P. v. McCoy

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Filed 1/11/21 P. v. McCoy CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LAKEITH LEROY MCCOY,
Defendant and Appellant.
E074238
(Super.Ct.No. RIF130139)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Richard Power, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Matthew
Mulford, Deputy Attorneys General, for Plaintiff and Respondent.

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I. INTRODUCTION
Defendant and appellant, Lakeith Leroy McCoy, appeals from the
November 22, 2019 order of the superior court, denying his petition for resentencing
(Pen. Code, § 1170.95)1 on his 2009 conviction for the attempted premediated murder of
Anthony Thompson under the natural and probable consequences doctrine. The superior
court dismissed the petition partly on the ground that persons convicted of attempted
murder are ineligible to have their attempted murder conviction vacated and to be
resentenced on their remaining convictions under section 1170.95. We agree with the
superior court’s conclusion and affirm the order of dismissal.
II. FACTS AND PROCEDURE
A. McCoy’s 2009 Convictions and Sentence
In 2011, this court affirmed McCoy’s 2009 judgment of conviction and sentence
for the attempted premediated murder of Thompson (§§ 664, subd. (a), 189, count 1)
under the natural and probable consequences doctrine and other convictions. (People v.
McCoy (May 16, 2011, E048737) [nonpub. opn.]) In addition to the attempted
premeditated murder of Thompson, McCoy was convicted of assaulting Thompson and a
second victim, Brandon Jones, with a firearm, and of falsely imprisoning both men.
(§§ 245, subd. (a)(2), 236, counts 2-5.) In each count, McCoy personally used a firearm.
(§ 12022.53, subd. (b), count 1; § 12022.5, subd. (a), counts 2-5.)
1 Undesignated statutory references are to the Penal Code.

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On July 1, 2009, McCoy was sentenced to an aggregate term of 24 years plus life
in prison, with a minimum parole eligibility period of seven years.2 McCoy’s sentence is
comprised of the upper term of 4 years on count 3, plus 10 years for the personal use
enhancement on count 3, plus life in prison on count 1, plus 10 years for the personal use
enhancement on count 1.3
B. The Evidence Supporting McCoy’s 2009 Convictions4
In early 2006, Yolanda Renee Miles was living in an apartment in Moreno Valley
with her boyfriend, Ed Knox; Knox’s older brother, Christian; and Thompson. Knox
owed Thompson money for selling drugs for Knox, and Thompson was angry because
Knox would not pay him. Thompson believed that Knox owed him $1,000 and wanted
the money so that he could move to Las Vegas.
2 This court’s prior decision in People v. McCoy, supra, E048737, mistakenly
states on page 3 that McCoy was sentenced to “24 years plus life without the possibility
of parole.” (Italics added.) The phrase “without parole” is a clerical error. McCoy was
actually sentenced to life with the possibility of parole on his attempted premeditated
murder conviction (§ 664, subd. (a)), subject to a seven-year minimum parole eligibility
period. (§ 3046, subd. (a); see People v. Salas (2001) 89 Cal.App.4th 1275, 1280 [seven-
year minimum parole eligibility period applies to life term for premediated attempted
murder, absent a determination that an enhanced sentencing provision applies].)
3 The court imposed concurrent terms of three years on McCoy’s conviction in
count 2, two years on count 4, and two years on count 5. In 2018, McCoy’s determinate
and indeterminate abstracts of judgement were amended to correct clerical errors. His
May 16, 2018 abstracts of judgment correctly reflect his aggregate sentence.
4 We draw the facts from our prior decision upholding McCoy’s convictions in
People v. McCoy, supra, E048737. McCoy did not present any additional evidence in
support of his resentencing petition.

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One day, Knox and Thompson nearly got into a fistfight, and Knox made
Thompson move out of the apartment. At some point, Thompson told Knox’s girlfriend,
Miles, that Knox was cheating on her. Miles agreed to let Thompson know when Knox
was not at home so that Thompson could go into the apartment and take Knox’s money,
around $15,000.
On March 24, 2006, Miles contacted Thompson by telephone and told him to
come to the apartment because Knox was not there. Thompson asked Jones to
accompany him to the apartment, and Jones did so, expecting a share of Knox’s money,
drugs, or both. Jones was a friend of Knox’s older brother, Christian.
When Thompson and Jones arrived at the apartment, Miles allowed them inside
and directed them into Knox’s bedroom, where Thompson grabbed $60 to $80 that was
laying on a desk. Miles was crying but would not tell Thompson why. Miles told
Thompson and Jones that the rest of Knox’s money was under the bed in the master
bedroom. After Thompson and Jones went into the master bedroom, Knox and McCoy
“jumped out of a bathroom and, with guns drawn, ordered Thompson and Jones to
‘freeze.’ ”
Knox pointed his gun at the back of Thompson’s head while McCoy pointed his
gun at Jones’s forehead. Both guns had potatoes on their ends to act as silencers. Knox
said, “ ‘You came to rob me without a gun. You must be stupid.’ ” Knox and McCoy
went through Thompson’s and Jones’s pockets, took their cell phones and other
belongings, pushed them into the living room, and told them to lie on their stomachs.
According to Jones, McCoy’s demeanor “ ‘definitely seemed a lot more aggressive’ ”

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than Knox’s. McCoy told Thompson and Jones not to move or “ ‘we’ll shoot you’ ”; that
they were “ ‘stupid’ for coming there without guns”; they had “ ‘fucked up’ ”; and they
were “ ‘going to get it.’ ” And, after Knox said he could not believe that Thompson was
trying to “ ‘rob’ ” him, McCoy said to Knox, “ ‘I told you so,’ ” smiled, and licked his
lips.
While Thompson and Jones were lying on their stomachs in the living room, Knox
and McCoy were discussing what they were going to do with Thompson and Jones.
McCoy told Knox to call someone so that they could put Thompson and Jones in a car,
drive them to a canyon where no one would see, shoot them, burn their bodies, and leave
them there. Knox was using a telephone and was telling someone, “ ‘We should just kill
them right here,’ ” while McCoy said, “ ‘No. I am going to get a car and we are going to
do this the right way.’ ” Thompson believed that he was going to be killed in the
apartment.
When Knox and McCoy were not paying attention, Thompson got up from the
living room floor and ran to the front door. Miles yelled that Thompson was running and
grabbed Thompson’s right arm and shirt as he unlocked the door. Knox told Thompson
not to run and fired his gun after Thompson had one foot outside the door, hitting
Thompson in the back above his waistline. Thompson continued to run, and McCoy
followed Thompson out of the apartment.
Thompson made it across the street from the apartment and collapsed on a
sidewalk. A sheriff’s deputy was driving in the area, saw Thompson collapse, and called
an ambulance. Before Knox shot Thompson, Jones did not believe that Knox and McCoy

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would shoot Jones and Thompson and thought that Knox and McCoy were only trying to
scare Jones and Thompson. But after Knox shot Thompson, Jones thought he was going
to die. When McCoy followed Thompson out of the apartment, Knox told Jones that
Knox was not going to kill Jones because Jones knew Knox’s brother, and Knox began to
cry. Jones then left the apartment, flagged down a patrol officer, and described what had
happened to the patrol officer.
Thompson nearly died from his gunshot wound, which pierced his pancreas,
traveled to his chest cavity, and made two holes in a chamber of his heart. Thompson’s
surgeon called Thompson “the ‘miracle guy’ ” because “ ‘most people don’t recover’
from such an injury.” Thompson required additional surgeries; his spleen had to be
removed and swelling in his legs caused part of his leg muscle to atrophy, requiring the
removal of some of his leg muscle. Thompson was no longer able to walk “ ‘normally’ ”
at the time of trial in 2009.
McCoy testified in his own defense and denied having any intention of harming
Thompson or Jones. McCoy claimed he was about to call the police when he heard a
gunshot. After Knox shot Thompson, McCoy asked Knox, “ ‘ “What are you doing?” ’ ”
and Knox responded, “ ‘ “I didn’t mean to.” ’ ” McCoy claimed he ran outside, heading
for his car, not for Thompson. McCoy did not stop when he saw the police talking to
Thompson because he was on probation.
C. McCoy’s Petition for Resentencing and the Superior Court’s Ruling
In January 2019, McCoy petitioned the superior court to vacate his conviction for
the attempted premeditated murder of Thompson and to resentence him on his other

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convictions in the case, on the ground that his attempted murder conviction was based on
the natural and probable consequences doctrine. (§ 1170.95, subd. (a).) The People
opposed the petition on two grounds: (1) Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill 1437), the legislation that amended sections 188 and 189 and added section
1170.95 to the Penal Code, effective January 1, 2019 (Stats. 2018, ch. 1015, §§ 2-4), is
unconstitutional, and (2) Senate Bill 1437 does not apply to attempted murder
convictions. At a November 22, 2019 hearing, the superior court summarily denied and
dismissed the petition, relying on People v. Munoz (2019) 39 Cal.App.5th 738 (Munoz),
review granted November 26, 2019, S258234, as “controlling authority.” McCoy appeals
the dismissal order.
III. DISCUSSION
A. Senate Bill 1437
On September 30, 2018, the Governor signed Senate Bill 1437 into law, effective
January 1, 2019. (People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).) “The
legislation . . . addresses certain aspects of California law regarding felony murder and
the natural and probable consequences doctrine . . . .” (Ibid.)
“Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted
a crime, the natural and probable consequence of which was murder or attempted murder,
could be convicted of not only the target crime but also of the resulting murder or
attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161 . . . ; In re R.G. (2019)
35 Cal.App.5th 141, 144 . . .) ‘This was true irrespective of whether the defendant
harbored malice aforethought. Liability was imposed “ ‘for the criminal harms [the

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defendant] . . . naturally, probably, and foreseeably put in motion.’ [Citations.]”
[Citation.]’ (In re R.G., at p. 144.) Aider and abettor liability under the natural and
probable consequences doctrine was thus ‘vicarious in nature.’ (Chiu, at p. 164.)”
(Munoz, supra, 39 Cal.App.5th at p. 749.)
“Senate Bill 1437 ‘redefined “malice” in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer “be imputed
to a person based solely on [his or her] participation in a crime.” (§ 188, subd. (a)(3).)’
(In re R.G., supra, 35 Cal.App.5th at p. 144.) Senate Bill 1437 also amended
section 189, which defines first and second degree murder . . . . Senate Bill 1437 thus
ensures that murder liability is not imposed on a person who did not act with implied or
express malice, was not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless indifference to human
life. (Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v. Anthony (2019)
32 Cal.App.5th1102, 1147 . . . .)” (Munoz, supra, 39 Cal.App.5th at pp. 749-750.)
Senate Bill 1437 also added section 1170.95 to the Penal Code, which creates a
resentencing procedure by which persons convicted of felony murder or murder under a
natural and probable consequences theory may petition the superior court to vacate their
murder conviction and resentence them, if certain conditions are met. (Stats. 2018,
ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.) Subdivision (a) of section
1170.95 provides: “(a) A person convicted of felony murder or murder under a natural
and probable consequences theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced on

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any remaining counts when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The Petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a), italics added.)
“If the petitioner makes a prima facie showing that he or she is entitled to relief,
the trial court must issue an order to show cause and, absent a waiver and stipulation by
the parties, hold a hearing ‘to determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not been previously . . . sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.’ (§ 1170.95, subds. (c), (d)(1);
see Martinez, [supra, 31 Cal.App.5th] at pp. 723-724.) At that hearing, the prosecution
has the burden to prove beyond a reasonable doubt that the petitioner is ineligible for
resentencing. Both the prosecution and the defense may rely on the record of conviction
or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) If the prosecution
‘fails to sustain its burden of proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.’ (Ibid.) If the murder was charged generically,
and no target offense was charged, the petitioner’s conviction must be redesignated as the

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target offense or underlying felony for resentencing purposes. (Id., subd. (e).)” (Munoz,
supra, 39 Cal.App.5th at p. 750.)
B. Senate Bill 1437 Does Not Apply to Attempted Murder
McCoy claims that Senate Bill 1437 applies to attempted murder convictions that
are based on the natural and probable consequences doctrine. We disagree. Senate Bill
1437 does not apply to attempted murder convictions, and persons convicted of attempted
murder are ineligible for resentencing under section 1170.95. Thus, McCoy’s petition for
resentencing was properly dismissed.
The question of whether a person convicted of attempted murder under the natural
and probable consequences doctrine is eligible for resentencing under section 1170.95
has divided the Court of Appeal, and our Supreme Court is currently reviewing the
question. (People v. Lopez (Nov. 13, 2019, S258175) ___Cal.5th___ [2019 Cal. Lexis
8414].) Several appellate courts have concluded that Senate Bill 1437 does not apply to
attempted murder under a natural and probable consequence theory and that persons
convicted of attempted murder are ineligible for resentencing under section 1170.95.
(People v. Lopez (2019) 38 Cal.App.5th 1087, 1103-1106 (Lopez) [Second Dist.,
Div. Seven], review granted Nov. 13, 2019, S258175; Munoz, supra, 39 Cal.App.5th at
pp. 753-756 [Second Dist., Div. Three], review granted July 29, 2020, S262184; People
v. Dennis (2020) 47 Cal.App.5th 838, 844-847 [Fourth Dist., Div. Three], review granted
July 29, 2020, S262184; People v. Alaybue (2020) 51 Cal.App.5th 207, 222-225
[Sixth Dist.]; and People v. Love (2020) 55 Cal.App.5th 273, 279, 282-289 [Second Dist.,
Div. Two].)

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The Fifth District Court of Appeal has taken a contrary view. It has construed
Senate Bill 1437, and the amendments it made to sections 188 and 189, as applying
prospectively to attempted murder (People v. Larios (2019) 42 Cal.App.5th 956, 964-
968, review granted Feb. 26, 2020, S259983 [Senate Bill 1437 abrogates the natural and
probable consequence doctrine in attempted murder prosecutions]; People v. Sanchez
(2020) 46 Cal.App.5th 637, 642-644, review granted June 10, 2020, S261768) and
retroactively to attempted murder convictions not final on appeal (People v. Medrano
(2019) 42 Cal.App.5th 1001, 1018-1019, review granted Mar. 11, 2020, S259948).
Defendant’s attempted premeditated murder conviction is final on appeal. The Fifth
District has agreed, however, that persons convicted of attempted murder are ineligible
for resentencing under section 1170.95 because the statute is expressly limited to persons
convicted of felony murder or murder under the natural and probable consequences
doctrine. (Larios, at pp. 968-970; Medrano, at pp. 1016-1018.)
Pending our Supreme Court’s review of the question, we agree with the appellate
courts that have concluded Senate Bill 1437, including its resentencing provision, section
1170.95, does not apply to attempted murder. (E.g., Lopez, supra, 38 Cal.App.5th at
pp. 1103-1105.) As the Lopez court observed, “[t]he Legislature’s obvious intent to
exclude attempted murder from the ambit of the Senate Bill 1437 reform is underscored
by the language” of section 1170.95, which expressly limits its application to murder
convictions. (Lopez, at pp. 1104-1105.) Additionally, “[t]he plain language meaning of
Senate Bill 1437 as excluding any relief for individuals convicted of attempted murder is
fully supported by its legislative history.” (Id. at p. 1105.)

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The Lopez court explained: “When describing the proposed petition process, the
Legislature consistently referred to relief being available to individuals charged in a
complaint, information or indictment ‘that allowed the prosecution to proceed under a
theory of first degree felony murder, second degree felony murder, or murder under the
natural and probable consequences doctrine’ and who were ‘sentenced to first degree or
second degree murder.’ [Citation.] In addition, when discussing the fiscal impact and
assessing the likely number of inmates who may petition for relief, the Senate Committee
on Appropriations considered the prison population serving a sentence for first and
second degree murder and calculated costs based on that number. [Citation.] The
analysis of potential costs did not include inmates convicted of attempted murder.”
(Lopez, supra, 38 Cal.App.5th at p. 1105.) Thus, the Lopez court concluded that, “[a]s a
matter of statutory interpretation, Senate Bill 1437’s legislative prohibition of vicarious
liability for murder does not, either expressly or impliedly, require elimination of
vicarious liability for attempted murder.” (Lopez, at p. 1106.)
McCoy claims that the failure to construe Senate Bill 1437 to apply to attempted
murder “would produce an absurd situation where he would be punished less for a fatal
shooting than he is currently being punished for a failed shooting.” McCoy specifically
argues that, if Knox had killed Thompson, then he, McCoy, would be eligible for
resentencing under section 1170.95 “only for the aggravated assault.” But if section
1170.95 is interpreted by its plain language as not applying to attempted murder, then he
is not eligible for resentencing under the statute.

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McCoy is correct that the language of a statute should not be interpreted literally if
doing so would result in absurd consequences that the Legislature did not intend, or if a
literal interpretation would frustrate the purpose of the legislation as a whole.
(Commission on Peace Officer Standards & Training v. Superior Court (2007)
42 Cal.4th 278, 290.) But as the Munoz court explained, “it is apparent that the
Legislature did intend to exclude attempted murder from Senate Bill 1437’s reach, and
the consequences of that legislative choice are not clearly absurd.” (Munoz, supra, 39
Cal.App.5th at pp. 756-757.) “[I]t is far from clear that interpreting Senate Bill 1437 to
apply to convictions for murder, but not attempted murder, will always, or typically,
result in longer sentences for the latter. Senate Bill 1437 does not mandate any particular
punishment for either murder or attempted murder. The penalties for these crimes are
prescribed in other statutes.” (Id. at pp. 757-758.)
McCoy was sentenced to life in prison for his attempted murder conviction
because the jury found that the attempted murder of Thompson was premeditated.
(§ 664, subd. (a).) Had the attempted murder of Thompson not been premeditated and
had the Legislature written section 1170.95 to apply to attempted murder convictions,
McCoy would be eligible to be resentenced on his remaining 2009 convictions under
section 1170.95. But this does not mean that interpreting section 1170.95 by its plain
terms, as applying only to murder convictions, is impermissible under the absurdity
exception. “The ‘absurdity exception requires much more than [a] showing that troubling
consequences may potentially result if the statute’s plain meaning were followed or that a
different approach would have been wiser or better. [Citations.] Rather, “[t]o justify

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departing from a literal reading of a clearly worded statute, the results produced must be
so unreasonable the Legislature could not have intended them.” ’ ” (Munoz, supra,
39 Cal.App.5th at p. 758.) This standard is not met here.
“In deciding to omit attempted murder from the ambit of Senate Bill 1437, the
Legislature could have reasonably concluded that the need to address sentencing reform
was more appropriately directed at persons convicted of murder as opposed to attempted
murder. This is so because the punishment for attempted murder is generally far less than
the punishment imposed for murder.” (People v. Alaybue, supra, 51 Cal.App.5th at
p. 224.) The punishment for first degree murder is either death, life in prison without the
possibility of parole, or an indeterminate term of 25 years to life. (§ 190, subds. (a), (e).)
The punishment for second degree murder is an indeterminate term of 15 years to life.
(§ 190, subds. (a), (e).) In contrast, attempted murder is punishable by a determinate term
of five, seven, or nine years in prison. (§ 664, subd. (a).) And even the punishment for
premeditated attempted murder—McCoy’s conviction—is life with the possibility of
parole after seven years. (§§ 664, subd. (a), 3046, subd. (a)(1).)
“Because the punishment for murder is [generally] so much more severe than the
punishment for attempted murder, the Legislature may have wished to limit Senate Bill
1437’s ameliorative reforms to those instances where it perceived the disconnect between
culpability and punishment to be most glaring. It is not our place to judge the wisdom,
fairness, or logic of the Legislature’s decision to omit attempted murder from Senate Bill
1437’s ambit. We do not find the plain meaning of Senate Bill 1437 to be absurd, much

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less so absurd in its results that we would be permitted to disregard the literal language
used in the statute.” (People v. Alaybue, supra, 51 Cal.App.5th at pp. 225.)
“The remedy for any potentially inequitable operation of section 1170.95 lies with
the Legislature. If the Legislature concludes it is unwise or inequitable to exclude
attempted murderers from Senate Bill 1437’s reach, it has only to amend the law.”
(Munoz, supra, 39 Cal.App.5th at p. 760.) In sum, McCoy is ineligible for resentencing
under section 1170.95 because the statute expressly allows only persons convicted of
felony murder or murder under a natural and probable consequences theory to apply for
resentencing. (E.g., Larios, supra, 42 Cal.App.5th at pp. 968-970.) McCoy’s petition for
resentencing under section 1170.95 was therefore properly denied.
IV. DISPOSITION
The November 22, 2019 order dismissing McCoy’s petition for resentencing
(§ 1170.95) is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
CODRINGTON
Acting P. J.
SLOUGH
J.

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