Citation. 25 Cal. 4th 1111, 24 P.3d 1210, 108 Cal. Rptr. 2d 188, 2001 Cal. 3791.
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The Defendants, Ejaan Dupree McCoy (McCoy) and Derrick Lakey (Lakey) (Defendants), were tried together and convicted of crimes arising out of a drive-by shooting in Stockton in 1995.
Synopsis of Rule of Law.
The statement that an aider and abettor may not be guilty of a greater offense than the direct perpetrator, although sometimes true in individual cases, is not universally correct. Aider and abettor liability is premised not on the combined acts of all the principals, but on the aider and abettor’s own mens rea. If the mens rea of the aider and abettor is more culpable than the actual perpetrator’s, the aider and abettor may be guilty of a more serious crime than the actual perpetrator.
Facts.
McCoy was the driver of the vehicle and Lakey rode in the front passenger seat, with other individuals in the back. As the vehicle approached a group of four people standing together on a street corner, Lackey leaned out of the car and shouted something in their direction. A flurry of shots came from the vehicle towards the group of four. Witnesses stated that both Lakey and McCoy shot handguns at that group, but the evidence showed that McCoy fired the bullets that fatally killed one of the group members. One other group member was injured, while the other two escaped injury. Lakey was injured when someone on the street returned fire at the vehicle. At trial, McCoy testified that he shot at the group because he believed that he was in danger. McCoy testified that earlier in the day he had driven by that same street corner and someone had fired shots in his direction. Subsequently, McCoy testified that when he returned with Lakey and the others, he shot at the group because he
noticed an individual with an object that appeared to be a gun. A jury eventually found McCoy and Lakey guilty of first degree murder and two counts of attempted murder. The Court of Appeals reversed both McCoy and Lakey’s murder and attempted murder convictions.
Issue.
Can an aider and abettor be guilty of greater homicide-related offenses than those the actual perpetrator committed?
Held.
Lakey, as the aider and abettor, can be charged and convicted of greater homicide-related offenses than McCoy, the actual perpetrator, committed. As a result, the judgment of the Court of Appeals is reversed and the cause is remanded.
Discussion.
As applied here, the Defendants were to some extent both actual perpetrators and aiders and abettors. Both fired their handguns, although McCoy’s gun inflicted the fatal wounds. Once the jury found, as it clearly did, that Lakey acted with the necessary mental state of an aider and abettor, it could find him liable for both his and McCoy’s acts, without having to distinguish between them. But Lakey’s guilt was also based on his own mental state, not McCoy’s. McCoy’s unreasonable self-defense theory was personal to him. A jury could reasonably have found that Lakey did not act under unreasonable self-defense even if McCoy did. Thus, his conviction of murder and attempted murder can stand, notwithstanding that on retrial McCoy might be convicted of a lesser crime or even acquitted.
