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Name: People v. Cunningham
Case #: S010856
Court: CA Supreme Court
District CalSup
Opinion Date: 06/21/2001
Subsequent History: Modif. on 8/15/01 without chg in jmt; Rehg. den. on 8/15/01

The trial court did not err in denying appellant’s challenges of jurors for cause. Appellant did not demonstrate that his right to a fair and impartial trial was affected by the court’s rulings, since he used his peremptory challenges to excuse the prospective jurors in question, and he did not exercise all of his peremptory challenges. In a capital trial, the trial court did not err when it failed to sever a charge of being a felon in possession of a firearm from the capital murder charge. The jury did not learn of the nature of appellant’s prior offense, nor did they learn that there was more than one prior felony. Further, since the jury was instructed not to consider appellant’s status as a felon in considering the evidence of the other charges, any possible error was harmless. The trial court did not err by not giving the Boykin-Tahl advisements prior to taking appellant’s stipulation that he had previously been convicted of a felony. When a defendant stipulates to evidentiary facts, the concerns of voluntariness are not present. There was no abuse of discretion in allowing shackling of the defendant where he had not been violent, but had committed acts which led authorities to believe he might attempt to escape. The trial court may properly order restraints where there is evidence of “nonconforming conduct.” Since appellant requested an instruction to the jury that they not consider the restraints, it was not error for the court to have given the instruction. Further, it was prudent of the court to have given the instruction since it was possible that some of the jurors had seen the shackles. Appellant’s failure to raise the issue of an impermissibly suggestive photo line-up waived the issue on appeal. Further, appellant did not meet his burden of establishing unreliability of the identification. The trial court did not err when it admitted appellant’s statements that he was in the bar the night of the murder, which he made to police during an interrogation which continued after he requested that he be allowed to talk to an attorney. Although appellant requested an attorney, he told police that he was willing to talk to them until the attorney got there. Therefore, substantial evidence supported the trial court’s ruling that appellant waived his right to counsel. Even if the statements were admitted in violation of Miranda, their admission was harmless beyond a reasonable doubt, since the jury heard the same evidence through the testimony of other witnesses. There was no prosecutorial misconduct where the prosecutor suggested to the jury that appellant had deliberately changed his appearance in order to raise doubts as to his identity as the perpetrator of the offense. Any possible harm could have been cured by an admonition, which appellant did not request. Further, even if the claim had not been waived, it would fail since the line of argument was not improper, not could it have prejudiced the verdict in light of the overwhelming evidence of guilt. Nor was it prosecutorial misconduct when the prosecutor suggested that the defense attorney “put up smoke and red herrings,” and that his job was to “straighten that out and show (them) where the truth lies.” The claim was waived for failure to request an admonition. Even if it was not waived, it was not misconduct. Counsel did not render ineffective assistance by failing to inquire of prospective jurors whether they harbored any bias against African-Americans. Nor was counsel ineffective for choosing to raise reasonable doubt concerning the identification of appellant instead of arguing an alternative theory regarding intent to kill. Counsel does not render ineffective assistance by choosing one or several theories of defense over another. Penalty phase issues are not summarized.