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.
1

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

2

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.
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

3

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. 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

4

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.
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

5

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. 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

6

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.
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

7

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

8

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.)
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

9

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

10

v. Brady (2005) 129 Cal.App.4th 1314, 1329–1330 [whether inair 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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

11

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,6the 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, 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

12

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. 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

13

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

14

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.).) 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

15

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-fatalbullet 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. 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

16

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
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

17

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.)
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

18

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

19

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

20

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

21

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 
PEOPLE v. CARNEY

Opinion of the Court by Jenkins, J.

22

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.
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