People v. Cunningham CA2/8

Filed 11/27/23 P. v. Cunningham CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B324592

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA138500) v.

EUGENE EVERETTE CUNNINGHAM,

Defendant and Appellant.

APPEAL from the order of the Superior Court of Los Angeles County. Kelvin D. Filer, Judge. Affirmed. Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Eugene Everette Cunningham appeals from the summary denial of his petition for resentencing pursuant to Penal Code section 1170.95. Former section 1170.95 was renumbered and recodified as section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to former section 1170.95 only by its new designation (section 1172.6). Defendant contends the court prejudicially erred in failing to grant his request for appointed counsel who could have presented argument demonstrating that he lacked the intent to kill as required under current law. He says a reversal is therefore warranted to allow for the appointment of counsel, full briefing and a hearing on his petition. We conclude any error in declining to appoint counsel was harmless and affirm. FACTUAL AND PROCEDURAL SUMMARY In August 2015, defendant, an admitted member of the Carver Park Compton Crips gang, fired several gunshots at a passing car in which members of a rival gang were riding. Defendant was charged with two counts of premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664; counts 1 & 2), one count of shooting at an occupied vehicle (§ 246; count 5) and one count of a being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 6). Personal firearm use allegations were alleged as to counts 1 and 2 (§ 12022.52, subds. (b) & (c)) and gang allegations were alleged as to all counts. It was alleged defendant had suffered a prior felony conviction for attempted burglary. Counts 3 and 4 (shooting at an inhabited dwelling) were dismissed before trial pursuant to section 1385.