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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

DAVID FRANCIS CUNNINGHAM,

 Defendant and Appellant.

 G061623

 (Super. Ct. No. 10CF1764)

 O P I N I O N

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.

* * *
2

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.

1

Subsequent statutory references are to the Penal Code unless otherwise indicated. The 

Legislature renumbered former section 1170.95 to section 1172.6 without substantive 

change, effective June 30, 2022. (Stats. 2022, ch. 58, § 10.)
3

On July 7, 2022, defendant filed a new petition for resentencing. On July 

14, the court’s minutes reflect it read and considered the petition, appointed the public 

defender’s office, and assigned the matter to the same judge who considered defendant’s 

previous petition. On the same day, minutes reflect the court denied the petition, 

determining it was a “duplicate filing.” Defendant now appeals.

II

DISCUSSION

On appeal, defendant argues the trial court abused its discretion in 

summarily denying his second petition, contending the trial court did not realize it had 

the discretion to consider his new petition based on a change in the law. (See People v. 

Farfan (2021) 71 Cal.App.5th 942.)

Even if we assume the trial court should not have denied the petition as a 

“duplicate,” defendant must show he suffered prejudice as a result. To demonstrate 

prejudice from the denial of a section 1172.6 petition before the issuance of an order to 

show cause, the petitioner must show it is reasonably probable that, absent error, the 

petition would not have been summarily denied. (People v. Lewis (2021) 11 Cal.5th 952, 

972-974; People v. Watson (1956) 46 Cal.2d 818, 836.)

Defendant is correct that changes in the law have occurred since his 

original petition, but none of those changes benefit him. As we found in our prior 

opinion, “there is no doubt that as the actual killer, defendant is not eligible for 

resentencing under section [1172.6].” (People v. Cunningham, supra, G059252.) 

Defendant points to nothing that has changed with respect to this point, because he 

cannot do so. Actual killers are still ineligible for relief under the successor statute, 

section 1172.6.

Defendant claims the error was not harmless because there were “two 

reasonable interpretations” of the facts, one of which would render him eligible for 
4

resentencing. He refers to the following statement where he admitted the factual basis for 

his plea: “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 Mille

drove away. I intended to rob Mr. Williams that night and I knew I was holding a loaded 

gun.” Defendant claims that despite the statements that the gun “I was holding accidently 

went off and shot [and] killed” the victim, there is some reasonable interpretation of that 

statement that might somehow mean he was not the actual killer. He claims the statement 

“can also be interpreted to mean that while appellant held the gun, something other than 

appellant, caused the gun to accidentally go off and shoot and kill the victim. For

example, appellant’s cohort could have accidentally bumped appellant while appellant 

held the gun, which caused the gun to accidentally fire and shoot the victim.” While we 

award full points for creativity, we do not find this to be a reasonable interpretation of 

the stated facts, but rather a highly contrived alternate theory with no evidentiary support 

whatsoever.

Further, the case with “new law” he cites to in support of this argument, 

People v. Romero (2022) 80 Cal.App.5th 145, included no new law on this point and did 

not open any new “avenue” to reargue his petition. Indeed, Romero concluded that the 

defendant’s admissions during a plea conclusively established he was the actual killer, 

despite his contention that his admission was “a ‘stray comment.’” (Id. at p. 152.) The 

defendant was therefore ineligible for relief under the statute. (Id. at p. 148.) Because 

this case includes no new substantive law on this point, had defendant wished to raise this 

argument, he could have done so in his prior petition – not that it would have been any 

more valid then than it is now.

Simply put, defendant was not prejudiced by the trial court’s decision not to 

conduct a hearing in this case because the changes in the law have not benefitted 

defendant. As the actual killer, he is ineligible for relief under section 1172.6 as he was 

under its predecessor.
5

III

DISPOSITION

The order is affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

GOETHALS, J.