the manner
in which the injury occurred.’ ” (State Dept. of State Hospitals,
supra, 61 Cal.4th at p. 353.
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Opinion of the Court by Jenkins, J.
condemnation of such acts by punishing them. ‘The purpose of
the criminal law is to define socially intolerable conduct, and to
hold conduct within . . . limits . . . reasonably acceptable from
the social point of view.’ ” (Id. at p. 316.) “The criminal law thus
is clear that for liability to be found, the cause of the harm not
only must be direct, but also not so remote as to fail to constitute
the natural and probable consequence of the defendant’s act.”
(Id. at p. 319.) Put simply, “[a] result cannot be the natural and
probable cause of an act if the act was unforeseeable.” (Id. at
pp. 321–322; see People v. Fiu (2008) 165 Cal.App.4th 360, 372
(Fiu) [“language in CALJIC No. 3.40 requiring an injury or
death to be a direct, natural, and probable consequence of a
defendant’s act necessarily refers to consequences that are
reasonably foreseeable”].
Foreseeability is also relevant when considering the effect
of an intervening act on the chain of causation. (See Roberts,
supra, 2 Cal.4th at pp. 321–322.) “To relieve a defendant of
criminal liability, an intervening cause must be an
unforeseeable and extraordinary occurrence. [Citation.] The
defendant remains criminally liable if either the possible
consequence might reasonably have been contemplated or the
defendant should have foreseen the possibility of harm of the
kind that could result from his act.” (Crew, supra, 31 Cal.4th at
p. 847; see Schmies, supra, 44 Cal.App.4th at p. 49 [“An
‘independent’ intervening ‘act may be so disconnected and
unforeseeable as to be a superseding cause, i.e., in such a case
the defendant’s act will be a remote, and not the proximate,
cause’ ”].) “The act of another constitutes a superseding cause
precluding responsibility of the initial actor only if the other’s
conduct is both unforeseeable and causes harm that was not the
foreseeable consequence of the initial actor’s conduct.” (People
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Opinion of the Court by Jenkins, J.
v. Brady (2005) 129 Cal.App.4th 1314, 1329–1330 [whether in-
air collision deaths of two firefighter pilots were “reasonably
foreseeable consequences” of fire recklessly started near
methamphetamine laboratory].
With this proximate cause framework in mind, we turn to
Sanchez and its use of the term “substantial concurrent cause.”
B. Sanchez
In Sanchez, this court held that the act of a defendant who
may not have fired the fatal bullet was sufficient to establish
proximate cause because the act — engaging a rival gang
member in a public gun shootout — was a “substantial
concurrent cause” of the victim’s death. (Sanchez, supra, 26
Cal.4th at p. 845; see id. at pp. 854–857 (conc. opn. of Kennard,
J.).) The parties here offer competing views of what we meant
by “substantial concurrent cause.”
The Mitchells contend that “Sanchez’s ‘substantial
concurrent causation’ theory . . . only makes sense where the
actual killer is unknown.” In their view, “[w]here the facts show
that either defendant’s bullet could have killed the bystander,
Sanchez treats each defendant’s act in shooting as a ‘substantial’
cause of the bystander’s death, applying a lesser standard” than
actual causation to find defendant guilty of the bystander’s
murder. So understood, Sanchez and its “substantial concurrent
causation” rule of liability are inapplicable here because the
evidence affirmatively establishes that someone other than the
Mitchells fired the fatal shot. To conclude otherwise, the
Mitchells contend, would render actual causation a “legal
fiction” in this case because neither of them fired the fatal shot.
The Attorney General submits a different understanding
of “substantial concurrent cause” and emphasizes the general
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Opinion of the Court by Jenkins, J.
reach of Sanchez’s holding. He contends that our conclusion in
Sanchez did not turn on any lack of evidence establishing who
fired the fatal shot. Rather, he asserts, our application of the
substantial concurrent causation theory focused on the “effect of
the defendant’s actions as they relate to the killing and that
defendant’s personal culpability.” In other words, the Attorney
General argues that the Mitchells’ actions of engaging in a gun
battle in a crowded public place satisfy the proximate cause
requirement and, together with their intent to kill Carney and
Jones, support their convictions for the first degree murder of
Monique.
In Sanchez, defendant Julio Cesar Sanchez and rival gang
member and codefendant, Ramon Gonzalez, engaged in a public
gun battle that resulted in a bystander’s death. In summarizing
the case, we stated: “We know a single stray bullet was the
actual, direct cause of death. At the close of evidence all parties
agreed it could not be established [which defendant] had fired
the fatal shot.” (Sanchez, supra, 26 Cal.4th at p. 845.) After
being instructed on proximate causation,6 the jury convicted
6
The Sanchez jury was instructed: “ ‘A cause of death is an
act that sets in motion a chain of events that produces as a
direct, natural and probable consequence of the act, the death of
a human being, and without which the death would not occur.
[¶] There may be more than one cause of the death. [¶] When
the conduct of two or more persons contributes concurrently as a
cause of the death, the conduct of each is a cause of the death if
that conduct was also a substantial factor contributing to the
death. [¶] A cause is a concurrent cause if it was operative at
the moment of death and acted with another force to produce the
death. [¶] If you find that a defendant’s conduct was a cause of
death to another person, then it is no defense that the conduct
of some other person also contributed to the death.’ ” (Sanchez,
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Opinion of the Court by Jenkins, J.
both defendants of first degree murder. (Id. at p. 839.) The
Court of Appeal reversed Sanchez’s conviction, concluding that
in a single-fatal-bullet case “concurrent causation could not
serve as a basis for finding both defendants liable for
premeditated first degree murder” because there was only one
“ ‘direct or actual’ ” cause of death rather than two or more such
causes. (Id. at p. 844.
We reversed the Court of Appeal’s judgment, holding that
“[t]he circumstance that it cannot be determined who fired the
single fatal bullet, i.e., that direct or actual causation cannot be
established, does not undermine defendant’s first degree
murder conviction if it was shown beyond a reasonable doubt
that defendant’s conduct was a substantial concurrent cause of
[the bystander]’s death.” (Sanchez, supra, 26 Cal.4th at p. 845.
We explained that “it is proximate causation, not direct or actual
causation, which, together with the requisite culpable mens rea
(malice), determines defendant’s liability for murder.” (Ibid.
We concluded that Sanchez’s “act of engaging Gonzalez in a gun
battle and attempting to murder him was a substantial
concurrent, and hence proximate, cause of [the bystander’s]
death.” (Id. at p. 839.
Although Sanchez was the first decision in which we used
the term “substantial concurrent cause” in this context, Sanchez
did not articulate a new theory of causation or, as the Mitchells
assert, announce a “reduced” standard of causation that served
supra, 26 Cal.4th at pp. 843, 845, italics added; see CALJIC Nos.
3.40, 3.41.
The corresponding CALCRIM instruction on murder given
in the instant case (CALCRIM No. 520) incorporated the same
proximate cause language as this instruction in Sanchez.
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Opinion of the Court by Jenkins, J.
to lessen the prosecution’s burden of proof. Rather, the term
“substantial concurrent cause” embraces familiar causation
concepts of substantial factor and concurrent cause. (See ante,
at pp. 7–8.) It reflects key principles from CALJIC Nos. 3.40
and 3.41, which together “correctly define proximate causation”
when there is evidence of more than one cause of death. (People
v. Bland (2002) 28 Cal.4th 313, 338; see Sanchez, supra, 26
Cal.4th at pp. 843, 845.
For instance, as given in Sanchez CALJIC No. 3.41
explained that “ ‘[w]hen the conduct of two or more persons
contributes concurrently as a cause of the death, the conduct of
each is a cause of the death if that conduct was also a substantial
factor contributing to the death. [¶] A cause is a concurrent
cause if it was operative at the moment of death and acted with
another force to produce the death.’ ” (Sanchez, supra, 26
Cal.4th at p. 845; see ante, at p. 11, fn. 6.) In turn, “ ‘cause of
death’ ” was defined in Sanchez as “ ‘an act that sets in motion
a chain of events that produces as a direct, natural and probable
consequence of the act, the death of a human being . . . .’ ”
(Sanchez, supra, 26 Cal.4th at p. 845, see CALJIC No. 3.40; see
also ante, at p. 11, fn. 6.) Drawn from these instructions, the
term “substantial concurrent cause” used in Sanchez accurately
describes proximate cause, encompassing the components of (1
cause in fact — i.e., requiring the defendant’s conduct to be a
“substantial factor” contributing to the bystander’s death, and
(2) policy considerations — i.e., limiting liability for that which
is the “direct, natural and probable consequence” of the
defendant’s act. (See ante, at pp. 7–8.
In concluding that the defendants’ life-threatening deadly
actions in Sanchez constituted the “substantial concurrent, and
hence proximate, cause” of the bystander’s death, the Sanchez
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Opinion of the Court by Jenkins, J.
majority emphasized the defendants’ acts of “engag[ing] one
another in a gun battle on a public street in broad daylight”
(Sanchez, supra, 26 Cal.4th at p. 852) and making
“simultaneous attempts to murder one another in a preplanned
blaze of gunfire” (id. at p. 853). These mutual acts were without
question concurrent, substantial factors contributing to the
bystander’s death. Quoting Justice Kennard’s concurrence, the
majority concluded: “ ‘Because [Sanchez] and Gonzalez had
equally culpable mental states and engaged in precisely the
same conduct at the same time and place in exchanging shots,
it is not unfair to hold them equally responsible for [the
bystander’s] death, without regard to which of them actually
fired the bullet that struck and killed [the bystander].’ ” (Id. at
p. 854, quoting id. at p. 856 (conc. opn. of Kennard, J.).) Justice
Kennard, who signed the majority opinion in Sanchez,
reiterated these concurrent cause principles in her separate
concurrence, explaining: “In legal terms, [Sanchez] committed
the act of killing [the bystander] if his conduct was a legal or
proximate cause of [that] death” even if it was Gonzalez who
fired the fatal bullet. (Id. at p. 855 (conc. opn. of Kennard, J.).)7
Justice Kennard went on to discuss in her Sanchez
concurrence whether Gonzalez’s conduct — firing at Sanchez
“with a deliberate and premeditated intent to kill [him]” —
“must in law be regarded as a ‘superseding cause’ that cut off
[Sanchez’s] responsibility for any injury or death inflicted by the
7
In this part of her concurrence, Justice Kennard examined
the possibility that Gonzalez rather than Sanchez fired the
bullet that killed the bystander and explained why this
possibility did not preclude a finding that Sanchez’s own
“conduct caused [the] death.” (Sanchez, supra, 26 Cal.4th at p.
855 (conc. opn. of Kennard, J.).
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Opinion of the Court by Jenkins, J.
bullets that Gonzales fired.” (Sanchez, supra, 26 Cal.4th at p.
855 (conc. opn. of Kennard, J.).) She answered this question in
the negative, explaining: “In law, the term ‘superseding cause’
means “an independent event [that] intervenes in the chain of
causation, producing harm of a kind and degree so far beyond
the risk the original [wrongdoer] should have foreseen that the
law deems it unfair to hold him responsible.” [Citation.] Here,
[Sanchez] and Gonzalez during their gun battle were attempting
to kill each other, so that the killing of a bystander was a harm
that both in kind and degree was within the risk that [Sanchez]
and Gonzalez must have expected. Because they each expected
and intended a death to occur, and a death did occur in a manner
that was entirely foreseeable, it does not matter, for purposes of
determining proximate or legal cause under criminal law, that
the person killed was not the precise object of their lethal
intent.” (Id. at pp. 855–856 (conc. opn. of Kennard, J.).
Although the Sanchez majority did not refer to the issue
of superseding cause, its opinion should not be read as
eliminating that issue from the causation analysis in concurrent
cause cases. The focus of the majority’s analysis was the Court
of Appeal’s erroneous conclusion that, as a matter of law,
“concurrent causation cannot be established in a single-fatal-
bullet case.” (Sanchez, supra, 26 Cal.4th at p. 839.) That the
majority, in considering this narrow and specific legal question,
did not also discuss superseding cause did not — and was not
intended to — render the superseding cause question irrelevant
to the determination of proximate cause. To the extent that
Sanchez could be understood as suggesting otherwise, we now
clarify that the question of superseding cause — as Justice
Kennard’s concurrence recognized — remains part of the
proximate cause analysis in concurrent cause cases.
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Opinion of the Court by Jenkins, J.
Notably, the existing instructions on causation already
incorporate the concept of any unforeseeable, superseding
cause. CALJIC No. 3.40’s requirement that an injury or death
be a direct, natural, and probable consequence of a defendant’s
act “necessarily refers to consequences that are reasonably
foreseeable.” (Fiu, supra, 165 Cal.App.4th at p. 372; see
CALCRIM No. 240 [“A natural and probable consequence is one
that a reasonable person would know is likely to happen if
nothing unusual intervenes” (second italics added)].) Thus, if an
intervening cause is a reasonably foreseeable result of a
defendant’s initial act, “ ‘ “the intervening act is ‘dependent’ and
not a superseding cause, and will not relieve [the] defendant of
liability.” ’ ” (Cervantes, supra, 26 Cal.4th at p. 871.
Conversely, “[a] result cannot be the natural and probable cause
of an act if the act was unforeseeable.” (Roberts, supra, 2 Cal.4th
at pp. 321–322.) Based on this foreseeability inquiry, therefore,
a jury necessarily considers, in its determination of proximate
cause, whether there was any intervening cause that was
unforeseeable and constituted a superseding cause. (See id. at
p. 320, fn. 11 [question of foreseeability will ordinarily be for jury
to decide — “there is no bright line demarcating a legally
sufficient proximate cause from one that is too remote”].
Sanchez’s conclusion that both shooters in a gun battle
may be guilty of murder even though only one was the actual
shooter was consistent with then-existing California decisions.
For instance, California case law recognized that a defendant
may be guilty of first degree murder where there are multiple
proximate causes of death (see People v. Mai (1994) 22
Cal.App.4th 117, 123, fn. 5); People v. Kemp (1957) 150
Cal.App.2d 654, 658). (Sanchez, supra, 26 Cal.4th at pp. 846–
847.) We also note that several decisions from our sister states
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PEOPLE v. CARNEY
Opinion of the Court by Jenkins, J.
have similarly viewed a defendant’s culpability in connection
with gun battles. (See e.g., State v. Young (2020) 429 S.C. 155,
161 [838 S.E.2d 516, 519] [“The majority of jurisdictions impose
criminal responsibility on all combatants for the consequences
of mutual combat”]; Commonwealth v. Santiago (1997) 425
Mass. 491, 504, 681 N.E.2d 1205, 1215 [“By choosing to engage
in a shootout, a defendant may be the cause of a shooting by
either side because the death of a bystander is a natural result
of a shootout, and the shootout could not occur without
participation from both sides”]; Alston v. State (1995) 339 Md.
306, 309 [662 A.2d 247, 248] [“ ‘The deadly homicidal force . . .
was a collective hail of bullets, a collective fusillade, with no
further parsing required. Which bullet came from which gun is
inconsequential’ ”].)8
In this case, although there was no evidence that either of
the Mitchells intended to or actually did shoot Monique, the
evidence did establish the following: A week before the
shootout, Lonnie Mitchell had threatened to kill a G-Mobb gang
member. On the day of the shooting, the Mitchells armed
themselves and headed to a barbershop that was a known
hangout of the G-Mobb. After entering the barbershop, Lonnie
8
Some of our statements in Sanchez could be read as
suggesting that the actual or direct cause of the bystander’s
death is not relevant to the proximate cause determination.
(See, e.g., Sanchez, supra, 26 Cal.4th at p. 845 [“it is proximate
causation, not direct or actual causation, which, together with
the requisite culpable mens rea (malice), determines
defendant’s liability for murder”]; id. at p. 854 [both defendants
are guilty “ ‘without regard to which of them actually fired the
bullet that struck and killed’ ” the bystander].) To clarify,
proximate cause consists of both cause in fact and policy
considerations. (See ante, at pp. 7–8.
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PEOPLE v. CARNEY
Opinion of the Court by Jenkins, J.
Mitchell told someone over the phone he wanted to “shoot the
place up.” Jones then summoned Carney for help. When
Carney, Barksdale, and others arrived at the barbershop,
Lonnie Mitchell shot at Carney and Louis Mitchell shot his
assault weapon wildly. During the public shootout, the
Mitchells shot and killed an adversary, Barksdale, and shot and
injured four bystanders in the barbershop. In returning the
Mitchells’ gunfire, Carney shot and killed Monique.
Even though the evidence established that neither of the
Mitchells fired the fatal shot, their first degree murder
convictions are consistent with Sanchez’s holding that a
defendant’s “life-threatening deadly acts” in a gun battle may be
a proximate cause of a bystander’s death. (Sanchez, supra, 26
Cal.4th at pp. 848–849.) The jury’s return of varying verdicts as
to the four defendants — convicting the Mitchells of first degree
murder and acquitting Jones, while convicting Carney, who
fired the fatal shot, of only voluntary manslaughter — further
reveals that the jury did not base its verdict on the defendants’
mere participation in the gun battle, but carefully considered
the Mitchells’ own actions and their personal mens rea. These
differing verdicts reflect that the jury determined each
defendant’s own mental state and assigned culpability
accordingly. The conduct of each of the Mitchells constituted a
“substantial concurrent cause” of the bystander’s death.
(Sanchez, supra, 26 Cal.4th at p. 845.
The Mitchells, however, contend that Jennings, supra, 50
Cal.4th 616 supports their interpretation of the “substantial
concurrent cause” rule and their view that the rule does not
apply where, as here, only one bullet hit and killed a bystander.
In Jennings, the defendant administered lethal doses of
sedatives and physically abused and deliberately starved his
18
PEOPLE v. CARNEY
Opinion of the Court by Jenkins, J.
five-year-old son. We concluded that the drugs, abuse, and
starvation were each a concurrent cause of his son’s death. (Id.
at p. 641 [evidence showed defendant administered drugs to son
and directed wife to do the same].) We emphasized that in the
end, “ ‘[a]s long as the jury finds that without the criminal act
the death would not have occurred when it did, it need not
determine which of the concurrent causes was the principal or
primary cause of death.’ ” (Id. at p. 643, quoting People v. Catlin
(2001) 26 Cal.4th 81, 155.) We applied the “substantial factor”
test of cause in fact because there was evidence of more than one
cause of death, not because the primary cause of death was
unknown. (Jennings, supra, 50 Cal.4th at pp. 643–644; see
Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049, 1052.
Contrary to the Mitchells’ suggestion, Jennings does not compel
a different interpretation of “substantial concurrent cause” as
set out in Sanchez.
C. Chiu and Senate Bill No. 1437
As noted (see ante, at p. 2, fn. 1), our grant of review
included the question of what impact, if any, People v. Chiu,
supra, 59 Cal.4th 155 (Chiu) and Senate Bill No. 1437 (Stats.
2018, ch. 1015, § 1, subd. (f)) have on the Sanchez rule. The
Mitchells argue that Sanchez’s “substantial concurrent cause”
analysis is “a type of natural and probable consequences liability
that is inconsistent” with Chiu and Senate Bill No. 1437. As we
explain below, the Mitchells incorrectly assume that the term
“natural and probable consequences” refers only to an aider and
abettor’s vicarious liability. (See Roberts, supra, 2 Cal.4th at p.
320.) Therefore, we are unpersuaded by their effort to bring the
definition of proximate cause, which deals with the actus reus of
a crime (see, ante, at p. 6), within the ambit of Senate Bill No.
1437 and Chiu’s discussion of the natural and probable
19
PEOPLE v. CARNEY
Opinion of the Court by Jenkins, J.
consequences doctrine, which both concern the mens rea of a
crime. We conclude that Senate Bill No. 1437 and Chiu have no
direct effect on our holding in Sanchez.
Before Chiu, supra, 59 Cal.4th 155, an accomplice who
aided and abetted a crime could be liable, not only for that target
offense, but also for any additional offense (including murder
under the natural and probable consequences doctrine even if
the accomplice did not intend the additional offense. (Id. at p.
164 [“natural and probable consequences doctrine is based . . .
‘on the policy [that] . . . aiders and abettors should be
responsible for the criminal harms they have naturally,
probably, and foreseeably put in motion’ ” (italics omitted)].) In
Chiu, we held that the natural and probable consequences rule
of accomplice liability did not extend to first degree
premeditated murder because imposing such vicarious liability
on an aider and abettor — one who did not possess the “uniquely
subjective and personal” mental state for first degree murder —
would not serve “legitimate public policy considerations of
deterrence and culpability.” (Chiu, at p. 166.) In 2018, the
Legislature amended section 188 through Senate Bill No. 1437
to provide that “[e]xcept as stated in subdivision (e) of Section
189 [governing felony murder], in order to be convicted of
murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3),
as amended by Stats. 2018, ch. 1015, § 2.) We subsequently held
that this amendment applied to second degree murder. (People
v. Gentile (2020) 10 Cal.5th 830, 839.
Insofar as the proximate cause instruction quoted in
Sanchez, supra, 26 Cal.4th at page 845, refers to a death that is
“ ‘a direct, natural and probable consequence of’ ” the
20
PEOPLE v. CARNEY
Opinion of the Court by Jenkins, J.
defendant’s act, it does not concern the imputed malice theory
of criminal liability that is part of the natural and probable
consequences doctrine of accomplice liability affected by Chiu
and Senate Bill No. 1437. (See Roberts, supra, 2 Cal.4th at
p. 320.) Understanding the rationale for the addition of the
“natural and probable consequences” language to the proximate
cause instruction is helpful in resolving the question before us.
In 1992, the CALJIC committee added the language to the
causation instruction (CALJIC No. 3.40) after we clarified the
causation requirement in certain jury instructions. (See
Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1052 [disapproving
BAJI No. 375 because it asked jury to “focus improperly on the
cause that is spatially or temporally closest to the harm”];
Roberts, supra, 2 Cal.4th at pp. 321–322 [instructions effectively
told the jury to disregard foreseeability when determining the
proximate cause of an injury].) Our decisions explained that
“[t]he criminal law . . . is clear that for liability to be found, the
cause of the harm not only must be direct, but also not so remote
as to fail to constitute the natural and probable consequence of
the defendant’s act.” (Roberts, at p. 319.
Thereafter, with our pronouncements from Roberts and
Mitchell v. Gonzales expressly in mind, the CALJIC committee
revised CALJIC No. 3.40 to add the phrase “direct, natural and
probable consequence.” (People v. Temple (1993) 19 Cal.App.4th
1750, 1756 [1992 revision to CALJIC No. 3.40 “correctly
embodies the Mitchell v. Gonzales-People v. Roberts test of
proximate cause”]; see CALCRIM No. 240.) Contrary to the
Mitchells’ argument, the reference to “direct, natural and
probable consequence” in the proximate cause jury instruction,
which deals with the actus reus of murder, does not implicate
concerns regarding imputed mens rea and vicarious liability
21
PEOPLE v. CARNEY
Opinion of the Court by Jenkins, J.
identified in Chiu and Senate Bill No. 1437.
Based on the foregoing, we conclude that Chiu and Senate
Bill No. 1437 do not impact or otherwise inform the question of
Sanchez’s application in this case.
CONCLUSION
Because the trial court, consistent with our holding in
Sanchez, supra, 26 Cal.4th 834, properly instructed the jury on
substantial concurrent causation with respect to Monique’s
death, we affirm the Court of Appeal’s judgment.
JENKINS, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
EVANS, J.
22
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Carney
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 12/10/19 – 3d Dist.
Rehearing Granted
Opinion No. S260063
Date Filed: July 20, 2023
Court: Superior
County: Sacramento
Judge: Kevin J. McCormick
Counsel:
Law Offices of Beles & Beles, Robert J. Beles, Paul McCarthy and
Micah Reyner for Defendants and Appellants Louis Mitchell and
Lonnie Mitchell.
Stephen Greenberg, under appointment by the Court of Appeal, for
Defendant and Appellant James Leo Carney.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Lance E. Winters, Chief Assistant Attorneys General, Michael P.
Farrell, Assistant Attorney General, Daniel B. Bernstein, Stephen G.
Herndon, Carlos A. Martinez, Catherine Chatman, Eric L.
Christoffersen, Rachelle A. Newcomb and Kimberly A. Donohue,
Deputy Attorneys General, for Plaintiff and Respondent.
Keiter Appellate Law and Mitchell Keiter for Amicus Populi as Amicus
Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Micah Reyner
Law Offices of Beles & Beles
1 Kaiser Plaza, Suite 2300
Oakland, CA 94612
(510) 836-0100
Kimberley A. Donohue
Deputy Attorney General
1300 I Street
Sacramento, CA 94244
(916) 210-6135
Opinion Information
| Date: | Docket Number: |
| Thu, 07/20/2023 | S260063 |
