People v. Mitchell CA3

BACKGROUND

In December 2010, the Mitchells were involved in a gun battle during which an innocent bystander was killed. (People v. Carney (2023) 14 Cal.5th 1130, 1135-1136.) The People filed an information charging both of them with murder (§ 187, subd. (a); count one) and alleging that each personally and intentionally used and discharged a firearm (§ 12022.53, subds. (b) & (c)). The information also charged them with four counts of assault with a firearm (§ 245, subd. (a)(2); counts two through five) and one count of being a felon in possession of a firearm (former § 12021, subd. (a)(1); counts nine and ten). The information additionally charged Lonnie Mitchell with possession of an assault weapon (former § 12280, subd. (b); count six). The trial court instructed the jury on August 14, 2014. Among other instructions, the court instructed the jury with a version of CALCRIM No. 402 that said: “The defendants are charged in Counts 2, 3, 4, and 5 with assault with a firearm and in Count 1 with murder. [¶] Under this theory of liability called ‘natural and probable consequences’ you must first decide whether a defendant is guilty of assault with a firearm. If you find the defendant…