*1 Dist., Four. June 1993.] A056548. First Div. [No. PEOPLE,
THE Plaintiff and Respondent, v. COOKE,
DAMON L. Defendant Appellant.
Counsel Mark D. Greenberg, under appointment by Court Appeal, for Defend- ant and Appellant. General,
Daniel Williamson, E. Lungren, Attorney George Chief Assistant General, Bass, Attorney General, Ronald A. Assistant M. Attorney Stan Banister, Helfman and General, Michael E. Attorneys Deputy for Plaintiff and Respondent.
Opinion ANDERSON, P. J. The courtfound defendant Damon L. Cooke (appel- lant) guilty of murder attempted with premeditation while armed with and trial The main this is whether the by appeal a firearm. issue raised using use immu- due appellant’s process rights by denying violated had invoked his Fifth Amend- nity to an defense witness who exculpatory ment A second issue raised testify. appellant person- privilege is whether there was substantial evidence to the conviction ally support attempted murder.
Facts victim, Bush, The Padraic and a friend of Alexander Ryan, appellant, testified were in a bank Ryan prosecution. Appellant partners fraud a third a bank account operation. open two would enlist party using a fraudulent check. Over the next two or three payroll days, appellant drive have him her Ryan would to different branches and or person *4 cash as checks the new the check many as on account before bad possible failed to clear.
In in came down from his to visit February Ryan Berkeley home banks, in On appellant Angeles. February they Los visited several (whose unknown) a third as accompanied by party accomplice identity well as Bush and another the friend of Steve Bush drove appellant, Huynh. around; third party Huynh merely “along was for the ride.” and Ryan appellant divided their shares of the he and money. According Ryan, to appellant argued over how would Ryan get back to so appellant’s apartment that Ryan could retrieve his wallet. Ryan eventually borrowed appellant’s car girlfriend’s and drove alone to He his appellant’s apartment. up picked wallet, then drove to the and flew back San That airport to Francisco. necklace, $10,000, evening, noticed that his worth was appellant missing from his when apartment. Appellant suspected Ryan that took the necklace he was in the alone apartment. Bush, cousin, Cooke, and
Appellant, Huynh Leandre drove appellant’s that in night Ryan’s to fraud apartment Berkeley order to out bank carry friend, the next San day Ryan Francisco. was home with a Kevin banks, Jefferson. While and were in Ryan Jefferson San Francisco visiting and appellant his friends searched the neck- Ryan’s missing for apartment it, lace. did They not find so and they sat watched television while they meantime, waited for and In Ryan Jefferson to return. the Leandre Cooke showed the others a .38-caliber revolver that he carrying. was and Jefferson
Ryan returned to the and went apartment. appellant Ryan bedroom, into where Ryan that and explained day what had happened divided they Then money. Jefferson soon left the followed apartment, others, meet agreed appellant alone. Jefferson to leaving Ryan after Bush, According restaurant discuss bank frauds. lot to parking day he banks that Jefferson that and had been more appellant Ryan told asked Jefferson Ryan appellant. Appellant than had mentioned to previously said he didn’t whether he knew had taken the necklace. Jefferson Ryan retaliate against Bush discussed how to group briefly know. testified information, but for and funds and Ryan necklace taking withholding came to no conclusion. Cooke, Leandre returned
Appellant, Ryan’s Bush and Huynh apart- ment. denied it. Appellant Ryan stealing Ryan accused his necklace. $500 also accused him Appellant Ryan cheating day. They out then, and asked in Los argued, Ryan’s suggestion, his appellant girlfriend over the whether Angeles telephone she found necklace. She missing more, said no. Ryan argued then asked Leandre appellant Cooke, “Do have that?” Leandre you Cooke took out the revolver and ride,” handed it to said to for a appellant. Appellant Ryan, go “Let’s me, which If Ryan responded, “No. you’re going my to shoot shoot me words, After a apartment.” brief exchange gun raised appellant either checked or the cylinder, fell cylinder open. Appellant closed cylinder, raised shoulder gun height (The and aimed at Ryan’s head. were two four five standing or feet Then in the apart.) appellant Ryan shot left, *5 head. Ryan fell to the After floor. everyone Ryan got else locked up, door and dialed 911. He noticed that his bank fraud money gone. was
Appellant a gave different account of the he incident. He testified that came to Berkeley with his friends to to a He go concert. first realized that his chain was when he missing was paged by his on the girlfriend afternoon he after arrived Berkeley. claimed that Appellant during his phone said, conversation with girlfriend his he “What’s missing,” making necklace, mention out, and that then Ryan blurted “I didn’t take your chain.” Ryan became agitated, and quite Leandre Cooke out a pulled gun. Appellant was afraid that Leandre Cooke would Ryan, shoot so he went over said, to Leandre Cooke and “Give me that damn What is gun. with wrong you?” obtained gun, and then rushed at him and Ryan tried to ensued, it. A grab struggle and the gun discharged. Appellant dropped ran, and gun then he and friends his frightened.
Both Ryan and Bush were witnesses for Ryan had been prosecution. offered statutory transactional immunity attorney, pursuant district Penal Code1 section 1324. Bush did not receive he immunity; expected probation pursuant to a previous negotiated disposition. statutory
1All further are references to the Penal Code. Steve was a Huynh present shooting, percipient and was therefore The witness. defense at trial. invoked subpoenaed Huynh testify Huynh his Fifth Amendment attorney not to and the district privilege testify, declined to then grant Huynh transactional The court statutory immunity. heard in camera what Huynh’s would be and concluded that testimony evidence], “is testimony certainly cumulative other that it is exculpatory [of but it’s its take exculpatory cumulative sense.” court refused to further and a did steps Huynh immunity, Huynh testify as result trial. appellant’s Appellant was convicted subsequently attempted firearm, murder with while armed and was premeditation using with sentenced life with the four- imprisonment possibility parole, plus year midterm enhancement for the firearm use.
I. Appellant argues that the trial court erred in judicial use denying Huynh immunity.2 If the court had granted Huynh immunity after the in camera then hearing,3 could no claim the Huynh longer privilege not to testify. Huynh’s testimony, would corroborate appellant argues, ap own pellant’s As such it testimony. was exculpatory supported Therefore, credibility of appellant’s testimony. it was not cumulative. law, Under California a witness not be may prosecuted any act about which he or she was required by (§ 1324.) district attorney testify.
In addition to broad transactional there is immunity, also “use immu from the nity”—“[i]mmunity use of as well as evi compelled testimony, dence derived directly indirectly (Kastigar therefrom . . . .” v. United 44-1, 212, 222, States 406 U.S. 1653].) L.Ed.2d 92 S.Ct. Use does not afford protection against prosecution, but merely pre vents a prosecutor from using immunized the witness. against Use immunity provides sufficient protection to overcome a Fifth Amend ment claim of privilege. Transactional immunity is not constitutionally *6 (Ibid.) required.
The district attorney this case did not request immunity for Steve Hyunh. California law clearly conditions a of grant transactional 2Although i.e., the witness requested “full” immunity, immunity, transactional section 1324 is the procedure exclusive granting for a request such and may only granted upon be request People. of the Since provide section 1324 does not hearing, for an in camera the court certainly most acting was not pursuant thereto. People Because the cited v. court Hunter 367, Cal.3d Cal.Rptr. 49 957 782 [264 P.2d Virgin Islands v. Government 608] of 964, (3d 1980) Smith Cir. 615 F.2d we construe its authority grant actions as to implying its use immunity as discussed therein. procedure 3This Hunter, 973; was not used People v. supra, page the issue 49 Cal.3d grant of whether to immunity use was decided on the we proof, basis of an offer of which deem to be sufficient.
1367 1324; see v. (§ on a written immunity request by prosecutor. 957, 367, 608].) The Hunter P.2d 49 Cal.3d 782 Cal.Rptr. [264 function, “since the section 1324 of is an executive grant immunity strictly charging and it seek an integral part process, decision to is what, is the to crime is to be any, who are decide prosecuting attorneys 429, (In re Weber (1974) 11 charged.” Cal.3d Therefore, 229], P.2d to power italics in it is within the court’s original.) not to grant statutory transactional witness. any claims, however, ought that a to be able to defendant use the court when that compel grant to to a defense witness He witness’s a fair trial. testimony necessary for the defendant to obtain acknowledges yet accepted argument Courts have Appeal that a trial court has the inherent a defense witness use power grant immunity independent prosecutor’s to section 1324. request pursuant Nevertheless, Hunter which notes that from appellant hope language finds “it is possible hypothesize cases where a conferred use immu judicially nity might be possibly necessary to vindicate a criminal defendant’s rights Hunter, (People supra, compulsory fair process trial . . . .” v. Cal.3d at p.
This language is dicta. The court it made clear that it was not deciding (People question of whether or when a court should grant v. immunity. Hunter, First, supra, 974-975.) 49 Cal.3d at court that it explained need not decide the issue. Then it discussed the criteria which been set forth in the sole case clearly recognizing right (Government Virgin such a “ Smith, Islands supra, 972): 615 F.2d opportunities ‘[T]he limited; use of this immunity must power be ... clearly proffered must testimony be clearly must exculpatory; be essential; and there must be no governmental strong interests which coun- tervail against a grant immunity .... defendant must make [ft] [T]he convincing showing sufficient satisfy court that the testimony which will be forthcoming is both clearly exculpatory essential to the defend- ant’s Immunity case. will denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found relate only ” Hunter, to the credibility of government’s witnesses.’ 974.)4 Cal.3d after standards, of the Smith
Finally, the facts in reviewing light court concluded, if in appropriate “[E]ven an circumstances essential witness for a Smith, Circuit, 4Although the Third 615 F.2d held that a *7 judicial trial, to a witness it when is required defendant to obtain a for the fair vast majority of the federal (United States v. (9th courts hold to the Mendia contrary. Cir. 1984) 1412, 1414; 1079, 731 F.2d United States v. (9th 1976) Alessio Cir. F.2d 528 1081-1082; United States v. Turkish (2d 769, 771-777; United States v. 1980) Cir. 623 F.2d 521, Pennell (6th 527; 1984) Cir. 737 F.2d Sawyer (11th 1986) United States v. Cir. F.2d 799 1368 question
criminal we granted judicial immunity—a defendant should be use do decide—the were not appro- record establishes that circumstances 975, Hunter, italics here . . . Cal.3d at priate p. 49 added.) that,
The decide counter because Hunter “did not expressly in in whether the announced Smith would become law California exception , (1974) . . the rule in re 11 . this state is still that In Weber expressed 429, Cal.3d 703 dealt with the scope 523 P.2d Weber Cal.Rptr. [114 229].” There, of section 1324. General’s refusal Attorney court approved to at an in habeas request immunity evidentiary corpus conducted hearing a It that the proceedings by argument referee. also over glossed petitioner’s referee had inherent holding to that it is within power grant immunity, the district Legislature’s condition on a from power request Weber, (In re 11 In attorney. 720.) Cal.3d at event Weber is not p. any because their inher dispositive subsequent California courts have exercised ent powers limited circumstances. instance, 575, in Bryan Superior (1972)
For Court Cal.3d 587 [102 831, 498 P.2d the court held that evidence of an admission Cal.Rptr. 1079] made a minor a juvenile officer or to the probation juvenile fitness hearing could not be introduced in a criminal against minor 802, (See prosecution. Superior (1985) Ramona R. v. Court 37 Cal.3d 204, 789].) The Cal.Rptr. P.2d Ramona court explained [210 “ of a interview purpose probation ‘is not the of evidence on the marshalling issue of but rather guilt, of all assembling available information relevant [citation], to an informed disposition guilt case is established or to assist the evaluation of the minor’s fitness for treatment as a juvenile 595, (Ibid:, ....’” Wayne In re H. [citation] Cal.3d 599 [156 1].) 596 P.2d Cal.Rptr.
Then in People
v. Coleman
The court reasoned that forcing defendant choose between the right on testify his or her own behalf at a and the probation hearing privilege 1494, 1506; (10th 815, 818; United States v. Hunter 1982) (5th Cir. Autry v. Estelle 672 F.2d 1983) Cir. 706 F.2d These courts outright either or hold that it is reject Smith inapposite to the facts of the case.
1369 inconsis- self-incrimination at the trial was against upcoming “unnecessarily Coleman, at pp. tent with constitutional Cal.3d values.” 871-872, 891-892.) in
Similarly, Superior Cal.App.3d Tarantino v. Court [122 61], the Court that defendant’s of for this district held a Cal.Rptr. Appeal statement a evaluation determine the defendant’s com- during psychiatric to stand petence guilt trial not be used on the issue of may pending (Id. 470.) trial. at The p. court that the of the into explained purpose inquiry mental is not to determine or innocence but rather to serve competency guilt the humanitarian end of ensuring that one unable to defend himself mentally not tried charge. be on a criminal It that “humanitarian and concluded practical considerations call a that judicially declared immunity” (Id., court found be reasonably implied from statutes. p. inAnd Daly Superior Court Cal.3d 132 Cal.Rptr. [137 560 P.2d our Court held a Supreme that trial court has the 1193] power issue a protective granting order to a a civil immunity witness discovery proceeding, only but officials are notified and fail prosecuting The object. court clarified that Weber's could holding Legislature a properly grant condition on did immunity prosecutor’s not request mean that “any judicial grant of in the of a absence prosecutor’s request constitutes invasion of executive in violation prerogatives Const., III, of the separation ([Cal.] (Id. constitutional of powers 3).” art. § original.) italics Daly The court concluded granting immunity to aid discov- ery, prosecutorial interests are protected by a of a rigid requirement prosecutorial but request, by the more general condition that the grant immunity not “unduly hamper” any prosecution. criminal subsequent (Daly Court, v. Superior 146-147.) 19 Cal.3d at use and Technically, derivative use do not interfere with prosecution, as as the long evidence used in the witness’s subsequent not derived from prosecution that, the immunized But the testimony. court was aware that evi- proving dence used in the criminal prosecution was independent immunized Therefore, can be (Id. itself very difficult. at p. once prosecutor objects and that a grant declares of immunity might hamper criminal proceeding, granted. cannot court cannot question objection because to do so with would interfere prosecutorial (See discretion. v. DeFreitas (1983) 140 Cal.App.3d [reiterating 814] cannot question prosecutor’s objection].)
However, Coleman, Bryan, Tarantino Daly distinguishable from are the case before Daly us. involved a civil and the proceeding,
1370 immunity subsequent was conditioned on notification prosecution’s failure grant In this case that the court uncon- object. appellant requests in Bryan, ditioned use The for immunity. grants immunity provided Coleman and other relevant Tarantino allow a defendant to on issues testify to his or her case and still retain at trial. against self-incrimination protection witness, contrast, A grant of to a creates immunity party necessarily third a conflict A prosecutor. for the district who cross-examines attorney judicially immunized defense must narrow her questioning witness his or avoid then will the witness’s and even still face impeding prosecution, difficulties that the evidence used that witness was proving against obtained from or derived from earlier testimony. that due denying process claims use was a violation.
But the Fifth Court rejected argument District this Appeal very 829], v. Sutter 134 Defendant 806 Cal.App.3d Archie (§ 211). had been with Mayhew charged robbery Mayhew pled but indicated that he would his not to guilty assert called privilege testify aas defense witness at He defendant’s trial. was concerned that his testi- link mony might him to a occurred robbery second similar that had that same night.
Defense moved the grant counsel court to from Mayhew immunity pros- ecution for other crime that any evening. The trial court denied the occurring motion. Defendant raised due process arguments on compulsory process waived, appeal. Note that although deemed the issue it ad- majority dressed the matter to counter the dissent’s that the court position embrace a doctrine of judicially declared on immunity based constitutional Sutter, (People 813.) considerations. v. 134 at supra, Cal.App.3d p. The Sutter first due discussed the that process govern- argument ment’s ability it an unfair immunity gives advantage over the defendant’s a defense. The ability present court found the argument meritless because criminal proceedings have never been “symmetrical.” Sutter, (People v. The Cal.App.3d “accuser and p. roles, accused have inherently different with different entirely powers and rights” and so it is nonsensical to argue certain devices procedural are unfair because merely they put (See two sides on unequal footing. United Turkish, supra, States v. 774-775.) F.2d at pp.
Next, above, as discussed the court noted that judicially granted immunity substantially burdens the government having with prove evidence against previously immunized not obtained witness was or de- rived from Sutter, immunized (People testimony. Cal.App.3d Sutter court also that defense witness could suggested easily encourage codefendants who would seize the perjury by opportunity to obtain use each each exculpate other and then other Sutter, supra, at the claiming responsibility other’s trial. *10 Cal.App.3d p. that a defend-
Appellant might argue outweigh these concerns still do not ant’s in interest a fair trial as under due obtaining guaranteed process. However, we are in the Second Circuit’s conclusion Turkish'. persuaded by in do not find the Due simply general “[W]e Process Clause requirement that defense witness must be whenever it seems fair to immunity ordered grant it. The essential fairness the Fifth Amendment required by guards defendant against overreaching by prosecutor It does not [citations]. general create obligations for or to evidence prosecutors courts obtain Turkish, protected (United lawful by privileges.” States v. 623 F.2d at We decline invitation declare a appellant’s doctrine of use for in immunity defense witnesses criminal Kaufman Although cases. Justice can in hypothesize cases which conferred use to a third judicially party witness be might to vindicate a necessary rights, defendant’s California Court of Appeal or Court case has ever such Supreme granted witness, to a defense and we will not do so now. The relief which all, here appellant requests our granted, highest state’s court: We conclude that the trial court did not err by refusing appellant’s witness.
II. (1) also contends that there was insufficient evidence that he had the specific intent kill (2) Ryan; indictment failed to that allege “willful, deliberate, murder attempted was (3) and premeditated”; and even if the indictment were there is insufficient evidence proper, to support finding murder attempted was “deliberate and premeditated.”
The proper standard of review for a of the evidence sufficiency challenge 557, is explained v. Johnson 26 Cal.3d 576-578 738,16 Cal.Rptr. [162 606 P.2d A.L.R.4th again People 1255] Jones 643], Cal.3d P.2d The test whether, record, is on the entire a reasonable trier fact could have found the defendant guilty beyond a reasonable court must appellate doubt. view the evidence in a light most favorable below and must to the judgment presume support that judgment “the fact the trier every existence of Johnson, could deduce reasonably from evidence.” “reasonable, credible, Cal.3d at 576-577. evidence pp. Although must be value,” and of solid court need decide whether there appellate only “ ” evidence, ‘any (Id. substantial contradicted or uncontradicted.’ at 577-578.)
The evidence shows that appellant Ryan that took his suspected necklace from his Los Angeles When the was apartment. Berkeley, group appellant and the others searched the necklace. Later Ryan’s for apartment friend day, Ryan’s Jefferson told appellant Ryan his friends not been honest about the earnings from that bank scam. The day’s group discussed how get even with Ryan cheating taking his appellant *11 necklace. One of the was him options to “take to the and shoot up highlands him.” knew Appellant then that Leandre gun Cooke had a with him.
After appellant and his friends returned to the Ryan’s apartment, appellant confronted Ryan. asked Leandre Cooke for the and tried to gun said, me, get Ryan “go for a Ryan ride.” If you’re going “No. to shoot me in shoot my apartment.” the Appellant raised and shot gun Ryan head. evidence,
From this a reasonable trier of fact could have found both that (1) had appellant intent kill specific (2) and Ryan, attempted murder was deliberate and premeditated.
Further, although indictment did original not allege premeditation, district attorney reconvened the grand jury, which an amend- approved willful, ment that “the attempted murder alleged above was deliberate and premeditated.” judgment affirmed. J.,
Perley,
concurred.
POCHÉ, J., Dissenting.
In Peoplev.
(1989)
Hunter
Instead Justice which had limits proceeded Kaufman to note the cases put added, on the of the “We power agree prosecutor immunity, prosecutor’s is to administer the with a duty evenhandedly, power truth, view to and not as a ascertaining engaged legal partisan Hunter, 974-975.) He game.” (People supra, v. 49 Cal.3d at then pp. in which where specifically referred to a case been reversed conviction witnesses, the government selectively granted immunity prosecution to two (United but refused to two other grant it to critical defense witnesses States (S.D.N.Y. 1979) 780-782) v. De Palma and to the F.Supp. holding in the Third Circuit that the or withhold prosecution selectively grant cannot “with distorting the deliberate intention of fact finding (United (3d 1978) 1204). States v. Herman Cir. 589 F.2d process” Hunter, (People 974-975.) v. 49 Cal.3d at Not content just to note pp. doctrines, these returned him Justice Kaufman to the facts case before concluded: “there is evidence here that the prosecutor intentionally refused to grant immunity to a for the key defense witness purpose essential, suppressing (People noncumulative evidence.” exculpatory Hunter, supra, at p.
Thus my colleagues they are correct when Court majority say Supreme did not decide whether “in an appropriate circumstances essential witness for a criminal defendant be granted judicial immunity.” Hunter, 49 Cal.3d at But true is that the equally what Supreme Court did instruct the lower of this state to hide their courts Sutter, heads the sand and blithely follow DeFreitas Estrada. When the California Supreme Court devotes such detailed attention to an issue it could have those easily rejected outright, deserve pronouncements respectful *13 Indeed, attention. I read the unmistakable of Hunter to be that the message courts of this state the Smith where apply guidelines they fit. credit,
To its court message trial understood that for it applied standards, Hunter/Smith although incorrectly. it did so The five Hunter/Smith standards are these: must be properly court; sought the trial the defense available to testify; witness must be proffered must be testimony clearly testimony must be exculpatory; essential, it meaning cannot cumulative to the relating only credibility or 1066,1077; (2d 1982) accord, (2d v. Burns Cir. 1992) 684 F.2d Cir. F.2d U.S. v. Bahadur 821, 826; (2d 1988) 927, 935; (2d U.S. v. Pinto Cir. 850 F.2d States v. Calvente United Cir. 1983) 1025.) 722 F.2d The net result approach; is the the Smith it is the same as under solution which is different. witnesses; strong governmental and there must be of the prosecution’s (Government immunity. which a against grant interest countervails Smith, F.2d at Virgin Islands v. the proffered the trial court heard After an camera which hearing3 only denied the court Huynh, Steven testimony eyewitness cumulative.4 was Huynh’s testimony because it determined that was testimony Huynh’s proffered The trial court was simply wrong. at the time of but cumulative. There were four the room anything people defendant, victim, Bush and Huynh. Ryan put Bush and shooting: defendant; agreed accident. alone Huynh blame on defendant said it was an including with defendant. one defines cumulative as the sole testi- Unless defendant, as a matter of mony corroborating testimony that of Huynh’s law was not. elements, easily. all the fall
Returning nearly pins Hunter/Smith was was essential to Huynh testimony available to testify. Huynh’s and directly defense case: it would have corroborated defendant’s testimony contradicted the witnesses. testi- testimony government’s Huynh’s did it mony was was neither nor exculpatory. Huynh’s testimony ambiguous relate to the only credibility of the witnesses. government’s
However the trial did criterion: whether not consider the final Smith there might governmental be a interest countervailing against immunity to Whether decided in a factual Huynh. this factor exists cannot be vacuum. While we know that the was to offer prosecutor unwilling Huynh transactional immunity,5 might good we do not know whether there be a Therefore, sufficient reason him I not to offer would remand immunity. to the trial court for of a in which the would be purposes hearing required to demonstrate a governmental countervailing against interest explanation, majority 3Without procedure also takes issue with the in camera utilized here, as was utilized in Hunter. the trial court preference and states a for an proof offer of ante, (Maj. opn., approach. fn. I can find no fault with either cumulative, 4The trial court only said “his offered would be that it does not relate *14 witnesses, credibility governmental of exculpatory, openly, it is not while it is clearly contrary to the that’s already evidence before court.” 5A final observation. The prosecutor Ryan, conferred on the victim transactional prosecution and allowed charge exchange witness Bush to enter a plea to a reduced his testimony. Although given years no sentence had been promised, hoped three Bush probation. Despite Huynh charged the fact that on the with a crime in other was neither hand conjunction with this event nor offered question was raised as to immunity, transactional prosecutor’s motives and no contention has been asserted. prosecutorial discrimination grant and for further in the event that the proceedings Huynh, are unable to sustain burden proof.
Appellant’s petition for review the Court was denied Supreme Septem- Mosk, J., Kennard, J., Arabian, J., ber 1993. were opinion granted. petition