People v. McCoy, No. S087893.

• Court: United States State Supreme Court (California)
• Writing for the Court: CHIN, J.
• Citation: 25 Cal.4th 1111,24 P.3d 1210,108 Cal.Rptr.2d 188
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ejaan Dupree McCOY et al., Defendants and Appellants.
• Docket Number: No. S087893.
• Decision Date: 25 June 2001

108 Cal.Rptr.2d 188
25 Cal.4th 1111
24 P.3d 1210

The PEOPLE, Plaintiff and Respondent,
v.
Ejaan Dupree McCOY et al., Defendants and Appellants

No. S087893.

Supreme Court of California.

June 25, 2001.

Rehearing Denied August 22, 2001.

108 Cal.Rptr.2d 190

Mark D. Greenberg, Oakland, under appointment by the Supreme Court, for Defendant and Appellant Ejaan Dupree McCoy

David McNeil Morse, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant Derrick Lakey.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Robert R. Anderson, Assistant Attorney General, J. Robert Jibson, Stan Cross and Brian G. Smiley, Deputy Attorneys General, for Plaintiff and Respondent.

108 Cal.Rptr.2d 189

CHIN, J

We granted review to decide whether an aider and abettor may be guilty of greater homicide-related offenses than those the actual perpetrator committed. Because defenses or extenuating circumstances may exist that are personal to the actual perpetrator and do not apply to the aider and abettor, the answer, sometimes, is yes. We reverse the judgment of the Court of Appeal, which concluded otherwise.

I. Factual and Procedural History

Codefendants Ejaan Dupree McCoy and Derrick Lakey were tried together and convicted of crimes arising out of a drive-by

108 Cal.Rptr.2d 191

shooting in Stockton in 1995. McCoy drove the car and Lakey was in the front passenger seat, with others in the back. 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. 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

At trial, McCoy but not Lakey testified. McCoy admitted shooting but claimed he did so because he believed he would be shot himself. 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. 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.

A jury found McCoy and Lakey guilty of various crimes, including first degree murder and two counts of attempted murder. 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, a theory that, if the jury had accepted it, would have reduced the crimes to voluntary manslaughter and attempted voluntary manslaughter. (See generally People v. Blakeley (2000) 23 Cal.4th 82, 87-88, 96 Cal.Rptr.2d 451, 999 P.2d 675.)

The Court of Appeal also reversed Lakey's murder and attempted murder convictions "for two independent reasons: (1) under California law, a defendant who is tried as an aider and abettor cannot be convicted of an offense greater than that of which the actual perpetrator is convicted, where the aider and abettor and the perpetrator are tried in the same trial upon the same evidence, and (2) on this record, we cannot conclude with reasonable certainty that any participant acted with malice in connection with [the murder and attempted murder counts], so we cannot say that the crimes of murder or attempted murder have been committed." Justice Hull dissented as to Lakey and would have affirmed his conviction.

We granted the Attorney General's petition for review limited to whether the Court of Appeal correctly reversed Lakey's murder and attempted murder convictions.

II. Discussion

If a person kills or attempts to kill in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter or attempted voluntary manslaughter, not murder or attempted murder. (People v. Blakeley, supra, 23 Cal.4th at pp. 87-88, 96 Cal.Rptr.2d 451, 999 P.2d 675.) McCoy's testimony provided evidence that he acted in unreasonable self-defense, so the trial court instructed on that theory. The Court of Appeal reversed McCoy's murder and attempted murder convictions because it concluded the court's instructions on unreasonable

108 Cal.Rptr.2d 192

self-defense were prejudicially erroneous. We did not grant review on that issue, so we accept the Court of Appeal's conclusion as to McCoy. (People v. Weiss (1999) 20 Cal.4th 1073, 1076-1077, 86 Cal.Rptr.2d 337, 978 P.2d 1257.) Thus, it is possible that on retrial McCoy will be found guilty of manslaughter and attempted voluntary manslaughter rather than murder and attempted murder.

The question before us is whether reversal of McCoy's convictions also requires reversal of Lakey's. The Court of Appeal divided on the question. The majority found that McCoy, whose gun fired the fatal bullets, was guilty as the direct perpetrator and Lakey as an aider and abettor. It interpreted certain cases to mean that an aider and abettor may not be guilty of a greater offense than the direct perpetrator and concluded therefore that if McCoy was guilty of crimes less than murder or attempted murder, then Lakey also could only be guilty of those lesser crimes. (Citing People v. Antick (1975) 15 Cal.3d 79, 89, 123 Cal.Rptr. 475, 539 P.2d 43; People v. Williams (1977) 75 Cal.App.3d 731, 737, 142 Cal.Rptr. 704; People v. Petruzo (1910) 13 Cal.App. 569, 577, 110 P. 324; People v. Sidelinger (1908) 9 Cal.App. 298, 299, 99 P. 390; see also People v. Allsip (1969) 268 Cal.App.2d 830, 831-832, 74 Cal.Rptr. 550.) Accordingly, it concluded that reversal of McCoy's convictions compelled reversal of Lakey's convictions. Justice Hull disagreed. He argued that "[n]either law nor logic requires that an aider and abettor be afforded the benefit of a mitigating factor applicable only to the actual perpetrator to reduce a homicide from murder to manslaughter."

Resolution of this question requires a close examination of the nature of aiding and abetting liability. "All persons concerned in the commission of a crime, ... whether they directly commit the act constituting the offense, or aid and abet in its commission, ... are principals in any crime so committed." (Pen.Code, § 31; see People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123, 77 Cal.Rptr.2d 428, 959 P.2d 735; People v. Prettyman (1996) 14 Cal.4th 248, 259-260, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) Thus, a person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. (Ibid.) Because aiders and abettors may be criminally liable for acts not their own, cases have described their liability as "vicarious." (E.g., People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5, 221 Cal.Rptr. 592, 710 P.2d 392.) This description is accurate as far as it goes. But, as we explain, the aider and abettor's guilt for the intended crime is not entirely vicarious. Rather, that guilt is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state.

It is important to bear in mind that an aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also "for any other offense that was a 'natural and probable consequence' of the crime aided and abetted." (People v. Prettyman, supra, 14 Cal.4th at p. 260, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) Thus, for example, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. (Id. at p. 267, 58 Cal.Rptr.2d 827, 926 P.2d 1013.) In this case, however, the trial court did not instruct the jury on the natural and probable consequences doctrine. It instructed only on an aider and

108 Cal.Rptr.2d 193

abettor's guilt of the intended crimes. Accordingly, only an aider and abettor's guilt of the intended crime is relevant here. Nothing we say in this opinion necessarily applies to an aider and abettor's guilt of an unintended crime under the natural and probable consequences doctrine.

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. (Pen.Code, § 20; see generally 1 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Elements, §§ 1, 21, pp. 198-199, 227-228.) This principle applies to aiding and abetting liability as well as direct liability. An aider and abettor must do something and have a certain mental state.

We have described the mental state required of an aider and abettor as "different from the mental state necessary for conviction as the actual perpetrator." (People v. Mendoza, supra, 18 Cal.4th at p. 1122, 77 Cal.Rptr.2d 428, 959 P.2d 735.) The difference, however, does not mean that the mental state of an aider and abettor is less culpable than that of the actual perpetrator. On the contrary, outside of the natural and probable consequences doctrine, an aider and abettor's mental state must be at least that...