People v. Lakey CA3

Filed 9/16/20 P. v. Lakey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C089487

Plaintiff and Respondent, (Super. Ct. Nos. SC059733B & STK-CR-FE-1996-0005306) v.

DERRICK LAKEY,

Defendant and Appellant.

Defendant Derrick Lakey appeals the denial of his petition for resentencing under Penal Code section 1170.951 because the trial court did not first appoint counsel. We conclude any error in not appointing counsel during the resentencing process was harmless beyond a reasonable doubt. We affirm the trial court’s denial of defendant’s petition.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL BACKGROUND The relevant facts of this case have been detailed by the California Supreme Court in People v. McCoy (2001) 25 Cal.4th 1111, 1115-1116 (McCoy): “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.” 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 disagreed with our finding that “because the jury may have erroneously found McCoy acted with malice, it did not necessarily find that any participant acted with malice. This conclusion also reflects a misunderstanding about the mental state needed for an aider and abettor (again, aside from the natural and probable consequences doctrine not relevant here). The trial court instructed the jury both regarding direct perpetrator