People v. Cooke, A056548

Citation16 Cal.App.4th 1361,20 Cal.Rptr.2d 506
Decision Date29 June 1993
Docket NumberNo. A056548,A056548
CourtCalifornia Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Damon L. COOKE, Defendant and Appellant.

Mark D. Greenberg, Berkeley, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., Michael E. Banister, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

ANDERSON, Presiding Justice.

The court found defendant Damon L. Cooke (appellant) guilty of attempted murder with premeditation while armed with and using a firearm. The main issue raised by this appeal is whether the trial court violated appellant's due process rights by denying judicial use immunity to an exculpatory defense witness who had invoked his Fifth Amendment privilege not to testify. A second issue raised by the appellant personally is whether there was substantial evidence to support the conviction of attempted murder.

FACTS

The victim, Padraic Ryan, and a friend of appellant, Alexander Bush, testified for the prosecution. Appellant and Ryan were partners in a bank fraud operation. The two would enlist a third party to open a bank account using a fraudulent payroll check. Over the next two or three days, appellant and Ryan would drive that person to different branches and have him or her cash as many checks as possible on the new account before the bad check failed to clear.

In February 1991 Ryan came down from his home in Berkeley to visit appellant in Los Angeles. On February 12 they visited several banks, accompanied by a third party accomplice (whose identity is unknown) as well as Bush and another friend of appellant, Steve Huynh. Bush drove the third party around; Huynh was merely "along for the ride." Ryan and appellant divided their shares of the money. According to Ryan, he and appellant argued over how Ryan would get back to appellant's apartment so that Ryan could retrieve his wallet. Ryan eventually borrowed appellant's girlfriend's car and drove alone to appellant's apartment. He picked up his wallet, then drove to the airport and flew back to San Francisco. That evening, appellant noticed that his necklace, worth $10,000, was missing from his apartment. Appellant suspected that Ryan took the necklace when he was alone in the apartment.

Appellant, Bush, Huynh and appellant's cousin, Leandre Cooke, drove that night to Ryan's apartment in Berkeley in order to carry out bank fraud the next day in San Francisco. Ryan was home with a friend, Kevin Jefferson. While Ryan and Jefferson were in San Francisco visiting banks, appellant and his friends searched Ryan's apartment for the missing necklace. They did not find it, so they sat and watched television while they waited for Ryan and Jefferson to return. In the meantime, Leandre Cooke showed the others a .38-caliber revolver that he was carrying.

Ryan and Jefferson returned to the apartment. Ryan and appellant went into the bedroom, where Ryan explained what had happened that day and they divided the money. Then Jefferson left the apartment, followed soon after by the others, leaving Ryan alone. Jefferson agreed to meet appellant in a restaurant parking lot to discuss the bank frauds. According to Bush, Jefferson told appellant that Ryan and he had been to more banks that day than Ryan had previously mentioned to appellant. Appellant asked Jefferson whether he knew if Ryan had taken the necklace. Jefferson said he didn't know. Bush testified that the group briefly discussed how to retaliate against Ryan for taking the necklace and for withholding funds and information, but came to no conclusion.

Appellant, Leandre Cooke, Bush and Huynh returned to Ryan's apartment. Appellant accused Ryan of stealing his necklace. Ryan denied it. Appellant also accused Ryan of cheating him out of $500 that day. They argued, and then, at Ryan's suggestion, appellant asked his girlfriend in Los Angeles over the telephone whether she had found the missing necklace. She said no. Appellant and Ryan argued more, and then appellant asked Leandre Cooke, "Do you have that?" Leandre Cooke took out the revolver and handed it to appellant. Appellant said to Ryan, "Let's go for a ride," to which Ryan responded, "No. If you're going to shoot me, shoot me in my apartment." After a brief exchange of words, appellant raised the gun and either checked the cylinder, or the cylinder fell open. Appellant closed the cylinder, raised the gun to shoulder height and aimed at Ryan's head. (The two were standing four or five feet apart.) Then appellant shot Ryan in the head. Ryan fell to the floor. After everyone else left, Ryan got up, locked the door and dialed 911. He noticed that his bank fraud money was gone.

Appellant gave a different account of the incident. He testified that he came to Berkeley with his friends to go to a concert. He first realized that his chain was missing when he was paged by his girlfriend on the afternoon after he had arrived in Berkeley. Appellant claimed that during his phone conversation with his girlfriend he said, "What's missing," making no mention of the necklace, and that Ryan then blurted out, "I didn't take your chain." Ryan became quite agitated, and Leandre Cooke pulled out a gun. Appellant was afraid that Leandre Cooke would shoot Ryan, so he went over to Leandre Cooke and said, "Give me that damn gun. What is wrong with you?" Appellant obtained the gun, and then Ryan rushed at him and tried to grab it. A struggle ensued, and the gun discharged. Appellant dropped the gun and then he and his friends ran, frightened.

Both Ryan and Bush were witnesses for the prosecution. Ryan had been offered statutory transactional immunity by the district attorney, pursuant to PENAL CODE SECTION 13241. Bush did not receive immunity; he expected probation pursuant to a previous negotiated disposition.

Steve Huynh was present at the shooting, and was therefore a percipient witness. The defense subpoenaed Huynh to testify at trial. Huynh invoked his Fifth Amendment privilege not to testify, and the district attorney declined to grant Huynh statutory transactional immunity. The court then heard in camera what Huynh's testimony would be and concluded that the testimony "is certainly cumulative [of other evidence], that it is exculpatory but it's exculpatory in its cumulative sense." The court refused to take further steps to grant Huynh immunity, and as a result Huynh did not testify at appellant's trial. Appellant was subsequently convicted of attempted murder with premeditation while armed with and using a firearm, and was sentenced to life imprisonment with the possibility of parole, plus a four-year midterm enhancement for the firearm use.

I.

Appellant argues that the trial court erred in denying Huynh judicial use immunity. 2 If the court had granted Huynh immunity after the in camera hearing, 3 then Huynh could no longer claim the privilege not to testify. Huynh's testimony, appellant argues, would corroborate appellant's own testimony. As such it was exculpatory and supported the credibility of appellant's testimony. Therefore, it was not cumulative.

Under California law, a witness may not be prosecuted for any act about which he or she was required by the district attorney to testify. (§ 1324.) In addition to broad transactional immunity, there is also "use immunity"--"immunity from the use of compelled testimony, as well as evidence derived directly and indirectly therefrom...." (Kastigar v. United States (1972) 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212.) Use immunity does not afford protection against prosecution, but merely prevents a prosecutor from using the immunized testimony against the witness. Use immunity provides sufficient protection to overcome a Fifth Amendment claim of privilege. Transactional immunity is not constitutionally required. (Ibid.)

The district attorney in this case did not request immunity for Steve Hyunh. California law clearly conditions a grant of transactional immunity on a written request by the prosecutor. (§ 1324; see People v. Hunter (1989) 49 Cal.3d 957, 973, 264 Cal.Rptr. 367, 782 P.2d 608.) The section 1324 grant of immunity is strictly an executive function, "since the decision to seek immunity is an integral part of the charging process, and it is the prosecuting attorneys who are to decide what, if any, crime is to be charged." (In re Weber (1974) 11 Cal.3d 703, 720, 114 Cal.Rptr. 429, 523 P.2d 229, emphasis in original.) Therefore, it is not within the court's power to grant statutory transactional immunity to any witness.

Appellant claims, however, that a defendant ought to be able to compel the court to grant use immunity to a defense witness when that witness's testimony is necessary for the defendant to obtain a fair trial. He acknowledges that the Courts of Appeal have not yet accepted the argument that a trial court has the inherent power to grant a defense witness use immunity independent of the prosecutor's request pursuant to section 1324. Nevertheless, appellant finds hope in language from Hunter which notes that "it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant's rights to compulsory process and a fair trial...." (People v. Hunter, supra, 49 Cal.3d at p. 974, 264 Cal.Rptr. 367, 782 P.2d 608.)

This language is dicta. The court made it clear that it was not deciding the question of whether or when a court should grant use immunity. (People v. Hunter, supra, at pp. 974-975, 264 Cal.Rptr. 367, 782 P.2d 608). First, the court explained that it need not decide the issue. Then it discussed the criteria which had been set forth in the sole case clearly recognizing such a right (Government of...

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