Albert Cunningham California Death Row

Albert Cunningham

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 [25 Cal. 4th 958] 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, [25 Cal. 4th 959] 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 [25 Cal. 4th 960] 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, Treto had extended his hands. Cebreros did not say that Treto had reached for defendant's gun. Cebreros was transported to the hospital, and later described to Officer Baroni the suspect's height and appearance, stating that the suspect wore a brown suit, had glasses, and wore a beard. Cebreros was treated and released, subsequently having to use crutches for a few weeks.
Treto was transported to the hospital. The medical examiner concluded that his death was caused by uncontrollable hemorrhage with cardiac arrest. The .357 magnum caliber bullet had traveled from front to back, right to left, and slightly downward, injuring structures in the abdominal cavity, liver, a major blood vessel, other veins, and the small bowel, lodging in the spine. The injury to the liver and major vessel caused heavy bleeding, resulting in rapid death. There was no gunpowder residue around the entrance of the wound. Treto had a bruise on his left knee and a bruise on top of his right foot. Treto had a .17 percent blood-alcohol level, and .35 micrograms per million of cocaine in his system, indicating usage within several hours of death.
A police firearms expert examined the bullet removed from Treto's body and determined that the bullet was .38 caliber, capable of being fired either from a .38 special or a .357 magnum weapon. The expert testified that in general, gunshot residue is found on the target and surrounding surfaces if [25 Cal. 4th 961] they are within three feet of the weapon and is less likely to be found if the target and surrounding surfaces are within four or five feet of the weapon, and that such residue would not be found if the target is six feet or more from the weapon. The expert observed that Treto's jacket did not have gunshot residue on the front near the bullet's entry point, on the sleeves, or other areas that would have been in proximity to the gun if Treto had attempted to grab the gun at the time it was fired.
Police Officer Eldridge obtained a description of defendant from interviews with witnesses at Ricky's Lounge and retrieved the Coors beer bottle confiscated from defendant earlier. The police tested the bottle for fingerprints, but defendant's prints were not among those found.
On December 3, 1985, the police located Treto's vehicle, "stripped" and abandoned on 126th Street in the City of Compton. The police fingerprint technician examined the vehicle interior and exterior but was able to identify only fingerprints belonging to Mrs. Treto on the rearview mirror. The technician testified that rain can wash off fingerprints on the exterior of a vehicle. It had rained on December 2, 1985.
On December 13, 1985, defendant returned to the Pair of Aces. Defendant approached Margarita Medrano, took her hand, and remarked that he had promised he would return, and "there he was." Meanwhile, Angel Gallegos and Juvenal Gallegos recognized defendant, and Angel telephoned the police. Officer Delgado was dispatched to the scene and met with Margarita Medrano outside the bar. Angel Gallegos informed the officer that he recognized the man currently inside the bar as having been present in the bar on the night of the shooting and that he believed him to be involved in the murder. Officer Delgado went inside, observed that defendant fit the description of the suspect, arrested him, and transported him to the police station.
At approximately 1:15 p.m. on December 16, 1985, Officer Baroni, the investigating officer on the case, in the presence of Officer Gallon, spoke with defendant in a jail interview room. After Officer Baroni advised defendant of his constitutional rights pursuant to Miranda, fn. 2 defendant waived those rights. The interview was not tape-recorded.
Officer Baroni told defendant that between December 1 and 2, a shooting had occurred during a robbery or attempted robbery on the 1200 block of [25 Cal. 4th 962] North Lake Avenue and one of the victims had died. Officer Baroni asked whether defendant ever had been arrested. Defendant stated he had been arrested for "driving under the influence." Asked whether he ever had owned a handgun, defendant stated he had not. Defendant told Officer Baroni that he lived with Aubrey Vaughn (also known as Rosa Vaughn, defendant's mother) and Victor "Junior" Washington, had worked as a word processor for Kaiser Permanente Hospital for nine years, and presently worked at the Boys Club in Pasadena.
Officer Baroni asked defendant what he had been doing on the night of December 1 and the early morning of December 2. Defendant explained that on Sunday, December 1, he had assisted his friend Beverly Son in locating an apartment to rent in Pasadena. He stated he did not drive and normally took the bus. He stated that generally he drank only California Coolers rather than beer. He stated he had something to drink on that evening but never drank to the point that he could not remember what had happened while he was under the influence of alcohol.
Officer Baroni described the circumstances of the shooting. Defendant stated that he did not shoot anybody and "most certainly didn't kill anybody." In response to further questions, defendant stated he did not own a maroon three-piece suit but did own a brown three-piece suit with pinstriping. Defendant recalled that he had been out drinking on three occasions since December 1. Defendant stated he had at some point gone to the Pair of Aces and Ricky's Lounge.
Officer Baroni again inquired concerning defendant's activities on the evening of December 1. Defendant explained that normally he went to a bar on Fair Oaks and Colorado and then took the bus to the Pair of Aces, departing at 10:00 p.m. when the buses stopped running. That night he did not walk into the Pair of Aces or Ricky's Lounge with a bottle of beer, because he drank only California Coolers, but someone at Ricky's Lounge had asked him to relinquish a bottle containing such a beverage and he placed it on the bar. Defendant recalled playing pool with an African-American male at Ricky's Lounge but did not order beer or speak to a woman. He remembered departing from the bar at 10:00 p.m., and when the bus did not appear someone gave him a ride to his mother's residence. Everyone there was asleep, and he also retired. Officer Baroni wrote down a description of defendant's account of his whereabouts on the evening of December 1 and on the following morning, which defendant reviewed and initialed.
On December 16, 1985, Officer Baroni displayed a photographic lineup of six African-American males, including defendant's photograph, to Cebreros, [25 Cal. 4th 963] who affirmatively identified defendant as the man who had shot him. On December 17, Officer Baroni conducted a search of the residence of Mrs. Vaughn, located two miles from Lake Avenue, and discovered a brown three-piece pinstripe suit in defendant's room. Further investigation revealed that Treto's vehicle was recovered from a location within a relatively short distance of an address where defendant had lived with his former wife in May 1985 and near Mrs. Vaughn's address where he was staying in July 1985. A business associate of defendant's, who had known him since 1984, had seen him wear a burgundy three-piece suit on several occasions.
The defense rested without presenting evidence.
The jury found defendant guilty of first degree murder and made a special finding that defendant had acted with the intent to kill. The jury also found defendant guilty of robbery, attempted murder, attempted robbery, and possessing a firearm after having suffered a prior felony conviction. The jury found true the allegations that defendant personally used a firearm in the commission of the offenses and personally inflicted great bodily injury in the attempted murder and attempted robbery. The jury also found true the alleged special circumstance that defendant committed the murder in the commission of a robbery.

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