THE PEOPLE, Plaintiff and Respondent, v. JAMES LEO CARNEY et al., Defendants and Appellants.
S260063
IN THE SUPREME COURT OF CALIFORNIA
July 20, 2023
Third Appellate District C077558; Sacramento County Superior Court 11F00700; Judge: Kevin J. McCormick
Justice Jenkins authored the opinion of the Court, in which Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, Groban, and Evans concurred.
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
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.
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.
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 (
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
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
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
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 (
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
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 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
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
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.” (Id. 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
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.
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
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
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.
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
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
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
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
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.” (
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”
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
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.
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.
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