People v. McCoy
| Decision Date | 17 March 2000 |
| Docket Number | No. C024654.,C024654. |
| Citation | 79 Cal.App.4th 67,93 Cal.Rptr.2d 827 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Ejaan Dupree McCOY et al., Defendants and Appellants. |
David McNeil Morse, Under Appointment by the Court of Appeal, San Francisco, for Defendant and Appellant Derrick Lakey.
Mark D. Greenberg, Under Appointment by the Court of Appeal, Oakland, for Defendant and Appellant Ejaan Dupree McCoy.
Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Senior Assistant Attorney General, J. Robert Jibson and Stan Cross, Supervising Deputy Attorneys General, Brian G. Smiley, Deputy Attorney General, for Respondent.
Defendants Ejaan Dupree McCoy and Derrick Lakey were tried in the same trial upon the same evidence and were found guilty of murder and attempted murder. McCoy was the actual perpetrator and Lakey was convicted upon the theory that he aided and abetted McCoy.
We conclude McCoy's convictions must be reversed because the trial court gave an erroneous instruction on imperfect self defense. We further conclude that Lakey's convictions must be reversed because, inter alia, under California law an aider and abettor cannot be convicted of a greater offense than that of which the actual perpetrator is convicted, where both of them are tried in the same trial and upon the same evidence.
In an information filed January 22, 1996, defendants McCoy and Lakey were charged in count 1 with the murder of Calvin Willis (Pen.Code, § 187),1 in count 2 with the attempted murder of Tubiya McCormick (§§ 664/187), in count 3 with the attempted murder of Tashambe Willis, and in count 4 with the attempted murder of Simon McCormick. Count 5 charged McCoy with being a felon in possession of a firearm (§ 12021, subd. (a)) and count 6 charged the same crime for Lakey. For counts 1 through 4 it was further alleged that defendants were armed with (§ 12022, subd. (a)(1)) and personally used (§ 12022.5, subd. (a)) firearms, they inflicted injury or death by discharging the firearms from a motor vehicle (§ 12022.55), and the offenses were serious and violent felonies (§§ 1192.7, subd. (c)(8), 667.5, subd. (c)(8)). In addition, the information specially alleged that defendants personally inflicted great bodily injury during commission of count 2.
On April 30, 1996, a jury was impaneled to try the case.
On June 21, 1996, the trial court granted the People's motion to dismiss from counts 3 and 4 allegations that defendants inflicted injury by discharging firearms from a motor vehicle within the meaning of section 12022.55.
On July 12, 1996, the jury reached a verdict. Defendant McCoy was found guilty of counts 1, 2, 4 and 5. Defendant Lakey was found guilty of counts 1, 2, 4 and 6. On count 3, the jury found defendants guilty of the lesser-included offense of assault with a semi-automatic firearm (§ 245, subd. (b)). All the special allegations against defendant McCoy were found true. All but three of the special allegations against defendant Lakey were found true; to wit, the jury did not find that Lakey discharged a firearm from a motor vehicle as alleged in counts 1 and 2, or that he personally inflicted great bodily injury as alleged in count 2.
On September 3, 1996, McCoy was sentenced to a determinate term of 25 years and 4 months, plus a consecutively sentenced indeterminate term of 25 years to life. Thus, McCoy's aggregate term was 50 years and 4 months to life.
On September 3, 1996, Lakey was sentenced to a determinate term of 21 years and 4 months, plus a consecutively sentenced indeterminate term of 25 years to life. Thus, Lakey's aggregate term was 46 years and 4 months to life.
McCoy and Lakey2 appeal.
Defendants contend that: (1) expert testimony that the shootings were an incident of gang retaliation was improperly admitted; (2) the prosecutor committed prejudicial misconduct during the examination of witnesses and when he referred during trial to the killing of Calvin Willis as "murder"; and (3) the trial court committed error instructing the jury on imperfect self-defense and reasonable doubt.
In an unpublished portion of this opinion, we reject defendants first two contentions and also their claim that the trial court gave a defective instruction on reasonable doubt. In the published portion of the opinion, we shall discuss the erroneous imperfect self defense instruction and its effect on Lakey.
The victim, Calvin Willis, was standing on the sidewalk near the intersection of Flint Avenue and Georgia Street in the Conway Homes area of Stockton in the evening of September 4, 1995; with him were his sister Tashambe Willis and his cousins Tubiya McCormick and Simon McCormick. Tubiya McCormick held a can of beer in one hand.
Soon after the four met and began talking, a dark car drove up. Defendant McCoy was driving the car and defendant Lakey was in the front passenger seat. Some witnesses testified that Matthew McGee and Patrick Hall were in the back seat.
When he saw the car drive up, Simon McCormick became nervous, and moved behind a tree. As McCoy leaned out of the window and shouted "What's up now nigger," a flurry of shots were fired from the car toward the group. Witnesses saw McCoy and Lakey shooting handguns.
Tubiya McCormick was shot in the chest, but survived. At trial, Tubiya McCormick testified that he turned toward the car after he heard someone say "What's up nigger," and was immediately shot. Calvin Willis was fatally shot in the back of the head as he tried to run away. Tashambe Willis and Simon McCormick were not shot.
During the melee, one or more persons outside McCoy's car began returning fire, and bullet casings were found afterward near the tree where Calvin Willis and his family had been standing. Defendant Lakey was shot and survived. Police questioning Lakey at the hospital found him evasive about the circumstances of his injury although he eventually stated he had been shot while walking alone in a different part of Stockton.
Defendants McCoy and Lakey, together with Matthew McGee, were charged in the shooting and tried together.
The prosecution's theory of the case was that the Willis shooting was an intended retaliation in an ongoing feud between two Stockton gangs referred to as the "Southside Mob" (also referred to as "Southside Gangsters," "South Mob" or "Southside") and the "Conway Homes Gangsters" or "Conway." In the prosecution's view, the victims were not gang members, but innocent bystanders.
Stockton Police Officer Michael Townes testified as a gang expert and opined that the Willis shooting was a gang-related retaliation attempt, and explained that his opinion was based upon the location of the shooting, the parties involved, and the existence of a recent ongoing feud between Southside Mob and Conway Homes. The intersection of Flint and Georgia, where Willis was killed, is claimed by Conway and is a central location for gang activity. Officer Townes testified that McCoy, Lakey, McGee, and Patrick Hall are South Mob Gangsters; other witnesses also testified that McCoy and Lakey are members of the Southside Mob.
To show that the Willis shooting was precipitated by a string of recent gang shootings, the prosecution offered evidence of several other events. On August 30, less than a week before the Willis shooting, near the intersection of Flint and Georgia, someone from a passing car fired shots at Cheri Mitchell and Calvin Mitchell;3 Alton Burton was with them. Calvin Mitchell and Alton Burton are "high profile" Conway gang members. The next night, Hammam Noel, who is not a gang member, was shot from a passing car when he was in the company of Calvin Mitchell in the vicinity of Flint and Georgia. The car from which the shots were fired at Hammam Noel crashed and its occupants fled on foot; the car was registered to Patrick Hall and contained Hall's fingerprints and those of defendant McGee. Officer Townes testified he had investigated the shooting of Jonathan Martin, a member of the South Mob, which occurred early on September 4, the same day Willis was killed. Alton Burton pleaded guilty to his involvement in the Martin shooting.
Finally, McCoy's cousin, Latroy Taylor, testified that shortly before Willis was shot, he and McCoy drove past the intersection of Flint and Georgia in McCoy's car. Someone fired a handgun toward the car, which made McCoy angry and upset.
A cellmate of Lakey's after his arrest testified that Lakey admitted participating in a drive-by shooting in which he had shot someone in the head for revenge.
The bullets recovered from Calvin Willis's body were .380 caliber and all were fired from the same gun. McCoy was the only one firing .380-caliber ammunition from the car. DNA factors consistent with those in Lakey's blood were found on the front passenger seat and floor of McCoy's car; the chances of all such factors existing in the same person in the African-American population is one in 720,000. The blood in McCoy's car could not have been his own.
Of the defendants at trial, only McCoy testified. He admitted shooting Calvin Willis, but denied that he had done so as retaliation against Conway Homes gang members; rather, he testified he had fired his gun because he believed he was himself going to be shot.
McCoy testified he had ceased to be a member of the Southside Mob after 1993, was not a gang member at the time of the Willis shooting, and was unaware of the recent shootings involving Hammam Noel and Jonathan Martin.
In the afternoon of the Willis shooting, McCoy drove his cousin Taylor to a friend's house in Conway; on the way he passed the corner of Flint and Georgia, where he saw a group of people standing. After they passed the intersection, McCoy noticed gunshots had been fired in his...
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... ... appellant was acting under an actual, albeit unreasonable, fear of great bodily harm or death, which is the "imperfect" self-defense of People v. Flannel (1979) 25 Cal.3d 668. At appellant's trial, friends and family members testified about appellant's injuries that resulted from ... As recently explained by the California Court of Appeal in People v. McCoy, 93 Cal. Rptr. 2d 827 (Cal. App. Ct. 2000), petition for review granted, 4 P.3d 264 (Cal. 2000): ... Imperfect self-defense (also ... ...