Cooke

The court found defendant Damon L. Cooke (appellant) guilty of attempted murder with premeditation while armed with and *1364 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…

In People v. Hunter (1989) 49 Cal.3d 957 [ 264 Cal.Rptr. 367 , 782 P.2d 608 ], the California Supreme Court applied the criteria for judicially conferred immunity set forth in Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964 , to the facts before them, but found that the defense had failed to show that the proffered testimony was “ ‘clearly exculpatory and essential’ ” to the defense. (People v. Hunter, supra, 49 Cal.3d at p. 974 .) In the instant case the trial court applied those same criteria to defendant’s offer of proof and found that the defense had failed to show the proffered testimony was not cumulative. It is that ruling *1373 which should be the subject of appellate review. Instead, my majority colleagues launch a frontal attack on Hunter , dismissing the Supreme Court’s three-page analysis on judicial immunity as dicta, and then deciding the issue on die basis of cases which not only predated Hunter but were treated by the Supreme Court as nondispositive. From that analysis I dissent.

Summary dismissal of Hunter might be appropriate if that decision had been written differently, for example, if it had been simply a rejection of the contention with…

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.

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)…