Nature of the Case
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Facts
McCoy (D) and Lakey (D1) were tried together and convicted of crimes arising out of a drive-by shooting in Stockton in 1995. D drove the car and D1 was in the front passenger seat, with others in the back. The car approached four people standing on a street corner. D leaned out of the window and shouted something. A flurry of shots was fired from the car toward the group. Witnesses saw both D and D1 shooting handguns. Two of the group were shot, one fatally. The other two escaped injury. Someone from outside the car returned fire, wounding D1. The evidence showed that D fired the fatal bullets.
At trial, D but not D1 testified. D 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. D brought his gun for protection and picked up D1, who also had a gun. Across the street from his friend’s house, D saw three men standing near a tree. Thinking that one of them might be his friend, D drove slowly toward the group, stopped, and called out to get their attention. D 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, D grabbed his own gun and fired until the gun was empty. D1 also fired his gun out the car window. A jury found D and D1 guilty of various crimes, including first-degree murder and two counts of attempted murder. The Court of Appeal unanimously reversed D’s murder and attempted murder convictions, finding that the trial court prejudicially and wrongly instructed the jury on D’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. The Court of Appeal also reversed D1’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.” The State appealed.
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