Filed 8/12/26 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C103861
Plaintiff and Respondent,
(Super. Ct. Nos.
v. STKCRFE19960005306,
SCO59733B)
DERRICK LAKEY,
Defendant and Appellant.
Defendant Derrick Lakey appeals from a postconviction order denying his request
for recall of sentence and resentencing. Appellate counsel filed a brief raising no
arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and asking
this court to exercise its discretion to conduct an independent review of the record.
Defendant filed a supplemental brief. We affirm.
I. BACKGROUND
In 1996, a jury found defendant guilty of various crimes, including murder (Pen.
Code, § 187)1 and two counts of attempted murder (§§ 664/187). The trial court
sentenced defendant to an aggregate term of 46 years and four months to life. On direct
appeal, we initially reversed some of defendant’s convictions. (People v. McCoy (May 7,
1 Undesignated statutory references are to the Penal Code.
1
2002, C024654) [nonpub. opn.].)2 But after our Supreme Court reversed our decision
and remanded the case (see People v. McCoy (2001) 25 Cal.4th 1111, 1123), we
ultimately affirmed the judgment. (People v. McCoy, supra, C024654.)
In 2019, defendant filed a petition for resentencing pursuant to what is now section
1172.6. (People v. Lakey, supra, C089487.) The trial court denied the petition without
appointing counsel. (Ibid.) On appeal, we concluded that any error in not appointing
counsel was harmless, as defendant was ineligible for relief because he necessarily acted
with malice. (Ibid.)
In 2022, defendant filed a second petition for resentencing under what is now
section 1172.6. (People v. Lakey, supra, C099431.) The trial court again denied the
petition, and we again affirmed the denial on appeal, explaining: “The court did not
instruct the jury on the felony-murder rule, the natural and probable consequences
doctrine, or any other theory of imputed malice …. By finding defendant guilty of
murder in the first degree … the jury necessarily concluded that, based on his own acts or
as an aider and abettor, defendant harbored malice.” (Ibid.)
In 2025, defendant filed a request for recall of sentence and resentencing pursuant
to Assembly Bill No. 2483 (2023-2024 Reg. Sess.) and section 1171, asserting that he
was eligible for consideration of a new sentence. Using a checkbox form, defendant
indicated his eligibility was based on numerous statutes, including sections 1172.1,
1172.6, 1172.7, and 1172.75. Defendant argued it was in the interest of justice that he be
2 On the court’s own motion, we take judicial notice of this court’s unpublished opinions
in defendant’s appeals of the original judgment (People v. McCoy, supra, C024654), the
order denying defendant’s first resentencing petition (People v. Lakey (Sept. 16, 2020,
C089487) [nonpub. opn.]), and the order denying his second resentencing petition
(People v. Lakey (Aug. 29, 2024, C099431) [nonpub. opn.]). (Evid. Code, §§ 451, subd.
(a), 452, subd. (d), 459, subd. (a).)
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resentenced because of alleged errors at his original trial. The trial court summarily
denied the request in a written order.
Defendant timely appealed.
II. DISCUSSION
Appellate counsel asks this court to conduct an independent review of the record
to determine whether there are any arguable issues on appeal. (Delgadillo, supra, 14
Cal.5th at pp. 231-232.) Defendant was advised by counsel and this court of his right to
file a supplemental brief within 30 days from the date the opening brief was filed.
Defendant filed a supplemental brief.
In People v. Wende (1979) 25 Cal.3d 436, our Supreme Court held that “Courts of
Appeal must conduct a review of the entire record whenever appointed counsel submits a
brief on direct appeal which raises no specific issues or describes the appeal as
frivolous.” (Delgadillo, supra, 14 Cal.5th at p. 221.) The Wende procedure applies “to
the first appeal as of right and is compelled by the constitutional right to counsel under
the Fourteenth Amendment of the United States Constitution.” (Ibid.)
In Delgadillo, our Supreme Court considered whether the Wende process applies
to a trial court’s order denying a petition for postconviction relief under section 1172.6
and concluded it is not required. (Delgadillo, supra, 14 Cal.5th at pp. 221-222.) The
Supreme Court laid out applicable procedures for such cases, explaining that when a
defendant files a supplemental brief, “the Court of Appeal is required to evaluate the
specific arguments presented in that brief and to issue a written opinion.” (Id. at p. 232.)
But the filing of a supplemental brief does not compel the court to independently review
the entire record to identify unraised issues, though it may exercise its discretion to do so.
(Ibid.)
Delgadillo addressed the application of Wende’s review procedures in the specific
context of a postconviction relief order under section 1172.6. (Delgadillo, supra, 14
Cal.5th at p. 231, fn. 5 [“[i]n this case, we are not deciding Wende’s application to other
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postconviction contexts, which may present different considerations”].) Here, because
defendant invoked numerous statutes in his request for resentencing, the postconviction
order technically extends to statutes other than section 1172.6. Nonetheless, the same
principles articulated in Delgadillo may apply, given that this was not defendant’s first
appeal of right. Following Delgadillo’s guidance, we shall consider the arguments
defendant raises in his supplemental brief.
In his supplemental brief, defendant submits an “affidavit of facts to correct and
augment the official record with newly discovered evidence.” (Capitalization omitted.)
Defendant asserts that the statement seeks to “correct the record” on the events that
resulted in his convictions. He claims that the state’s star witness fabricated a story and
that the trial judge “did something underhanded and covered something up along with the
D.A.” Defendant also includes several pages from a petition for a writ of habeas corpus
that was filed as a separate matter in this court.3
Defendant’s supplemental brief fails to raise any legal argument as to why the trial
court erred in denying defendant’s postconviction request for recall of sentence and
resentencing. Accordingly, defendant fails to establish that the court erred in denying his
request.
3 We denied defendant’s petition for a writ of habeas corpus in that separate matter. (See
In re Derrick Lakey (July 24, 2026, C106729).)
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III. DISPOSITION
The order summarily denying defendant’s request for recall of sentence and
resentencing is affirmed.
/S/
RENNER, Acting P. J.
We concur:
/S/
MESIWALA, J.
/S/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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