People v. Cunningham
| Decision Date | 02 July 2015 |
| Docket Number | No. S051342.,S051342. |
| Citation | 61 Cal.4th 609,189 Cal.Rptr.3d 737,352 P.3d 318 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. John Lee CUNNINGHAM, Defendant and Appellant. |
| Court | California Supreme Court |
Brian A. Pori and Mordecai Garelick, San Francisco, under appointments by the Supreme Court, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
In a bench trial before the Superior Court of San Bernardino County, defendant John Lee Cunningham was convicted of the first degree murders of Wayne Sonke, David Smith, and Jose Silva. (Pen.Code, §§ 187, subd. (a), 189.1 ) The trial court found true the special circumstance allegations that defendant committed multiple murders and that the murders of Sonke and Smith took place during the commission of a burglary and a robbery. (§ 190.2, subd. (a)(3), (17)(A) and 17(G).) The court also found defendant guilty of one count of second degree burglary (§ 459), three counts of second degree robbery (§ 211), one count of arson (§ 451, subd. (d)), and one count of possession of a firearm by a felon (former § 12021, subd. (a)). The court further found true various sentencing enhancement allegations—that defendant personally used a firearm in the commission of the murders, robberies, and burglary (former § 12022.5, subd. (a)), had previously been convicted of various felonies (§ 667), and had served prior prison terms for felony convictions (§ 667.5).
A jury was sworn for the penalty phase and returned a verdict of death. After conducting an automatic review and declining defendant's request to modify the jury's verdict (§ 190.4, subd. (e) ), the trial court sentenced him to death for the three first degree murders with special circumstances, as well as to a determinate term of 16 years for the remaining counts and allegations.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
Defendant went to Surplus Office Sales (SOS) in Ontario, California, around closing time on the afternoon of Saturday, June 27, 1992, and robbed the three remaining employees at gunpoint. He then bound the victims, herded them into a bathroom, and shot them each at least once in the head. Afterward, he set fire to the building before fleeing the scene. He was arrested a month later while on the run from police. Defendant subsequently confessed to the murders, burglary, and robberies, and participated in a videotaped reenactment of the crimes.
Waiving his right to a jury, defendant's bench trial extended over 10 non-contiguous court days. In addition to the prosecution's guilt phase evidence, the trial court considered the evidence presented at the preliminary hearing and at pretrial proceedings concerning defendant's motion to suppress his multiple confessions.
Around 4:00 p.m. on June 27, 1992, members of the Ontario Fire Department responding to a call at SOS found an inactive fire in the office portion of the building and three homicide victims in a hallway bathroom. An autopsy revealed that SOS employee Jose Silva died from two gunshot wounds
to the head, assistant manager David Smith died from multiple gunshot wounds to the head and neck, and store manager Wayne Sonke died from a single gunshot wound to the head. More than $1,000 in cash had been taken from the store's cash register and petty cash box.
Michael Ray, the owner of SOS, had employed defendant in the early and mid–1980s at two other businesses. About a month before the murders, Ray returned a phone call from defendant asking about work. Ray had not heard from him for three or four years. Defendant also made unannounced visits to SOS on June 20 and 24, a week and a few days before the murders respectively.
About 8:30 p.m. on the evening of the murders, defendant called SOS employee Evelyn Eriksen at home to ask how she was. Defendant told her he had been playing poker with some friends since about noon that day. Later, defendant took Alana Costello, his girlfriend at the time, to the movies and a motel room. Costello was surprised because defendant was not steadily employed and had been under “stress” trying to find enough money for them to move into a bigger apartment. That evening, defendant was “much more close-mouthed” than usual and acting “very stressed, very tense, very wrapped up in himself.” According to Costello, defendant generally was distant and removed, had difficulty sleeping, and would wake up in the middle of the night from bad dreams. He had borrowed her Ruger .22–caliber semi-automatic rifle and modified it by sawing off part of the stock and barrel. A few days after the murders, Costello noticed the rifle was missing.
On June 30, defendant called Diana Jamison, a former girlfriend. Jamison told defendant that his parole officer had come to her house looking for him. In a later telephone conversation, defendant told Jamison he was on the run because someone, perhaps the Mexican Mafia, was after him. Around the same time, defendant called Jamison upset and crying, saying “something very terrible had happened” and he wanted to come back and “do the right thing.” Jamison told defendant to turn himself in. According to Jamison, defendant had trouble sleeping; he would often wake up in the middle of the night in a cold sweat, and mentioned dreams of being tortured by women and children from his time in Vietnam. Defendant had tried to seek counseling at a veteran's center.
On July 1, Costello received a telephone call from defendant asking her to join him in Nevada. Meeting up at the Las Vegas airport, the two traveled by car to Atlantic City, New Jersey, then drove southwest through Arkansas before heading north. Along the way, defendant placed an Ohio license plate on the car and registered under false names at motels. He never discussed why he had left California and when Costello asked, he did not want to talk about it. After seeing how anxious defendant became when police cars passed them, she concluded that he was running from the law.
On July 23, law enforcement officers stopped defendant's car in Deadwood, South Dakota after being advised he was in the region and wanted as a murder suspect. Defendant and Costello were both taken into custody and defendant was arrested for violating his parole. Police seized a Ruger .22–caliber semi-automatic rifle, a box containing 31 cartridges for a .22–caliber long rifle, and a magazine loaded with 10 rounds of .22–caliber ammunition.
Over the following two days, Ontario Police Department Detectives Gregory Nottingham and Pat Ortiz interrogated defendant four times. Each interrogation was audiotaped or videotaped. On each occasion, the recording equipment was in plain view.
At their first meeting the morning of July 24, after approximately six minutes of preliminary introductions and questions, Detective Nottingham read defendant his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda ). After defendant confirmed that he understood these rights, Nottingham proceeded to ask defendant about his relationships with Costello and Jamison, as well as about his military and employment background and his prior robbery arrest. In discussing these subjects, defendant recounted working for Michael Ray at a facility in Long Beach in 1979 and going to SOS in Ontario in early June 1992 to visit Eriksen and to look for a job.
Defendant then volunteered, When asked to clarify, defendant replied, “You know as well as I do that I committed an armed robbery in Ontario” at “Mike's company.” When asked for further clarification, defendant reiterated, “I committed an armed robbery,” and asked, “Should I have somebody here talking for me, is this the way it's supposed to be done?” Detective Nottingham reread defendant his Miranda rights and asked if he understood them. Defendant stated, “I do understand.”
In response to the detectives' subsequent questions, defendant gave an occasionally rambling account of his activities on June 27, describing how he chose to rob SOS, how the robbery, murders, and arson occurred, and his subsequent actions. He admitted entering SOS with the intention to steal money, binding the hands of the three victims with duct tape, returning to the bathroom to shoot them, and then using gasoline to set the building on fire. These confessions were interspersed with references to defendant's dreams, things he claimed to have done during his military service in Vietnam, and expressions of relief at being caught.
The detectives interrogated defendant two more times the afternoon of July 24, and again the following morning. No additional Miranda advisements were given. Defendant told the detectives he had altered two military personnel forms found in his car because he was looking for work and wanted to “look [ ] better” and “cover” for time when he had been incarcerated. He also indicated he had “ripped off a shipment” as a narcotics courier and asked at one point to be placed in protective custody. One of the detectives also made references to the victims' families, stating that once lawyers got involved in a case, it would get “a lot more complicated.”
Between July 27 and July 31, the detectives spoke with prosecutors working on the case and played the interview tapes for them. Because the quality of the tapes was poor, the prosecutors suggested a videotaped reenactment at the crime scene and told the...
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