People v. Cunningham CA4/3

Filed 06/23/23 P. v. Cunningham CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G061623

v. (Super. Ct. No. 10CF1764)

DAVID FRANCIS CUNNINGHAM, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Heather L. Beugen for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Paige B. Hazard and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent. * * *

This is an appeal from the trial court’s denial of defendant David Francis Cunningham’s second petition to vacate his murder conviction pursuant to Penal Code section 1172.6.1 Even if the trial court should not have summarily denied this petition as a “duplicate petition,” we conclude the error was harmless because, contrary to defendant’s argument, there was no reasonable interpretation of the facts that would render him eligible for resentencing. Accordingly, we affirm the order.

I FACTS The underlying facts are from our prior opinion affirming the trial court’s denial of defendant’s first petition for resentencing pursuant to section 1172.6. (People v. Cunningham (Dec. 8, 2021, G059252) [nonpub. opn.].) Suffice to say that in 2012, defendant pleaded guilty to killing Jason Williams in December 2004. On his plea agreement form, Cunningham stated the following facts as the basis for his plea: “[O]n 12/17/04, in Orange County myself and Winston Miller, aka: Wink, ‘Dwayne Thompson,’ set out to rob Jason Williams. During the robbery the loaded gun I was holding accidentally went off and shot [and] killed Jason Williams. I took his money and cell phone while Winston Miller drove away. I intended to rob Mr. Williams that night and I knew I was holding a loaded gun.” He was sentenced to 25 years to life. In 2019, Cunningham filed a resentencing petition pursuant to section 1172.6. He was appointed counsel. At the hearing on whether defendant had demonstrated he was entitled to a hearing, the court determined he was ineligible as a matter of law because he admitted to being the actual killer. We affirmed.