25 Cal. 4th 1111, 108 Cal. Rptr. 2d 188, 24 P.3d 1210
In 1995, codefendants Ejaan Dupree McCoy and Derrick Lakey were involved in a drive-by shooting in Stockton.1 McCoy drove the car while Lakey sat in the front passenger seat with others in the back.2 The car approached four people standing on a street corner. McCoy leaned out of the window and shouted something. A flurry of shots was fired from the car toward the group.3 Witnesses saw both McCoy and Lakey shooting handguns. Two of the group were shot, one fatally. The other two escaped injury. Someone from outside the car returned fire, wounding Lakey. The evidence showed that McCoy fired the fatal bullets.4
At trial, McCoy but not Lakey testified. McCoy admitted shooting but claimed he did so because he believed he would be shot himself.5 He said that earlier that day, he had driven by that same intersection, and someone fired shots in his direction. He decided to seek out a friend who might be able to help him determine who had fired at him. McCoy brought his gun for protection and picked up Lakey, who also had a gun.6 Across the street from his friend’s house, McCoy saw three men standing near a tree. Thinking that one of them might be his friend, McCoy drove slowly toward the group, stopped, and called out to get their attention. McCoy then saw that the man was not his friend and that he held a “dark something” that appeared to be a gun. Believing that the man was going to shoot him, McCoy grabbed his own gun and fired until the gun was empty. Lakey also fired his gun out the car window.7
A jury found McCoy and Lakey guilty of first degree murder, two counts of attempted murder, and other crimes.8 The Court of Appeal unanimously reversed McCoy’s murder and attempted murder convictions, finding that the trial court prejudicially misinstructed the jury on McCoy’s theory of unreasonable self-defense.9 The Court of Appeal also reversed Lakey’s murder and attempted murder convictions for two independent reasons.10 Justice Hull dissented as to Lakey and would have affirmed his conviction.11 The Supreme Court granted the Attorney General’s petition for review limited to whether the Court of Appeal correctly reversed Lakey’s murder and attempted murder convictions.12
Whether an aider and abettor may be guilty of greater homicide-related offenses than those the actual perpetrator committed?13
Aider and abettor liability is premised 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.14
Yes. McCoy was the direct perpetrator whose gun fired the fatal bullets.15 He testified to firing under an unreasonable but good faith belief in the need for self-defense based on events earlier that day and his perception at the scene.16 Lakey was present in the car, also fired his own handgun at the group, and was convicted on the same evidence as an aider and abettor.17 The Court of Appeal reversed McCoy's convictions due to prejudicial instructional error on that personal defense theory.18
Because Lakey's own mental state determines his liability, the jury could find that Lakey did not share McCoy's unreasonable self-defense belief.19 Lakey's murder and attempted murder convictions may stand even if McCoy is retried and convicted only of voluntary manslaughter and attempted voluntary manslaughter.20
An aider and abettor may be guilty of greater homicide-related offenses than the actual perpetrator when the aider and abettor's mental state is more culpable than that of the perpetrator.21