“Substantial Concurrent Cause” – New Theory of Murder?

In the 2001 case of People v. Sanchez (2001) 26 Cal. 4th 834, the California Supreme Court upheld the firs degree murder conviction of a defendant who had engaged in a gang-related shootout that left an innocent bystander dead.

Although it was unclear whether defendant or a rival gang member had fired the fatal shot, the California Supreme Court held that 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.

In contrasting the liability of a defendant who shot the deadly shot and one who did not, the Court explained that all defendants “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.”

What this case did not address was whether a person could be convicted for the death of another in a similar gang-related shootout when that person participated in the shootout, but evidence conclusively demonstrated that defendant did not shoot the bullet that resulted in another’s death.

The California Supreme Court recently addressed this issue in People v. James Leo Carney, et al. with a ruling filed on July 20, 2023 (2023 DJDAR 7388), finding such a conviction under Sanchez for a gang-related shooting was proper even for participant who did not fire the fatal shot.

The facts are important to understand in order to appreciate the ruling. In the early afternoon of December 14, 2010, defendants Lonnie Orlando Mitchell and his brother, defendant Louis James Mitchell 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, but under a hoodie. Yet the outline of the weapon was clearly visible to everyone in the barbershop. He then made everyone in the barbershop nervous because he paced back and forth inside the barbershop talking to someone on his cell phone, saying he wanted to “shoot the place up.” His brother, Louis Mitchell, also appeared to be carrying a gun. It is fair to say their presence was clearly hostile.

One of the patrons in the barbershop called James Carney and asked him to pick him up. Carney then called Marvion Barksdale, who Lonnie Mitchell had recently threatened to kill in a dispute over a robbery.

Carney then got his gun and drove to the barbershop. He parked across the street and stood outside his car.

Meanwhile, two of the patrons, scared that violence was about to begin, left the barbershop.

Barksdale then also came to the barbershop, parked and started to walk toward the entrance when gunfire erupted.

Louis and Lonnie Mitchell fired multiple shots, wounding Barksdale and another man. Barksdale later died. Carney also fired shots, killing a bystander named Monique.

Before fleeing the scene, the Mitchells fired several more shots from the front of the barbershop, hitting and injuring four other bystanders.

The Sacramento District Attorney’s office filed an information charging the Mitchells, Carney and another man, Jones, with murder for the death of Monique, as well as four counts of assault with a deadly weapon for the four other injured people. The information further alleged that Carney and Jones committed the murder for the benefit of a street gang (Penal Code § 186.22(b)(1)).

At trial, all four defendants asserted they acted in self-defense, i.e., that other participants shot first and were the aggressors.

The jury found both Mitchells guilty of first-degree murder. It acquitted Carney of murder, but convicted him of voluntary manslaughter. It acquitted Jones of all counts.

The Mitchells appealed their first degree murder conviction, arguing that because neither had fired the shot that killed Monique, they jury had to have found them guilty as accomplices only and under People v. Chiu (2014) 59 Cal. 4th 155, they could only be guilty of second-degree murder.

The Third Appellate District rejected this argument, finding that the two brothers had first degree murder liability under Sanchez, supra.

The Mitchells then appealed to the California Supreme Court in People v. James Leo Carney, et al. The Supreme Court affirmed the Third Appellate District, holding that while in Sanchez, the cause of death of the bystander was unknown, that was not the key to murder liability being extended to all participants in the gang shootout. So even if the death of a bystander can be attributed to one person (here, Carney), the others contributed to the cause and if their conduct was a “substantial concurrent” factor leading to the victim’s death, rather than insignificant or merely theoretical, those others were culpable for the death in the first degree.

The evidence in this case was that the Mitchells engaged in life-threatening deadly acts by instigating a gun battle that was the proximate cause of the bystander’s death, so their conduct was a substantial concurrent cause of the bystander’s death and proximate cause was thus established. Consequently, the convictions were proper.