People v. Cunningham CA3

Filed 2/18/25 P. v. Cunningham CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C099762

Plaintiff and Respondent, (Super. Ct. No. 03F05979)

v.

RAYSHUN CUNNINGHAM,

Defendant and Appellant.

Defendant Rayshun Cunningham appeals from an order denying his petition for resentencing under Penal Code section 1172.6.1 The trial court denied the petition because the record of conviction showed that defendant was ineligible for relief as a

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, former section 1170.95 was renumbered and recodified as section 1172.6 with no substantive change in the text. (Stats. 2022, ch. 58, § 10.) We refer to former section 1170.95 by its new designation.

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matter of law. Defendant contends: (1) CALJIC No. 8.51 given at trial allowed the jury to convict him on a now-invalid theory of imputed malice, and (2) the record of conviction did not establish that he was the actual killer who personally killed the victim. We will affirm. BACKGROUND FACTS AND PROCEDURE2 In July 2003, A.T. 3 and his cousin went to a liquor store in the cousin’s truck. When they left the store, two juvenile males approached the vehicle. One of them, identified as defendant, punched A.T. through the open window. The truck made a U-turn and pulled into a convenience store. A.T. and his cousin got out and began arguing with a group of juveniles. His cousin got a pole used for window washing from the truck and swung it at the juveniles, who moved back. A.T. and his cousin then got back in the truck to leave. Defendant approached the truck with a gun in his hand and fired two or three times, hitting A.T. in the chest. He died that evening from a gunshot wound to the chest.4 In 2004, the prosecution filed an information charging defendant with the murder of A.T. (§ 187, subd. (a); count one). The information included allegations based on firearm use, discharge, and discharge causing great bodily injury (§§ 12022.53, subds. (b), (c), (d)).