Ex-Richmond cop re-sentenced for molesting son

The former Richmond police officer whose child molestation case led to a U.S. Supreme Court ruling overturning California's sentencing law has been resentenced to his original 16-year prison term.

John Cunningham of San Pablo was convicted of sexually abusing his son from December 1999 to October 2000. The boy, who turned 10 during that period, said his father had molested him two or three times a week, sometimes accompanied by threats or beatings. Cunningham has denied guilt.

The crime, continuous sexual abuse of a child, was punishable by 6, 12 or 16 years in prison. The state's 1977 sentencing law required the judge to choose the middle term unless facts about the defendant or the crime justified the higher or lower term.

In selecting the 16-year sentence in 2003, Judge Theresa Canepa of Contra Costa County Superior Court said the boy had been particularly vulnerable because his attacker was both a trusted relative and, at the time of the abuse, a police officer sworn to protect the public. The judge noted that the crimes involved violence and that Cunningham was a danger to society.

Cunningham's appeal reached the nation's high court, which ruled in January 2007 that the law was unconstitutional because it allowed judges to add years to a prison term based on facts that had not been presented to a jury. The Legislature quickly passed a new prosecution-backed law that preserved the sentencing ranges and, according to some defense lawyers, will actually make longer sentences more frequent. Challenges to the law are pending.

On Thursday, Canepa again sentenced Cunningham to 16 years in prison, rejecting pleas for a six-year sentence by his attorney, Deputy Public Defender Elizabeth Barker.

"He's not a risk to the community," Barker said today. "I presented evidence that he is not likely to re-offend, and I presented two doctor's reports - one of whom was a court-appointed doctor - who said the he doesn't pose a risk. She completely disregarded all of that."

But prosecutor John Cope has said that Cunningham threatened to kill his son if he ever told anyone about the abuse.

Cunningham worked in Richmond classrooms during his eight years on the force. Although he denied wrongdoing, Cunningham failed a polygraph test prosecutors administered following his arrest, according to court documents, and a search of his San Pablo home found items used during the abuse.