New trial granted in 2018 murder conviction

A separate case with the defendant may have had effect, court decides

A state appeals court has granted a new murder trial to a man convicted in 2018 of a fatal shooting a decade earlier in Hayward.

In overturning Dereak Turner’s second-degree murder conviction and sentence of 40 years to life in prison, the First District Court of Appeal in San Francisco said Thursday he was denied a fair trial because prosecutors charged him with a second, unrelated murder, but shelved that charge before the case went to the jury, and later dropped it. The second case could have influenced jurors’ deliberations on whether Turner was guilty of the Hayward murder, the court said.

Turner, of Vallejo, fatally shot Thomas Cunningham on a Hayward street in November 2009 after one of Cunningham’s dogs walked up to him and sniffed his leg. Cunningham’s daughter testified that the dog never touched Turner and posed no threat, but Turner said he feared both the dog and Cunningham, who called him a racist slur and lunged at him. His lawyer asked the jury to convict him of voluntary manslaughter.

In the same trial, Turner was charged with murdering another man, Jamal Waters, after an argument in Oakland in 2008, a killing Turner denied committing. But prosecutors presented little evidence about the Oakland killing, and agreed at the end of testimony to remove that charge from the case. They later dismissed the Oakland charge altogether.

Superior Court Judge Paul Delucchi rejected a defense request for a new trial in the Hayward case and instead told jurors to consider only what they had heard about Cunningham’s slaying and disregard evidence about the Oakland shooting.

Courts normally assume juries follow a trial judge’s instructions, but that would not be a fair assumption in this case, the appellate panel said. It noted that the only disputed issue in the Hayward case was whether Turner had killed Cunningham without provocation, as the prosecution argued.

In the Oakland case, “the jury heard substantial but inadmissible evidence that (Turner) committed an unrelated brutal and senseless murder,” Justice Alison Tucher wrote in the 3-0 ruling.

Turner needed jurors to believe Cunningham had used a racial slur and lunged at him, Tucher wrote, but his credibility was “surely damaged when they heard this was not the first time he shot and killed an unarmed man for no apparent reason.”

Cunningham, 38, worked as a school custodian in Dublin. After having a few drinks on an evening in November 2009, he went to a store with his 13-year-old daughter and their two dogs to get some ice cream, then was walking home when one of the dogs, a 1-year-old German shepherd, slipped off the leash and sniffed the leg of a passerby, the 20-year-old Turner.

Cunningham’s daughter testified that the dog did not touch the man or bark at him. But Turner said the dog pawed at his leg and he feared being attacked. He said the girl apologized and led the dog away, but when he told Cunningham he should get a leash for the animal, the white man shouted angrily, called him the n-word, raised his fist and started to lunge in his direction.

Turner said he shot Cunningham with a gun he carried because he had been robbed and beaten at age 13. He testified he had not intended to kill the dog owner and was ashamed to learn he had died.

Jurors rejected a charge of premeditated first-degree murder but convicted Turner of second-degree murder for an intentional and unjustified killing. Delucchi sentenced him to 15 years to life for the murder and an additional 25 years for use of a firearm.