McCoy

Certified for Partial Publication. [*]

SIMS, Acting P.J.

Defendants Ejaan Dupree McCoy and Derrick Lakey were tried in the same trial upon the same evidence and were found guilty of murder and attempted murder. McCoy was the actual perpetrator and Lakey was convicted upon the theory that he aided and abetted McCoy.

We conclude McCoy's convictions must be reversed because the trial court gave an erroneous instruction on imperfect self defense. We further conclude that Lakey's convictions must be reversed because, inter alia, under California law an aider and abettor cannot be convicted of a greater offense than that of which the actual perpetrator is convicted, where both of them are tried in the same trial and upon the same evidence.

In an information filed January 22, 1996, defendants McCoy and Lakey were charged in count 1 with the murder of Calvin Willis (Pen.Code, § 187), [1] in count 2 with the attempted murder of Tubiya McCormick (§§ 664/187), in count 3 with the attempted murder of Tashambe Willis, and in count 4 with the attempted murder of Simon McCormick. Count 5 charged McCoy with being a felon in possession of a firearm (§ 12021, subd. (a)) and count 6 charged the…