DEFENDANT RECALLS FATAL SHOOTOUT.

Byline: Michael Coit Daily News Staff Writer

Recalling last year's shootout after a Newbury Park liquor store robbery, Robert Cunningham said Los Angeles police never identified themselves and fired first, killing his accomplice and leaving him paralyzed.

Testifying in his own defense for a second day Wednesday, the Reseda man contradicted police officers who said that Cunningham stood up through the sunroof of Daniel Soly's car and fired at undercover officers who had trailed the pair from the San Fernando Valley.

Cunningham is charged in Soly's death because Ventura County prosecutors contend he provoked the lethal response from a dozen undercover officers, who are members of the controversial Special Investigations Section.

Deputy District Attorney Don Glynn has said the police team did nothing unusual in the surveillance and waited for the pair to commit a crime so they could make an arrest.

Cunningham testified that he and Soly came under gunfire after the robbery June 26, 1995, when unmarked police vehicles rammed both ends of Soly's parked car outside the former South West Liquor and Deli.

Cunningham said the impact threw him to the floor on the passenger's side, and he saw Soly's body lurch and recoil as bullets and shotgun pellets hit him.

``It kind of seemed like forever, but it was seconds,'' Cunningham replied after Glynn asked how long the initial gunfire lasted.

Cunningham said he held a gun, twisted and raised himself from the floor, and screamed ``Hey.'' He then thrust his right hand through the sunroof and fired a single shot, he said.

He said he hoped his shot would be a warning for the shooters to stop. ``At that point in time I thought that, if I didn't pull the trigger, they would just keep shooting anyways.''

Soly died after suffering 27 wounds from shotgun pellets and .45-caliber bullets.

The county grand jury indicted Cunningham on nine charges, including first-degree murder. Prosecutors are not seeking the death penalty. Cunningham also is charged with one count of burglary, two counts of robbery and three counts of attempted murder on police officers in the liquor store incident, and he is charged with robbing a Pizza Hut in Simi Valley with Soly in January 1995.

Cunningham is paralyzed below the waist. Coming to court in a wheelchair, he sat at the witness stand Wednesday wearing a gray suit, white dress shirt and red tie as he answered the prosecutor's questions in a soft, deliberate voice.

After admitting to firing a single shot through the sunroof, Cunningham said he then pointed his handgun toward the vehicle that rammed Soly's car from the rear.

``I simultaneously capped off a couple of rounds,'' he said. ``I directed them towards the rear of the car. I didn't put nothing in my sights.''

Glynn, however, has introduced police testimony and evidence of gunpowder residue on the roof to support his contention that Cunningham stood through the sunroof and fired at several officers. One of four shots from Cunningham's .38-caliber handgun wounded an officer in the abdomen.

A second officer suffered a single gunshot wound, which came from the .45-caliber handgun of the supervising officer.

Cunningham recalled being shot in the back and hearing ``a lot more shots go off simultaneously'' after bringing his arm down from the sunroof.

His body was numb, Cunningham said, when he watched Soly struck in the face by a shotgun blast and then shot in the head by a police officer who fired a single bullet at close range.

``Mr. Soly practically picked up in his seat and then dropped over on me,'' Cunningham said.

Deputy Public Defender Gary Windom has urged the jury to find Cunningham guilty of the burglary and robbery charges in the liquor store incident but not guilty for Soly's death from shots fired by the police.

Windom has challenged both the police tactics and officers' accounts. The public defender said the officers followed Soly, the main target in an investigation of a string of San Fernando Valley robberies, for a week and didn't make arrests after observing thefts and drug deals. He contends they wanted a more serious crime to provoke a gunfight.

Windom said the Los Angeles officers directly involved in the gunfight didn't answer questions from Ventura County sheriff's detectives until nearly five hours after the incident.

Windom said he will call Los Angeles Police Department Chief Willie L. Williams as a witness next week. The public defender contends Williams went to the scene for 2-1/2 hours, spoke with police and could have information beneficial to Cunningham's defense.

Judge Steven Perren has ordered Williams to testify if called. The Los Angeles city attorney's office had rejected a subpoena served on Williams, stating that it was not unusual for Williams to go to a shooting involving the department's officers and that the chief doesn't have relevant information about the case.