People v. Cunningham

• Decision Date: 21 June 2001
• Docket Number: No. S010856.,S010856.
• Citation: 25 P.3d 519,108 Cal.Rptr.2d 291,25 Cal.4th 926
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Albert CUNNINGHAM, Defendant and Appellant.

108 Cal.Rptr.2d 291

25 Cal.4th 926

25 P.3d 519

The PEOPLE, Plaintiff and Respondent, v. Albert CUNNINGHAM, Defendant and Appellant.

No. S010856.

Supreme Court of California.

June 21, 2001.

As Modified on Denial of Rehearing August 15, 2001.

Cary B. Lerman, Los Angeles, and Joel R. Isaacson, Beverly Hills, under appointments by the Supreme Court; Munger, Tolles & Olson and Monica Wahl Shaffer, Los Angeles, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Linda C. Johnson, Robert S. Henry and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

Following the guilt phase of a capital trial, a jury found defendant Albert Cunningham guilty of first degree murder based upon robbery felony murder (Pen. Code, § 187, subd. (a)) and robbery (Pen. Code, § 211) of Carmen Enrique Treto, and made a special finding that defendant intended to kill the victim. The jury also found defendant guilty of attempted murder (Pen.Code, §§ 187, subd. (a), 664) and attempted robbery (Pen.Code, §§ 211, 664) of Juan Cebreros. The jury found defendant guilty of possessing a firearm, having been convicted previously of a felony. (Pen.Code, § 12021, subd. (a).) The jury found true the allegations that defendant personally used a firearm in the commission of the offenses (Pen.Code, § 12022.5), and that he personally inflicted great bodily injury in the commission of the attempted murder and attempted robbery (Pen. Code, § 12022.7). The jury found true the allegations that defendant had suffered prior convictions of murder and of assault with a deadly weapon upon a police officer (Pen.Code, § 667, subd. (a)). Finally, the jury also found true two special circumstances: (1) that defendant committed the murder of Treto in the course of a robbery (Pen.Code, § 190.2, subd. (a)(17)); and (2) that defendant previously had been convicted of second degree murder (Pen.Code, § 190.2, subd. (a)(2)).

At the penalty phase, the jury fixed the penalty at death. The trial court denied defendant's motion for a new trial and the automatic motion for modification of the verdict, and imposed a sentence of death. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); Pen.Code § 1239, subd. (b).)¹ We affirm the judgment in its entirety.

I. FACTS

A. Guilt phase evidence

The prosecution's evidence established that defendant, wearing a distinctive three-piece suit, went to a bar in Pasadena where the victims, Carmen Treto and Juan Cebreros, were socializing and consuming alcoholic beverages. Several times during the evening, Treto displayed a large amount of cash. At approximately 2:00 a.m., the victims left the bar. Cebreros started for home, decided that Treto was too drunk to drive, and then returned for him. After some discussion, the two proceeded to the parking lot behind the bar, where they were about to enter Treto's vehicle. Defendant approached the two, drew a gun, demanded Treto's cash, and then fatally shot Treto. Cebreros attempted to flee, and defendant shot at him, wounding him in the thigh. Defendant fled in Treto's automobile. Two weeks later, defendant, wearing the same distinctive suit, returned to the same bar, where he was recognized by the staff. The police were summoned, and defendant was arrested.

On December 1, 1985, Maria Treto and her husband Carmen Treto were at their Pasadena residence. Her husband recently had received $1,400 or $1,500 in cash as payment for a job. At approximately 9:00 p.m., Mr. Treto, carrying the money on his person, departed with his friends in Treto's white and black Buick LeSabre automobile.

On the same evening, Juvenal Gallegos was working as a door monitor at the Pair of Aces, a bar located on the 1200 block of North Lake Avenue in Pasadena. Angel Gallegos (no relation), the manager of the bar, observed Carmen Treto, who was very drunk, at the bar. Juan Cebreros and his brother Favio arrived at the bar at approximately 11:00 p.m. Juan Cebreros played pool with Treto.

At various times during the period from 7:00 p.m. nearly until the 2:00 a.m. closing time, Angel Gallegos, Juvenal Gallegos, and eventually Juan Cebreros all observed defendant at the bar. Defendant, an African-American in his 40's, was approximately 5 feet 10 inches in height and quite slender. He wore a burgundy three-piece pinstripe polyester suit and tie and had on thick glasses with dark rims. He had a mustache that connected with a goatee-like beard, and his hair in back was shoulder-length at the middle. One of defendant's front teeth was gold.

Prior to 1:30 a.m., defendant departed from the Pair of Aces and, carrying a long-neck bottle of Coors beer, entered Ricky's Lounge, a bar just up the street. Jeff Donald, the bouncer, took the bottle from defendant and handed it to Diana Riley, the bartender. Defendant had been present in Ricky's Lounge for brief periods on several occasions earlier in the evening.

On the final occasion, defendant remained in Ricky's Lounge approximately one-half hour, purchasing a Budweiser beer and playing three games of pool with Keith Anderson, Riley's boyfriend. Anderson observed that although defendant was left-handed he held his left arm or hand close to his body and, when he was not playing, kept his arms folded so that his coat did not open. Defendant went to the restroom and remained there for some time. When Riley called for him to hurry because the bar was closing, defendant asked for a couple of minutes. When he emerged from the restroom he put down his beer and left the bar.

Meanwhile, following defendant's departure from the Pair of Aces shortly before 1:30 a.m., Juan Cebreros left that establishment before closing time, just prior to Treto's departure. Although others in the bar previously had urged Treto to leave, he had refused and apparently was the last customer to leave the bar at closing time. Juvenal Gallegos, the door monitor, observed that Treto had a wad of money, consisting of $100 and $50 bills, visible in his front shirt pocket. As he departed, Treto grabbed Juvenal and told him: "Keep on going the way [he] had been."

Juan Cebreros observed that after Treto emerged he remained in front of the bar, standing by a lamppost. Cebreros departed in his own vehicle but returned after a few minutes to offer Treto a ride because Cebreros realized that Treto was too drunk to drive and was by himself. When Cebreros drove up, Treto remained by the lamppost. Cebreros parked his vehicle several places from Treto's Buick LeSabre in the darkened parking lot at the rear of the bar, walked up to Treto, and offered him a ride home. Treto and Cebreros began to walk toward the parking lot. A stocky African-American man riding a bicycle approached and began talking to Treto. Treto told the man that they should be friends and that "Blacks and Mexicans are friends," and they embraced. Treto was not agreeable to being driven by Cebreros, but insisted that Treto drive them both to Treto's residence in his own vehicle. Treto reached the vehicle and bent down to put the key in the driver's side door while Cebreros stood several feet away.

By this time defendant had appeared, walking in the driveway from the direction of Ricky's Lounge. Cebreros heard defendant say, "Hey, amigo, give me the money." Cebreros observed defendant behind Treto, holding a gun in both hands with arms outstretched, pointing it at Treto. Defendant said, "This is a .357 magnum." The man on the bicycle was still in the area but did nothing. Cebreros took out his wallet. Treto straightened, turned to his right to face defendant, and put out his hand or hands. Immediately, defendant fired and shot Treto in the chest. Cebreros began to run away, and defendant fired at him, wounding him in the right thigh. Cebreros fell but got up and continued to run, hearing the sound of a vehicle engine starting in the parking lot. Cebreros ran into a nearby fast-food restaurant and asked the people there to telephone the police. A patrol vehicle arrived and drove Cebreros back to the scene of the shooting.

At approximately 2:20 a.m., Deputy Sheriff Key was on the northeast corner of Hill Avenue and Washington Boulevard in Pasadena, when he observed an African-American man in his 30's wearing glasses, with hair several inches in length, driving a white two-door Buick with a black top and without headlights illuminated, eastbound on Washington Boulevard. Approximately 2:30 a.m., Police Officer Edwards was writing parking tickets on East Washington Boulevard, when he observed an African-American man driving a large white and black-top American sedan eastbound without headlights illuminated. Two minutes later, Officer Edwards received instructions over his police radio to proceed to the Pair of Aces. In the parking lot of the bar, he observed Treto lying flat on his back, with several Mexican men standing nearby. Treto's shirt was open and he had a gunshot wound in the chest, from which blood was bubbling. Treto was having difficulty breathing and did not appear to be conscious. One of Treto's shoes had been removed and a small amount of cash was on the ground. Officer Edwards summoned paramedics.

Officer Thomas was instructed to collect physical evidence and to photograph the crime scene. Arriving at approximately 2:30 a.m., he found a small amount of cash on the ground and eight $1 bills in Treto's pants pocket, but Treto's wallet did not contain any money, nor was there money in his shoes, shirt, or jacket. Treto's vehicle was gone. Officer Thomas unsuccessfully searched the area for a bullet.

The paramedics treated Cebreros at the scene for a gunshot wound caused by a bullet that had entered and exited from his thigh. Officers Ortiz and Carter soon arrived, and approximately one hour after the shooting, Cebreros told Officer Ortiz that before Treto was shot,...