People v. Lakey CA3

Filed 8/29/24 P. v. Lakey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C099431

Plaintiff and Respondent, (Super. Ct. Nos. STKCRFE19960005306, v. SC059733B)

DERRICK LAKEY,

Defendant and Appellant.

Defendant Derrick Lakey appeals the denial at the prima facie stage of his second petition for resentencing under Penal Code section 1172.6 (formerly section 1170.95).1 The trial court denied the current petition for the same reason defendant’s first petition

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6, with no substantive changes to the statute. (Stats. 2022, ch. 58, § 10.) We cite to the current section number throughout this opinion.

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was denied, to wit, that the California Supreme Court’s decision in People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), which concluded that defendant acted with malice, constituted the law of the case, and rendered him ineligible for relief under section 1172.6. We affirm. I. BACKGROUND We previously set forth the pertinent background in our unpublished decision in People v. Lakey (Sept. 16, 2020, C089487) [nonpub. opn.]: “ ‘Codefendants Ejaan Dupree McCoy and [defendant] were tried together and convicted of crimes arising out of a drive-by shooting in Stockton in 1995. McCoy drove the car and [defendant] 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 [defendant] shooting handguns. Two of the group were shot, one fatally. The other two escaped injury. Someone from outside the car returned fire, wounding [defendant]. The evidence showed that McCoy fired the fatal bullets.’ [(McCoy, supra, 25 Cal.4th at pp. 1115-1116.)] “A jury found defendant and his codefendant guilty of various crimes including first degree murder. On appeal, we reversed the codefendant’s conviction finding the jury was improperly instructed on the codefendant’s unreasonable self-defense theory. We also reversed defendant’s conviction finding (1) an aider and abettor cannot be convicted of a greater offense than the actual perpetrator and (2) we could not conclude any participant acted with malice. (McCoy, supra, 25 Cal.4th at pp. 1115-1116.) “The Supreme Court reversed our decision as to defendant, disagreeing on both grounds. The court first found defendant’s guilt was not determined by his codefendant’s unreasonable self-defense claim. Instead, the Supreme Court determined an aider and abettor’s ‘guilt is determined by the combined acts of all the participants as well as that person’s own mens rea.’ (McCoy, supra, 25 Cal.4th at p. 1122.) The court next