Murder conviction upheld where participant in a gun battle did not fire the fatal shot, but  contributed substantially and concurrently to the victim’s death

People v. Carney (Cal., July 20, 2023, No. S260063) 2023 WL 4630861, at *1

Summary: In People v. Sanchez (2001) 26 Cal.4th 834 (Sanchez), the California Supreme Court upheld the first degree murder conviction of a defendant who had engaged in a gang-related shootout that left a bystander dead. It was unclear whether the defendant or a rival gang member had fired the fatal shot. However, the Court  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, proximate, cause of [the victim’s] death.”

This case  involves a gun battle among rivals, but unlike in Sanchez, the evidence conclusively established that the fatal shot was fired by someone other than the two defendants who were convicted of first degree murder. The

The issue is whether Sanchez’s “substantial concurrent cause” analysis of proximate cause allows the defendants’ convictions. The Court of Appeal upheld the convictions 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. The court explained that 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.].) 2019 WL 6709490 Based on that reasoning, the Court of Appeal concluded that the actions of defendants Lonnie Orlando Mitchell and Louis James Mitchell (the Mitchells) were sufficient to demonstrate that each proximately caused the victim’s death, regardless of who actually shot the victim.

The Supreme Court agreed 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 its holding in Sanchez and affirmed the Court of Appeal’s judgment.

Background and jury instructions

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 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.” 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. The jury also found the Mitchells guilty of assault charges against four victims.

The Mitchells appealed their first degree murder convictions. They argued that because neither had fired the shot that killed the victim, the jury must have found them guilty of murder based on their alleged status as accomplices. Citing Chiu, they argued their culpability was limited to second degree murder. The Court of Appeal rejected the Mitchells’ contentions. Relying on Sanchez, 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 the Supreme Court. The Court rejected  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. 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.

Concurrent causes and proximate cause of death

When there is evidence of concurrent causes, “ ‘[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); “[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. (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.)

Sanchez and  “substantial concurrent cause” rule of liability
Sanchez 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.

The Mitchells contend that “Sanchez’s ‘substantial concurrent causation’ theory … only makes sense where the actual killer is unknown.” They argue that , “[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. The Mitchell’s argue that 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.

Although Sanchez was the first decision in which the Supreme Court used the term “substantial concurrent cause” in this context, Sanchez did not articulate a new theory of causation or announce a “reduced” standard of causation that served to lessen the prosecution’s burden of proof. The term “substantial concurrent cause” embraces familiar causation concepts of substantial factor and concurrent cause. (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.

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.

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