Charles Manson, Patricia Krenwinkel and Susan Atkins were indicted by a Los Angeles grand jury on seven counts of murder and one of conspiracy for the killings at 10050 Cielo Drive on the night of August 8, 1969, and at 3267 Waverly Drive the next night; Leslie Van Houten was indicted on the two LaBianca counts. One jury convicted all four and sentenced them to death. By the time the Court of Appeal for the Second District ruled, on August 13, 1976, the California Supreme Court’s 1972 decision in People v. Anderson had taken the death sentences away, and the question left was whether the convictions would stand. Justice Vogel’s opinion, some forty-five thousand words, affirmed Manson’s, Krenwinkel’s and Atkins’s and reversed Van Houten’s.
The reason was a missing lawyer. Ronald Hughes had represented Van Houten from July 17, 1970, through all of the evidence, and on Monday, November 30, 1970, after both sides had rested and before closing arguments, he failed to appear in court. Maxwell Keith took over and argued for her without having watched a single witness, in a trial that turned on the credibility of eighty-eight of them, and the majority held that her motion for a mistrial should have been granted; Presiding Justice Wood dissented on that point. The same pages carry the court’s account of the deaths of Sharon Tate, Jay Sebring, Abigail Folger, Wojciech Frykowski and Steven Parent, and of Leno and Rosemary LaBianca, and its rulings on Linda Kasabian’s immunity and on the publicity, which reached as far as a newspaper headline reporting that President Nixon had said Manson was guilty.
Three shorter opinions follow. In June 1977 the same court affirmed Manson’s separate conviction and life sentence for the murders of Gary Allan Hinman, found dead in his house on Old Topanga Canyon Road in Malibu on July 31, 1969, and Donald “Shorty” Shea, a Spahn Ranch hand; Atkins and Bruce Davis, indicted with him, were tried separately. In July 1977 the Supreme Court of California held that Charles “Tex” Watson, arrested in McKinney, Texas, on November 30, 1969, and returned only on September 11, 1970, after fighting extradition, was entitled to 285 days of credit for his time in a Texas jail. And in December 1980 the Court of Appeal affirmed Van Houten’s conviction after a retrial that ended with a deadlocked jury and a third trial at which she admitted her part in the LaBianca killings and argued diminished capacity. Manson died in prison in 2017.
Each of these courts decided one question, whether a trial was fair enough to stand, and none of them retried the facts. The long accounts of Spahn Ranch, Helter Skelter and the drives to Cielo and Waverly Drive are the justices’ summaries of the prosecution’s evidence, much of it from Linda Kasabian, who testified under a grant of immunity and whose account the law required to be corroborated. Van Houten took no part in the Tate killings and was never charged with them. Davis, Steve Grogan and Watson were tried on their own, and Watson appears here only in a dispute about jail credit. The Hinman and Shea murders were a separate prosecution with a separate jury.
These four opinions of the California Court of Appeal and Supreme Court are public records and can be reproduced in full. After more than fifty years the defendants, the members of the Family who testified, the victims and the lawyers are named in every serious account of the case, and we have left them as the courts printed them. We have reduced to initials the people who never took any public part: the jurors named in the arguments over juror misconduct and a replaced juror, Rosemary LaBianca’s sixteen-year-old son, who came home from a vacation to the house on Waverly Drive, Shorty Shea’s wife, and a handful of ranch workers, neighbors and defense witnesses who appear once or twice. The two street addresses stay because they are where the murders happened.
The text is the Caselaw Access Project’s copy of the California Official Reports, and it carries no separately marked footnotes, so this page has no notes section. One oddity belongs to the source: the Hinman and Shea opinion is cited in the capture as “71 Cal. App. 2d 1,” a series that ended in 1969, and anyone looking it up should try 71 Cal.App.3d 1. We closed three hyphens, co-appellants among them, and changed nothing else, so the court’s own forms stand, “La Bianca” as two words and “Leño” for Leno in the 1980 opinion included. At about seventy thousand words this is one of the longest pages in the archive, and the four headings mark where each opinion begins.
[Crim. Nos. 22239,24376.
Second Dist., Div. One.
Aug. 13, 1976.]
THE PEOPLE, Plaintiff and Respondent, v. CHARLES MANSON et al., Defendants and Appellants.
Counsel
Albert D. Silverman, under appointment by the Court of Appeal, Daye Shinn, Maxwell S. Keith, Kanarek & Berlin, Irving A. Kanarek and Roger Hanson for Defendants and Appellants.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and Howard J. Schwab, Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY VOGEL, J. type=majority]
Opinion
VOGEL, J.
Facts
Appellants Charles Manson, Patricia Krenwinkel, and Susan Atkins were indicted by a grand jury on seven counts of murder and one count of' conspiracy to commit murder. Appellant Leslie Van Houten was indicted in two of the same seven counts of murder and in the conspiracy count.
A jury found all appellants guilty as charged and further found the murders to be of the first degree. After the penalty phase the same jury imposed death sentences upon all appellants. The resulting judgment was appealed directly to the Supreme Court (Pen. Code, § 1239, subd. (b)). While this case was pending that court decided People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], cert. den., 406 U.S. 958 [32 L.Ed.2d 344, 92 S.Ct. 2060], invalidating the death penalty. On that basis, these appeals were transferred to this court for determination.
The Homicides
The events giving rise to the charges contained in the indictment are two successive multiple homicides occurring in the City of Los Angeles during August of 1969. We here recite the nature of the homicides. Additional facts are discussed in the segments of this opinion to which they have primary relevance.
THE TATE MURDERS: In August of 1969 Roman Polanski and his wife, Sharon Tate Polanski, were tenants in residence at 10050 Cielo Drive. During this time Mr. Polanski was out of the country and Mrs. Polanski maintained the residence. Wojiciech Frykowski and Abigail Folger lived with her. Mrs. Winifred Chapman was the cook and housekeeper. Mrs. Chapman left the main residence between 4 and 4:30 p.m. on August 8, 1969.
On the following day, August 9, Mrs. Chapman returned to the Cielo Drive residence and discovered a ghastly scene. The police were summoned and on investigation located five victims of a brutal homicide. Just inside the entrance to the residence and near the entry gate they located a Rambler automobile. Inside of the vehicle they found the body of Steve Parent. The bodies of Frykowski and Folger were on the front lawn. In the living room, connected by a piece of rope, police located the bodies of Tate and Jay Sebring. A towel was wrapped around Sebring’s neck and covered his face.
Substantial amounts of blood and blood trails were found about the property. The word “Pig” was written in blood on the front door. Examination of the bodies by the coroner revealed that the victims suffered numerous injuries. Tate suffered 16 stab wounds. Folger was found to have been stabbed 28 times. Sebring’s body showed seven penetrating stab wounds and one fatal gunshot wound. Frykowski’s body exhibited 51 stab wounds and his scalp had 13 lacerations apparently inflicted with a blunt instrument; Frykowski’s body had two gunshot wounds. Parent’s body had five gunshot wounds.
There was no apparent evidence of ransacking or larceny. Jewelry and some money were found on the victims and on the premises.
THE LA BIANCA MURDERS: On August 10, 1969, F.S., the 16-year old son of Rosemary La Bianca, returned from a vacation to his home at 3267 Waverly Drive. Expecting to find his mother and stepfather, Leño La Bianca, F.S. instead discovered the dead body of Leño La Bianca. Police were summoned to the residence. Mr. La Bianca’s body was in the living room, his face covered with a blood-soaked pillow case. His hands were tied behind his back with a leather thong. A carving fork was stuck in his stomach, the two tines inserted down to the place where they divide. On Mr. La Bianca’s stomach was scratched the word “War.” An electric cord was knotted around his neck. The coroner’s examination revealed 13 stab wounds, in addition to the scratches, and 14 puncture wounds apparently made by the tines of the carving fork. A knife was found protruding from his neck.
Mrs. La Bianca’s body was found in a front bedroom. Her hands were tied with an electric cord. A pillow case was over her head and an electric cord was wound about her neck. Her body revealed 41 separate stab wounds.
There was no apparent evidence of ransacking. Except for Rosemary La Bianca’s wallet, no property appeared to be missing from the victim’s bodies or from their home.
“Death to the Pigs” was written in blood on a wall in the living room; over a door, “Rise”; and on a refrigerator door, “Healter [j/c] Skelter.”
The Conspiratorial Relationship
At trial, respondent’s evidence strongly supported a theoiy that the homicides were the product of conspiratorial relationships and activities. An enormous amount of evidence bearing on the societal association between Manson, Atkins, Krenwinkel, Van Houten and certain third persons was introduced. The scope of these relationships in terms of time and intensity is germane. While it is true that mere association with the perpetrator of a crime does not prove criminal conspiracy, it is a starting place for examination. (People v. Lewis (1963) 222 Cal.App.2d 136, 144 [35 Cal.Rptr. 1].)
The very nature of this case and the theory of the prosecution compel reference to circumstantial evidence of the conduct and relationship of the parties. People v. Kobey (1951) 105 Cal.App.2d 548 [234 P.2d 251] confirms that such reference is proper: “Virtually the only method by which a conspiracy can be proved is by circumstantial evidence—the actions of the parties as they bear upon the common design. It is not necessary to show directly that the parties actually closeted themselves, attained the proverbial meeting of the minds and agreed to undertake the unlawful acts. [Citation.] It is a familiar principle of the law that in deriving whether an agreement was unlawful the triers of the fact may consider the events that occurred ‘at or before’ or ‘subsequent’ to the formation of the agreement. From the proof of the occurrences beforehand and at the time of the agreement linked with evidence of the overt acts a jury may determine that a criminal conspiracy was formed. [Citations.] The major portion of the evidence might consist of the conversations and writings of the conspirators or it may consist of the overt acts done pursuant to the conspiracy. Such acts may establish the purpose and intent of the conspiracy and relate back to the agreement whose purpose may be otherwise enshrouded in the hush-hush admonitions of the conspirators. Whatever be the order of proof the jury has finally to determine whether the alleged conspiracy has been established.” (People v. Kobey, supra, p. 562; see also, People v. Steccone (1950) 36 Cal.2d 234, 237-238 [223 P.2d 17]; People v. Wheeler (1972) 23 Cal.App.3d 290, 307 [100 Cal.Rptr. 198]; People v. Finch (1963) 213 Cal.App.2d 752 [29 Cal.Rptr. 420].)
Sometime in 1967 Manson found his way to the Haight-Ashbury district of San Francisco. While there he became associated with young girls and women who were runaways, drop outs or otherwise disassociated with conventional society. He obtained a Volkswagen bus, collected some of his female companions, and began traveling about the country.
Ultimately, he established a commune of about 20 people at Chatsworth, California. Composed of Manson’s companions from Haight-Ashbury and others, the members were mostly young women, three of whom had young children. The group became known as the “Family” even though none were related by blood or marriage except for the mothers and children. The Family, a community unto itself, rejected conventional organizations and values of society. By August 1969 the commune included Susan Atkins, Patricia Krenwinkel, Leslie Van Houten, and two other coindictees—Charles Tex Watson and Linda Kasabian.
At Chatsworth the Family occupied portions of an established horse ranch owned and operated by George Spahn. Spahn permitted the group to live there in exchange for the young women doing certain domestic and secretarial work and the young men maintaining the ranch trucks. The Family used certain bunkhouses, and other buildings, and also maintained campsites, one of which was located in Devils Canyon (the “Waterfall”).
Without doubt, Manson was the leader of the Family. The scope of his influence ranged from the most simple to the most complex of matters. He decided where the Family would stay; where they would sleep; what clothing they would have, and when they would wear it; when they would take their evening meal; and when they would move. Additionally, he concerned himself with the structure and composition of the Family. Manson directed that the children not be cared for by their natural mothers because he believed the children should be freed of their mothers’ “ego.” He wanted the children kept out of sight because he believed they were being watched by the Black Panthers.
Manson ordered one of the male members of the Family, Paul Watkins, to get more females and bring them to him. Instructing the female members of the Family to provide sexual favors to members of the commune, and to do the same for outsiders for the purpose of recruiting new members, Manson also directed them to deny their-favors if enlistment seemed unlikely.
Manson established an elaborate system of security. At his direction female members were ordered to stand guard. Members were ordered to dye T-shirts black for use at night. Walkie talkies were set up and used to connect the different campsites on the ranch. Camouflage was used to cover some of the property. Clearly, Manson’s directions were designed to insulate the Family from the outside world.
Manson’s position of authority was firmly acknowledged. It was understood that membership in the Family required giving up everything to Manson and never disobeying him. His followers, including the coappellants, were compliant. They regarded him as infallible and believed that he was a “God man” or Christ. Family member Danny DeCarlo testified that each coappellant said that “Charlie sees all and knows all.” Kasabian was told by the others “We never question Charlie. We know that what he is doing is right.”
The Family’s willingness to follow Manson’s directions is salient to the People’s theory of the case. The establishment and retention of his position as the unquestioned leader was one of design. A fundamental method used by him to inculcate the Family with his views of life, values, and philosophy was to address them after evening meals. On these occasions Manson would do most of the talking or play his guitar and sing songs, many of which purported to cariy profound messages. Manson firmly believed these gatherings were necessary.
He frequently repeated to members of the Family (including the coappellants, collectively or individually) exhortations on the relationship between love and death. Manson’s preoccupation with the subject is vividly revealed in a statement by Manson to Paul Watkins: “In order to love someone you must be willing to die for them and must be willing to kill them, too. You must be willing to have them kill you. You must be willing to experience anything for them.”
Manson had a fascination with the Beatles and with one of their songs, “Helter Skelter” in particular. Telling the Family and others that the Beatles were speaking to him and warning of imminent conflict between the blacks and the whites, Manson gave the name Helter Skelter to a chimerical vision of a race war. To the Family, Helter Skelter meant the occurrence of a revolution started by blacks to gain control of the world to subdue the conventional establishment of the college educated, wealthy white community and power structure. These whites were referred to by Manson and his followers as “Pigs.”
Manson frequently discussed this revolution with members of the commune, describing in detail how whites would be atrociously murdered by blacks. The killings would be marked by the symbolic ritual of writing with the blood of the victims. A major theme of Helter Skelter was that Manson would lead his followers to safety during the apocalyptic event and, at its conclusion, he and the Family would emerge from this place of safety—a bottomless pit located in Death Valley—and take control of the world and restore order. Connected to the aberration of Helter Skelter was Manson’s equation of himself to Jesus Christ, his followers as the true Christians and members of conventional white society as the Romans—otherwise designated “Pigs.”
A further facet of this fantasy included Manson’s pronounced interest in death. One witness aptly testified, “Death is Charlie’s trip. It really is.” Manson spoke of Helter Skelter constantly. With the passage of time, his concern became intense. He finally proclaimed he would have to cause the revolution. There is specific evidence that Manson declared the belief that he would have to show the “nigger” how to do it. Family member Dianne Lake testified that in the summer of 1969 Manson told her “... we had to be willing to kill pigs to help the black people start revolution Helter Skelter.” In the presence of Lake and of the coappellants Manson said, “I am going to have to start the revolution.” By the summer of 1969, the time he predicted Helter Skelter would begin, he talked about it more and more. Quite obviously, a fundamental part of life in the commune entailed exposure to Manson’s obsession with Helter Skelter.
Evidence of Other Crimes
To amplify the extent of Manson’s influence on the Family, testimony of certain sexual activities was presented.
Kasabian testified that on one occasion an unidentified 16-year old girl, clad only in bikini panties, was placed in the center of a room. Many of the Family members were present, including appellants. Manson made advances to this' girl. She bit him. He struck her in the face, knocking her to the ground, and committed an act of sexual intercourse with her. He then bid the other male and female members to engage in sexual acts with the girl. Manson then directed all the members of the Family to take off their clothing and to “make love” together. They followed his directions.
Barbara Hoyt, a witness for respondent, was a member of the Family. She described an incident where she was ordered by Manson to orally copulate Juan Flynn, a frequent associate of the Family. Hoyt testified that she did not want to perform the act, but did so because she was afraid of Manson.
Relying on Evidence Code section 1101, Manson contends the above matters were highly prejudicial and erroneously admitted. We find no error. “[E]vidence of other crimes is inadmissible as regards guilt when it is offered solely to prove criminal disposition because the probative value of such evidence as to the crime charged is outweighed by its prejudicial effect. However, such evidence may be properly admissible if it is offered to prove a fact material to the charged crime and meets the general tests of relevancy as to such fact. ‘[T]he general test of admissibility of evidence in a criminal case is whether it tends logically, naturally, and by reasonable inference, to establish any fact material for the People or to overcome any material matter sought to be proved by the defense.’ [Citations.]” (People v. Durham (1969) 70 Cal.2d 171, 186 [74 Cal.Rptr. 262, 449 P.2d 198], cert. den., 395 U.S. 968 [23 L.Ed.2d 755, 89 S.Ct. 2116].)
Although the evidence concerning these events was indeed dramatic, it nevertheless reasonably tended to show Manson’s leadership of the Family, the inference being that if Manson could induce bizarre sexual activities, he could induce homicidal conduct. While the evidence is less than flattering, its prejudicial character is outweighed by its evidentiary value showing Manson’s involvement in the murders. (People v. Randolph (1970) 4 Cal.App.3d 655, 661 [84 Cal.Rptr. 559].)
Kasabian’s Testimony
The only direct evidence tying appellants to the commission of the Tate-La Bianca murders was the testimony of Family member Linda Kasabian. She testified that on the evening of August 8, 1969, at the Spahn ranch, Manson told her, “Now is the time for Helter Skelter.” He ordered her' to get a change of clothing, a knife and her driver’s license. Kasabian complied and when she returned with those articles Manson Hold her “... to go with Tex and to do what Tex told [her] to do.” She then proceeded to an automobile. Watson was standing next to the driver’s side talking with Manson. Atkins and Krenwinkel were in the back seat. Kasabian and Watson then got in the car and began to leave. At that moment Manson called for them to stop and they did. Manson went up to the car, put his head in and said, “You girls know what I mean, something witchy.” Watson then drove directly to 10050 Cielo Drive, where he stopped the car, got out and appeared to cut some overhead wires. He then turned the vehicle around and parked it. Kasabian held three knives and one gun which Watson had asked her to discard if they were stopped en route.
The car was parked and all four got out. With Watson carrying some rope, they proceeded up a hill, over an embankment or fence and into the outer premises of a private residence. A car approached towards a gate opening onto the street. As it stopped, Watson leaped forward with gun in hand. The driver said, “Please don’t hurt me I won’t say anything.” Watson shot him. Kasabian saw the driver slump over. Tex turned off the ignition.
They proceeded to the house. Watson ordered Kasabian to go to the back to look for open doors or windows. She did as directed, found none, and returned to the front of the house. Kasabian saw Watson cut a window screen. She did not, however, see anyone enter the house as Watson then told her to return to the “car” to stand lookout. She did as directed.
Within a few minutes Kasabian heard screams and the words “No, please, no” coming from the house. She ran to the house. She saw a man exiting with blood on his face. The man fell to the ground. Atkins came out and Kasabian said “Sadie, please make it stop.” Atkins replied, “It is too late.” While these remarks were being exchanged the man who had fallen got up. He was attacked by Watson who stabbed and clubbed him. Kasabian observed Krenwinkel with a knife in her hand chasing a woman. Kasabian ran back to the car Watson had parked.
Eventually Krenwinkel, Atkins and Watson returned to that car. They had blood on their clothes. Watson got behind the wheel, the others got in, and they all left. Kasabian discovered they no longer had her knife with them and that a portion of the grip of the gun was broken. It had been intact when she saw it earlier that night. In the course of traveling away from the residence Watson, Atkins and Krenwinkel changed clothes. At Watson’s direction Kasabian threw the removed clothing out of the car and later did the same with the remaining knives. The group returned to the Spahn ranch to find Manson outside waiting for them. He asked if they felt any remorse and they said no. He directed them not to talk about the event with anyone at the ranch and to get some sleep. They then retired.
After dinner on the following day, Kasabian was with appellants Krenwinkel and Van Houten at the Spahn ranch. Manson told the three women to get a change of clothes and to meet him at the bunkhouse. When they arrived there Manson, Atkins, Watson, Krenwinkel and Steven Dennis Grogan, another Family member, were present. Manson told them they were going out again that night. He said the killings of the preceding night were too messy and he was going to show them how to do it. As they all entered the car Manson gave Kasabian a leather thong. With Kasabian driving and Manson giving directions, they drove about in a random fashion, making some stops to permit Manson to check out locations for the ostensible purpose of locating victims to murder.
After driving about through a maze of roads, Manson ordered Kasabian to stop the car in front of a residence on Waverly Drive. Kasabian recognized the home as belonging to Harold True, a man known to some of the Family. She told Manson he could not go there. Manson stated he was going next door (the La Bianca residence). Manson got out and left the others. Several minutes later he returned. He said that he had tied up a man and a woman. Manson then spoke directly to Van Houten, Krenwinkel and Watson, advising, “Don’t let them know you are going to kill them.”
After the others exited, Manson got back in the car with Kasabian, Atkins and Grogan. Manson handed Kasabian a wallet, telling her he wanted to dispose of it so that it would be found by a black person who would use the credit cards. His expressed hope was that the blacks would be blamed for the crime. Leaving Van Houten, Krenwinkel and Watson at the La Bianca residence, Kasabian, Atkins, Grogan and Manson departed. They stopped at a gas' station where Kasabian hid the wallet in a restroom. Manson then drove to the beach where he spoke to Kasabian about an actor she had met. Manson gave Kasabian a small pocket knife and instructed her to kill the actor. She showed Manson the apartment house where the actor lived. Manson then gave Grogan a gun and told Grogan and Atkins to go with Kasabian into the actor’s apartment. After telling all three to hitchhike back, Manson told Atkins to go to the Waterfall when she returned. Manson then left.
Kasabian claimed she wanted to abort the suggested killing and succeeded in doing so. She testified that she purposely led the other two to the wrong apartment. Kasabian, Grogan and Atkins then started their return and arrived back at the ranch mid-morning of the next day to find Manson asleep in the parachute room.
Kasabian Immunity
From the outset of her testimony—July 27, 1970—Kasabian made it clear that she had been tendered a grant of immunity (Pen. Code, §. 1324). However, no written request for her immunity was filed with the court until August 10, 1970, after the completion of direct examination. On that date the trial judge signed the order requiring her to answer questions.
Manson, complaining that the failure to rule on Kasabian’s immunity status prior to the completion of her direct testimony constituted reversible error, relies on the following declaration in People v. Walther (1938) 27 Cal.App.2d 583, 590-591 [81 P.2d 452]: “We may assume that the district attorney has a right to arbitrarily select one of two coconspirators to whom he may tender immunity from prosecution in reward for his state’s evidence against his colleague, but such evidence is open to suspicion lest the temptation thus to escape a threatened penalty of law may result in unreliable testimony. Under such circumstances the evidence of a coconspirator should be examined with great, care. When a codefendant who is a coconspirator has been offered immunity from prosecution in reward for his testimony, the cause should be promptly dismissed against him. Otherwise, the maintenance of the action against him throughout the trial may serve to intimidate the witness and furnish an inducement for him to color his testimony.”
We do not interpret Walther as standing for an inflexible rule of law. Walther instructs that pending charges should be promptly dismissed. We therefore hold that the admissibility of testimony of a witness who has been offered immunity must turn on the facts of each case. In contrast to the Walther court, the Supreme Court confronted a similar situation with a different result in People v. Lyons (1958) 50 Cal.2d 245 [324 P.2d 556]. In Lyons, the defendant complained that his accomplices had been induced to testify untruthfully against him. Prior to testifying the accomplices had entered a plea of guilty to certain charges. The court had postponed the sentencing of the accomplices until they had testified against the defendant. The prosecution conceded that the accomplices had been induced to testify by promises of reduced sentences.
We are of the opinion that no meaningful distinction exists between testimony obtained as the result of a grant of immunity and testimony obtained as the result of a plea bargain. Both “furnish the defendant with a powerful weapon for attacking the credibility of the inherently suspect witnesses... .” (People v. Lyons (1958) 50 Cal.2d 245, 265 [324 P.2d 556].) Neither is necessarily unfair as a matter of law.
It is naive to suggest that an offer of immunity is not enticing to a witness who would otherwise be exposed to serious criminal charges. It is equally naive to suggest that the immunity should be given entirely, completely and finally without first obtaining the testimony that invited the grant of immunity in the first place. A fundamental purpose of Penal Code section 1324 is to make possible the prosecution of criminal conspiracies. (People v. Pineda (1973) 30 Cal.App.3d 860, 866-868 [106 Cal.Rptr. 743].)
Authority cited in support of appellants’ contention is not applicable. The evidence does hot show that Kasabian was offered immunity on the condition that her testimony produce a conviction (see People v. Green (1951) 102 Cal.App.2d 831, 834-835 [228 P.2d 867]) nor does it show that the trial judge or anyone else gave Kasabian reason to believe that her testimony must conform to certain statements that she made to any law enforcement officers. (See Rex v. Robinson (1921) 30 B.C. 369 [70 D.L.R. 755]; People v. Medina (1974) 41 Cal.App.3d 438, 452-455 [116 Cal.Rptr. 133].) There is absolutely no evidence that the offer of immunity to Kasabian was conditioned on anything other than her testifying fully and fairly about her knowledge of the Tate-La Bianca murders. Her testimony was properly admitted.
Collaterally, Manson points out that prior to calling Kasabian as a witness, she was interviewed by the prosecution. From that he invites the conclusion that her testimony is nothing more than a script written by respondent. The fact of her interview is hardly startling. Common sense generally compels lawyers to interview witnesses prior to calling them. Pragmatic lawyers do not call witnesses unless they expect favorable testimony. Manson was not denied a fair trial by reason of the interview.
Competency of Kasabian
Prior to Kasabian’s testimony Manson moved to have her examined by a court-appointed psychiatrist to determine her competency. The motion was supported by declarations asserting that Kasabian had used LSD in substantial amounts and over a period of several years. The declaration of A. R. Tweed, M.D., was also attached. Doctor Tweed identifies himself as a psychiatrist; his declaration renders the opinion that habitual long term use of LSD can affect an individual’s ability to perceive and otherwise adversely affect mental orientation and declares that a psychiatric examination of Kasabian “would be an important tool to evaluate” her mental status and ability “to give a picture as undistorted as possible.” The court denied Manson’s application to have Kasabian examined and permitted the witness to testify. By her own admission Kasabian had used LSD approximately 50 times since 1965. She used other hallucinogenics as well. However, she testified that, with one possible exception, she did not use any LSD or other hallucinogenic between May and August, 1969. She admitted to the use of marijuana during this period.
Relying on Ballard v. Superior Court (1966) 64 Cal.2d 159 [49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416], Manson and his co-defendants reasserted their demand that Kasabian be examined by a court-appointed psychiatrist. Each time the motion was made it was denied.
To clarify the issue we note that appellants’ contention has two parts: (1) that Kasabian was incompetent because she was so disabled by the use of LSD that she could not perceive that about which she purported to testify; and (2) that the use of LSD had so disabled Kasabian’s mind that her testimony was not credible.
The trial court is vested with the responsibility to determine competence (People v. Blagg (1970) 10 Cal.App.3d 1035, 1039 [89 Cal.Rptr. 446]) by the standard found in Evidence Code sections 700-702. Here our main concern is with Evidence Code section 702 that “the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. [If] A witness’ personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.”
The code requirement of “personal knowledge” includes the capacity to perceive accurately and the capacity to recollect what has been perceived. (Jefferson, Cal. Evidence Benchbook (1972) § 26.2, p. 351.) This standard points to two time frames: (1) the time of perception; (2) the time of recollection. In the instant case there was no evidence that Kasabian was under the influence of any hallucinogenic at the time of the critical events about which she testified or at the times she testified. Notwithstanding Dr. Tweed’s declaration concerning the possible affects and delayed reactions—flashbacks—that attend the use of LSD, the record does not support a disqualification of the witness under the Evidence Code as a matter of law. While the impeaching effect of her use of hallucinogenics was properly placed before the jury, her competence to be a witness was a question properly resolved by the court. (United States v. Barnard (9th Cir. 1973) 490 F.2d 907, 912, cert. den., 416 U.S. 959 [40 L.Ed.2d 310, 94 S.Ct. 1976]; People v. McCaughan (1957) 49 Cal.2d 409, 420 [317 P.2d 974].)
Appellants reliance on Ballard v. Superior Court, supra, is misplaced. Ballard and its progeny provide for appointment of a psychiatrist to examine a prosecuting witness in a sex offense case to ascertain credibility. The procedure, which may result in the psychiatrist testifying to give his opinion concerning the veracity of the witness, is applicable to the subject of impeachment and not to competency. Whether or not a psychiatrist is appointed is a matter within the sound discretion of the trial court. (People v. Russel (1968) 69 Cal.2d 187, 195 [70 Cal.Rptr. 210, 443 P.2d 794].)
The nature of the charges in this case is such that psychiatric testimony for purposes of impeachment would be extraordinary. “In cases not involving sex offenses California courts usually reject attempts to impeach a witness by means of psychiatric testimony.” (People v. Johnson (1974) 38 Cal.App.3d 1, 6-7 [112 Cal.Rptr. 834].) While we do not suggest that Ballard is necessarily limited to cases involving sex offenses, we here accept the admonition “[that a] psychiatrist’s testimony on the credibility of a witness may involve many dangers: the psychiatrist’s testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between the psychiatrist and the jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify issues; the testimony may be distracting, time-consuming and costly.” (People v. Russel, supra, 69 Cal.2d at p. 195, fn. 8.)
The trial court’s denial of the motion for psychiatric examination was proper. In 18 days of examination Kasabian testified clearly and comprehensibly. Her descriptions were not unclear and her demeanor was candid. Her testimony in its entirety demonstrates her competency. (People v. Pike (1960) 183 Cal.App.2d 729, 732 [7 Cal.Rptr. 188].) We find no error.
Corroboration
Kasabian’s description of her involvement in the Tate-La Bianca murders would have justified her prosecution for those offenses. Accordingly, the trial court properly characterized her as an accomplice as a matter of law. Consequently, Kasabian’s testimony must be corroborated with respect to each appellant. (Pen. Code, § 1111.)
The character and nature of corroborative evidence may be very general and may vaiy according to the circumstances of each case. (People v. Luker (1965) 63 Cal.2d 464, 469 [47 Cal.Rptr. 209, 407 P.2d 9].) On the other hand, the standard by which the sufficiency of such evidence is determined has been repeatedly articulated. In People v. Hathcock (1973) 8 Cal.3d 599, 617 [105 Cal.Rptr. 540, 504 P.2d 476], the Supreme Court succinctly stated that standard as follows: “ ‘The evidence required for corroboration of an accomplice “need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged.” [Citations.] Moreover, evidence of corroboration is sufficient if it connects defendant with the crime, although such evidence “is slight and entitled, when standing by itself, to but little consideration.” [Citations.]’ ”
Commonly a defendant’s own statements and admissions are found to be sufficient corroboration to support the testimony of an accomplice. (People v. Negra (1929) 208 Cal. 64, 69 [280 P. 354].) This case is no exception. Although appellants’ admissions and declarations are not the exclusive corroborative evidence, they are the most substantial. Appellants have asserted various grounds of reversible error with respect to some of this corroborative evidence. These evidentiary objections are here considered in their substantive context with respect to each appellant.
MANSON CORROBORATION — ITEM 1: Among the circumstances implicating Manson in the Tate-La Bianca murders are his frequently proclaimed prophesies of Helter Skelter. Predicting a war started by blacks “ripping off” white families in their homes, Manson stated that “Blackie” (the blacks) would revolt against and kill the “Pigs” (the white establishment). From 1968 through the summer of 1969 Manson told various people about Helter Skelter and what it entailed.
Family member Barbara Hoyt testified that between April and September 1969 Manson spoke of Helter Skelter frequently. He said Helter Skelter “... was coming down fast” and that he “would like to show the Blacks how to do it.”
Dianne Lake testified that in June, July and August of 1969 Manson stated to various members of the commune, including coappellants, that they “had to be willing to kill pigs to help the black people start the revolution ‘Helter Skelter’.” During the summer of 1969, Manson repeatedly stated that he would have to start the revolution.
Another witness testified that in July 1969 Manson told him: “ ‘Well, I have come down to it, and the only way to get going is to show the black man and the pigs is to go down there and kill a whole bunch of these fuckin’ pigs.’ ”
Paul Watkins, testifying that Manson told him Helter Skelter would start in the summer of 1969, described Manson’s plan: “[T]here would be some atrocious murders; ... some of the Spades from Watts would come up into the Bel-Air and Beverly Hills District and just really wipe some people out, just cut bodies up and smear blood and write things on the wall in blood, and cut little boys up and make the parents watch. All kinds of just super-atrocious crimes that really would make the white man mad.” Manson told Watkins the deeds would precipitate a retaliation by whites who would shoot “black people like crazy;” ultimately Muslims would appear and shame the white people for their reaction. The blacks would murder the whites by “sneaking around and slitting their throats.” According to Watkins, Manson declared that “He had to bring [Helter Skelter] down.” Significantly, Manson’s description of the killings to occur during Helter Skelter included the writing of the word “Pig” on walls or otherwise smearing walls with the blood of the victims.
Where the identity of the accused is in issue, his prior conduct may, under proper circumstances, be admitted to prove intent, motive or knowledge of a particular plan and scheme that reasonably tends to connect him to the crime in question. (Evid. Code, § 1101, subd. (b).) The testimony of these several witnesses tends to confirm that Manson was the originator and purveyor of a warped fantasy. The consistency of the statements reveals an intense obsession on Manson’s part to see the fulfillment of his prediction. The similarity between the Helter Skelter prophesy and the manner in which the Tate-La Bianca murders occurred is sufficiently great to be characterized as strong circumstantial evidence to corroborate the testimony of Kasabian. (People v. Alcalde (1944) 24 Cal.2d 177 [148 P.2d 627]; People v. Wilt (1916) 173 Cal. 477 [160 P. 561].)
Manson argues that the statements of intent to do a future act were not directed against the victims of the crimes with which he was charged and that it was therefore error to admit them. A similar contention has been rejected by our Supreme Court. It is only necessary that the threats show “some connection with the injury inflicted on the deceased.” (People v. Wilt, supra, 173 Cal. at p. 482.)
The declarations of intent attributed to Manson are admittedly general. However, his declarations to foment bloodshed, even without specific reference to a particular victim, are relevant because the actual method and manner of the killings substantially conformed to Manson’s predictions. The indefiniteness of a threat is not necessarily an obstacle to its admission if there is sufficient collateral evidence to bring the ultimate victims within the generic class of the subject of the threat. (People v. Craig (1896) 111 Cal. 460, 466 [44 P. 186]; State v. Presley (1973) 110 Ariz. 46 [514 P.2d 1234, 1235]; 1 Wigmore on Evidence, § 106; 40 C.J.S., Homicide, § 206(c), pp. 1110-1111.) Here, even though Manson’s declarations never included a specific threat against the victims of the Tate-La Bianca murders, they, in fact, came within his generic threats and were properly admitted.
Moreover, the declarations were properly admitted as evidence of the particular method and mode by which a crime was to be committed in the future. They were relevant to the issue of motive and knowledge which in turn tends to prove identity. (See People v. Neal (1950) 97 Cal.App.2d 668, 673 [218 P.2d 556].)
Manson’s pronouncements pertaining to Helter Skelter are proper corroboration of Kasabian’s testimony. Even slight and circumstantial evidence which, standing alone, would be insufficient for conviction and entitled to little consideration, will serve to corroborate an accomplice. (People v. Simpson (1954) 43 Cal.2d 553, 563 [275 P.2d 31]; People v. Wayne (1953) 41 Cal.2d 814, 822 [264 P.2d 547]; People v. Claasen (1957) 152 Cal.App.2d 660, 664 [313 P.2d 579].) The probative value of this evidence to corroborate Manson’s participation in the murders outweighed any undue prejudice; it was properly admitted in accordance with Evidence Code section 1101, subdivision (b). (People v. Beamon (1973) 8 Cal.3d 625. 632-633 [105 Cal.Rptr. 681, 504 P.2d 905].)
MANSON CORROBORATION — ITEM 2: Juan Flynn was a witness for the prosecution. He testified that he lived at Spahn ranch, earning his room and board as a laborer. While there he met Manson and the other members of the commune. Flynn did not become a member of the Family but did frequently associate with its members on an intimate basis. Flynn testified that Manson admitted to him that he was “doing all [the] killings.” This testimony was limited to Manson only.
On August 18, 1970, prior to testifying at this trial, Flynn had given a statement to the Los Angeles Police Department. Appellants were provided with a 16-page report of that interview. The report did not refer to the foregoing incident and admission. Sometime before Flynn’s testimony, appellants were, however, provided with a later written communication revealing Manson’s admission as quoted above. Flynn’s prior inconsistent statement omitting reference to Manson’s admission was used to impeach Flynn’s subsequent testimony including the admission.
In an attempt to rehabilitate Flynn, respondent called David Steuber, a California highway patrolman. Steuber testified that he interviewed Flynn on December 19, 1969, at Shoshone, California, and that he recorded the interview. The recording, produced in court, includes a statement by Flynn substantially similar to his in-court testimony concerning Manson’s admission. Ultimately, the critical portion of the Steuber tape was played for the jury.
Before the jury heard the tape appellants made strenuous objections on several grounds, all of which were overruled. Manson now assigns as reversible error the admission of the Steuber tape.
There is no disagreement that Flynn’s failure to reveal this critical admission when interviewed by the Los Angeles Police Department raised the specter of recent fabrication. It is elementary that recent fabrication may be inferred when it is shown that a witness did not speak about an important matter at a time when it would have been natural, for him to do so. When that inference does arise, it is generally proper to permit rehabilitation by a prior consistent statement. “Different considerations come into play when a charge of recent fabrication is made by negative evidence that the witness did not speak of the matter before when it would have been natural to speak. His silence then is urged as inconsistent with his utterances at the trial. The evidence of consistent statements at that point becomes proper because ‘the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story.’ ” (People v. Gentry (1969) 270 Cal.App.2d 462, 473 [76 Cal.Rptr. 336].)
Respondent asserts that the Steuber tape was admissible pursuant to Evidence Code section 1236. Manson argues that section 1236 is inapplicable because the witness was shown to have a bias or motive for fabrication before the time of the prior consistent statement. (Evid. Code, § 791, subd. (b).)
The predicate for Manson’s assertion turns on collateral facts. On August 16, 1969, Spahn ranch was raided by the Los Angeles County Sheriff’s office in connection with suspected criminal activity involving the theft of dune buggies. The raid resulted in a number of people, including Flynn, being arrested. On cross-examination Flynn was asked whether or not he was mad at Manson because of this incident. Flynn answered that he believed Manson and the Family were responsible for the raid but that he did not blame Manson. Additionally, Flynn testified that he worked off and on as an actor. On cross-examination Flynn was asked if he was testifying in order to obtain fame, the clear insinuation being that Flynn was cooperating as a prosecution witness in order to advance his own theatrical ambitions. Flynn denied that suggestion. Manson’s argument turns more on the insinuation of the questions than on any of Flynn’s testimony. The questions, and not Flynn’s answers, suggest that Flynn developed a bias as a result of his being arrested on August 16, 1969.
Appellant’s argument fails because it ignores the fact that Evidence Code section 791 has two parts. Subdivision (a) permits evidence of a prior consistent statement to rehabilitate a witness impeached by a statement contrary to his trial testimony while subdivision (b) allows the prior consistent statement to rehabilitate after an express charge or implication of recent fabrication or of bias. Whether or not subdivision (b) of Evidence Code section 791 is applicable is of no consequence to the application of subdivision (a) of that section. Even if it is assumed the Steuber tape postdated the inception of any bias or motive to fabricate on the part of Flynn, that fact would only bear on its introduction within the circumstances described in subdivision (b) of section 791. It certainly would not preclude application of subdivision (a) of section 791 and the introduction of the Steuber tape predating the August 16, 1970, interview. The statement was properly admitted. (Cf. People v. Duvall (1968) 262 Cal.App.2d 417, 420-421 [68 Cal.Rptr. 708]; People v. Walsh (1956) 47 Cal.2d 36, 41-43 [301 P.2d 247].)
An additional complaint about the Steuber tapes is based on Manson’s assertion that the prosecution failed to comply with a discovery order. The contention lacks merit. The prosecution, claiming it first learned of the Steuber interview during the course of Flynn’s cross-examination, represented that it had no contact with Steuber or the District Attorney of Inyo County for whom Steuber was acting until after Flynn was under cross-examination. The deputy district attorney offered to be sworn and to testify to that fact.
Furthermore, appellant had. the opportunity to cross-examine both Steuber and the District Attorney of Inyo County and thus to discover the circumstances by which the representatives of Los Angeles County came into possession of the Steuber tapes. Having foregone the opportunity to ascertain whether or not the “Steuber tape” was known to the prosecution in advance of trial, Manson cannot now successfully claim a violation of the discovery order. There is simply a void in the evidence that appellant did nothing to fill even with the opportunity to do so.
Another contention made by Manson with respect to the introduction of the Steuber tape is that the tape was “suppressed.” Suppressed evidence is that evidence favorable to the defendant which the prosecution fails to disclose prior to or during trial. (People v. Ruthford (1975) 14 Cal.3d 399, 406 [121 Cal.Rptr. 261, 534 P.2d 1341].) In this case, Flynn’s testimony concerning Manson’s admission was made known to appellant before trial. Delay in producing the tape itself until after trial commenced does not transform Flynn’s testimony into “suppressed” evidence.
Three other evidentiary complaints that Manson asserts concerning Flynn’s testimony must be discounted.
Flynn’s testimony concerning threats on his life, relevant to his state of mind and credibility, was properly admitted despite Manson’s assertion to the contrary. The threats tend to explain Flynn’s delay in relating some of his trial testimony. While it is generally true that a defendant cannot be held accountable for threats made against witnesses without his consent or authority (People v. Terry (1962) 57 Cal.2d 538, 565-566 [21 Cal.Rptr. 185, 370 P.2d 985]), here the court admonished the jury to consider Flynn’s testimony “... solely as to what this witness’ state of mind may have been with respect to relating to law enforcement persons the substance of the matters covered by his testimony in this trial. This testimony is not to be considered for any purpose with regard to Mr. Manson, that is, his testimony on these conversations.” The admonition removed the impediment to such testimony since Manson was not held accountable for it.
Another aspect of Flynn’s testimony drawing charges of error was his statement that on one occasion Manson said, “Well, why don’t we go in there and tie them up and cut them to pieces.” Referring to occupants of a house with whom Flynn was acquainted, Flynn’s testimony was in response to a question concerning a conversation Flynn had with Manson about the epithet “pig.” The question was asked on cross-examination after the subject was raised on direct. Consequently, inquiry and response were proper. (Evid. Code, § 356; Long v. Cal. Western States Life Ins. Co. (1955) 43 Cal.2d 871, 881 [279 P.2d 43].) Even so, at the insistence of appellants’ counsel, the court admonished the jury to disregard the declaration attributed to Manson. No prejudice resulted.
Flynn testified that on one occasion he saw Manson fire a handgun, and he identified an exhibit otherwise identified as one of the murder weapons as being that gun. Flynn’s testimony indicated that Manson fired the gun at or in the direction of Flynn and a third person. Manson cites the receipt of this testimony as prejudicial error. We disagree. Manson’s use of the handgun is circumstantially relevant. It tends to connect him to one of the instruments of the Tate murder. The court admonished the jury to disregard Flynn’s testimony insofar as it pertained to Manson’s target. That admonition was sufficient and there was no error.
MANSON CORROBORATION — ITEM 3: The handgun introduced in evidence as People’s Exhibit 40 was a weapon to which Manson had access. Consistent with Kasabian’s testimony concerning the use of a gun by Watson to strike Frykowski on the head, pieces of a righthand pistol grip were found at the Tate residence. These pieces fit People’s Exhibit 40. While there is no contention that Manson was at the Tate residence, evidence that a weapon used by him was a weapon used in the Tate murders has some probative value in demonstrating a relationship between him and the event. (People v. Buono (1961) 191 Cal.App.2d 203, 220 [12 Cal.Rptr. 604]; People v. Channell (1951) 107 Cal.App.2d 192, 197 [236 P.2d 654].)
MANSON CORROBORATION — ITEM 4: It is uncontradicted that prior to August 1969, Manson was acquainted with the Cielo Drive residence and with the home of Harold True adjoining the La Biancas’ home on Waverly Drive. Even though no homicide occurred in True’s residence, the circumstance that Manson was familiar with both general locations is susceptible to an interpretation exceeding mere coincidence. “The state of mind' of a person is a fact to be proved like any other fact when it is relevant to an issue in the case; and when knowledge of a fact has important bearing upon the issues, evidence is admissible which relates to the question of the existence or nonexistence of such knowledge, [citations].” (Larson v. Solbakken (1963) 221 Cal.App.2d 410, 418 [34 Cal.Rptr. 450].)
MANSON CORROBORATION — ITEM 5: The fact that Leño La Bianca’s hands were tied with leather thongs is circumstantially probative. Several witnesses testified that Manson frequently wore such thongs around his neck and in November of 1969 leather thongs were recovered from Manson’s clothing.
AGGREGATE OF MANSON CORROBORATION: In the aggregate, the evidence is more than sufficient. “Although the corroboration must connect the defendant with the commission of the offense, it ‘may be slight and entitled to little consideration when standing alone.’ [Citation.] The requisite corroboration may be provided by circumstantial evidence.” (People v. Valerio (1970) 13 Cal.App.3d 912, 923 [92 Cal.Rptr. 82].)
In addition to Manson’s admissions, his relation to the Buntline revolver (Exh. 40), his familiarity with the locations of the crimes, and. his habit of having on his person the same kind of material used to bind one of the victims are, in the aggregate, circumstantial evidence corroborating the testimony of Kasabian. (People v. Henderson (1949) 34 Cal.2d 340 [209 P.2d 785].)
CORROBORATION—ATKINS, KRENWINKEL, VAN HOUTEN: An important part of the evidence produced to corroborate accomplice testimony against Atkins, Krenwinkel and Van Houten consisted of their independent admissions and declarations. These are summarized as follows:
(1) Atkins—After her arrest and while incarcerated at Sybil Brand Institute awaiting trial, Atkins confided in two other inmates concerning her participation in the Tate murder. These inmates, Virginia Graham Castro and Roni Howard, informed the law enforcement agencies of the admissions. Another inmate, R.W., testified that she and Atkins listened to a broadcast concerning the Tate and La Bianca murders. Atkins commented on the broadcast, “That ain’t the way it went down.” In addition to the statements made to fellow inmates, Atkins wrote several letters inculpating herself in the Tate-La Bianca murders. Of these, three were marked and admitted into evidence. Finally, Family member Barbara Hoyt was allowed to testify that she overheard Atkins say that Sharon Tate was the last to die.
(2) Krenwinkel—Through the testimony of Dianne Lake, the jury was informed that Krenwinkel.admitted she “had dragged Abigail Folger from the bedroom to the living room.”
(3) Van Houten—Dianne Lake testified that Van Houten told her that she had participated in the stabbing of a dead body. The substance of the testimony implies that Van Houten participated in the La Bianca murders.
The jury was instructed that these enumerated admissions were admissible only as to each respective declarant.
With respect to coappellants Krenwinkel and Atkins, there is corroboration beyond their admissions and declarations. Krenwinkel’s fingerprint was found at the Tate residence. As to her, that is sufficient corroboration by itself. (People v. Ray (1962) 210 Cal.App.2d 697, 703 [26 Cal.Rptr. 825].)
Discarded clothing found by a witness in the vicinity of Cielo Drive was examined for blood and other evidence. A chemist testified that not all the stains were capable of interpretation; he was, however, able to positively identify the stains on one item as human, blood type B. Folger, Fiykowski and Parent had blood type B. Human hair was found on another of the items. Compared with Atkins’ hair, testing showed similarities in terms of color, length and medullary characteristic. While the location of clothes with bloodstains in the vicinity of Cielo Drive only substantiates Kasabian’s testimony, the identification of hair similar to Atkins’ hair on that clothing provides corroboration within the meaning of Penal Code section 1111 as to Atkins. The weight given to such evidence is for the jury. (See People v. Carr (1972) 8 Cal.3d 287, 292 [104 Cal.Rptr. 705, 502 P.2d 513]; 31 Am.Jur.2d, Expert and Opinion Testimony, § 129.)
Krenwinkel was ordered by the court to provide exemplars of her handwriting. On the advice of counsel, she refused. Evidence of her refusal was admitted against Krenwinkel. Obviously the purpose of this procedure focused on the writings in blood at the scenes of the homicides. The refusal to give a handwriting exemplar tends to show a consciousness of guilt and is both corroborative and independently probative. (People v. Hess (1970) 10 Cal.App.3d 1071, 1076-1077 [90 Cal.Rptr. 268, 43 A.L.R.3d 643].)
Other evidence included the fact that Van Houten, Krenwinkel and Atkins gave false names when they were arrested. The use of an alias is circumstantial evidence of consciousness of guilt. It is therefore relevant and corroborative of Kasabian’s testimony. (People v. Perry (1972) 7 Cal.3d 756, 775-776 [103 Cal.Rptr. 161, 499 P.2d 129]; People v. Olea (1971) 15 Cal.App.3d 508, 515 [93 Cal.Rptr. 265]; Pen. Code, § 1127c.)
Krenwinkel also contends there is no corroborative evidence to connect her with the commission of the La Bianca murders. She erroneously presumes her implication in the Tate murders is not corroborative within the meaning of Penal Code section 1111. The fact that these crimes occurred on successive dates and in a significantly similar way is very probative. It is a circumstance of corroborative nature properly considered by the trier of fact. (People v. Robinson (1960) 184 Cal.App.2d 69, 77 [7 Cal.Rptr. 202]; People v. Wilson (1926) 76 Cal.App. 688, 694-695 [245 P. 781].)
Aranda-Bruton
Relying on People v. Aranda (1965) 63 Cal.2d 518 [47 Cal.Rptr. 353, 407 P.2d 265] and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620], all appellants assign error to the admission into evidence of the declarations of Atkins, Krenwinkel and Van Houten.
When the prosecution is in possession of a declaration inculpating not only the declarant but another nondeclaring codefendant, Aranda commands an election from among three procedures: (1) a severance of the nondeclarant codefendant to permit him a separate trial; (2) editing a declaration to delete all matter inculpating the nondeclarant; or, (3) exclusion of the entire declaration if the case is to proceed as a joint trial and there is no reasonable way to edit the declaration to delete the inculpating material. Bruton expanded the Aranda holding to constitutional dimensions.
When Atkins’, Krenwinkel’s and Van Houten’s admissions were offered, the court conducted evidentiary proceedings, editing the admissions and eliminating references to coappellants and Watson. As submitted to the jury, the declarations read in the first person.
After each admission the jury was instructed to consider the admission only as to the particular declarant to whom it was attributed. Consequently, we find no error in the procedure followed. These admissions, the testimony of Linda Kasabian, and items of physical evidence sufficiently and independently linked each appellant to the commission of the crimes charged. That connection is sufficient to discount any claim of error regarding admission of the edited statements. We find no case suggesting “that it is Bruton or Aranda error to admit in evidence the admission or confession of one defendant, which reflects his commission of a crime that is revealed by the physical evidence, because it might reflect on the issue of whether or not a crime was actually committed by not only the declarant but also by another, whom evidence, other than the confession, links to the declarant’s activities. In fact Aranda suggests the contrary. It suggests that if references to the participation of anyone else, whether directly or indirectly identified or not, are nonexistent, or are deleted, the trial may be joint, and the extrajudicial statement may be received as against the declarant... .” (People v. Epps (1973) 34 Cal.App.3d 146, 157 [109 Cal.Rptr. 733]; see also, People v. Romo (1975) 47 Cal.App.3d 976, 984 [121 Cal.Rptr. 684].)
We recognize appellants’ contention that the theory of the prosecution is in large part dependent upon evidence pertaining to the life style and communal organization of these people. In opposing the introduction of the admissions, counsel for Krenwinkel eloquently argued that to admit them would be highly prejudicial because other evidence made it clear that these people ate together, slept together, had sex together, and functioned as a unit so that identification of one amounted to identification of all. This argument misses the point.
The issue is whether or not the declaration of one connects 'a nondeclarant to the crime in question. The problem confronted by Aranda and Bruton is typically the case where the only evidence linking the nondeclarant codefendant is the admission of his accomplice. Here all appellants are linked to the crimes by the testimony of Kasabian. Over and above Kasabian’s testimony there is the substantial corroborating evidence discussed above. Because each admission was edited to delete any explicit reference to anyone other than the declarant, none was made inadmissible by reason of circumstantial implications that might be drawn by the jury.
Concluding that introduction of the declarations of appellants did not violate the mandate of Aranda or Bruton, we note also that, in any event, if error did occur, it was harmless beyond a reasonable doubt. (Brown v. United States (1973) 411 U.S. 223, 231 [36 L.Ed.2d 208, 215, 93 S.Ct. 1565]; Harrington v. California (1969) 395 U.S. 250 [23 L.Ed.2d 284, 89 S.Ct. 1726].)
Sufficiency of the Evidence
The testimony of Kasabian and the evidence offered in corroboration thereof, if believed by the jury, is sufficient to support the verdicts of guilty as to each appellant. (People v. Tewksbury (1976) 15 Cal.3d 953, 962 [127 Cal.Rptr. 135, 544 P.2d 1335]; People v. Bynum (1971) 4 Cal.3d 589, 599 [94 Cal.Rptr. 241, 483 P.2d 1193].)
Manson’s assignment of error to the trial court’s denial of his motion made pursuant to Penal Code section 1118.1, unsupported by argument or citation of authority, is frivolous.
Confidential Status of Incriminating Admission
After her arrest Atkins was incarcerated at Sybil Brand Institute. In accordance with regulations adopted and enforced by the Los Angeles County Sheriff all incoming and outgoing mail was opened, examined and censored. Four letters written by Atkins thus came into respondent’s possession; at trial, three were admitted against her and they now form the basis of a contention that their seizure was a violation of her rights under the First and Fourteenth Amendments of the federal Constitution. Her contention is without merit.
The real issue raised by Atkins is not her surface objection to censorship but rather that her mail was turned over to the prosecuting authority in the present case, the District Attorney of Los Angeles County. She suggests this constitutes an unlawful seizure of evidence against her. Compelling authority demands a contrary conclusion.
“ ‘A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment.... Officials in charge of prisoners awaiting trial may censor their mail, regulate communications between them and outsiders and under certain circumstances forbid communications between such prisoners and certain classes of visitors. [Citations.]’ ” (People v. Dinkins (1966) 242 Cal.App.2d 892, 902-903 [52 Cal.Rptr. 134].) The majority of jurisdictions permit the admission of mail authored by unconvicted prisoners if it is obtained by means of routine mail censorship. (Annot. Prisoners—Censored Mail as Evidence 52 A.L.R.3d 553.) Here the record supports a conclusion that the aforementioned exhibits were lawfully obtained. They were therefore properly admitted.
Kasabian’s Testimony Irrelevant, Inherently Improbable, Logically Irrelevant
Manson asserts that Kasabian’s testimony must be disregarded on the grounds that it is irrelevant, inherently improbable and logically ambiguous. This sweeping condemnation is made even broader by reason of the numerous aspects of Kasabian’s testimony included in this categorical assignment of error. For the most part Manson’s complaint is best described as specious quibbling over extrinsic and speculative issues. These assignments of error are nothing more than conflicts in the evidence. Such conflicts are to be resolved by the trier of fact. “The moral certainty which the law in its humanity exacts before upholding the conviction of a man charged with crime does not exclude every speculative and fanciful possibility... .” (People v. Ah Sun (1911) 160 Cal. 788, 791 [118 P. 240].)
Manson’s assertion that Kasabian’s testimony is inherently improbable is without merit. Objections based on the theory of inherent improbability place a substantial burden on the objector. (People v. Thornton (1974) 11 Cal.3d 738, 754 [114 Cal.Rptr. 467, 523 P.2d 267], cert. den., 420 U.S. 924 [43 L.Ed.2d 393, 95 S.Ct. 1118].) Manson fails to meet that standard. Kasabian testified to nothing that was physically impossible or false on its face. (See People v. Huston (1943) 21 Cal.2d 690, 693 [134 P.2d 758].)
The contentions of ambiguity and logical irrelevancy are inapplicable. Manson invites us to discount all of Kasabian’s testimony by reading it without reference to the entire record and by focusing on some conflicts in her descriptions. This we cannot do. “Circumstances which, taken singly, seem to afford no logical inference as to the issue, may when considered with other circumstances give rise to such an inference. Thus the test of relevancy must not be too strictly applied to a single question asked of a witness or to any other single item of evidence. ‘The theory upon which evidence of circumstances is admitted ... is not that each circumstance stands flawless in its proof of the ultimate fact, but that each certain circumstance- has a relation to and points reasonably to the fact sought to be proved.’ ” (Witkin, Cal. Evidence (2d ed. 1966) § 313 (3), p. 276.)
We have reviewed each of the items catalogued by Manson as irrelevant, inherently improbable, ambiguous or logically irrelevant. We totally disagree with his contentions and find them too devoid of merit to justify particularized discussion of each one.
Prejudicial Admission of Evidence
On direct examination Kasabian was asked what induced her to go to the Spahn ranch in the first place. In her answer she referred to what she had been told by another member of the commune, Catherine Louise Share, known as Gypsy. Kasabian testified that Gypsy had.. told me that there was a beautiful man that we had all been waiting for, and that he had been in jail for quite a number of years... .” Manson’s attorney objected and moved for a mistrial.
Although the motion was denied, the jury was admonished “to disregard Mrs. Kasabian’s remark about anybody having spent any time in jail.” Manson’s claim of error is therefore misplaced. Moreover, during cross-examination of Family member Brooks Posten, Manson’s attorney elicited testimony revealing that Manson had a parole officer. Both the admonition and the allusion to circumstances indicating his prior status as a convict purge Kasabian’s reference to jail of any prejudicial effect.
A similar assignment of error is made by Manson with respect to Kasabian’s allusion to Manson’s use of LSD. On direct examination, and without objection, Brooks Posten testified to an occasion when Manson was under the influence of Psilocybin. On cross-examination, and without objection, Posten stated that Manson favored LSD. Paul Watkins testified without objection to another occasion when Manson was “... on an acid trip.”
The occasions to which these witnesses referred involved times when Manson alluded to himself as a Christ figure. This self-characterization was a part of respondent’s evidence in support of its contention that Manson was the leader of the Family. Manson’s state of mind and his appearance on these occasions is therefore relevant. At the least it was germane to show whether or not Manson’s statements were consciously made or seriously entertained. In any event, this testimony came in without objection thereby foreclosing any claim of error on this appeal. (Evid. Code, § 353, subd. (a).) Furthermore, evidence elicited by all sides made it perfectly clear that hallucinogenics were used at Spahn ranch.
Post La Bianca Homicide Conduct
Complaining about Kasabian’s testimony concerning his statement directing Kasabian to kill an actor, Manson contends it was inadmissible hearsay. According to Kasabian this direction was given within hours after she, Manson, Atkins and Grogan had retreated from the La Biancas’ residence.
Disposition of this contention of error occurs when the case of People v. Leach (1975) 15 Cal.3d 419 [124 Cal.Rptr. 752, 541 P.2d 296] is contrasted to the case at bench. In Leach our Supreme Court made clear the rule that extrajudicial declarations of a coconspirator offered for the truth of the matters stated are inadmissible if the declarations are made after the termination of the conspiracy. Here the rule of Leach is inapplicable.
The conspiracy in which appellants were engaged was broader than the substantive crime of murder. Circumstantial evidence proves the overriding purpose of appellants and their coindictees—the fomentation of the race war Manson characterized as Helter-Skelter. Boundaries of a conspiracy are not limited by the substantive crimes committed in furtherance of the agreement.
Here the conspiracy amounted to fulfillment of Manson’s prophecy. The characterization of Helter Skelter as a fanatical fantasy is of no consequence. (United States v. Bryant (N.D.Tex. 1917) 245 F. 682, 684; Blumenthal v. United States (1947) 332 U.S. 539, 556-557 [92 L.Ed. 154, 167-168, 68 S.Ct. 248]; Perkins on Criminal Law (2d ed. 1969) p. 635.) The gist of the conspiracy was the comprehended common design, however bizarre and fanciful. It is not necessary that the object of the conspiracy be carried out or completed. (People v. Bedilion (1962) 206 Cal.App.2d 262, 271 [24 Cal.Rptr. 19].) The corollary of that proposition is that the conspiracy continues until it is accomplished or abandoned. It is obvious that Helter Skelter was never realized and the conspiracy remained pending. Leach is accordingly inapplicable—the conspiracy had not terminated.
We further distinguish Leach on the ground that Manson’s declarations were not offered for the truth of their contents. Since the statements were not hearsay, the coconspirator exception of Evidence Code section 1223 is inapplicable. Despite a belief to the contrary by the trial court, relevance was not at all dependent upon the truth of the matter stated. The relevancy of Manson’s orders to kill exists in the revelation of the nature of the conspiracy. (People v. Lewis (1963) 222 Cal.App.2d 136, 144 [35 Cal.Rptr. 1].)
Evidentiary Implication of Gestures and Self-Inflicted Marks
Appellants were more than passive participants in their trial. On numerous occasions they spoke out, interrupting the proceeding by commenting and gesturing to each other and third persons, including witnesses. As a result, the prosecution called Detective Sergeant Manuel F. Gutierrez of the Los Angeles Police Department. Testifying that he was in the courtroom during the trial, Gutierrez described a specific incident observed by him. While Kasabian was testifying Manson looked at her, “... took his right index finger from right to left and made a motion across the bottom [of] his chin from right to left.” As described, it is not. too imaginative to characterize that conduct as a threat. Testimony establishing intimidation of a witness while she is testifying is certainly relevant. (People v. Rosoto (1962) 58 Cal.2d 304, 350 [23 Cal.Rptr. 779, 373 P.2d 867], cert. den., 372 U.S. 955 [9 L.Ed.2d 978, 83 S.Ct. 953]; Peoples. Teitelbaum (1958) 163 Cal.App.2d 184, 216-217 [329 P.2d 157], cert. den., 359 U.S. 206 [3 L.Ed.2d 759, 79 S.Ct. 738]; Witkin Cal. Evidence 2d ed. (1974 Supp.) § 513, p. 417.)
Gutierrez also stated that he observed an “X” on Manson’s forehead and that, on the following day, he saw “X’s” on the foreheads of Atkins, Krenwinkel and Van Houten. This behavior had some tendency to show the affinity between the appellants as well as the asserted leadership of Manson. It is not too speculative to presume these decorations were observable by the jury. Testimony concerning these markings could not be prejudicial and its admissibility was well within the discretion of the trial court." (Evid. Code, § 352.) The stigmatic effect of this circumstance, if any, was produced entirely by the voluntary act of appellants.
Introduction of Negative Evidence
Witness Stephanie Schram testified that on the night of August 8, 1969, Manson was with her and that on August 9 he left when it got dark ánd she did not see him until the next morning. Manson, complaining that this evidence tended to place him at the Spahn ranch near the time of the murders, contends it was prejudicial because it gave some “synthetic confirmation” to Kasabian’s testimony. No objection was made at trial to this part of Schram’s testimony. The failure to object waives any defect. (Witkin, Cal. Evidence (2d ed.) § 1285, p. 1188.)
Restriction on Cross-examination (Chapman)
Atkins’ counsel attempted to question housekeeper Winifred Chapman about the presence of drugs and narcotics at the Cielo Drive residence. The court sustained a prosecution objection on the grounds of irrelevance.
Manson argues that inquiry should have been permitted because at one time the police entertained the suspicion that the homicides might have been connected to disagreements relating to the sale and use of drugs. Manson’s offer of proof was that Mrs. Chapman might “be able to tell us whether or not there was any LSD, narcotic drugs in the residence... .” The offer was deficient. It did not in any way relate to the victims involvement with drugs. Moreover, the evidence was irrelevant because it pertained only to a very speculative suspicion that some third person had committed the homicides. (People v. Chapman (1975) 50 Cal.App.3d 872, 881 [123 Cal.Rptr. 862].)
In-court Identification
During the course of cross-examination, Danny DeCarlo was asked to identify Charles Tex Watson. At the request of Krenwinkel’s attorney and over Manson’s objection, Watson was produced in court. We find no error in this procedure. In-court identification is an accepted method of testing a witness’ competency and credibility. (Evid. Code, § 780, subd. (c).)
Restriction of Cross-examination (DeCarlo)
Manson also complains that he was not permitted to fully cross-examine DeCarlo about DeCarlo’s state of mind toward black people. DeCarlo testified that he did not like some of the things black péople did. He was then asked, “Tell us about that, Mr. DeCarlo.” An objection to the question was sustained. Manson argues that DeCarlo’s answer may have shown that DeCarlo hated black people and that DeCarlo’s testimony concerning Manson’s prejudice against black people was really a reflection of DeCarlo’s prejudice. Actually at issue is DeCarlo’s credibility. Further amplification of DeCarlo’s bias would not reasonably tend to prove he lied about what Manson said. The trial court’s ruling was correct.
Restriction of Cross-examination (Lake)
During cross-examination of Dianne Lake, Manson’s counsel wanted to ask if “Tex” Watson had told her he killed Sharon Tate and that Tate had pleaded for her life. The record reflects that counsel’s reference was to a report of a statement by Lake to a deputy district attorney. It is urged that the testimony was relevant because it was contrary to Lake’s purported statement that Susan Atkins had told her she had killed Sharon Tate. The record does not support that argument. Lake did not testify that Susan Atkins told her anything. Consequently we do not find fault with the court’s ruling that the question was outside the scope of direct.
Moreover, we do not see how such testimony would benefit Manson. The prosecution’s thesis was that Manson was vicariously liable for the acts of all the coindictees. If the juiy believed Manson to be a conspirator, aider or abettor he was culpable for all of the homicides regardless of who held the knife. Finally, if the court’s ruling was error it was harmless. (Cal. Const., art. VI, § 13.)
Admission of Exhibits
Over appellants’ objection, respondent placed into evidence numerous photographs, many of which depict the deceased victims. Some photographs are black and white and some are color; all show the * victims either at the place of death or at the morgue. Some of the exhibits objected to at trial and by Manson on this appeal are diagrams of certain locations or objects. The argument tendered by appellant has at its core the assertion that the exhibits constitute “inflamatory photographs of the bodies of the victims at Cielo Drive and Waverly Drive.” Accordingly, we address this contention with respect to the photographs of the victims only.
The prejudicial effect of the photographs must, of course, be weighed against their relevance. (Evid. Code, § 352.) The striking thing about the photographs is that they show the numerous wounds inflicted on the bodies of all the victims save Steven Earl Parent. Demonstration of numerous stab wounds is relevant because it tends to substantiate the testimony of Kasabian. For example, Kasabian’s description of a frenzied scene involving a great deal of slashing, cutting and striking is fortified by the exhibits.
Appellants’ reliance on People v. Seastone (1969) 3 Cal.App.3d 60 [82 Cal.Rptr. 907] to support the contention that the exhibits should not have been admitted is misplaced. Seastone supports admission of the photographs. In affirming a conviction of murder the court in Seastone rejected the same contentions made here. (3 Cal.App.3d at p. 66.)
Even though the photographs to which appellant objects are admittedly gruesome, they are nonetheless extremely relevant to prove an element of the crime charged, malice. Their relevance outweighs any possibility of prejudicial effect. The denial of appellants’ request to replace color photographs with black and white photographs was within the discretion of the trial court. Manson’s further claim that his attorney should have been allowed to describe each exhibit for the record is silly. We conclude that the trial court did not abuse its discretion by admitting these exhibits.
Jury View
During the course of trial and while Kasabian was on the witness stand, Manson’s attorney moved to “have proceedings at the Tate residence.” A similar motion was made with respect to Waverly Drive. Deeming the diagrams and photographs adequate, the trial court considered and denied the motions. We find no error in this exercise of the court’s discretion.
Restriction of Appellants’ Testimony
At the conclusion of the prosecution’s case in chief, all defense counsel announced that the defendants rested subject only to the admission of certain exhibits into evidence. Krenwinkel then informed the court: “Your Honor, I wish to testify, and also my two sisters would like to testify and put on our defense.” The defense lawyers advised the court of their opposition to their clients taking the witness stand. The female appellants nevertheless insisted on their right to do so. The court meticulously questioned Atkins, Krenwinkel and Van Houten concerning their knowledge of the risks of taking the witness stand. In the presence of their clients, defense counsel informed the court that it was their considered opinion that the testimony of appellants was incriminating and amounted to a judicial confession.
The disagreement between counsel and clients was so adamant that the attorneys advised the court that they would not call their respective clients to the witness stand and would not ask any questions. Their refusal was fixed regardless of any order the court proposed to compel their participation. Ultimately, Manson joined with the other appellants and, over the objection of his counsel, offered to testify.
It is fundamental that a defendant has the right to testify in his own behalf even if doing so is contrary to the advice of his attorney. (People v. Robles (1970) 2 Cal.3d 205, 214-215 [85 Cal.Rptr. 166, 466 P.2d 710]; People v. Guillen (1974) 37 Cal.App.3d 976, 985 [113 Cal.Rptr. 43]; People v. Blye (1965) 233 Cal.App.2d 143, 149 [43 Cal.Rptr. 231].) The trial judge was cognizant of this proposition. The paradox created was how to apply the rule in the context of a multi-defendant case fraught with Aranda-Bruton problems combined with the disinclination of defense counsel to cooperate by acting as interrogator. Because all defense counsel declined to interrogate it was recognized that such testimony would be in a narrative form.
Notwithstanding the court’s disposition to “relax the rules” to some degree, it remained the court’s obligation and province to regulate the conduct of proceedings to exclude inadmissible matter from the hearing of the jury. In the instant case the risk that narratives by the appellants would include inadmissible evidence was substantial. Therefore, the court’s proposal to receive the testimony outside the presence of the jury prior to putting it before the jury was sound. (Cf. Carlton v. Superior Court (1968) 261 Cal.App.2d 282,292 [67 Cal.Rptr. 568]; People v. Scherr (1969) 272 Cal.App.2d 165, 169-170 [77 Cal.Rptr. 35].) When the court announced that proposal, all appellants save Manson refused to testify. In short, they demanded the right to narrate before the jury without any preview that might afford insulation against Aranda-Bruton error or proper judicial editing—all or nothing at all.
Manson complains that the imposition of a hearing as a condition precedent to the testimony of Atkins, Krenwinkel and Van Houten was error. Citing Rodriguez v. Superior Court (1970) 9 Cal.App.3d 493 [88 Cal.Rptr. 154] and Reynolds v. Superior Court (1974) 12 Cal.3d 834 [117 Cal.Rptr. 437, 528 P.2d 45], he urges that the condition operated to grant unwarranted and invalid prosecution discovery. These cases, concerning pretrial discovery on the issue of an alibi defense, are inapplicable. Here we are not concerned with providing information which would ease the prosecution’s burden. We do not view the court’s proposed method of proceeding as a discovery matter, per se.
While an in camera proceeding would give the prosecution a preview of the defendants’ case, that procedure certainly does not violate any constitutional right. Since appellants had declared their intention to testify, the proposed proceeding was not tantamount to compelling a waiver of the privilege against self-incrimination. (Cf. Prudhomme v. Superior Court (1970) 2 Cal.3d 320, 326 [85 Cal.Rptr. 129, 466 P.2d 673].) We reject Manson’s argument that the trial court deprived him of the opportunity to cross-examine his coappellants. The fact is they elected to deprive him that opportunity by rejecting the valid and reasonable resolution proposed by the court. Moreover, if counsels’ representations concerning the prospective testimony of Atkins, Krenwinkel and Van Houten is correct, it was self-incriminatoiy. Neither Manson nor respondent could compel such testimony.
Manson/Bugliosi Interview
It is contended that the prosecution interfered with the defense by holding a private interview with appellant Manson. Specifically, we are told that Deputy District Attorney Bugliosi, over the objection of Manson’s attorney, conferred privately with Manson during the trial and thereby stifled Manson’s disposition to testily. Citing Prudhomme v. Superior Court, supra, 2 Cal.3d 320, Manson characterizes these alleged interviews as “unconstitutional discovery” proceedings.
The issue was placed before the trial court when Irving Kanarek, Manson’s attorney, advised the judge that “just after the noon recess Mr. Bugliosi, who previously has stated to me that he was going to use every trick he possibly could find to convict Charles Manson and put him in the gas chamber,. .. approached and spoke to Charles Manson, over my express objections.”
Bugliosi informed the court, “All three defense attorneys urged it, and Manson said, T want to talk to you.’ ” Kanarek responded, “But I forbade him.” Apparently there is no disagreement that the deputy district attorney did interview Manson on at least one occasion. It is unclear, however, whether the interview was conducted with or without Kanarek’s knowledge or consent. It was argued but not proved that Manson invited the interview. No evidence revealed the substance of this Manson-Bugliosi conference.
Manson argues that this subject would be illuminated if we took judicial notice of a book, Helter-Skelter, co-authored by prosecutor Bugliosi. Helter-Skelter is a purported account of the trial of this case; it constitutes no part of the record on appeal. (Price v. Price (1948) 85 Cal.App.2d 732, 734 [194 P.2d 101]; cf. People v. Pena (1972) 25 Cal.App.3d 414, 421 [101 Cal.Rptr. 804].) Moreover, we reject Manson’s suggestion that we employ judicial notice as a means of learning more concerning his alleged multiple conferences with Bugliosi. (Evid. Code, §§ 452, 459.) While we may take judicial notice of the fact that the book exists, we decline to notice its contents. (Berry v. Chaplin (1946) 74 Cal.App.2d 669, 676 [169 P.2d 453].) Even if we assume this post-trial literary effort by Bugliosi is a reasonably accurate report of all events surrounding the trial, his observations are not testimony and cannot be considered for the truth of the matter stated. (People v. Long (1970) 7 Cal.App.3d 586, 591 [86 Cal.Rptr. 590].)
The fundamental assignment of error is that Bugliosi interviewed Manson without Kanarek’s consent. The error is best characterized as a violation of Manson’s Miranda rights and fair trial rights and as an improper interference with his attorney-client relationship (Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199]; People v. Isby (1968) 267 Cal.App.2d 484 [73 Cal.Rptr. 294]).
If instigated by an accused specifically waiving the right to counsel, interrogation out of counsel’s presence may be permissible. (Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 696-702 [103 Cal.Rptr. 379]; People v. Rowe (1972) 22 Cal.App.3d 1023, 1032 [99 Cal.Rptr. 816].) Contrary to Manson’s assertion, no demand was made for an evidentiary hearing on this subject. We therefore can make no determination on the record of this appeal of the presence or absence of Massiah-Miranda error. Determination of possible prejudice to Manson resulting from interviews with Bugliosi is not obtainable on the record before us and is incapable of resolution in this appeal. (Cf. People v. Pena (1972) 25 Cal.App.3d 414, 423-424 [101 Cal.Rptr. 804].)
In view of the gravity of appellant’s claim some additional observations are appropriate. First, the record belies appellant’s present assertion that he might have testified but for the interview. The fact is Manson offered to testify in front of the jury two month’s after Kanarek complained of the Manson-Bugliosi interview. We note also that neither Manson nor Kanarek ever argued to the trial court that the interviews affected Manson’s disposition about testifying.
If it is true that Bugliosi’s interview with Manson occurred under circumstances contrary to law, then a major ethical question arises. The deputy district attorney is no less a member of the State Bar than any other admitted lawyer. His obligation to adhere to the Rules of Professional Conduct is mandated by the Legislature. (Bus. & Prof. Code, § 6076.) We deem it necessary to mention that any counsel venturing to deal with an adverse party is inviting trouble.
Notwithstanding the seriousness of this issue we cannot resolve it in the abstract. Mere unverified assertions are insufficient to find reversible error or to draw conclusions about questions of unprofessional conduct.
Collateral Estoppel
Manson refers us to the case of People v. Watson, 2d Crim. No. 22241, a nonpublished opinion of the Court of Appeal, Second Appellate District, Division Five. He implores us to take judicial notice of that case in order to invoke the doctrine of collateral estoppel, but advises that we cannot take judicial notice because of California Rules of Court, rule 977. From that juxtaposition Manson seeks to construct a violation of his constitutional rights. Appellant’s argument is specious. Rule 977 specifically exempts from its operation nonpublished opinions relevant under the doctrine of collateral estoppel.
Challenge to Grand Jury Composition
Manson moved to quash the indictment on the grounds that the 1969 grand jury was improperly constituted. The motion was interposed by the filing of a notice of motion and a declaration in support thereof. It is the burden of the defendant to support that contention with evidence. Because no evidence was offered by the declaration or otherwise with respect to any issue raised by the motion to quash the indictments, the motion was properly denied. The motion must be supported by more than bald conclusions. (People v. Goodspeed (1972) 22 Cal.App.3d 690, 702 [99 Cal.Rptr. 696]; People v. Cohen (1970) 12 Cal.App.3d 298, 310 [90 Cal.Rptr. 612].)
Challenge to Grand Jury Indictment Procedure
Manson next urges that the initiation of prosecution by indictment is constitutionally infirm. The thrust of appellants argument is that Goldsby v. United States (1895) 160 U.S. 70 [40 L.Ed. 343, 16 S.Ct. 216], should not be the law. Goldsby has not been reversed. The Supreme Court of this state continues to acknowledge the constitutional viability of grand jury indictments. (People v. Sirhan (1972) 7 Cal.3d 710, 746 [102 Cal.Rptr. 385, 497 P.2d 1121], cert. den., 410 U.S. 947 [35 L.Ed.2d 613, 93 S.Ct. 1382].)
In raising the issue of whether or not the grand jury procedure is a denial of due process or equal protection under the law, Manson directs our attention to Johnson v. Superior Court (1975) 15 Cal.3d 248, 262 [124 Cal.Rptr. 32, 539 P.2d 792], We presume the point of that citation is to underscore the procedural differences between a grand jury indictment and the filing of a felony complaint which Justice Mosk so meticulously outlines in his concurring opinion. Johnson does not, however, support the contention that the institution of criminal proceedings by grand jury hearing and indictment in any way impaired the appellants’ constitutional rights of due process or equal protection.
Motion to Quash Petit Jury Venire
Appellants filed a motion to challenge the petit jury venire. By stipulation appellants and respondent placed before the court for its consideration in ruling on this motion portions of the transcript in the Los Angeles Superior Court case entitled People v. Powell and Smith. In substance, the motion argued that significant numbers of identifiable classes of the community were omitted from the jury panel. Substantially the same evidence was considered in People v. Powell (1974) 40 Cal.App.3d 107 [115 Cal.Rptr. 109], cert. den., 420 U.S. 994 [43 L.Ed.2d 677, 95 S.Ct. 1435].
The trial court correctly denied the motion challenging the petit jury venire for the same reasons stated in People v. Powell, 40 Cal.App.3d at pp. 123-142.
Manson also complains that the jury venire was improperly constituted by the absence of blacks and by the excusal of prospective jurors unequivocally declaring their opposition to the death penalty. Neither complaint has merit. Manson cannot rely on the holding of Peters v. Kiff (1972) 407 U.S. 493 [33 L.Ed.2d 83, 92 S.Ct. 2163] allowing an accused to complain of the absence and exclusion of an identifiable segment of the community from the jury even though he is not a member of such group; Peters v. Kiff has been held by our Supreme Court to operate prospectively only. (People v. Sirhan, supra, 7 Cal.3d 710.) Manson’s trial predated Peters v. Kiff.
As to exclusion of persons opposed to the death penalty, the issue has been decided contrary to Manson’s contention. (People v. Rhinehart (1973) 9 Cal.3d 139, 155 [107 Cal.Rptr. 34, 507 P.2d 642].)
Penal Code Section 995
Atkins testified before the grand jury on December 5, 1969. Prior to that time she was charged in another murder case for which the court had appointed Richard Caballero to represent her. By reason of that fact Atkins and. Caballero maintained the relationship of attorney-client with respect to these proceedings even prior to his formal appointment herein on December 10, 1969. As a matter of fact, Caballero testified as a witness before the grand jury concerning his representation of Atkins. Atkins’ testimony before the grand jury is a complete revelation of the involvement of herself and her coappellants in the Tate-La Bianca murders. By itself that testimony alone was sufficient for the indictment to issue. (People v. McRae (1947) 31 Cal.2d 184, 186-187 [187 P.2d 741].)
On March 11, 1970, Caballero was replaced as Atkins’ attorney by Daye Shinn. Shinn filed a “Motion to Set Aside Indictment Under Section 995 of the Penal Code.” The motion was heard by the court on April 13, 1970, and denied. It is apparent from the record that the court reviewed the entire grand jury transcript. Atkins’ assignment of error to the denial of the 995 motion is not well taken.
Our review of the trial court’s determination is limited by the rule that the indictment will be set aside only where there is either no evidence that a crime has been committed or no evidence to connect the defendant with the crime. Guided by the same criteria as the trial court when it reviews the grand jury proceedings, we look for that state of facts which would lead a man of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the accused (Simmonds v. Superior Court (1966) 245 Cal.App.2d 704, 710 [54 Cal.Rptr. 195]) and consider the evidence in the light most favorable to the order, upholding it if it is supported by substantial evidence. (People v. McCoy (1974) 40 Cal.App.3d 854, 861 [115 Cal.Rptr. 559].) Having reviewed the grand jury proceedings under the above standards, we conclude that the trial court’s ruling was correct. (People v. Roth (1968) 261 Cal.App.2d 430, 444 [68 Cal.Rptr. 49].)
Atkins’ motion pursuant to Penal Code section 995 was supported by her declaration that her testimony before the grand juiy was the product of physical intimidation and psychological pressure. The transcript of grand jury proceedings is a total denial of that assertion. There she stated under oath that her testimony was given willingly, after advice that her testimony constituted a waiver of constitutional rights.
Atkins’ assertion that her testimony before the grand jury was false is irrelevant to the issue here involved. The function of the superior court in reviewing the grand juiy proceedings is to not “substitute its judgment as to the weight of the evidence... nor judge the credibility of the witnesses.” (People v. Roth, supra, 261 Cal.App.2d at p. 444; Cox v. Vaught (10th Cir. 1931) 52 F.2d 562, 563.) Our review is limited to the evidence taken by the grand jury. (People v. Barrett (1969) 2 Cal.App.3d 142, 148 [82 Cal.Rptr. 424].)
Habeas Corpus Petition
Following denial of her motion to set aside the indictment, Atkins filed a “Notice of Pretrial Motion to Suppress Admission and Confession.” The matter was placed off calendar on May 27, returned to the calendar on July 2l, 1970, and denied. It is apparent by the colloquy between the court and Atkins’ counsel that there was some substantial confusion as to what relief appellant was seeking by this last mentioned motion. Atkins was apprehensive that her testimony before the grand jury would be used against her in the course of trial. Therefore, much of her procedural maneuvering was really an attempt to suppress her grand jury testimony. Because Atkins did not testify during the trial, and her grand jury testimony was not introduced, this motion deserves no further attention.
On July 16, 1970, Atkins filed a petition for writ of habeas corpus, unendorsed in any way by the court as required by Penal Code section 1476. Curiously, the matter was before the court on July 14, 1970. We note the absence of verification of the petition and that it could have been rejected on that basis alone. (In re Newell (1923) 64 Cal.App. 103 [220 P. 425]; Pen. Code, § 1474, subd. 3.) Attached to the petition is Atkins’ declaration, executed under penalty of perjury. This declaration is set forth in the margin.
When viewed against the backdrop of the petition it is clear from Atkins’ declaration that she was demanding a dismissal on the following grounds: (1) that Caballero failed to provide her with effective counsel by persuading her to testify against her will in order to serve a conflicting economic interest in the publication of her copyrighted by-line story; and (2) that she did not voluntarily, knowingly and intelligently waive her Fifth Amendment right to remain silent.
These contentions are based on occurrences dehors of the grand jury proceedings. It was consequently appropriate for Atkins to test the validity of the indictment by petition for writ of habeas corpus. (In re Carmen (1957) 48 Cal.2d 851, 854 [313 P.2d 817]; In re Joiner (1960) 180 Cal.App.2d 250-252 [4 Cal.Rptr. 667]; In re Flodstrom (1954) 134 Cal.App.2d 871 [277 P.2d 101], reinstated (1955)45 Cal.2d 307 [288 P.2d 859]; and Pen. Code, § 1487, subd. 7.)
Although the trial court advised Atkins’ counsel that it would not take evidence on the petition for writ of habeas corpus, the court did invite an offer of proof. Without stating its reasons, the court then summarily denied the writ. Atkins assigns error to that denial.
The fact that the petition was filed during the course of jury selection may have been sufficient to justify denial for a lack of diligence. The defects in the papers themselves may have justified the action of the court. However, having invited an argument on the petition, it appears that the court did not reject it on technical grounds but rather found it deficient as a matter of law. It is not necessary, however, to determine the correctness of the trial court’s ruling. The denial of a petition for habeas corpus is not appealable. (People v. Griggs (1967) 67 Cal.2d 314, 317 [61 Cal.Rptr. 641, 431 P.2d 225]; People v. Vega (1955) 136 Cal.App.2d 202, 205 [288 P.2d 278].) Upon a denial of a petition for habeas corpus in the superior court Atkins’ proper recourse would have been to renew her petition in the same court, the Court of Appeal or the Supreme Court. (24 Cal.Jur.2d, Habeas Corpus, § 107, p. 596.)
The court’s denial of the petition for writ of habeas corpus truncated the entire question of the voluntariness of Atkins’ grand juiy testimony. Consequently, there is no fair evidentiary basis upon which we now can review that subject. Neither can we treat this appeal as a petition for habeas corpus. Atkins’ claim of ineffectiveness of counsel does not appear in the record in a form permitting our review on appeal. (People v. Brotherton (1966) 239 Cal.App.2d 195, 199 [48 Cal.Rptr. 513].)
Use of Perjured Testimony
Susan Atkins testified at the grand jury proceedings but not at trial; Roni Howard and Virginia Graham did not testify before the grand juiy but did testify at trial. Manson draws attention to the fact that before the grand juiy Atkins stated that Watson had killed Sharon Tate. At trial Graham and Howard testified that Atkins claimed she had killed Sharon Tate.
From this conflict Manson argues, (1) that he was convicted by the knowing use of perjured testimony, and (2) that respondent suppressed Atkins’ grand jury testimony. Both contentions are without merit. In the first place, the jury was admonished to consider the Graham-Howard testimony as to Atkins only. Secondly, it was Atkins’ right to exercise her Fifth Amendment right to not testify. The People could not compel her to testify and were not obligated to grant her immunity to induce her to do so. (Cf. People v. Northrup (1962) 203 Cal.App.2d 470, 475 [21 Cal.Rptr. 448].)
Manson makes much of Bugliosi’s testimony during the penalty phase to the effect that he believed Atkins did stab Tate even though he knew she would testify to the contrary before the grand juiy. Bugliosi’s opinion on the subject is just that. The record does not reflect that the testimony was in fact perjured. (Cf. People v. Gordon (1973) 10 Cal.3d 460, 473 [110 Cal.Rptr. 906, 516 P.2d 298]; In re Mooney (1937) 10 Cal.2d 1, 85 [73 P.2d 554].)
Manson suggests that any conflict between Atkins’ grand jury testimony and the Graham-Howard trial testimony could have been resolved if respondent had granted immunity to Atkins. The application for immunity is solely an administrative function (People v. Pineda (1973) 30 Cal.App.3d 860, 867 [106 Cal.Rptr. 743]) and the refusal to grant it to Atkins did not result in a denial of due process of law to any appellant. (People v. Williams (1970) 11 Cal.App.3d 1156, 1164 [90 Cal.Rptr. 409]; cf. People v. Northrup, supra, 203 Cal.App.2d 470, 475.)
Right to Counsel
Only Manson contends on this appeal that he was erroneously denied the fundamental right to proceed pro se. However, all appellants early in the case applied to the trial court to so proceed. The ultimate decision of the lower court was that no appellant was capable of self representation. At the time counsel was appointed for each appellant, there “[was] no constitutional right to proceed pro se at trial.” (People v. Sharp (1972) 7 Cal.3d 448, 451 [103 Cal.Rptr. 233, 499 P.2d 489].)
While this appeal was pending, Sharp was invalidated by the United States Supreme Court. (Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525].) However, our own Supreme Court has concluded that “the Faretta decision is not to be given retroactive application... .” (People v. McDaniel (1976) 16 Cal.3d 156, 163 [127 Cal.Rptr. 467, 545 P.2d 843].) Consequently, Faretta has no application to this appeal. No other error is attributable to the fact that no appellant was permitted to proceed pro se. Manson’s contention that he was prejudiced by not being permitted to represent himself is not supported by the record.
Incarceration of Atkins’ Counsel
Atkins contends that the jailing of her lawyer during the course of trial constituted reversible error. We do not agree. The record discloses that on August 4, 1970, out of the presence of the jury, the court held Attorney Daye Shinn in contempt and immediately imposed sentence. In accordance with the court’s instructions, Shinn was returned to the courtroom each day of his incarceration. During this time Shinn represented that he was fatigued and not prepared to proceed. On these grounds he applied for “short” continuances. They were denied.
Citing People v. Fusaro (1971) 18 Cal.App.3d 877 [96 Cal.Rptr. 368], cert. den., 407 U.S. 912 [32 L.Ed.2d 686, 92 S.Ct. 2445], in support of her contention, Atkins argues that in the absence of “... overwhelming circumstances, the court-imposed delay caused by jailing the defense lawyer in midtrial is inherently wrong, damaging to the defendant’s right to a speedy trial and antithetical to the public interest in speedy, economical justice.” (Id., at p. 890.) Here, however, the court’s order was •fashioned to avoid delay and to afford Shinn access to his client. No trial time was lost. Atkins fails to direct our attention to anything revealing an adverse affect on her lawyer’s advocacy. It is incumbent on Atkins to show that the commitment to jail produced some form of ineffectiveness of counsel. (People v. Simms (1970) 10 Cal.App.3d 299, 313 [89 Cal.Rptr. 1].) Having failed to meet this obligation, her contention of reversible error fails. (See United States v. Schrimsher (5 Cir. 1974) 493 F.2d 848, 854.)
Free Press/Fair Trial
The undeniably extensive news media coverage received by this case gives rise to appellants’ claim that publicity denied them a fair and impartial trial.
When the crimes were discovered in August of 1969 they were greatly publicized. The media’s revelations focused primarily on the savageness of the killings, the absence of clues revealing the identity of the perpetrators, and certain details about the private lives and relationships of the victims. Particular emphasis was given to the Tate murder because one of the victims was a movie actress.
In early December 1969 appellants were identified as the primary suspects. Expanded and accelerated media coverage ensued. The most cursory examination of the record demonstrates that beginning on December 1, 1969, massive publicity tracked the progress of the case through the courts. No one denies that this case attained state, national and international notoriety. We must therefore address what is becoming an all-too-common constitutional conundrum: Has a defendant in a criminal case received a fair trial when extensive publicity is generated in the public media?
The publicity attending this case was anticipated. Details of the Tate-La Bianca murders were laid before the public colorfully embroidered with the backgrounds, histories, and aberrant lifestyles of appellants and other members of the Family. This expose treatment is found in the banners, headlines, and captions of newspapers published throughout the state. These same events and subjects were transmitted into the public domain by radio and television broadcasts.
The earliest exposition identifying appellants with the Tate-La Bianca murders was published on December 14, 1969, in the Los Angeles Times. This article, a detailed confession substantially conforming to Atkins testimony before the grand jury, was ultimately published in book form.
Miscellaneous Pretrial Motions
The public exposure produced several motions for change of venue and mistrial. On February 16, Manson, appearing in propria persona, applied for relief. Urging that the publicity was so devastating he could not be fairly tried anywhere in California, he argued for either a dismissal or an “interlocutory” dismissal “until such time, if any, as a fair trial becomes possible.” The court inquired as to whether Manson was petitioning for a continuance only. Manson replied: “The only way a continuance would help me would be if it was over a period of two or three years. A continuance for six months would serve no purpose at all, and further a continuance that long would’t [¿7'c] be in the best interests of the other defendants that are involved in this, and mine also.” Manson’s refusal to waive his right to a speedy trial eliminated continuance as an available solution. Alternatively, a motion for change of venue was tendered, with Mánson stating to the court that he regarded such relief as “very trivial.” We view Manson’s assessment as candid and the court’s denial as correct.
At this stage of the proceedings the district attorney’s exhibits included the December 19, 1969, edition of Life Magazine, copies of Sacramento and San Francisco press coverage, including a Sunday supplement magazine for the Sacramento Bee, and an indexed compilation of newspaper coverage for all but 13 of the counties in the State of California.
On March 24, 1970, Krenwinkel and Manson moved for a change of venue (Pen. Code, § 1033).. The evidence considered at that time included the exhibits heretofore mentioned and additional exhibits incorporated by reference to People v. Robert Kenneth Beausoleil, Los Angeles Superior Court case No. A-057452. By stipulation the number of viewers, listeners and readers of some of the identified media was established.
The book, The Killing of Sharon Tate, was focused upon by submission of a declaration of Public Defender Investigator Robert Long disclosing that the paperback had been circulated widely in Southern California, and, presumably, throughout the state. As additional exhibits respondent supplied the court with communications from radio and television stations outside of Los Angeles County showing that airwaves throughout California were carrying further transmissions of information concerning this case.
The journalistic energy spawned by this case goes beyond the material we have mentioned. It is patently clear that the crimes charged, as well as the identity and the involvement of appellants, permeated every corner of this state with varying degrees of intensity. The ubiquity of media coverage made any such differential one of insignificant degree. A change of venue offered no solution to the publicity problem. Even if venue had been changed, nothing could have prevented the public media from swinging its attention to that place. The magnetic pull of such notorious cases is compelling.
The same conclusion is required with respect to any suggestion of a reasonable delay. “[The] nature of modem communications media limits the effectiveness of both continuances and change of venue” (Gagging the Press in Criminal Trials (1975) 10 Harv.Civ. Rights—Civ. Lib.L.Rev. 608, 617-618). Our independent review of the evidence before the court on March 24, 1970, reveals that neither change of venue nor a continuance offered a practical solution to the problem. The denial of the Manson-Krenwinkel motion was correct.
On June 5, 1970, Van Houten filed a motion for change of venue (Pen. Code, § 1033). With leave of court Atkins and Manson joined in that motion. After stipulation that all evidence submitted in support of the earlier Manson and Kasabian motion for change of venue be admitted with this motion and after due consideration by the court, the motion was properly denied.
Motion for Mistrial
Provoked by the fact that Deputy District Attorney Aaron Stovitz, one of the prosecutors in this case, had given an “off-the-record” interview in March of 1970, all appellants filed a motion for mistrial just prior to the impanelling of the jury. The interview was tape recorded and Stovitz admitted his participation. Testifying that he extracted a promise from the reporters to not use his name, not quote him and not use any information he provided, Stovitz asserted that the most he did was to refer the reporters to previously published newspaper articles containing the material they were seeking. Stovitz was cognizant of the court’s order of December 10, 1969, concerning publicity. The product of this interview was a feature article appearing in Rolling Stone, June 25, 1970 (No. 61).
On this appeal respondent repeats the explanation made by the prosecution at trial to excuse Stovitz’ conduct. In essence, the argument attempts to shift responsibility from the district attorney’s office to the publishers of Rolling Stone. This maneuver is predicated on the assertion that Stovitz had a right to believe his comments were confidential and constituted no more than a private conversation.
However sincere Mr. Stovitz mav have been, his conduct was in direct violation of the court’s publicity order. Examination of the Rolling Stone article does not indicate that Stovitz’ contribution to the total stream of public information was significant. A perusal of the Rolling Stone feature reveals only one small part attributable to Stovitz. That part contains no remarkably unique revelations.
The apparent source for most of the Rolling Stone expose was the interviews granted by many members of the Family and others having some past relationship with them. By this observation we in no way minimize the prosecutor’s misconduct, but only stress the abundance of information funneled to the media through sources other than the district attorney’s office. It is apparent that Stovitz’ contribution was only a droplet in the sea of publicity.
Information appearing in Rolling Stone is not particularly different in substance from that found in a December 19, 1969, edition of Life Magazine or in the paperback book, The Killing of Sharon Tate. More important, no member of the jury was familiar with the particular edition of Rolling Stone. In fact, only one veniremen could identify Rolling Stone as a publication. We conclude that Stovitz’ violation of the publicity order was inconsequential and did not contribute to the verdict obtained. While its propriety may be questionable, in the context of the matter before us it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Modesto (1967) 66 Cal.2d 695, 712 [59 Cal.Rptr. 124, 427 P.2d 788], cert.
When the motion to dismiss was argued on June 29, 1970, much more than the Stovitz/Rolling Stone interview was addressed. Appellants’ counsel expressed consternation about public comments by then District Attorney Evelle Younger, and his deputies, with respect to their novel procedural application to remove Irving Kanarek as Manson’s counsel. Objecting to the district attorney’s public declarations about the publicity order and the proceedings conducted outside of the presence of the public, appellants described the district attorney’s attempt to remove Kanarek as a subtle and invidious device to further pyramid the notoriety of the case. We are not convinced.
The district attorney has a legitimate interest in protecting any conviction he obtains. Consequently, apprehension about Kanarek’s methodology is not necessarily ingenuous. Although it may be unique, it is not irrational for the prosecutor to request a preappeal resolution of the conflict between a defendant’s right to counsel of his choosing and his right to effective assistance of counsel. (Compare Smith y. Superior Court (1968) 68 Cal.2d 547 [68 Cal.Rptr. 1, 440 P.2d 65], and People v. Ibarra (1963) 60 Cal.2d 460 [34 Cal.Rptr. 863, 386 P.2d 487].) We find nothing improper or prejudicial in this procedure.
The district attorney’s numerous press conferences criticizing the court’s publicity orders and chastizing Manson’s counsel were not within the ambit of the “Order re Publicity” or the “Order Augmenting Order re Publicity.” No evidence was produced that the district attorney made any statements concerning the guilt or innocence of the appellants, or any reference to the evidence that would be offered against them. Likewise there was no showing that his public statements in any way disclosed any evidence adduced during the course of any proceeding conducted out of the presence of the jury.
While neither approving nor disapproving the district attorney’s approach to the potentially difficult problems accruing by reason of the incessant publicity, we do not believe his actions reached prosecutorial misconduct dimensions.
Voir Dire Proceedings
During the course of voir dire proceedings the court was advised that appellants intended to challenge, for cause, every prospective juror. Specifically, appellants threatened to invoke that provision of Penal Code section 1073 permitting a challenge for “... the existence of a state of mind on the part of the juror in reference to the case, or to either of the parties, which will prevent him from acting with entire impartiality and without prejudice to the substantial rights of either party, which is known in this Code as actual bias.”
Krenwinkel’s attorney informed the court that he “plan[ned] to challenge every juror as indicated. They have been exposed to publicity.” At the core of Krenwinkel’s contention is the assumption that, as a matter of law, a jury in a criminal case cannot be impartial if there is adverse accusatory publicity directed at the individuals charged with the offense. When the publicity is generated in part by the prosecuting officials, appellants continue, the harm is exacerbated.
Constitutional Issues
At this point in our discussion we deem it necessary to examine case law developments concerning a defendant’s right to a fair trial (U.S. Const., Amend. VI) as it is affected by the concomitant right of the public to a press free from unnecessary restrictions (U.S. Const., Amend. I).
For at least two decades the judiciary has grappled with this puzzle. In 1959 the United States Supreme Court took a major step to halt trial by newspaper, reversing a federal district court conviction because the jury had been exposed to newspaper accounts revealing the defendant’s previous felony convictions. (Marshall v. United States (1959) 360 U.S. 310 [3 L.Ed.2d 1250, 79 S.Ct. 1171].)
Thereafter, in Irvin v. Dowd (1961) 366 U.S. 717 [6 L.Ed.2d 751, 81 S.Ct. 1639], the Supreme Court engaged in a searching examination of voir dire, uncovering facts translating into an arithmetic equation indicating gross probabilities adverse to the accused. In the case then before it the Supreme Court found that 90 percent of the veniremen entertained some opinion that the defendant was guilty. The court further found that eight of the twelve actual jurors harbored the view that the accused was guilty even before any evidence was introduced. Although the Irvin court emphasized the fact that 90 percent of the jury panel questioned revealed a bias, that court did not fix any percentage as universally determinative of a high probability of prejudice. Cases following Irvin have not rigidly adhered to a 90 percent factor. On the contrary, considerable latitude is apparent.
Beginning in 1963, the United States' Supreme Court made a sharp departure in its approach to cases involving the conflict between fair trial and free press. In Rideau v. Louisiana (1963) 373 U.S. 723 [10 L.Ed.2d 663, 83 S.Ct. 1417], the court, confronted with particularly egregious exploitation of a criminal prosecution fostered in a totally improper way by public officials, applied a doctrine of presumed prejudice. The Rideau court avoided a particularized inspection of the voir dire, looking instead to the due process requirement of “trial before a jury drawn from a community of people who had not seen and heard Rideau’s televised ‘interview.’ ‘Due process of law, preserved for all by our Constitution, commands that no such practice as that disclosed by this record shall send any accused to his death.’ ” (373 U.S. at p. 727 [10 L.Ed.2d at p. 666].)
Prejudice was similarly presumed in Estes v. Texas (1965) 381 U.S. 532 [14 L.Ed.2d 543, 85 S.Ct. 1628]. Sheppard v. Maxwell (1966) 384 U.S. 333 [16 L.Ed.2d 600, 86 S.Ct. 1507], brought the presumed prejudice doctrine to its zenith. Though generally regarded as the hallmark case on the “free press/fair trial” issue, the Sheppard Court did not rest its reversal on the matter of publicity alone but rather characterized the trial proceedings as a “carnival atmosphere.” (384 U.S. at p. 358 [16 L.Ed.2d at p.618].)
Concerned with media coverage of criminal proceedings, Sheppard suggested specified procedures to insulate criminal trials from the influence of external forces in general, and pretrial publicity in particular. These included the adoption of strict rules governing the use of the courtroom by newsmen (384 U.S. p. 358 [16 L.Ed.2d pp. 617-618]); insulation of witnesses through the issuance of silence orders; prohibiting “the release of leads, information; and gossip to the. .press by police officers, witnesses and the counsel for both sides” (384 U.S. p. 359 [16 L.Ed.2d p. 618]); continuances until threat of prejudicial publicity abates; change of venue; sequestration of the jury; and the ordering of a new trial (384 U.S. p. 363 [16 L.Ed.2d pp. 620-621]). Nearly all of these have become established methods for coping with a seemingly intractable problem.
The California experience with the conflict between media coverage and criminal trials parallels the federal experience. The California Supreme Court has embraced the holding of Sheppard and taken its cue from the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press (1966).
In Maine v. Superior Court (1968) 68 Cal.2d 375 [66 Cal.Rptr. 724, 438 P.2d 372], the court granted a petition for a writ of mandate after the trial court refused a change of venue even though the application asserted that a fair trial could not be obtained because of prejudicial publicity. The court delineated the standard to be applied: “ ‘A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court’s own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.’ ” (68 Cal.2d at p. 383.)
Although the issue is here raised on appeal after conviction rather than by extraordinary writ, the standard of review is the same as that established in Maine. (People v. Tidwell (1970) 3 Cal.3d 62, 68 [89 Cal.Rptr. 44, 473 P.2d 748]; People v. Welch (1972) 8 Cal.3d 106, 113 [104 Cal.Rptr. 217, 501 P.2d 225]; People v. Hathcock (1973) 8 Cal.3d 599, 618-620 [105 Cal.Rptr. 540, 504 P.2d 476].)
Looking at the facts before us against the backdrop of the above discussed cases, we first seek to define a “fair and impartial” trial. Mr. Justice Holmes has said that “the theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” (Patterson v. Colorado (1907) 205 U.S. 454, 462 [51 L.Ed. 879, 881, 27 S.Ct. 556].) The Irvin court looked to the words of Lord Coke and equated impartiality to “indifference.” (366 U.S. at p. 722 [6 L.Ed.2d at p. 755].) We do not interpret a requirement of “indifference” as demanding that qualified jurors be totally ignorant of the facts and issues involved.
We do not suggest that courts may retreat from their obligation to provide the accused with due process. We do believe that “[g]iven the pervasiveness of modem communications and the difficulty of effacing prejudicial publicity from the minds of the jurors [that] trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances.” (People v. Sirhan (1972) 7 Cal.3d 710, 730 [102 Cal.Rptr. 385, 497 P.2d 1121], cert. den., 410 U.S. 947 [35 L.Ed.2d 613, 93 S.Ct. 1382].)
In making that “independent evaluation” we must elect between the two traditional methods used to discharge our duty. The United States Supreme Court has recently articulated a two part test for deciding which method is applicable to a given case. (Murphy v. Florida (1975) 421 U.S. 794, 799 [44 L.Ed.2d 589, 594, 95 S.Ct. 2031].)
The first part of the Murphy test may be stated as follows: where there is an apparent and flagrant departure from fundamental due process and decorum and an intrusion of external influences, prejudice will be presumed. The classic cases falling into this category are Rideau, Turner, Estes and Sheppard
Unlike Rideau, the case at bench does not involve repeated exposure to television broadcasts of a film in which the defendant confessed to the crimes of which he was later charged. (People v. Sirhan, 7 Cal.3d at p. 733.) Here the trial judge specifically excluded any prospective juror who had read the confession of Susan Atkins. There is no evidence that any juror had any knowledge that any appellant had confessed. Moreover, unlike Rideau, there is absent the deplorable circumstance of law enforcement extracting a filmed confession and releasing it to the media prior to trial. Neither is Turner analogous to the present case; no witness on the merits of this trial participated in the maintenance of the jury during its sequestration.
Both Estes and Sheppard are distinguishable on several grounds. In neither of those cases were the jurors sequestered as they were here. As in Estes and Sheppard, there was substantial representation by the press. Unlike Estes and Sheppard, however, here the media was not out of control in the courtroom. The trial judge strictly regulated the activity of news representatives and others by issuing and enforcing a security order that, among other things, precluded photography and news interviews in the courtroom. Through the guilt phase in its entirety the jury was sequestered in accordance with the court’s order for jury maintenance. The court ordered radios, televisions and telephones removed from the jurors hotel rooms, and their newspapers and magazines censored of all material concerning the trial.
Although the publicity surrounding this case was massive, it .did not detract from “the solemnity and sobriety to which a defendant is entitled.” (Murphy v. Florida, supra, 421 U.S. at p. 799 [44 L.Ed.2d at p. 594].) Rideau, Estes and Sheppard “... cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.” (Id, at p. 799 [44 L.Ed.2d at p. 594].)
Because of the distinctions noted we find the present case outside the ambit of those cases where prejudice is presumed. The pretrial and trial proceedings were conducted with restraint and dignity. The only digressions from this atmosphere were produced by the conduct of appellants.
The second part of the Murphy test, referred to as a “totality of the circumstances” standard (Goldsmith, Due Process Denial Not Presumed When Knowledge of Past Misdeeds Is Possessed by the Jury: “Totality of Circumstances” Test Will Be Used to Determine Fairness of Trial (1975) 13 Am.Crim.L.Rev. 285) is derived from Irvin v. Dowd, supra, 366 U.S. 717 and requires (1) an examination of the voir dire in search of juror hostility; (2) consideration of the general atmosphere of the community or courtroom at the time of trial; and (3) consideration of the length to which the trial court must go to select apparently impartial jurors. (Murphy, supra, 421 U.S. at pp. 800, 802-803 [44 L.Ed.2d at pp. 595-596].)
Inferences of possible prejudice may be refuted by information found in thé record of the voir dire and trial. (People v. Barger (1974) 40 Cal.App.3d 662, 671 [115 Cal.Rptr. 298]; People v. Quinlan (1970) 8 Cal.App.3d 1063 [88 Cal.Rptr. 125]; People v. Salas (1972) 7 Cal.3d 812 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832].) Here, close inspection of the voir dire and jury selection procedure demonstrates a general familiarity with the case. Jurors, unlike recluses or hermits, do not live in isolation and cannot be expected to be ignorant of news involving matters of general community concern. It would be absurd to establish enormous publicity in sensational cases as a singular standard for invoking a presumption of prejudice.
Before 12 jurors were accepted, 142 prospective jurors were examined. Of the 142, appellants challenged 36 for cause and respondent challenged 11. Six peremptories were exercised by the appellants and 18 by respondent. Fifty-nine of the 142 were excused by stipulation.
Our independent examination of the voir dire record discloses that only 17 of the first 142 prospective jurors—12 percent—stated an inclination to believe in the guilt of appellants. If the 59 members of the panel excused by stipulation are subtracted from 142, the percentage of veniremen expressing a belief in the appellants’ guilt is increased to 20 percent. In the selection of 6 alternate jurors, 74 veniremen were examined. Of this number 17—22.9 percent—declared a bias against appellants. Looking to the panel in its entirety, including veniremen examined as prospective alternates, 16 percent indicated an opinion that appellants were guilty.
Our review of the voir dire fails to indicate any appreciable hostility. As noted above, less than one fourth of the potential jurors admitted to any disqualifying prejudices, an especially impressive reaction in view of the fact they were informed in advance that the trial would be lengthy and that they would be sequestered. The jury consumed 11 days in their deliberations of appellants’ guilt. Although Manson argues that the lengthy deliberation indicates the presence of prejudice, we believe precisely the contrary. A jury sequestered from June 15, 1970, to January 15, 1971—seven months—would not be expected to protract deliberation if it harbored a bias for conviction.
In addition to the publicity order issued on December 10, 1969, other steps were taken by the court to blunt the effect of external influences. At the outset of voir dire the court conducted part of the questioning of each prospective juror in chambers. Counsel were informed by the court that any prospective juror indicating familiarity with Atkins’ published confession would be excused. Voir dire continued in chambers until June 30, 1970, at which time the prosecution objected to the conduct of any proceedings outside the presence of the public unless the transcript of such proceedings was released for public dissemination. The court expressed its disposition to continue with part of the voir dire in chambers if appellants personally consented. Appellants refused to so consent. Voir dire was then removed to open court and conducted before the entire panel until July 7, 1970, when the court resumed its initial procedure.
During voir dire the court allowed in-depth interrogation with respect to publicity. For example, after being apprised of the press conferences called by the district attorney, the court permitted individual inquiry on that subject by each appellants’ counsel. To counter the possible influence of the district attorney’s press conferences, the court specifically admonished the prospective jurors to avoid all publicity.
We further note general acknowledgment that adversities of publicity are considerably offset if trial is conducted in a populous metropolitan area. (People v. Sommerhalder (1973) 9 Cal.3d 290, 304 [107 Cal.Rptr. 289, 508 P.2d 289]; People v. Barger (1974) 40 Cal.App.3d 662, 670 [115 Cal.Rptr. 298]; Corona v. Superior Court (1972) 24 Cal.App.3d 872, 883 [101 Cal.Rptr. 411].) Los Angeles County, with a population of 6,993,371 in 1970, was four times more populous than the second largest county in the state. A more metropolitan or heterogeneous area could not be found.
As noted in Lansdown v. Superior Court (1970) 10 Cal.App.3d 604, 609 [89 Cal.Rptr. 154], “Population, qua population, is not alone determinative; it is but one factor and it must be shown how size, whether of area or of population, neutralizes or dilutes the impact of adverse publicity.” If the population is large but predominantly rural, it is not unlike the small counties discussed in Maine v. Superior Court, supra, (Mendocino County) and Fain v. Superior Court (1970) 2 Cal.3d 46 [84 Cal.Rptr. 135, 465 P.2d 23] (Stanislaus County). Manson suggests that a small rural county would be more sympathetic to appellants and their commune. We doubt it.
Transfer of this case to another county would not have inhibited public attention. “Even as the effect, if any, of publicity upon the prospective jury cannot be presently ascertained, so also is the benefit, if any, of a change of venue beclouded with uncertainty. To remove the trial of a highly publicized case ... to a small community outside of [a large metropolitan city] would tend to focus the spotlight more brightly upon the case. Modern means of news communication have taken away many of the reasons for the transfer of the cause celebre which may have existed fifty years ago.” (Application of Cohn (2d Cir. 1964) 332 F.2d 976, 977.) A metropolitan setting with its diverse population tends to blunt the penetrating effect of publicity.
There simply is no actual or reasonably presumptive evidence that transfer of this case to any other county would have provided a jury panel more satisfactory than that which was available in Los Angeles.
Appellants next argue that several occurrences after the commencement of trial required the trial court to permit them to voir dire the jury to determine if the jury had been subjected to these revelations. On October 9, 1970, the Los Angeles Herald Examiner carried an article by William Farr reporting that appellants planned to kill well-known entertainment personalities. The court properly denied applications of appellants’ counsel to voir dire the jury to determine if it had been exposed to this publicity. The application was not supported by any showing that the court’s security or jury maintenance order had been violated.
Manson’s counsel made a similar request concerning, the reported proceedings of December 30, 1970, involving an arraignment of his client on two other charges of homicide. The trial court informed counsel that it was monitoring the sequestration and was satisfied that the jurors were not subjected to news about the case. Under the circumstances the court’s decision was correct. The whole purpose of the elaborate sequestration would have been frustrated if the court had been required to voir dire the jury to ask if they had knowledge of the very information that was to be kept from them. In the absence of hard evidence that jurors were subjected to news stories or any other information that might have been prejudicial, there was no sense in allowing the court to be drawn into a “Catch 22.”
To recapitulate, we have found no evidence, of any flagrant departure from fundamental due process standards to bring this case within the operation of the “presumed prejudice doctrine.” Accordingly, Rideau, Turner, Estes and Sheppard are not controlling. Our independent examination of the record and the voir dire proceeding reveals that appellants “... received a fair and impartial trial under the standard of ‘reasonable likelihood’ set forth in Maine.” (People v. Sommerhalder (1973) 9 Cal.3d 290, 301 [107 Cal.Rptr. 289, 508 P.2d 289].)
The fact that a case receives enormous publicity does not by itself establish error nor does conceded “massive” publicity automatically translate into prejudice. Here the court issued silence orders, conducted a controlled and searching voir dire, properly admonished the jury and implemented court procedures to afford appellants a dignified and restrained trial atmosphere. In addition, and perhaps most importantly, the jurors, selected from a diverse and populous county, were sequestered for the entire guilt phase of the trial.
Appellants’ posture with regard to the use of peremptories exposes a disposition to rest their entire argument on the prominence of the case and the publicity it received. Only 6 of the 20 separate and none of the 20 joint peremptory challenges were used. We reject the notion that anyone can, relying solely on the prominence of the case, refuse to meaningfully participate in the jury selection.
Except in the extraordinary cases previously discussed the courts must “... do all they reasonably can to mitigate the effects of prejudicial publicity in any trial. To reverse convictions because [of the possibility that some residual prejudice remains] would effectively immunize some defendants in highly sensational cases.” (Prejudicial Publicity in Trials of Public Officials (1975) 85 Yale L.J. 123, 135.) Exposure to publicity alone does not make it impossible for jurors to perform their obligation.
Concluding that the “totality of the circumstances” standard is the test applicable to the case before us, we note the absence of either “prejudice to the appellants from the publicity [or] a probability thereof.” (United States v. Calvert (8th Cir. 1975) 523 F.2d 895; United States v. Gay (6th Cir. 1975) 522 F.2d 429; United States v. Chapin (D.C. Cir. 1975) 515 F.2d 1274; United States v. Liddy (D.C. Cir. 1974) 509 F.2d 428.)
Prosecution’s Failure to Disclose
Arguing that respondent failed to comply with the court’s discovery order by failing to disclose information that Kasabian had informed Deputy District Attorney Bugliosi of her prior use of LSD, Manson ignores a record to the contrary. The defense was fully aware of Kasabian’s prior use of LSD. Prior to Kasabian’s testimony Manson and his coappellants made an offer of proof in support of their application to have Kasabian examined by a psychiatrist. The offer referred to Kasabian’s past experience with LSD.
Manson makes similar contentions with respect to a photograph depicting a dune buggy, a letter from the attorneys for Kasabian to the district attorney’s office pertaining to the grant of immunity for Kasabian and a belated delivery to Krenwinkel’s attorney of the notes taken by Bugliosi when he interviewed Atkins at Caballero’s office. Also, Manson argues that Bugliosi was obligated to tape record his interview with Atkins. As to each of these assignments of error we note they are unsupported by any “... citation of authority or by argument showing that the alleged errors of the trial court resulted in prejudice to appellant, and [that appellant] has left it to the court to search the record and the law in order to uphold [his] claims of error.” (People v. Paramount Citrus Assn. (1957) 147 Cal.App.2d 399, 407 [305 P.2d 135].) “It is not proper to attempt to shift that burden upon the court” and we refuse to accept it. (People v. Klimek (1959) 172 Cal.App.2d 36, 44 [341 P.2d 722]; People v. Ford (1962) 200 Cal.App.2d 905, 916 [19 Cal.Rptr. 758].)
In a similar vein Manson argues that the testimony of Lake should have been excluded because the prosecution failed to reveal that her trial testimony would be contradictory to testimony given by her before the grand jury. Again, the contention is not supported by the record. Krenwinkel’s attorney conceded in open court that the deputy district attorney had, on November 2, 1970, delivered to the defense a copy of the statement made by Lake indicating that she would give testimony adverse to the defense and consistent with the testimony she ultimately gave in open court. Another statement was provided to all counsel at the direction of the court on November 4, 1970. Moreover, the court permitted all defense counsel to voir dire Lake out of the presence of the jury in great detail. Not only does it appear that there was no failure to reveal that Lake would testify at trial, there is no showing that respondent in any way misled the defense as to this witness’ testimony.
DeWayne A. Wolfer, a criminalist for the Los Angeles Police Department, testified for respondent. He related that on August 18, 1969, he went to the Cielo Drive residence to conduct, acoustical testing and investigation. The primary purpose of the test was to determine whether or not William Garretson, residing in the guest house at the rear of the residence, would have heard the shots fired on August 9, 1969. It is contended that the evidence should not have been introduced because respondent failed to disclose this information to the defense prior to the time that Wolfer was called as a witness.
Wolfer testified that he prepared his original written report within a day or two after he made the test. When a written report was subsequently requested by the district attorney’s office it could not be located. Later—a week or two prior to Wolfer’s testimony—another police officer found the original and so informed Wolfer. From that report a revised report, dated September 21, 1970, was prepared, and delivered to the district attorney. The district attorney then requested another report in narrative form. Compliance with his request resulted in a report dated October 5, 1970, which was given to the deputy district attorney the same day. That report was provided to all defense counsel on October 5, the day Wolfer testified. The belated production of Wolfer’s report appears to be the result of the original being lost, coupled with the district attorney’s dissatisfaction with the September report. This sequence of events does not add up to suppression of evidence.
Failure to disclose or suppression of evidence does not constitute reversible error unless it results in denying access to “. .. substantial material evidence favorable to an accused... relating] directly to the question of guilt, to matters relevant to punishment, or to the credibility of a material witness.” (People v. Ruthford (1975) 14 Cal.3d 399, 406 [121 Cal.Rptr. 261, 534 P.2d 1341].) Although Wolfer’s testimony may have related to the credibility of another witness, Garretson, the report did not constitute substantial material evidence favorable to the accused. If anything, Wolfer’s report tended to support the testimony of Garretson that he did not hear any gunshots on the night of the Tate murders and mitigates any suspicion that might fall on him as opposed to appellants. Accordingly, the error, if any, does not come within the scope of Giglio v. United States (1972) 405 U.S. 150, 154 [31 L.Ed.2d 104, 108, 92 S.Ct. 763]; Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194] or In re Ferguson (1971) 5 Cal.3d 525, 532 [96 Cal.Rptr. 594, 487 P.2d 1234].)
We conclude that claims of error based upon failure to disclose material information are not supported by the record. We are of the further opinion that even if a specific act hereinabove discussed is considered as error it is harmless beyond a reasonable doubt within the meaning of People v. Ruthford, supra, 14 Cal.3d at pp. 406, 409.
Interference With Witness Interviews and Interference With Production of Defense Witnesses
Manson claims he was prevented from cross-examining Danny DeCarlo about an incident where “defense counsel” was purportedly prevented by law enforcement officers from interviewing DeCarlo. We understand the core of this contention to be a complaint by Manson that his counsel was unable to interview DeCarlo.
It is clear from the record that DeCarlo was produced at trial with some difficulty. Brought from out of state by California law enforcement officers and placed in protective custody during trial, DeCarlo was accompanied and represented by an attorney who was also representing him in a pending federal prosecution. Nevertheless, an opportunity to conduct an interview during a noon recess was offered to the defense by the trial court. There is no evidence to support the contention that respondent interfered with any legitimate and reasonable effort on the part of Manson’s counsel to interview DeCarlo.
Manson also contends that respondent interfered with his counsel’s efforts to interview Lake. The record does not support this contention. Lake was 17 years old at the time of trial. She had a history of mental disturbance related to the use of hallucinogenics. When she appeared as a witness she was the conservatee of Jack Gardiner, an investigator for the district attorney’s office of Inyo County. The trial court appointed counsel to represent her. When Manson’s counsel complained that he could not communicate with Lake, the court advised him to consult with her court-appointed attorney. The record is devoid of any evidence that respondent interfered with any attempt by the defense to interview Lake. (People v. Aadland (1961) 193 Cal.App.2d 584, 594 [14 Cal.Rptr. 462].)
Manson also contends that respondent interfered with his attempts to interview Kasabian. This argument is totally untenable. Kasabian was a coindictee and represented by private counsel. She categorically refused to speak with attorneys for the defense. We are aware of no law that compels any witness to grant any attorney or party a private interview. It appears to us that the full range of subject matter which might possibly have been covered in a private interview was accomplished by thorough and complete cross-examination during the course of the trial in and out of the presence of the jurors. The contention that respondent interfered with any cognizable right to interview is without support and is rejected.
Manson further complains that respondent interfered with the production of certain purported witnesses for the defense. Specifically, he claims the prosecuting attorneys were responsible for the failure of J.H.M. and J.B. to appear as witnesses for appellants. With respect to J.H.M., Manson’s attorney advised the court that the witness was a United States Marine and that Los Angeles law enforcement agencies caused him to be harassed by the shore patrol. The insinuation of the charge is that this was done to deter him from testifying. We are not told the nature of J.H.M.’s potential testimony.
J.B. was purportedly hitchhiking and picked up by Linda Kasabian after she left Spahn ranch and while she was driving to New Mexico. She allegedly told J.B. her name was Yana and that she was a witch. When he arrived at the trial court J.B. engaged in a conversation with one of Kasabian’s attorneys, Gary Fleischman. There is no evidence that the prosecution had any contact with J.B.
.We are not directed to anything in the record to show that these witnesses were under subpoena or that they were forever unavailable to appellants. Furthermore, nothing shows that respondent interfered with their attendance or participation in the trial.
Another incident characterized as prosecutorial interference with defense witnesses stems from an altercation between Bugliosi and Family member Sandra Good. It is admitted that Bugliosi addressed Good as a “god-damn bitch” and threatened her with prosecution in response to conduct by her that he regarded as threatening. She, in fact, did appear for the defense during the penalty phase of the trial. Presumably she was not deterred from giving her assistance. The assignment of error is vapid.
Motion to Quash Service of Subpoena
During the time Richard Caballero was representing Atkins, three removal orders were signed by judges of the superior court. These orders were signed upon the submission of a “Request for Removal of Prisoner.” The requests are supported by affidavits dated December 1, 1969, December 12, 1969, and January 22, 1970. The affidavits are signed by Atkins’ then counsel, Caballero, Deputy District Attorney Bugliosi and Sergeant Paul Whiteley of the Los Angeles Sheriff’s office. The removal orders directed the sheriff to transport Atkins to her attorney’s office and to various locations to assist in the investigation of the case.
During the course of the trial Atkins caused subpoenas to be served on each of the three superior court judges who signed the removal orders. Through the county counsel the judges moved to quash the subpoenas. The motion was supported by their declarations stating in substance they had no knowledge of the matters at issue and their only relationship to the case had been as judicial officers and what information they did have was disclosed by the records of the superior court. The trial court granted the motion to quash. Atkins complains that this constitutes reversible error.
It is true that a defendant in a criminal cause has the right to compel attendance of witnesses in the defendant’s behalf. (Cal. Const., art. I, § 15, cl. 2, formerly art. I, § 13, cl. 2.) However, that right is not unqualified. The courts have inherent power to control the issuance of their own process and to preclude an abuse of the right to subpoena witnesses. (People v. Fernandez (1963) 222 Cal.App.2d 760, 769 [35 Cal.Rptr. 370].)
Our examination of the record reveals that the signing of the removal orders by the judges constituted nothing more nor less than the tangential procedural activity surrounding Caballero’s efforts to favorably dispose of Atkins’ case. Nothing indicates that the judges, had any more information than is set forth in the applications for the “Request for Removal of Prisoner.” The declaration in opposition was totally insufficient.
The trial court’s order quashing the subpoenas was fully justified (In re Finn (1960) 54 Cal.2d 807, 813 [8 Cal.Rptr. 741, 356 P.2d 685]; People v. Rhone (1968) 267 Cal.App.2d 652, 657 [73 Cal.Rptr. 463]).
Disappearance of Ronald Hughes
Ronald Hughes became trial counsel for Van Houten on July 17, 1970, after commencement of trial and during the jury voir dire but before any jury was sworn or any evidence taken. He continued to actively represent her through the course of trial until Monday, November 30, 1970, when he failed to appear in court. By that time respondent and appellants had rested, but the trial court had not ruled on all submitted jury instructions and closing arguments had not commenced. When Hughes could not be located, Maxwell Keith was appointed for Van Houten as cocounsel under the provisions of Penal Code section 987.2. The appointment was over Van Houten’s objection that she could better represent herself in argument than could newly appointed counsel. Hughes never returned to court. The full responsibility for proceeding on behalf of Van Houten then fell to Keith, who undertook the labor of reading transcripts and examining exhibits.
Prior to argument Van Houten moved for a mistrial. Asserting that he was greatly handicapped, Keith contended his absence during the taking of evidence made it impossible for him to effectively argue the issue of credibility. The court denied the motion. Predicated on the assumption that Keith was incapable of effectively arguing on her behalf, Van Houten contends on this appeal that the motion should have been granted and that its denial resulted in reversible error.
Integrity of the process of appellate review demands that we consider Van Houten’s contention uninfluenced by the sensation and notoriety of the case at bench or the indicia of her bad character. Despite the strong evidence of Van Houten’s guilt “more enduring values are challenged whenever there is reason to doubt that a notorious public trial has been conducted” in a manner comporting with the requirements of due process of law. “ ‘[T]he guilty are almost always the first to suffer those hardships which are afterwards used as precedents against the innocent.’ ” (United States v. Barrett (7th Cir. 1975) 505 F.2d 1091, 1114-1115, dis. opn. then Judge now Mr. Justice Stevens.) So considering the issue in light of the record here, we find merit in Van Houten’s contention on two interrelated grounds. First, she was denied effective representation because Keith was incapable of arguing credibility. Second, the disappearance of Hughes after the submission of all evidence severely interrupted the continuity of representation necessary to a fair trial.
Included in the Sixth Amendment guarantee of assistance of counsel is the accused’s right to have a closing summation made to the jury. (Herring v. New York (1975) 422 U.S. 853 [45 L.Ed.2d 593, 95 S.Ct. 2550].) It is elementary that the right to counsel means the right to effective representation. (In re Williams (1969) 1 Cal.3d 168, 174 [81 Cal.Rptr. 784, 460 P.2d 984].) In our opinion an accused is denied effective representation if her trial attorney is unable to effectively argue the case.
In a somewhat different context, the United States Supreme Court recognized the importance of argument by tracing its historical roots in the early American colonies and its evolvement in the law of England: “There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge.” (Herring v. New York, supra, 422 U.S. at p. 858 [45 L.Ed.2d at p. 598].)
An integral part of argument includes fair comment on the credibility of witnesses. (People v. Roberts (1966) 65 Cal.2d 514, 520 [55 Cal.Rptr. 412, 421 P.2d 420].) The importance of the issue of credibility is punctuated by its inclusion in our statutory law. Penal Code section 1127 .mandates the court to instruct the jury of its responsibility as the exclusive" judge of the credibility of witnesses. (See also, Pen. Code, § 1093, subd. 6.) Evidence Code section 780 catalogues 11 specific considerations the trier of fact may entertain with respect to the credibility of any witness. Every trial judge and trial lawyer grasps the value attached to the manner in which testimony is presented. Counsel addresses this issue by pointing out to the jurors such things as the manner in which a witness testifies, the nuances suggested by inflections of the voice, long reflections before answering, body language and a variety of other mannerisms bearing on the assessment of truthfulness of the witness.
Such comments generally cannot be made unless the witness is observed, for their basis is rarely perceivable on the cold pages of the transcript. Keith neither saw nor heard any witness during the guilt phase of the trial. He could not deal with this subject effectively or at all.
Here, more so than in the “average” case, credibility was of major importance. To begin with, the credibility of 88 witnesses was in issue and corroboration of accomplice testimony was required. The only corroborating evidence as to Van Houten consisted of Lake’s testimony with respect to Van Houten’s admissions and that testimony was in edited from to comport with Aranda and Bruton. While Keith could argue Lake’s lack of credibility from her instability, he was precluded by lack of observation from relating specific conduct of Lake while testifying to her unstable emotional character. Nor could Keith attack the portion of the Kasabian testimony incriminating Van Houten by reference to conduct of the witness while testifying.
Clearly, it is impossible for us to know whether conduct of witness observable by competent counsel would have aided Keith’s argument. That is not matter ascertainable from a cold record on appeal. It is only slightly more apparent to a trial judge sitting as an arbiter and not an advocate. For these reasons disappearance without fault of defense counsel near the close of a criminal case presents a policy choice. If the focus is on convenience, new counsel is thrust on the defendant to avoid the burden of a new trial. If the focus is on the Sixth Amendment and the worth of a good trial lawyer, the defendant is given the right to a trial where his counsel charged with the duty of arguing witness credibility may observe witness behavior.
The plain fact is that Van Houten’s counsel did not provide adequate argument because he could not effectively argue the issue of credibility. In a different context and before Hughes disappeared, the trial court recognized the magnitude of the case before it. At that time it was suggested that another attorney be substituted for the purpose of questioning appellants. The judge commented on that suggestion as follows: “It would .undoubtedly, place an" undue burden on any counsel coming into the case. At this date the trial has been in progress for five months; the transcript is in excess of 18,000 pages, and it would be a terrible burden to bring a new attorney into the case and expect him to adequately and effectively represént anyone for the remainder of the trial.”
The structure of a jury trial is divided into distinct but related segments. Beginning with the selection of the jury and ending with closing arguments, it preserves a continuity of representation insuring each side the opportunity to cogently and effectively urge their contentions. (See Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 697 [122 Cal.Rptr. 778, 537 P.2d 898].) In this case Van Houten’s counsel disappeared at a. time severely severing the continuity of representation, producing an irreversible disruption in the structure of the trial process. In a case of this dimension substituted counsel cannot assume a meaningful adversary posture, handicapped as he is by his absence from every segment of the trial process except argument. In the final analysis the infringement on Van Houten’s right to effective counsel is produced from the extraordinary disruption of the trial process resulting from the disappearance of her trial counsel at the moment he would have argued her contentions within the framework of the trial and the plan of defense which he had developed. Viewing the situation from this perspective, we do not see how the issue can be assessed by comparing Keith’s argument with any other argument. It is not a matter of what Keith did or did not argue or even how well he argued. The fact is that after about five months of testimony and 88 witnesses it is presuming too much to believe he could enter the proceedings and effectively advocate his client’s case. We hasten to acknowledge our adherence to the accepted standard of “effective counsel” and not “perfect counsel.” But our own experience as former trial lawyers convinces us that the natural incapacity flowing from the unusual circumstances of this case deprived Van Houten of the minimal requirement.
The significance of continuity of representation has been recognized within the past year by the Supreme Court of the United States. In concluding that an accused has a constitutional right to self representation the high court disposed of the dilemma of the proper-deliberately-disruptive-defendant by the statement that such a defendant’s right of self representation may be terminated. Significantly the Supreme Court does not suggest that in such an event counsel not previously involved may then be appointed to represent the accused. Rather it says: “Of course, a State may—even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self representation is necessary.” (Faretta v. California (1975) 422 U.S. 806, 834-835, fn. 46 [45 L.Ed.2d 562, 581, 95 S.Ct. 2525].)
Confronted with these circumstances the trial court should have granted the mistrial. It was not necessary to compel Van Houten to go forward with Keith, however convenient that may have been for the court or respondent. Under our system of justice expediency is never exalted over the interest of fair trial and due process.
Because a trial judge’s determination to not grant a mistrial is a discretionary matter, it is not lightly tampered with. We note, however, that statutory and case law authority authorize the granting of a mistrial on the ground of “legal necessity.” (Curry v. Superior Court (1970) 2 Cal.3d 707, 713 [87 Cal.Rptr. 361, 470 P.2d 345].) “Legal necessity” may arise when there is a death, protracted illness, or other unavoidable absence of a judge or juror. (Pen. Code, §§ 1123, 1147.) Mistrials have been granted when there has arisen a breakdown in a relationship between the accused and his counsel frustrating the realization of a fair trial. (Cf. People v. Smith (1970) 13 Cal.App.3d 897, 911 [91 Cal.Rptr. 786, 52 A.L.R.3d 875].)
Penal Code section 1141 provides that “In all cases where a jury is discharged or prevented from giving a verdict by reason of an accident or other cause, except where the defendant is discharged during the progress of the trial, or after the cause is submitted to them, the cause may be again tried.” Implicit in this" provision is recognition of the fact that circumstances may arise due to the fault of no one—characterized as “accident or other cause”—precluding the jury from rendering a verdict. Here the unexplained disappearance of Hughes is an event of “legal necessity” which should have resulted in the granting of a mistrial as to Van Houten. To hold otherwise would be to deny Van Houten the right to have her cause effectively argued with respect to a major issue in the case. Here the absence of counsel qualifies as legal necessity in the same manner as would the absence of judge or juror. (See Curry v. Superior Court (1970) 2 Cal.3d 707, 713-714 [87 Cal.Rptr. 361, 470 P.2d 345].)
The purpose of the concept of “legal necessity” is to obtain the fair administration of justice. In the context of this case the disappearance of Hughes is not attributable to appellant, to respondent or to the court. The “other cause” provision of Penal Code section 1141 clearly contemplates retrial under the circumstances now before us and retrial is clearly in order after this reversal. Balancing the harm to Van Houten caused by the absence of her lawyer at a critical stage of trial against the burden of respondent in retrying the case, we believe the fair administration of justice demands reversal. (Cf. People v. Davis (1957) 48 Cal.2d 241, 257-258 [309 P.2d 1].)
Jury Instructions
Diminished Capacity
Appellants requested a jury instruction on diminished capacity. The court refused.
A record revealing a sufficient factual showing that, by reason of mental defect, mental illness, intoxication or otherwise, appellants or any of them could not form the necessary specific intent to commit murder would require appropriate instructions on diminished capacity. (People v. Nichols (1970) 3 Cal.3d 150, 165 [89 Cal.Rptr. 721, 474 P.2d 673], cert. den., 402 U.S. 910 [28 L.Ed.2d 652, 91 S.Ct. 1388]; People v. Mosher (1969) 1 Cal.3d 379 [82 Cal.Rptr. 379, 461 P.2d 659]; People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911].) Here, however, the trial court found no such evidence.
Although Manson and Krenwinkel now argue that the record supports giving diminished capacity instructions, they do .not rely on the rule just stated. We understand Manson’s argument to be as follows: since there is no direct evidence that he made an agreement with Watson, respondent has failed to establish the specific intent necessary to a charge of conspiracy. The argument continues with Manson’s contention that his absence at the time of the homicides establishes a lack of the requisite specific intents to premeditate, deliberate and harbor malice with respect to the substantive crimes. These arguments have nothing to do with the doctrine of diminished capacity.
Van Houten’s claim of error pivots on two other factors: (1) the established availability and use of hallucinogenic drugs by members of the Family; and (2) the prosecutor’s depiction of the Family as devoted and fearful followers of Manson.
No evidence suggests that anyone ingested any drugs at any time proximate to the Tate or La Bianca murders. Consequently, there is no showing that anyone’s mental capacity was affected by a foreign chemical. If we interpret this as an argument that by prolonged usage diminished mental capacity is presumed, the contention is not supported by evidence. Admittedly there is a great deal of testimony that drugs were commonly used by Family members. However, it does not necessarily follow that all members used drugs and nothing indicates with particularity the kind, quantity, or regularity of use by anyone. In short, this common circumstance is no more than a generalizátion without specific application to any one appellant. (People v. Harris (1970) 7 Cal.App.3d 922, 926 [87 Cal.Rptr. 46].) Moreover, no evidence was produced concerning the affect of such drugs on a particular defendant. (Cf. People v. Rocha (1971) 3 Cal.3d 893, 901 [92 Cal.Rptr. 172, 479 P.2d 372].)
The defense of diminished capacity is generally tendered by testimony of the defendant or a psychiatrist or both. That is the orthodox method of raising the issue and it was the method employed in virtually every case cited by appellants.
Manson points to the fact that two psychiatrists testified concerning the use of LSD and marijuana by Lake. Their opinions of Lake, however, have no bearing on appellants’ mental capacity and no evidence of Lake’s use of drugs could responsibly be applied to any appellant. Absent specific evidence pertaining to the use of drugs, and absent expert testimony as to the effect of such use on appellants, a diminished capacity instruction on that ground was not required. (Cf. People v. Smith (1970) 4 Cal.App.3d 403,412 [84 Cal.Rptr. 412].)
The prosecutor’s argument characterizing Manson’s coindictees as “slaves” “robots” and “automatons” is not evidence, nor do his hyperbolic descriptions affect the evidence bearing on the mental capacity of appellants. The evidence is persuasive that Van Houten, Krenwinkel, Atkins and Watson were Manson’s followers. There is no doubt they were subjected to his influence. That some people are followers is an ordinary circumstance of any concerted activity. In nearly every conspiracy there is a leader.
Krenwinkel asks us to determine that the specific intent requisite to the crimes charged was negated by the showing of peer pressure alone. The evidence that a party is a follower does not, however, translate itself into a prima facie showing of diminished capacity. We find no evidence in the record and know of no authority to support that proposition. The trial court’s rejection of the tendered instruction was proper. (People v. Carr (1972) 8 Cal.3d 287, 294-295 [104 Cal.Rptr. 705, 502 P.2d 513].)
The record is devoid of any evidence that any appellant suffered from undisputed mental illness or from incapacity to maturely and meaningfully reflect upon the gravity of contemplated acts. (People v. Wolff (1964) 61 Cal.2d 795, 821 [40 Cal.Rptr. 271, 394 P.2d 959].) No medical or other expert testimony was offered as to a mental disease or defect of any appellant (People v. Henderson (1963) 60 Cal.2d 482, 488-489 [35 Cal.Rptr. 77, 386 P.2d 677].) Plainly put, appellants cannot point to any evidence compelling a diminished capacity instruction.
Emphasis of life style in the commune only shows its members embraced bizarre concepts, accepted depraved standards and followed a warped philosophy. “It is not enough, to relieve from criminal liability, that the prisoner is morally depraved. [Citation.] It is not enough that he has views of right and wrong at variance with those that find expression in the law. The variance must have its origin in some disease of the mind. [Citation.] The anarchist is not at liberty to break the law because he reasons that all government is wrong. The devotee of a religious cult that enjoins polygamy or human sacrifice as a duty is not thereby relieved from responsibility before the law. [Citations.]” (People v. Schmidt (1915) 216 N.Y. 324 [110 N.E. 945, 949-950].)
Accordingly, evidence of bizarre, depraved or weird conduct standing alone does not compel an instruction on diminished capacity. Such circumstances are not subject to common interpretation. Had appellants gone forward in the classical tradition of Wells-Gorshen, the trial court in all probability would have instructed on diminished capacity. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53], cert. den., 338 U.S. 836 [94 L.Ed. 510, 70 S.Ct. 43]; People v. Gorshen (1959) 51 Cal.2d 716 [336 P.2d 492]; and see Witkin, Cal. Crimes (rev. 1975 Supp.) Diminished Capacity, § 147a, p. 98.) Failure to proceed in that manner resulted in a record too shadowy to expose the presence of diminished capacity. The trial court’s refusal to instruct on this subject was not error.
Compulsion
Krenwinkel, extending the argument for a diminished capacity instruction by reference to subdivision 8 of Penal Code section 26, confuses the defense óf compulsion with the defense of diminished capacity. Nothing in the record compels a sua sponte instruction on that subject.
Compulsion as a legal defense requires evidence that the accused acted" upon reasonable cause and belief that her life was presently and immediately endangered if she refused to participate. (People v. Richards (1969) 269 Cal.App.2d 768, 773-774 [75 Cal.Rptr. 597]; People v. Villegas (1938) 29 Cal.App.2d 658, 661 [85 P.2d 480].) Here there is no evidence that Manson’s instructions were accompanied by any threat. Simply, following orders is not a defense under the facts of this case. An instruction on compulsion was neither required nor appropriate.
Lesser Included Offenses
The contention that the trial court erred in failing to instruct the jury on manslaughter is without merit. To the extent the contention is based on the assumption that there is evidence of diminished capacity, our discussion of that subject is dispositive. It is further contended that an instruction on manslaughter as a necessarily included oifense must always be given in a trial on the charge of murder. That is not accurate. An instruction on manslaughter is not required where the evidence does not support it. Here there is no such evidence. The basic posture of the defense was to put respondent to its proof. No appellant testified concerning intent, no evidence was produced to show whether or not any appellant was under the influence of an intoxicant or narcotic and no evidence suggested that any appellant was legally incompetent. The trial court was justified in refusing to instruct the jury on the theory of manslaughter. (People v. Preston (1973) 9 Cal.3d 308, 319 [107 Cal.Rptr. 300, 508 P.2d 300]; People v. Thomas (1962) 58 Cal.2d 121, 127 [23 Cal.Rptr. 161, 373 P.2d 97], dism., cert. den., 371 U.S. 231 [9 L.Ed.2d 495, 83 S.Ct. 327].)
Felony-murder Rule
Over the objection of appellants the trial court instructed the juiy on the felony-murder rule. (CALJIC No. 8.21.) The concomitant felonies referred to were robbery (Pen. Code, § 211) and burglary (Pen. Code, § 459). The choice of these felonies was appropriate in view of the entries into private residences and the taking of personal property and the use of force in each instance.
Because the prosecution emphasized the contention that both the Tate and La Bianca murders were wilful, deliberate and premeditated homicides, appellants assert that instructing the jury on felony-murder was error. Respondent, however, also produced evidence bearing on the felony-murder doctrine. The trier of fact is not limited by any hierarchy of theories selected by the prosecution. If there is substantial evidence to support convictions of first degree murder by proving deliberation and premeditation or by proving the perpetration of a felony, the jury should be instructed on both and may rely on either theory. (People v. Mulqueen (1970) 9 Cal.App.3d 532 [88 Cal.Rptr. 235].)
Application of the felony-murder rule requires that the homicide be committed in the course of perpetrating one of the felonies designated in Penal Code section 189. (People v. Ford (1966) 65 Cal.2d 41, 55-56 [52 Cal.Rptr. 228, 416 P.2d 132], cert. den., 385 U.S. 1018 [17 L.Ed.2d 554, 87 S.Ct. 737].)
TA TE MURDER: On cross-examination by Manson’s counsel, and without objection, Kasabian testified that Watson took $70 from the Cielo Drive residence. That evidence, coupled with the showing that access to the Cielo Drive residence was accomplished by a breaking and entering, established a prima facie burglary. Whether Watson harbored the requisite animus furandi prior to entering was a question of fact for the jury. The fact that Watson did take the money is a reasonable and logical basis from which the jury could properly infer that he intended to do so prior to entering the residence. (People v. Hamilton (1967) 251 Cal.App.2d 506, 508-509 [59 Cal.Rptr. 459]; People v. Pineda (1940) 41 Cal.App.2d 100, 106 [106 P.2d 25].) The evidence relating to a plan to perpetrate homicides in furtherance of the broader design to ignite “Helter Skelter” did not preclude existence and application of other criminal purposes. (People v. Finkel (1945) 70 Cal.App.2d 508, 512 [161 P.2d 298].)
LA BIANCA MURDER: Manson entered the La Biancas’ residence and subdued them. When he left he had in his possession Mrs. La Bianca’s wallet, presumably taken from her person or from within her immediate presence. As Kasabian disclosed, it was Manson’s declared intention to place this wallet some place where it could be found by a black person, thereby implicating the black community with the commission of that crime. This evidence has a tendency to reasonably demonstrate that Manson harbored the intent to steal even prior to his entry into the La Bianca home. The evidence is sufficient to find that either a burglary or robbery occurred.
In connection with the La Bianca murders, we must also determine whether the robbery terminated before the La Biancas wére killed. Appellants, of course, contend the robbery was complete before the killings and demand reversal on the_ ground the felony-murder rule instruction was therefore improper. We disagree. Within the extraordinary facts-of this case the jury could have concluded either way.
When Manson exited the La Bianca residence he implied the occupants were tied-up but alive. At that time he directed Watson, Krenwinkel and Van Houten to perpetrate the killings. Assuming the La Biancas were then in fact still alive, the proximity in time of their subsequent death is sufficient to cement together the burglary-robbery and the homicides as one indivisible transaction. (People v. Ford (1966) 65 Cal.2d 41, 56 [52 Cal.Rptr. 228, 416 P.2d 132]; People v. Ketchel (1963) 59 Cal.2d 503, 523-524 [30 Cal.Rptr. 538, 381 P.2d 394] (vac. and revd. on other grounds, 63 Cal.2d 859 [48 Cal.Rptr. 614, 409 P.2d 694]; mod. 71 Cal.2d 635 [79 Cal.Rptr. 92, 456 P.2d 660]); People v. Boss (1930) 210 Cal. 245, 250-251 [290 P. 881].) Here the demonstrated causal connection between the underlying felony and the killings suggests the robbery was not complete and supports application of the felony-murder rule. (Cf. People v. Carroll (1970) 1 Cal.3d 581 [83 Cal.Rptr. 176, 463 P.2d 400]; see also People v. Sirignano (1974) 42 Cal.App.3d 794, 801-802 [117 Cal.Rptr. 131]; People v. Chapman (1968) 261 Cal.App.2d 149, 175 [67 Cal.Rptr. 601].)
Appellants’ reliance on People v. Washington (1965) 62 Cal.2d 111 [44 Cal.Rptr. 442, 402 P.2d 130] is absurd. That case holds the felony-murder rule inapplicable to killings committed by a victim of the underlying felony. Neither the La Biancas nor any of the Tate victims caused any of the deaths with which appellants are charged. (See also, People v. Burton (1971) 6 Cal.3d 375, 388; People v. Stamp (1969) 2 Cal.App.3d 203, 209 [82 Cal.Rptr. 598], cert. den., 400 U.S. 819 [27 L.Ed.2d 46, 91 S.Ct. 36].)
We conclude that no error resulted from the giving of the felony-murder rule instruction. We further conclude that the felony-murder rule was equally applicable to each appellant. It is axiomatic that each member of a conspiracy is liable for all acts of his coconspirators, intended, unintended, or even actually forbidden, provided only that such acts be in furtherance of the common purpose of the conspiracy. (People v. Smith (1966) 63 Cal.2d 779, 794 [48 Cal.Rptr. 382, 409 P.2d 222], cert. den., 388 U.S. 913 [18 L.Ed.2d 1353, 87 S.Ct. 2119]; People v. Beaumaster (1971) 17 Cal.App.3d 996, 1003 [95 Cal.Rptr. 360].)
Conspiracy/Specific Intent
We disagree with the contention that error occurred because the court failed to instruct the jury that conspiracy is a “specific intent” crime. The jury instructions included CALJIC No. 6.10 as then drafted. The Committee on Standard Jury Instructions, Criminal, of the Superior Court of Los Angeles County, responding to People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal.Rptr. 516, 524 P.2d 1300], modified CALJIC No. 6.10 sometime after appellants herein were convicted. This modification was not compelled but simply reflects the committee’s cautious disposition to minutely refine the uniform instructions to reflect the most current pronouncements of our Supreme Court.
No one questions that the crime of conspiracy is a specific intent crime. The Supreme Court did not suggest that the instructions given were improper. Holding that evidence pertaining to diminished capacity at the time of the conspiracy should have been admitted, Horn did not condemn the use of CALJIC No. 6.10. Appellants’ argument, based on a misinterpretation of the grammatical structure of the instruction given and encouraged by the amendment of CALJIC No. 6.10, albeit a nonsubstantive change, is rejected. In any event, the jury was expressly instructed on the specific intent required for the crime of conspiracy. (CALJIC No. 3.31.)
General Instructions Refused
Appellants assign error to the trial court’s refusal to give certain special instructions. Although appellants refer to a host of refused special instructions, the actual issues are not substantial. Many pertain to common subjects easily categorized. To expedite their disposition, we address them in that fashion.
Many of the rejected instructions pertain to Kasabian’s grant of immunity; Lake’s history of mental illness, her admitted untruthfulness and her purported inconsistent statements; DeCarlo’s admitted prior felony conviction and other matters pertaining to credibility. Our review of the rejected special instructions exposes them as argumentative, redundant, or superfluous. Credibility was properly explained to the jury by use of CALJIC No. 2.20.
By their “Special Instruction No. 103,” appellants wanted the jury instructed that: “Evidence involving the defendants on trial before you after August 10, 1969, may not be considered by you in your deliberations as to whether or not the conspiracy alleged by the prosecution ever came into existence.”
The requested instruction is entirely too broad; it also misstates the law. (People v. Goldberg (1957) 152 Cal.App.2d 562, 573 [314 P.2d 151].)
Manson asserts that he was entitled to an alibi instruction. Since the prosecution never contended Manson was present at the time of the actual commission of any homicide, and since his presence was not a requirement for culpability, Manson’s absence was not, as the submitted instruction states, “... [a] complete defense that we call an alibi.” The instruction was properly refused.
Appellants’ special instructions pertaining to accomplice testimony are redundant and argumentative. The court correctly instructed the jury that Kasabian was an accomplice as a matter of law, that her testimony must be corroborated, and that it “... ought to be viewed with distrust.” Nothing more was required.
Appellants’ remaining assignments of error concerning refused special instructions are rejected. They have failed to direct us to any portion of the record supporting their contention that the instructions should have been given. They have similarly failed to support their assertion of error as to the instructions that were given. Our independent review of all instructions, including those given and those refused, convinces us that the jury was fully and correctly instructed on all propositions of law applicable to the facts of this case.
Opening and Closing Arguments
During cross-examination óf Juan Flynn by Manson’s counsel, Bugliosi interposed several objections. Coupled with one objection was the assertion that Manson’s attorney, Kanarek, was lying. Without request by appellant or anyone else, the trial judge immediately admonished Bugliosi. Additionally, the court admonished the jury to disregard Bugliosi’s comment concerning Kanarek’s credibility.
In view of the length and intensity of this case this occurrence was more regrettable than unexpected. Viewing the matter in the context of the entire trial, we conclude this incident was not likely to have caused a miscarriage of justice. There is little likelihood the jury was affected by this event. Consequently, we find no justification for reversal of the judgment on this ground. (People v. Perry (1972) 7 Cal.3d 756, 790-791 [103 Cal.Rptr. 161, 499 P.2d 129]; People v. Chavez (1958) 50 Cal.2d 778, 793 [329 P.2d 907], cert. den., 358 U.S. 946 [3 L.Ed.2d 353, 79 S.Ct. 356].)
Manson takes exception to certain portions of the prosecution’s opening statement and closing argument. Most of these specifications of error were not objected to in the course of trial. The misconduct complained of is not so gross that it should be assigned as error on appeal in the absence of an objection at trial. (People v. Mitchell (1966) 63 Cal.2d 805, 809 [48 Cal.Rptr. 371, 409 P.2d 211], cert. den., 384 U.S. 1007 [16 L.Ed.2d 1021, 86 S.Ct. 1985]; People v. Beyea (1974) 38 Cal.App.3d 176, 197-198 [113 Cal.Rptr. 254].)
Manson’s reference to that part of the opening statement in which the deputy district attorney refers to “Manson’s lust for death, blood and murder” immediately drew an admonition. The jury was also admonished that Bugliosi’s motives were not in issue after the deputy district attorney apologized for frequent references to Helter Skelter. Neither comment resulted in prejudicial error.
No error resulted from Bugliosi’s comment that he anticipated that Manson would claim that “... neither he nor anyone else was the leader of the Family and that he never ordered anyone in the Family to do anything, much less commit these seven murders.” That comment did not constitute prosecutorial misconduct. (Cf. People v. Womack (1967) 252 Cal.App.2d 761, 764 [60 Cal.Rptr. 870].) Appellants’ other exceptions to the opening statement are not well taken. In the aggregate Bugliosi’s comments were well within the bounds of the evidence produced at trial.
Manson also complains about an epithet used by the prosecutor during the course of his argument and directed to Atkins: “You little bitch.” The exclamation was not a planned part of argument, but rather was a reaction produced by the misconduct of Atkins when she and Krenwinkel interrupted Bugliosi’s argument by shouting. Atkins walked to the rostrum and grabbed Bugliosi’s notes. This incident is no basis for complaint. While the prosecutor must be fair, he cannot "be expected to be a saint. We do not believe that any of the prosecutor’s remarks were so significant that their absence would have resulted in appellants’ acquittal. This is not a closely balanced case. The evidence as to each appellant is substantial and guilt is shown by clear and convincing evidence. In sum, we find no prejudicial error arising from the opening or closing argument of the prosecution. (People v. Baker (1974) 39 Cal.App.3d 550, 555 [113 Cal.Rptr. 248]; People v. Jones (1970) 7 Cal.App.3d 358, 365 [86 Cal.Rptr. 516].)
Procedures During Jury Deliberation
Court Communication
After the juiy commenced deliberations it requested that certain exhibits be identified. It appeared there was some discrepancy between the jurors’ notes and the clerk’s markings on the exhibits. The court directed the. bailiff to ask the foreman to set aside all the exhibits about which there was some question. Relying on Penal Code section 1138 and People v. Weatherford (1945) 27 Cal.2d 401 [164 P.2d 753], Manson asserts that such a communication constitutes reversible error.
Here there is no record or other evidence of the bailiff’s communication to the foreman. In Weatherford, supra, 27 Cal.2d 401, the court was presented with affidavits of the bailiff and of jurors showing that the bailiff had addressed the jurors on a point of law. Here the only possible inference is that the bailiff gave the foreman an innocuous ministerial instruction. In any event, appellants offer no showing of prejudice to justify reversal. (People v. House (1970) 12 Cal.App.3d 756, 765 [90 Cal.Rptr. 831] [overruled on other grounds, People v. Beagle (1972) 6 Cal.3d 441 699 Cal.Rptr. 313, 492 P.2d 1)].)
A collateral assertion of error is based on the fact that the court went off the record while discussing the foregoing with counsel. The court informed counsel that there was no need to report the informal conversation concerning the method to be used to clarify exhibit numbers. No objection was made. In the absence of request that a record be made of a conference between court and counsel, none is required. (Code Civ. Proc., § 269.)
During jury deliberations Manson’s attorney moved that “all of the testimony that was admitted into evidence go into the jury room so that [the jury] can have the benefit of all of the evidence.” In this case, counsel’s proposal is patently ridiculous. As pointed out by respondent there is no authority for the requested procedure. In any event, transcripts of the trial should never be delivered into the jury room. Penal Code section 1137 specifically excepts depositions from the items that may be taken into the jury room. The obvious reason for that rule is that depositions may contain a great deal of inadmissible material. The same is true of the unedited transcript of the trial.
Jury Use of Record Player
Received into evidence without objection were two phonograph records enclosed in a cardboard jacket. These were identified as the sound recording of the Beatles rendition of musical compositions including “Helter Skelter.” Three identified compositions were referred to by various witnesses in the course of the trial. These phonograph records were received into evidence without objection.
In the course of its deliberation on the merits, the jury directed a request to the court for a record player. The ostensible purpose for the machine was to listen to the Beatles’ phonograph album.
All counsel except Manson’s stipulated that the phonograph records could be played for the jury by the bailiff. The record was played and Manson now contends this was reversible error.
A phonograph record is a “writing” within the meaning of Evidence Code section 250. It is elementary that as such it may be admitted into evidence. (People v. Marcus (1973) 31 Cal.App.3d 367, 370 [107 Cal.Rptr. 264].) The admission of a phonograph record without provision of the necessary electronic device to use it is inefficacious. Surely no one would expect the jury to examine photographs in the dark. In People v. Walker (1957) 150 Cal.App.2d 594, 603 [310 P.2d 110], a tape recording was admitted into evidence. After the jury began deliberations it was furnished a machine and permitted to play the tape out of the presence of the court, counsel and parties. The Walker court held there was no prejudicial error. We reach the same conclusion here. Manson’s failure to establish that he was prejudiced by this event supports our conclusion that the procedure did not constitute reversible error. (Cal. Const., art. VI, § 13.)
Impeachment of Verdict
Following the verdict in the guilt phase of the case appellants offered to prove that one of the jurors “had taken to drink.” By declaration based upon the information and belief of Manson’s counsel and the production of a purported videotape of a televised interview with the juror’s spouse, appellants offered to prove that the spouse stated that his wife was a teetotaler before she was exposed to this case but that she “took to taking and consuming alcoholic beverages” after she became a sequestered juror. The offer of proof does not make the slightest suggestion that the juror used alcoholic beverages at any time or in anyway interfering with her capacity to function as a juror. The offer of proof falls short of the standard that evidence on this issue be “... of such a character as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a).)
In support of Krenwinkel’s motion for a new trial, her counsel, Paul Fitzgerald, submitted a declaration concerning purported statements of some of the jurors. He declared: that juror W.M. informed him that W.M. had read some newspaper accounts of the trial during the course of his sequestration; that at an unspecified time, W.M. had read newspaper accounts of criminal proceedings against “... other so-called Manson family members who were witnesses in the instant case”; that W.M. was “familiar” with newspaper reports concerning the juror who allegedly consumed alcoholic beverages; that W.M. on occasion had seen newspaper headlines relating to the case through the windows of the bus used to transport the jury during the time they were sequestered. Additional parts of Fitzgerald’s declaration pertain not only to juror W.M., but also to statements purportedly made by jurors A.S., L.S. and H.T.
Insofar as Fitzgerald’s declaration purports to indicate W.M.’s disposition and subjective feelings, it is totally deficient to impeach the verdict. The purported statements are nothing more nor less than hearsay or double hearsay and are incompetent and insufficient to impeach the verdict or to compel the court to conduct a post-verdict voir dire of the jury. (People v. Aeschlimann (1972) 28 Cal.App.3d 460, 471 [104 Cal.Rptr. 689]; People v. Spelio (1970) 6 Cal.App.3d 685, 689-690 [86 Cal.Rptr. 113].)
An additional deficiency of Fitzgerald’s declaration is the fact that it is unclear when all the events purportedly described by juror W.M. occurred. Furthermore, all the purported statements of jurors A.S., L.S. and H.T. pertain to events occurring after the guilt phase had been concluded. Any overt acts or other conduct occurring during or after the penalty phase are irrelevant in view of the fact that the penalty verdict was nullified by operation of law. (People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880], cert. den., 406 U.S. 958 [32 L.Ed.2d 344, 92 S.Ct. 2060].)
Manson contends the court should have permitted appellants’ counsel to examine one or more of the jurors as witnesses in connection with the motion for new trial argued April 19, 1971. The jurors had been subpoenaed and were present in court. The primary basis for the application to interrogate the jurors under oath was to pursue the information set forth in Fitzgerald’s previously mentioned declaration. Because the declaration was legally insufficient, the court’s denial of the motion to put the jurors on the witness stand was correct. (Cf. People v. Reyes (1974) 12 Cal.3d 486, 506, fn. 2 [116 Cal.Rptr. 217, 526 P.2d 225].)
Unmeritorious Assignment of Error
In addition to the issues we have discussed appellants have raised other assignments of error. We have read and considered these additional contentions and all authorities cited in support thereof. All are unsubstantial and devoid of any merit. We reject each such contention.
Disposition
The disappearance of Ronald Hughes, resulting in a denial of effective counsel to Van Houten, constitutes the only valid assignment of reversible error. Without further exception, appellants’ other contentions are rejected.
The judgment of conviction as to appellant Leslie Van Houten is reversed for retrial.
The judgments of conviction as to Charles Manson, Patricia Krenwinkel and Susan Atkins are affirmed in all respects except that, insofar as the judgments impose the penalty of death, they are modified to provide a punishment of life imprisonment pursuant to People v. Anderson (1972) 6 Cal.3d 628 [100 Cal.Rptr. 152, 493 P.2d 880],
Thompson, J., concurred.
Assigned by the Chairman of the Judicial Council.
Also charged in the indictment on all eight counts were Charles Watson and Linda Kasabian. Watson was separately tried and convicted. Kasabian was granted immunity and the charges were dismissed as to her.
One of the victims of the first murders, Sharon Tate Polanski, was an active and well-known movie actress using the stage name of Sharon Tate. The second set of murders involved two victims who were husband and wife, Leño and flosemary La Bianca. For convenience the two events that are the subject of this opinion shall be referred to as the Tate murder and the La Bianca murder.
In addition to the main residence there is also a guest cottage on the grounds. During August of 1969 it was occupied by William Garretson who was in residence to care for the owner and lessors’ dogs..
The blood was determined to be that of Sharon Tate Polanski.
The residence contained several diamond rings, wristwatches. expensive camera equipment, coin collections and many rifles and guns.
We intentionally discuss certain issues out of the order of occurrence at trial. Our purpose is to locate a recitation of relevant facts at the appropriate places in the text.
Spahn had been in the business of providing horses for the motion picture industry. Consequently, in addition to the usual structures found at equestrian establishments, other buildings had been erected as sets for motion pictures.
The reason for the talks is set forth in the testimony of Paul Watkins:
“Q. Several times he told the Family why it was necessary to talk?
“A. Yes, at different times to different people because if a new person was there, he also would want to tell them.
“Q. What did he say as to the reason why it was necessary to talk to the Family at night?
“A. Because most people were like computers. In other words, they did not know anything that had not been put in them by schools, churches, parents, friends, relatives, radio, television and everything, and every other means of communication. Nothing they had was their own; that they didn’t know anything. They [síc] only thing they knew is what they had been told and programmed, and that he with his music and his words could unprogram, take those programs out and leave a void, or nothing, in which love could come through.
“Q. Did Mr. Manson ever talk to you about the concept of death?
“A. Yes.
“Q. Many times?
“A. Yes.”
The Beatles were a popular group of musicians who became entertainment idols in the 1960’s.
Kasabian, Atkins, Krenwinkel and Van Houten were present at the described rape and at the group sexual activity.
The reference was to Charles “Tex” Watson.
The Family had argot of its own. In the past Manson directed the women to blaze trails to various parts of the camp by hanging articles in the trees. This was described as making “witchy” little things from sticks and other natural material and hanging them in trees. The women were referred to as “witches”; those under 18 “the young ones.”
Kasabian testified she heard four shots. The coroner testified his examination revealed five separate gunshot wounds.
The clear implication of this testimony is the “car” into which Watson had fired gunshots.
Susan Atkins used the alias Sadie Glutz.
A gun matching the description given by Kasabian was found later, approximately 1.8 miles away. Broken pieces of the grip found at Cielo Drive fit the weapon found. A knife similar to that described by Kasabian was found at the Cielo Drive premises.
Kasabian claimed she intentionally pointed to the wrong door when responding to Manson’s inquiry as to where this man lived.
Kasabian’s direct testimony commenced July 27, 1970, and concluded July 30, 1970; she did not conclude her entire testimony until August 19, 1970. The immunity order was signed on August 10, 1970, and the charges were dismissed as to Kasabian on August 13, 1970.
The written motion asserts that the examination is needed to determine Kasabian’s credibility. The supporting points and authorities and much of the argument assumes the psychiatric examination would provide impeaching evidence predicated on the witness’ use of hallucinogenics. Notwithstanding this circumstance we understand the basic point of the motion is to challenge Kasabian’s competence. That is an entirely different matter.
The notice of motion purports to be supported by the declaration of Louise Share. That document is not in the clerk’s transcript lodged with this court. We have called for and examined all original files and exhibits and have located Share’s declaration.
Precluding use of procedures afforded by Ballard did not prevent any appellant from attempting to impeach Kasabian by reason of her use of drugs.
Manson alludes to the fact that the trial court did order psychiatric examinations of Dianne Lake and M.H. Those persons had histories of confinement in mental institutions. That difference distinguishes Lake and M.H. from Kasabian. Furthermore, Ballard’s application depends upon the case history and surrounding circumstances as they apply to each witness.
Penal Code section 1111 provides as follows:
“A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
“An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”
Flynn testified as follows:
“A. Mr. Manson walked in and he went like this (indicating).
“Q. Brushed his left shoulder with his right hand?
“A. Well, yes. Like that. And the girls walked out, you know.
“Q. How long after he brushed his left shoulder did the girls walk out?
“A. Well, the first one was Miss Glutz, you know. She walked out, you know.
“Q. How long after he made this brushing motion to his left shoulder did they walk out?
“A. Right when they noticed it, you know.
“Q. Immediately?
“A. Immediately, yes.
“Q. Okay. What is the next thing that happened?
“A. Well, I was going to eat, you know, and I am sitting down at the table "like this.
“Q. There was just you and Mr. Manson there?
“A. Yes. I wasn’t watching him. I was watching the food, you know. Then he grabbed me by the hair, you know, and put a knife on my throat, and he said, ‘You son-of-a-bitch, don’t you know I am the one who is doing all these killings?’ (Italics added.)
“Q. What is the next thing that happened, Juan?
“A. I told him—well, you know, I thought he was just boasting, you see—so I told him—he said, ‘Are you going to come with me?’ And I said, 7 am eating and I am right here, you know.’ So he put the knife down. He says, ‘Okay. You kill me.’ And I says, 7 don’t want to do that,’ you know.”
The parties stipulated that, “On August 18, 1970, Mr. Flynn spoke to Sergeant Sartucci over at the Los Angeles Police Department, and the conversation comprised 16 pages, and there is no reference in these 16 pages to the knife incident.”
Flynn testified that he had an interview with Deputy District Attorney Vincent T. Bugliosi, one of the prosecuting attorneys, a week prior to the time he was called to the witness stand. Bugliosi stated he did not know of the admission until that time. Bugliosi prepared a written statement concerning the interview revealing the admission and distributed it to each defense counsel.
Evidence Code section 1236 reads as follows: “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.”
In its entirety Evidence Code section 791 reads as follows:
“Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:
“(a) Evidence of a statement made by him that is inconsistent with any part of his, testimony at the hearing has been admitted for the purpose of attacking -his credibility, and the statement was made before the alleged inconsistent statement; or
“(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
Manson’s argument based on a denial of discovery is premised on his assertion that if he had known of the existence of a prior consistent statement he would not have cross-examined Flynn in such a way as to raise the specter of recent fabrication. We do not find that argument compelling. If Flynn’s testimony as to the admission had not been attacked on the basis of his failure to mention it to the Los Angeles Police Department, then it would have stood unimpeached. We do not believe that that would have benefited Manson. By focusing on Flynn’s unexplained silence when interviewed by the Los Angeles Police Department, Manson cast some doubt on Flynn’s credibility. That doubt remains notwithstanding the introduction of a prior consistent statement. The jury, could then consider the veracity of a witness who omitted significant information at a time when it would have been quite appropriate to have revealed it. Manson contends that permitting Steuber to testify gave a patina of truth to what Flynn said. It is just as logical to assert that the Steuber tape emphasized Flynn’s glaring omission when interviewed by the Los Angeles Police Department. The jury was instructed to consider it for the singular purpose of assessing Flynn’s credibility.
The handgun was found by an 11-year-old boy on September 1, 1969. He located it on a hillside by his home, just oif of Beverly Glen Road, approximately 1.8 miles from the Tate residence.
A witness for the prosecution testified that he located a bundle of clothing in a hillside area near Benedict Canyon. The clothing consisted of three pairs of pants, three shirts and a sweatshirt. These items, dark in color, were admitted in evidence.
The testimony was taken subject to a motion to strike until such time as the court conducted a hearing on the admissibility of the statement of Susan Atkins. The thrust of the motion was premised on the contention that publication of Susan Atkins’ story in the Los Angeles Times on December 14, 1969, was the product of improper state action encouraging and enabling the witness to locate the items of clothing. Relying on the doctrine stated in Wong Sun v. United States (1963) 371 U.S. 471, 488 [9 L.Ed.2d 441, 455-456, 83 S.Ct. 407] Manson incorrectly reasoned that the testimony and clothing were unlawfully obtained evidence. The court correctly admitted the evidence.
We simply cannot perceive how the witness’ location of this evidence can be characterized as “Fruit of the Poisonous Tree.” We find no authority for the proposition that the location of evidence by a private citizen not actirig under the direction of law enforcement agencies is unlawful or constitutionally impermissible. (See Dyas v. Superior Court (1974) 11 Cal.3d 628 [114 Cal.Rptr. 114, 522 P.2d 674] and authorities cited at p. 632.) Moreover, there was no proof that the publication referred to was the product of governmental action, improper or otherwise.
The writing on a refrigerator at the La Biancas was “HEALTER SKELTER.” The People offered to prove that Krenwinkel spelled Helter Skelter in that distinctive way. The evidence was not allowed, but this initiated the demand for the exemplar.
If that proposition was valid, separate trials would be mandatory in every case including all the following factors: (1) several defendants who have a societal relationship; (2) the prosecution turns on the testimony of an accomplice; and (3) defendants’ self-inculpatory statements are needed for corroboration.
See People v. Marcus (1974) 36 Cal.Ápp.3d 676, 680-681 [111 Cal.Rptr. 772, 58 A.L.R.3d 594], where the co-defendants were brothers. That relationship did not foreclose the use of independent edited admissions.
None of the letters were addressed to any lawyer. Therefore, the issue of privilege is not germane.
An example of the type of matter appellant has included in this broad assignment of error is the following: Kasabian testified concerning the entry to Cielo Drive over a barbed wire fence. Manson places great emphasis on this because (1) there is no explanation for entry to the premises by other than the main gate in view of the fact that Watson, Krenwinkel, and Atkins exited by that route; (2) the barbed wire fence was not cut even though Watson had wire cutters; and (3) neither the clothing or person of Kasabian was torn or scratched by the barbwires.
Kasabian’s testimony concerning Manson’s declarations is as follows: “And then he said, ‘What about that man that you and Sandy met? Isn’t he a piggy?’ And I said, ‘Yes. He is an actor.’ And then he further questioned me and he asked me if the man would let me in? And I said, ‘Yes.’ And he asked me if the man would let my friends in, Sadie and Clem. And I said, ‘Yes.’ And he said, ‘Okay. I want you to kill him,’ and he gave me a small pocketknife. And at this point, I said, ‘Charlie, I ar., not you. I cannot kill anybody.’ And I don’t know what took place at that moment, but I was very much afraid. And then he started to tell me how to go about doing it, and I remember I had the knife in my hand, and I asked him, ‘With this?’ And he said, ‘Yes,’ and he showed me how to do it. (Indicating.) He said, ‘As soon as you enter the residence, the house, as soon as you see the man, slit his throat right away.’ And he told Clem to shoot him. And then, also, he said if anything went wrong, you know, not to do it.’’
“It is furthermore possible for the object dimension, like the party dimension, to be of indeterminate scope. ‘Murder Incorporated’ would be a group contemplating the commission of other than a definite number of crimes. Each member of it therefore ‘takes his chances,’ and is a party to a conspiracy whose object dimension includes the offenses in fact undertaken.” (Developments in the Law—Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 930.)
This second approach obviates the necessity of determining whether or not the conspiracy was still pending. (See Oakley, From Hearsay to Eternity: Pendency and the Co-Conspirator Exception in California—Fact, Fiction, and a Novel Approach (1975) 16 Santa Clara Law. 1, 36-38.
After more exacting examination Gutierrez described the motion of the finger to be made across the neck, a gesture commonly recognized as simulating slitting a throat.
If the presence of drugs in the residence was significant there is evidence of that fact in the record. Sergeant Michael McGann of the Los Angeles Police Department testified that marijuana, hashish, cocaine and MDA were found on the premises. All parties stipulated to the chemical nature of these items. Therefore, even if the excluded testimony of Chapman was relevant, its exclusion was not prejudicial.
There is not the slightest suggestion that defense counsels’ refusal to participate in the presentation of the appellants’ testimony was based on the assumption that any of it was perjured. The apparent reluctance of counsel was founded on their presumption that their obligation was to obtain an acquittal and that their clients’ testimony would obliterate that possibility. They also suggested that counsel, not clients determine who will testify. Their assumption is wrong on these facts. While a client is entitled to competent advice, he is not obligated to follow it. We do not suggest that counsel must necessarily tolerate client resistance. However, once trial has commenced, and certainly when it has become protracted, it is improbable that counsel can withdraw. (Cf. People v. Jackson (1960) 186 Cal.App.2d 307, 315 [8 Cal.Rptr. 849].)
Following Manson’s testimony out of the presence of the jury, the trial judge changed his mind. Atkins, Krenwinkel and Van Houten were advised and offered the opportunity to go forward with their testimony before the jury. They refused. The record also reveals that after testifying before the court without the jury, the judge asked Manson if he wished to proceed to testify before the jury. Manson responded, “No, I’ve said everything I want to say.”
Paul Fitzgerald, the attorney for Krenwinkel advised the court: “I think I should be held in contempt, if anybody, because Mr. Bugliosi did not solicit this conversation. I approached, with Mr. Hughes and Mr. Shinn, Mr. Bugliosi and I had a conversation with regard to Mr. Bugliosi talking to Mr. Manson. [H] Now, Mr. Manson knew this. It was actually at his request. He wanted to talk to Mr. Bugliosi about representations that Mr. Bugliosi had made about friends and acquaintances of Mr. Manson attempting to intimidate prosecution witnesses, and Mr. Manson wanted to find out what Mr. Bugliosi’s position was, and to tell him that he didn’t have anything to do with the intimidation of the prosecution witnesses. [I] Now, it was our understanding that it was going to be an off-the-record conversation, that it was not going to be used in any sense against Mr. Manson, and that Mr. Manson wanted to do it and that Mr. Bugliosi wanted to do it. [H] Manson knew that he need not consent to this conversation and, in fact, in our presence, had a conversation with Mf. Kanarek in which he said he chose not to follow Mr. Kanarek’s advice and speak to Mr. Bugliosi. [1] It was not Mr. Bugliosi’s fault.”
“It must be concluded from our reading of Massiah and Miranda that the Supreme Court has distinguished two distinct constitutionally proportioned rights. The first right is that an accused must be advised of his right to counsel when the accusatory stage of the criminal process has been reached, and the second right' is that after a criminal charge has been filed against a defendant and he has counsel, he may not be subject to an interrogation instigated by law enforcement officers for the purpose of eliciting incriminatory statements without effective aid of his counsel. In the case at bench, the criminal charge had been filed, defendant arraigned and counsel appointed to represent him. From this factual statement it can be concluded that defendant had been advised of his right to counsel and he had elected to be represented by counsel rather than represent himself. Thereafter defendant was entitled to the effective aid of counsel at any interrogation instigated by the law enforcement officers.” (People v. Isby, supra, 267 Cal.App.2d at pp. 494-495.)
The subject of the prosecution’s alleged interviews came about tangentially when the court had before it an application by Manson’s counsel to conduct a show cause hearing to determine if Bugliosi should be held in contempt of court because of an out-of-court incident involving a prospective and subpoenaed defense witness, Sandra Good. Nothing in .that petition or supporting papers alludes to the Manson-Bugliosi interview.
The California State Bar Rules of Professional Conduct, rule 7-103, provides that, “A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body.” (Formerly rule 12.)
The American Bar Association’s Canon of Ethics, EC 7-18, provides that, “The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person. If one is not represented by counsel, a lawyer representing another may have to deal directly with the unrepresented person; in such an instance, a lawyer should not undertake to give advice to the person who is attempting to represent himself, except that he may advise him to obtain a lawyer.”
We note the susceptibility of rule 977 to the construction that collateral estoppel only applies in civil cases. In light of People v. Taylor (1974) 12 Cal.3d 686 [117 Cal.Rptr. 70, 527 P.2d 622], we question that construction.
We are aware that in People v. Powell the challenge was to the 1968 jury venire and that in the present case the challenge is to the 1970 venire. That makes the denial of the motion all the more correct since the evidence submitted in support of the motion did not focus on the right jury venire.
Relying on Communist Party v. Control Board (1956) 351 U.S. 115 [100 L.Ed. 1003, 76 S.Ct. 663]; Mesarosh v. United States (1956) 352 U.S. 1 [1 L.Ed.2d 1, 77 S.Ct. 1, 9]; and McNabb v. United States (1943) 318 U.S. 332 [87 L.Ed. 819, 63 S.Ct. 608], Atkins argues that the indictment can be attacked because it issued as the result of perjured testimony. The first two cases involved circumstances where it was demonstrated that nonparty witnesses had clearly perjured themselves. The McNabb case is totally inapplicable as it concerned confessions made as a result of undue delay in arraignment. We know of no case where a defendant who testified before a grand jury or at a preliminary hearing was permitted to recant that testimony. The most analogous case of which we are aware is People v. Schmidt (1915) 216 N.Y. 324 [110 N.E. 945], In Schmidt the defendant was charged with murder and pleaded not guilty by reason of insanity. The juiy rejected the contention of insanity and found the defendant guilty of first degree murder. After conviction the defendant petitioned the court, asserting that his confession of guilt was false and that he feigned insanity to protect other persons. The court responded that, “... A criminal may not experiment with one defense, and then when it fails him, invoke the aid of the law which he has flouted, to experiment with another defense, held in reserve for that emergency. It would be strange if any system of law were thus to invite contempt of its authority." (110 N.E. at p. 946.)
All references to the “trial” refer to the guilt phase unless otherwise noted in the text.
“I, SUSAN ATKINS, declare and say:
“That I am one of the defendants in the Case of People v. Manson, et al., Los Angeles Superior Court Case No. A 253 156.
“That before testifying before the Grand Jury Hearing on December 5, 1969, I stated that I did not want to testify, but my attorney, RICHARD CABALLERO, influenced me to testify.
“That before December 5, 1969, my attorney, RICHARD CABALLERO, and a member of the District Attorney’s office, VINCENT T. BUGLIOSI, discussed at MR. CABALLERO’S office, the questions and answers that would be asked at the Grand Jury hearing.
“That at the time of the Grand Jury Hearing, I had no intentions of giving up my constitutional rights to remain silent, and my attorney did not explain the consequences if I testified at the hearing; and the only advice given to me by my attorney was that it was for my benefit.
“That after the Grand Jury hearing, I informed my attorney that everything I said at the Grand Jury hearing was incorrect, and that I wanted to retract my statements; but my attorney, RICHARD CABALLERO, did not take the necessary steps to do this.
“That subsequent to the Grand Jury hearing, a Times Reporter whose name I was informed and believed to be, JERRY COHEN, and a stenotype operator, was present with my attorney at Sybil Brand Institute for Women obtaining my life story for a book; and at that time I told them that my statements at the Grand Jury hearing were not true and insisted that they be retracted, but my attorney failed to do so.
“That my statements made at the Grand Jury hearing were not voluntary, nor did I knowingly and intelligently waive my rights under the Fifth Amendment to remain silent.
“I declare under penalty of perjury that the foregoing is true and correct.
“Executed on July 14, 1970, at Los Angeles California.
During the penalty phase of the trial several witnesses were called by the defense to give testimony concerning the sale of Atkins’ copyrighted by-line stoiy. In December, 1969, proximate to the grand jury proceedings, Caballero was introduced to the owner of Twenty Pimlico Publications, Inc., Lawrence Schiller, by another lawyer, Paul Caruso, with whom Caballero shared office space, overhead and courtesies. Ultimately, Caruso, Caballero, Atkins and Twenty Pimlico Publications Inc., entered into an agreement for the sale of Atkins’ story of the Tate-La Bianca murders. The division of proceeds to be received through sale of the story was negotiated at 25 percent for Pimlico and the remaining 75 percent divided 60 percent to Atkins and 40 percent to Caruso and Caballero. This is the economic conflict to which Atkins points as the underlying reason for the alleged ineffectiveness of counsel. In exchange Caballero obtained a commitment from the Los Angeles District Attorney to not seek the death penalty as to Atkins and to not use her grand jury testimony against her if she decided to contest the charges.
The court stated: “... I sentence you to spend three nights in the County Jail, commencing as soon as this Court adjourns each day, starting today, and continuing until 7:00 a.m. each morning, on the following conditions: [1] You are to have full attorney privileges and you are to have access to confer with your client either before you are taken from this courtroom in the afternoon or early evening, or in the morning before you are returned to this courtroom, or after you return to the courtroom, at your option.”
The contempt citation resulted after Shinn was found responsible for placing a newspaper on the counsel table. It was used by Manson to display to the jury the “MANSON GUILTY, NIXON DECLARES” banner of the August 4, 1970, edition of a Los Angeles newspaper. Previously the court had ordered counsel to remove all such items from the counsel table.
By “news media” we include radio, television, newspapers, and other forms of written publications prepared for circulation in the community and directed to the populace at large.
When appellants Atkins, Krenwinkel, and Van Houten were before the superior court on December 10, 1969, for arraignment and plea, the court, on its own motion, issued an order restricting publicity. The preamble reads as follows: “It is apparent, and this Court is going to take judicial notice of the fact, that this case has received extensive news media coverage as a direct result of its apparent public interest; further, it is equally apparent to this Court by reading various newspapers and weekly periodicals that this news media coverage is not limited to the County of Los Angeles, but has been extensive not only in the entire State of California but in the Nation as well, and of this fact the Court now takes judicial notice.”
Our review included news scripts of seven television stations and four radio stations covering the period between August 11, 1969, and March 22, 1970.
The publication was preceded by the following introduction: “EXCLUSIVE DETAILS. SUSAN ATKINS’ STORY OF 2 NIGHTS OF MURDER. The following article appears also today in European newspapers and magazines. Its authenticity has been established. It results from an interview conducted before a judicial order was issued restraining those taking any part in the Tate murder case from making disclosures regarding it. The article carries the following copyright: Copyright 1969 by Susan Atkins and Lawrence Schiller.”
The Killing of Sharon Tate by Lawrence Schiller.
Because of the complexity of the issues relating to publicity we will first address appellants’ preliminary motions. Background information provided in this part of the opinion is intended to facilitate our later discussion of the primary issue raised in this portion of the appeal—whether the publicity denied appellants a fair trial.
This edition featured a complete expose of the crimes and the persons involved. On the cover appears a full face photograph of Charles Manson, bannered as follows: “THE LOVE AND TERROR CULT—THE MAN WHO WAS THEIR LEADER—THE CHARGE OF MULTIPLE MURDER—THE DARK EDGE OF HIPPIE LIFE.” Inside is a full spread photograph of Susan Atkins and Charles Manson under which in bold letters is set forth the following: “THE WRECK OF A MONSTROUS ‘FAMILY’.”
The collection of newspaper clippings includes straight reporting and editorial comments appearing in the San Francisco Examiner, Chronicle and Nichi Bei Times from December 6 through January 12, 1970, and the Sacramento Union and the Sacramento Bee from December 17, 1969, through January 8, 1970. This Sunday supplement, included in the January 11, 1970, edition of the Sacramento Bee, carried a feature article about the crimes with emphasis on the accused. It is entitled: “THE ‘MANSON FAMILY’ MURDERS, by Lloyd Shearer.”
The compilation is segregated into manila folders by county. It also includes a schedule entitled “Publicity Re: Manson Trial in Northern California Newspapers” consisting of nine pages, the last page being entitled “NEWSPAPER CIRCULATION.” The last page of that schedule sets forth circulation for the Los Angeles Times, Los. Angeles Herald Examiner, San Francisco Chronicle, and San Francisco Examiner. The 13 counties and their population for which there is no newspaper copy in this exhibit are Alpine—397, Amador—9,900, Calaveras—10,289, del Norte—17,771, Lake—13,786, Lassen—13,597, Modoc—8,308, Plumas—11,620, San Benito—15,396, Sierra—2,247,. Sutter—33,380, Tuolumne—14,404, Trinity—9,706. We take judicial notice that these 13 counties are rural and of the smallest populations in the State. Obviously metropolitan newspapers were distributed in these counties, too. Populations are as of 1970.
Certainly the number of viewers, listeners and readers of television and radio stations and newspapers identified in the introduced exhibits is relevant. Unfortunately, the stipulation does not indicate the full pervasiveness of these publications. For example, the stipulation that KNXT—Channel 2, CBS, has 18 hours of news weekly, and 1,018,000 viewers for the early news and 413,000 viewers for the evening news in no way informs the trial court or us of the area referred to. The same is true with respect to the circulation numbers for newspapers. The stipulation that the Los Angeles Times has a daily circulation of 975,491, and a Sunday circulation of 1,308,711 is not a determination that this circulation is limited to Los Angeles County. This observation holds true with respect to almost all of the stipulations concerning each member of the media identified. Obviously, transmission of television and radio waves are not truncated at political boundaries, and counties besides Los Angeles are markets not ignored by the Times-Mirror Corporation.
Long’s declaration advises that he telephoned the publisher, The New American Library Inc., in New York. He ascertained that the company was a fully owned subsidiary of the Times Mirror Corporation of Los Angeles, California. He could not elicit the total number of copies printed, published, or distributed. He did ascertain that 8,725 copies of the paperback had been distributed in Orange County and parts of Los Angeles County. Moreover, his declaration advises that another 5,000 copies have been received and distributed by an entity designated as “Inner City Magazines, a firm specializing in the distribution of periodicals and magazines.” Inner City Magazines had distributed all 5,000, but there is no indication as to where they were disseminated.
At the March 24, 1970, hearing on Manson and Krenwinkel’s motion for change of venue, a catalogue prepared by counsel for Linda Kasabian in support of her withdrawn motion for change of venue was admitted. It consists of 183 exhibits that are either originals or copies of newspaper or magazine articles dating from August 9, 1969, through January 21, 1970. It includes feature articles coveringthe crime and appellants in the December 12, 1969, and January 19, 1970, editions of Time Magazine. Appellants also submitted a copy of a Los Angeles Magazine for February 1970, containing a feature article entitled “COULD YOUR DAUGHTER KILL”; again, reference is made to the events of this case. By March 8, 1970, the entertainment section of the Los Angeles Times contained an advertisement about a motion picture that is an unmistakable exploitation of the Tate-La'Bianca murders, and the Manson Family.
“Change of venue leaves open the obvious possibility that publicity will also be engendered in the area to which the trial has been transferred. [Citation.] Also, change of venue is useless if the publicity has been nationwide, or, in a court of limited jurisdiction, if the publicity has been spread through the entire jurisdiction.” (Prejudicial Publicity in Trials of Public Officials (1975) 85 Yale L.J., 123, fn. 2.)
Krenwinkel’s attorney aptly remarked that: “Even if you put this case over five years I doubt if the publicity would really abate. Perhaps'... the publicity would substantially abate in two or three years, but once there was an announcement that the trial was about to take place, I think the publicity would be on again in full force and swing, and I seriously doubt that it would ever substantially abate to the degree that the defendants could be afforded a fair trial.”
To underscore Stovitz’ sincerity respondent points to a portion of the admitted conversation wherein Stovitz stated to the reporters, “I will rap with you on the level. Our case is not that strong. There are no fingerprints, no one saw them. All we are depending on is the testimony of Susan Atkins up to now. If she doesn’t testify, which she says now she isn’t going to, then Linda Kasabian corroborates that.”
The Los Angeles Herald Examiner of June 30, 1970, carried the banner headline, “DA SEEKS TO OUST MANSON’S LAWYER.” The Los Angeles Times, July 5, 1970, contained an article under the headline “PLAN TO LOCKUP TATE JURORS HIT,” purporting to quote District Attorney Younger as follows: “The process deprives you of an awful lot of good jurors who because of family or personal or business obligations ... cannot go to jail.”
With this record we have received and reviewed Exhibit ARB-1, a 498-page compilation of news releases and reports identified as follows: “LOS ANGELES COUNTY DISTRICT ATTORNEY WEEKLY NEWS—SUMMARY RELEASES TO PRESS, RADIO AND TELEVISION FROM DECEMBER 18, 1969 TO DECEMBER 17, 1970 PERTAINING TO TATE-LA BIANCA CASES.” Appellants urge that this is the ultimate demonstration that the prosecutor’s office was in league with the news media and, in fact, engendered the enormous publicity this case received. Our review of the exhibit reveals it to be nothing more nor less than copies of public and court proceedings and reproductions of news releases previously appearing in a variety of publications. This document does not come within the operation of the restraining orders issued by the court. Though large, it is relatively sterile. It is wholly unreasonable to believe the prosecutor’s office would not be contacted for public comment concerning a sensational case. Excluding the reprints of stories previously carried in the media we view this material as a device employed by the district attorney to meet that demand within permissible limits. Our examination of other evidence demonstrates that journalistic endeavors in this case were not dependent upon the cooperation of the district attorney’s office. As pointed out elsewhere, there were innumerable sources to assist the news media in feeding public curiosity.
An ancillary contention is that Attorney General Younger should be disqualified as counsel for respondent on this appeal. The appellants’ rationale pivots on the fact that Younger was District Attorney for Los Angeles County when this matter was tried and the .assertion that he and his subordinates generated prejudicial publicity. Appellant urges that we find merit in the argument by drawing parallels with the “Watergate” affair. The analogy fails because District Attorney Younger was not implicated in any underlying substantive criminal charge. Moreover, there is no authority for this court to appoint any “special counsel” for the People as appellant suggests. (People v. Municipal Court (1972) 27 Cal.App.3d 193,208 [103 Cal.Rptr. 645, 66 A.L.R.3d 717].)
In Irvin the court reversed an Indiana state court conviction.
Irvin had exhausted his peremptory challenges and the court disallowed any challenges for cause as to those eight jurors.
Geagan v. Gavin (1st Cir. 1961) 292 F.2d 244 involved the prosecution of a nationally notorious case that came to be known as “The Brinks Robbery,” The crime occurred on January 17, 1950, and resulted in a theft of $1,219,000. The robbers were armed, dressed alike, and wore rubber halloween masks. They succeeded in evading police traps and roadblocks and made good their escape. It was not until 1956 that the robbers were indicted. The entire event was extensively covered in the news media. After their conviction, the “Brinks Robbers” petitioned the United States Court of Appeal, First Circuit, for a writ of habeas corpus on the ground that publicity had so permeated Suffolk County, Massachusetts, that they were denied the opportunity to select a fair and impartial jury. Following the methodology dictated by Irvin v. Dowd, supra, the court made a searching inspection of the voir dire and found that “... almost 28% of the prospective jurors called in the case at bar professed to have formed no opinion at all as to the guilt or innocence of the accused.” The Geagan court, in actuality, found a 72 percent factor of bias acceptable. (P. 247.)
Convicted of armed bank robbery, kidnaping, and murder; the defendant was sentenced to death on the murder charge. Prior to trial, on the day following his arrest, and in the absence of any counsel, defendant was “interviewed” by the sheriff. Defendant confessed to the charges against him. This “interview,” memorialized in a 20-minute moving picture film with a sound track, was broadcast over a television station in the community where the trial took place. The above described events having been conceded, the court noted that “... circumstances [showed] that the plan was carried out with the active cooperation and participation of the local law enforcement officers.” (373 U.S. at p. 725 [10 L.Ed.2d at p. 665].)
The dissent in Rideau underscored the majority’s departure from the systematic approach of Irvin v. Dowd and its progeny. Other cases following Rideau reinforced, its presumed prejudice doctrine. In Turner v. Louisiana (1965) 379 U.S. 466 [13 L.Ed.2d 424, 85 S.Ct. 546] prejudice was presumed from the fact that two deputy sheriffs given charge of the jury during its deliberation had been witnesses for the prosecution. The defendant’s conviction was reversed.
In Estes certain pretrial proceedings and portions of the actual trial were televised. This intrusion satisfied the court that the probability of prejudice was sufficiently great to deem the trial inherently lacking in due process. The court emphasized the disruption caused by the presence of photographers and television cameramen at the trial and pretrial proceedings, in substance finding that this intrusion turned the judge, the accused, the witnesses, and the jury into self-conscious actors. The total effect substantially detracted from the solemnity of the proceedings.
The facts of Sheppard demonstrate a horrendous example of pretrial publicity actually instigating prosecution, coupled with a total loss of courtroom control allowing public outrage to permeate the trial itself. The court’s reliance on these two factors is revealed in the following statement: “While we cannot say that Sheppard was denied due process by the judge’s refusal to take precautions against the influence of pretrial publicity alone, the court’s later rulings must be considered against the setting in which the trial was held. In light of this background, we believe that the arrangements made by the judge with the news media caused Sheppard to be deprived of that ‘judicial serenity and calm to which [he] was entitled.’ (Estes v. Texas, supra, at 536.)” (384 U.S. at pp. 354-355 [16 L.Ed.2d at p. 616].)
“Certainly an impartial juror is an indifferent juror. Indifference has a unique meaning: no one has ever suggested that an indifferent juror must be totally apathetic. Indeed, indifference imparts a juryman who has no personal interest in the outcome of a trial. In short, indifference conjures up an impression of neutrality, not ennui. Symptomatic of the vague language associated with efforts to isolate impartiality in terms of indifference is the formula suggested in United States v. Wood. ‘Impartiality is not a technical conception. "It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular test and the procedure is not chained to any ancient and artificial formula.’ [H] From this description it is apparent that the definition of impartiality is not a static concept, but can only be defined in relation to specific facts and circumstances.” (Conflict Between Free Press and Fair Trial (1966) 51 Cornell L.Q. 306, 307.)
Specifically, on August 4, 1970, Manson obtained a copy of a Los Angeles newspaper carrying the banner headline “Nixon Says Manson Guilty.” In the presence of the jury, prior to the intervention of the court, Manson exhibited this document to the jury. On August 5, 1970, his coappellants chanted “Why don’t you convict us the president says we’re guilty.” To some degree this act belies the sincerity of appellants contentions of concern about publicity. The record is replete with other events revealing appellants’ exhibitionist tendencies. To mitigate the effect of these acts the court voir dired each juror as to what had been seen and the effect of it on the jurors.' This examination revealed that the jurors were capable of proceeding without violating their oath and obligations.
Only Van Houten exercised all five individual peremptories. Kasabian exercised one peremptory. Neither Manson nor Atkins exercised any peremptory.
The stipulations were the product of claims of hardship due to the lengthy estimation of trial at three to five months.
Compare: 90 percent in Irvin v. Dowd, supra, 366 U.S. 717.
The court had previously ordered that the clerk’s minute orders not be released until conclusion of trial.
With respect to the specific subject of the district attorney’s statements concerning Mr. Kanarek, the court told the panel: “Mr. Kanarek is to be considered like any other attorney. He is like any other attorney in this case. The act of the District Attorney in calling a press conference yesterday while this jury was being selected was an irresponsible act. But I admonish you that you are not to consider that or any statement coming out of that conference as having any bearing whatever on any of the issues in this case.” The voir dire examination concerning the district attorney’s public statements about the competency of Manson’s attorney manifests the advantages of obtaining a panel reflecting the sophistication of a metropolitan area. Prospective juror P.D. was queried about his assessment of Mr. Younger’s commentary; the following colloquy occurred:
“Q. And did it appear that newscaster was reporting portions of a news conference held yesterday by the District Attorney?
“A. Yes.
“Q. What did you think when you heard that, Mr. P.D.?
“A. What did I really think?
“Q. I mean, just in your honest opinion?
“A. Well, let me see. There are not many things that I can think of at the moment. I can think of the election coming up and that there might be some relation to these statements he made. It is only speculation on my part, I suppose.”
Reliance by defendants upon Smith v. Superior Court (1969) 276 Cal.App.2d 145 [80 Cal.Rptr. 693] as standing for a contrary rule is misplaced. Smith was before the court on a petition to mandate a change of venue. The charges against Smith were primarily the result of a newspaper investigation and exposure. (276 Cal.App.2d at p. 148.) Moreover, the nature of the charge was parochial because it involved alleged bribery of a Los Angeles City official.
By letter of April 8, 1976, all parties were notified that this court contemplated taking judicial notice of certain social and economic statistics contained in specified publications. By using the data contained in three of those publications we have made a comparison of certain social and economic characteristics of the populations of California counties with populations of 500,000 or more. These comparisons are made to demonstrate the heterogeneous character of these larger counties. (Evid. Code, § 452, subd. (h); People v. Spears (1975) 48 Cal.App.3d 397, 399 [122 Cal.Rptr. 93]; Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 710 [117 Cal.Rptr. 856], See Appendix I, post, pp. 229-230.)
In Frazier v. Superior Court (1971) 5 Cal.3d 287, 290 [95 Cal.Rptr. 798,486 P.2d 694], where a change of venue from Santa Cruz County was mandated, the local board of supervisors equated that case to “ ‘the same magnitude as the Sharon Tate slayings.’ ”
Krenwinkel’s counsel stated he had heard that jurors had been seen in the hotel coffee shop and near newsstands. However, neither he nor anyone else tendered any evidence of that assertion.
“The ... conclusion that mere exposure to publicity necessarily prevents] any person from serving as a juror has an extremely unsettling sidelight. If, in this age of instant, mass communication, we were to automatically disqualify persons who have heard about an alleged crime from serving as a juror, the inevitable result would be that truly heinous or notorious acts will go unpunished. The law does not prohibit the informed citizen from participating in the affairs of justice. In prominent cases of national concern, we cannot allow widespread publicity concerning these matters to paralyze our system of justice.” (Calley v. Callaway (5th Cir. 1975) 519 F.2d 184, 210, cert. den., (1976) 425 U.S. 911 [47 L.Ed.2d 760, 96 S.Ct. 1505].)
The incident alluded to is set forth in the record as follows:
“Q. BY MR. KÁNAREK: Do you recall this afternoon after the morning session, Mr. DeCarlo, when I was in the lobby of the Hall of Justice here?
“A. Yes, sir.
“Q. And I tried to talk to you?
“A. Yeah.
“Q. And you and Mr. Gutierrez left my immediate presence?
“A. I said I would talk to you.
“Q. You said you would talk to me but you ended up in about a half second going off with Mr. Gutierrez, right?”
Further testimony was precluded by a sustained objection.
Kasabian testified that she did use the name Yana and sometimes referred to herself as a witch.
The argument referred to took place away from the courtroom and out of the presence of the jury.
Van Houten was first represented by Marvin Part. Prior to trial she replaced Part with Ira Reiner on February 6, 1970. On July 17, 1970, she replaced Reiner with Ronald Hughes. Hughes failed to appear on November 30,1970. On December 3, 1970, Maxwell Keith was appointed to represent Van Houten.
In that regard he advised the court as follows: VI advert primarily to the total inability, helplessness, of myself or any other attorney to argue the credibility of the witnesses in this case against Miss Van Houten because I was not there when they testified. Now, if the Court please, credibility may well be crucial to the defense in this case. I know that credibility is very much in issue. Yet I didn’t have the opportunity to observe the demeanor of the witnesses on the stand nor the manner in which they testified, nor was I able to observe their character as they testified.”
Neither could Keith take advantage of that part of argument described in People v. Molina (1899) 126 Cal. 505, 508 [59 P. 34]: “ ‘The right of discussing the merits of the cause both as to the law and facts, is unabridged. The range of discussion is wide. He may be heard in argument upon every question of law. In his addresses to the jury it is his privilege to descant upon the facts proved or admitted in the pleadings; to arraign the conduct of the parties; impugn, excuse, justify, or condemn motives as far as they are developed in the evidence; assail the credibility of witnesses, when it is impeached by direct evidence, or by the inconsistency or incoherence of their testimony, their manner of testifying, their appearance on the stand or by circumstances. His illustrations may be as various as the resources of his genius; his argumentation as full and profound as his learning can make it; and he may, if he will, give play to his wit, or wings to his imagination.’ ”
If this were not true the convictions of the other defendants would be in jeopardy.
In State v. Thompson (1964) 148 W.Va. 263 [134 S.E.2d 730], cert. den., 379 U.S. 819 [13 L.Ed.2d 30, 85 S.Ct. 39], the Supreme Court of Appeals of West Virginia, interpreted a code provision of that state pertaining to the discharge of a jury in a criminal case without the jury rendering a verdict in the event that there is a “... manifest necessity for such discharge.” (134 S.E.2d at p. 734.) “Manifest necessity,” analogous to “legal necessity,” was defined as follows: “While the term ‘manifest necessity’ has not been abstractly defined, we view it as the happening of an event, beyond the control of the court, which would require the discharge of the jury and would permit a view trial without justifying a plea of double jeopardy. Such occurrences as the illness or death of a juror, the accused, the judge or counsel exemplify cases in which a manifest necessity exists which would warrant the discharge of the jury. In other words, where unforeseeable circumstances arise during the trial, making its completion impossible, a manifest necessity to discharge the jury exists and the defendant may again be tried.” (134 S.E.2d at p. 734 [italics added].)
“All will agree that if the defendant’s attorney exhibits objective evidence of physical incapacity to proceed with a meaningful defense of his client, such as illness, intoxication, or a nervous breakdown [citation], the court need not sit idly by; it should inquire into the matter on its own motion, and if necessary relieve the affected counsel and order a substitution. Yet even that action should be taken with great circumspection and only after all reasonable alternatives, such as the granting of a continuance, have been exhausted. Failure to observe these standards, although in a case of undisputed physical incapacity of counsel, will compel a reversal of the ensuing judgment; and this result will follow regardless of whether the defendant’s substituted counsel was competent or whether the defendant received a ‘fair trial’ with respect to the guilt-determining process. [Citation.]” (Smith v. Superior Court, supra, 68 Cal.2d at p. 559; see also, English v. State (1969) 8 Md.App. 330 [259 A.2d 822, 825-826].)
By this determination we are not pronouncing a universal rule that absence or loss of counsel in any stage of the proceedings necessarily compels a reversal. It must be clear that this case is unusual in its length and complexity. Moreover,' the timing of the substitution of Keith as counsel for Van Houten is truly crucial. Each case will have to be decided on its own facts. No per se rule can be stated. (United States v. Tramunti (2d Cir. 1975) 513 F.2d 1087, 1117.)
People v. Anderson (1968) 70 Cal.2d 15 [73 Cal.Rptr. 550, 447 P.2d 942] is distinguishable. It concerned use of alcohol, not drugs. The effect of alcohol is of sufficiently common knowledge to obviate the use of expert testimony. People v. Conley (1966) 64 Cal.2d 310, 325 [49 Cal.Rptr. 815,411 P.2d 911],
As relevant, that section provides: “All persons are capable of committing crimes except... [U] 8. Persons (unless the crime be punishable with death) who committed the. act... charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.”
E.g., Perpetration or attempted perpetration of arson, rape, robbery, burglary, mayhem and certain sex offenses.
We need not decide when the animus furandi arose in relationship to the homicides. In view of the fact that the entry, the larceny and the homicides are interfused it is not unreasonable to view their commission as one transaction. It follows that the jury could logically infer that the homicides were committed in the course of perpetrating either the burglary or the robbery.
In People v. Sirignano (1974) 42 Cal.App.3d 794 [117 Cal.Rptr. 131], the evidence revealed a plan to rob and to kill. In response to a defense contention that the robbery had terminated before the killing occurred, the court stated as follows: “The record supports the inference that the defendant and her associates had planned to kill the victim so that he would not be able to testify against them. There was substantial evidence to support the conclusion that the events of the evening formed one ‘continuous transaction,’ and such a finding clearly results in felony-murder, in the first degree.” (42 Cal.App.3d at p. 802.) That observation is applicable to the evidence of this case.
“Felony-murder trials frequently feature a doubt or conflict on the issue of divisibility or continuity of the several criminal acts. When that doubt or conflict exists, the issue should be submitted to the jury.” (People v. Chapman, supra, 261 Cal.App.2d at p. 176.)
Because we conclude the evidence supports a determination that the felonies of burglary and robbery were committed, we are not concerned with the primary holding of People v. Ireland (1969) 70 Cal.2d 522 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323]—that the felony-murder doctrine is inapplicable where the concomitant felony is “included in fact” in the charge of murder, i.e., burglary with intent to assault (People v. Wilson (1969) 1 Cal.3d 431, 441 [82 Cal.Rptr, 494, 462 P.2d 22]). In both the Tate and La Bianca murders evidence supports the conclusion that the concomitant felonies turned on the presence of an intent to steal.
The jury was instructed: “A conspiracy is an agreement between two or more persons to commit any crime, and with the specific intent to commit such crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime.
“In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement, there must be proof of the commission of at least one of the overt acts alleged in the indictments. It is not necessary to the guilt of any particular defendant that he himself committed the overt act, if he was one of the conspirators when such an act was committed.
“The term ‘overt act’ means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a public offense and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.”
Nine other related instructions were also properly rejected. All presumed that admissions of one appellant were admitted against a coappellant, a contention clearly contrary to the record. People v. Saling (1972) 7 Cal.3d 844 [103 Cal.Rptr. 698, 500 P.2d 610] and People v. Leach (1975) 15 Cal.3d 419 [124 Cal.Rptr. 752, 541 P.2d 296] are therefore inapplicable.
The lyrics for each of the compositions recorded were received in written form.
The stipulation was stated by the court as follows: “With respect to the playing of the Beatle album, and the jury’s request for a record player, I propose to have the jury brought back into court and advise them that they will be furnished with a record piayér; that the bailiff will be instructed to play the Beatles album through once in its entirety without any comment or conversation with any of the jurors, between the bailiff and any of the jurors, and that thereafter if the jury wants any particular portion of the album played that he will then go back and play the portion that they request. And upon completion of that, without any comment whatever with the jury, he will then bring the record player out of the jury room and leave the room itself.”
The court ordered that the windows of the bus transporting the jurors be covered with Bon Ami i.e., soaped.
The Fitzgerald declaration also expressed W.M.’s consternation concerning a Morse instruction and potential sentencing in general. Fitzgerald also related A.S.’s statement concerning a television interview in which A.S. purportedly stated that while unsequestered he had been approached by third persons telling him to “get them.” Fitzgerald’s declaration pertaining to jurors L.S. and H.T. is based on Fitzgerald’s information and belief founded on newspaper reports. The declaration reports that during the penalty phase L.S. had communicated with a Long Beach attorney concerning the marketability of the juror’s impressions. After the penalty phase had been concluded L.S. purportedly told the other jurors that they should stick together and sell their story for a significant amount of money. H.T. reportedly said that the jurors were shocked by L.S.’s suggestion.
The sequestration of the jury was terminated during the penalty phase of the trial, February 17, 1971. The jury was re-sequestered on March 23, 1971, at the commencement of their deliberations on the penalty issue. It was during this unsequestered period that L.S. allegedly contacted the lawyer, and the jurors were purportedly harangued by third persons making comments adverse to the appellants.
We note also that these contentions are generally unsupported by either citations of legal authority or references to the record. As noted in the text, where citations were provided they were reviewed.
Van Houten’s companion appeal, People v. Van Houten, 2d Crim. 24376, is directed to the single issue of whether or not she was entitled to credit for the time she was held in custody prior to the time sentence was imposed. In light of the reversal of the judgment of conviction in the primary matter, this ancillary appeal is ordered dismissed. However, if appellant is retried and convicted any sentence imposed must allow credit for all time served in custody pursuant to Penal Code section 2900.5. (In re Kapperman (1974) 11 Cal.3d 542, 549, 550 [114 Cal.Rptr. 97,522 P.2d 657].)
[OPINION BY WOOD, P. J., Concurring and Dissenting. type=concurring-in-part-and-dissenting-in-part]
WOOD, P. J., Concurring and Dissenting.
I concur in the judgment which affirms the convictions of defendants Manson, Atkins, and Krenwinkel on the seven charges of murder and on the charge of conspiracy to commit murder; and as to modification of penalty, concur by reason of mandate of Supreme Court in People v. Anderson (1972) 6 Cal.3d 628, 657 [100 Cal.Rptr. 152, 493 P.2d 880]. The convictions of all the defendants, including Van Houten, should be affirmed.
I dissent as to the reversal of the conviction of defendant Van Houten on the charges of murdering Mr. and Mrs. Leño La Bianca, and on the charge of conspiracy to commit murder. The verdicts of the jury finding Van Houten guilty on all those counts were supported by ample evidence. She was convicted áfter a long trial—about seven months of trial, with the jury sequestered. She did not testify.
The two other justices have reversed the conviction of Van Houten for an alleged reason that the attorney who was appointed to represent her (after her attorney disappeared and after all the evidence had been presented) could not argue the credibility of witnesses effectively because he (not being present) had not observed the demeanor or manner of the witnesses while they were testifying.
After all the evidence had been presented and all the parties had rested and the case was ready for arguments to the jury, the attorney (Mr. Hughes) for Van Houten disappeared under mysterious circumstances, and there was uncertainty as to whether he would return. Thereupon, the judge was confronted with making a decision as to whether, in view of the totality of the then existing circumstances, another attorney should be appointed as cocounsel for Van Houten and the trial be finished (by presenting the arguments), or whether the whole case as to Van Houten should be started over and tried again. The judge appointed Mr. Maxwell Keith as cocounsel for her, and continued the date for commencing arguments for 12 days in order to give the cocounsel time to prepare for the argument. Also, the continuance afforded an opportunity for an investigation to be made as to whether the missing attorney might return to court.
When cocounsel for Van Houten was appointed, he was asked if he would accept the appointment. He replied in the affirmative, but he did not say that he could not argue the credibility of witnesses because he had not observed them while they were testifying. Thereafter, and before he made his argument, he said that he could not argue credibility of witnesses on the basis of witness-demeanor because he had not observed the witnesses. He did not ask to be relieved as counsel.
Appointed counsel argued on behalf of Van Houten for two days and ably covered the whole range of the record evidence involving her. With reference to credibility of Kasabian (a principal witness against Van Houten and the other defendants), he said that she was a sinister person who has never been above practicing fraud, deception, burglary, or theft to get what she wants; her characterization of herself as a little girl lost in the forest was a deliberate falsehood; if she was attempting by her demeanor on the witness stand to lend the impression that she was just a little girl lost in the woods trying to find her way out, that was a facade and she was committing a fraud on the jury; she was wily, opportunistic, and frightfully resilient, and she bounces back every time no matter what she does; when he speaks of her credibility, he speaks also of her testifying here; she testified in expectation of immunity which she received during the trial; expectation of immunity brings into play the strongest of human motives, that is, self-preservation which can turn people into liars; he believed that she had the strongest motives to deceive; the jurors would be instructed that if they found that a witness had testified falsely as to a material part of her testimony, they are entitled to disbelieve all of her testimony.
He argued further that, after analyzing Kasabian’s testimony, any interpretation pointing towards Van Houten’s guilt is unreasonable. After discussing Kasabian’s testimony about riding in an automobile with Manson, Van Houten and others to various places (to look for victims) and stopping near a church in Pasadena, he said that the jury should disregard her testimony on the basis of a reasonable doubt as to its truth; that there was a reasonable doubt regarding Kasabian’s testimony about Manson’s planning tg kill a person who was driving a white sports car; the jurors should remember that Kasabian prefaced her testimony, regarding conversation outside the La Bianca residence, with the words “I think” and “I’m not positive.”
Appointed counsel also said that Diane Lake (a witness who testified against Van Houten and other defendants) had been discussed at length by other counsel during their arguments; she was a 17-year-old drug addict, who was mentally disabled and had been committed to a mental institution; that she lied when testifying before the grand jury; that her testimony should be viewed with caution; that in going over Lake’s testimony he would try to use the same analysis he used for Kasabian’s testimony; and that Lake’s statement that Van Houten said she stabbed someone who was dead and then wiped off fingerprints was not reasonable and must b¿ viewed with caution; that Hughes (attorney for Van Houten) had done an excellent job of cross-examining Lake; and that her testimony was frail.
With reference to credibility of Hoyt (witness against Van Houten and other defendants), appointed counsel referred to her testimony that when a man came to the house where Hoyt and Van Houten were, Van Houten hid under a sheet and told Hoyt not to let the man see her, because he had just given her a ride from Griffith Park. Then counsel said he did not concede that that incident happened, but if it be assumed that it happened, a reasonable inference therefrom would be that Van Houten feared for her own safety.
He argued further that the jurors are the judges of the facts; and since he did not know what they were going to believe, he could not take a chance and he had to meet these issues head on. He also said that as to conspiracy, Van Houten did not agree to do anything; and she did not aid or abet in the homicides. After referring to “Helter Skelter,” he said there are a lot of other things which he thought the jurors ought to consider, and that these matters had been gone into amply by his brother counsel; the jurors must view Kasabian’s testimony with distrust; if the jurors decide, after deliberation on her credibility, to believe Kasabian as to any participation by Van Houten, then the jurors have to believe Lake; if they believe Lake, then they have to decide whether her testimony corroborates Kasabian’s testimony; and he did not see how the jurors can convict Van Houten when they have to go through all of this analysis.
It is clear that Mr. Keith, counsel for Van Houten, argued ably, at length, and with emphasis that the testimony of Kasabian and Lake was completely lacking in credibility, and that they should not be believed. He used language that was very much derogatory of them and their credibility.
The fact that counsel for Van Houten could not argue credibility of witnesses, based on their demeanor, does not mean that credibility of witnesses based on demeanor was not argued. The attorneys for the three other defendants observed the witnesses. They argued the issue of credibility of prosecution witnesses, and referred particularly to witnesses Kasabian, Lake, and Hoyt, and denounced them in derogatory language as being thoroughly unreliable and unbelievable.
In order to indicate the “witness-demeanor,” particularly of Kasabian, Lake, and Hoyt, which was observed and argued by the other defense attorneys, it will be necessary to refer to some of the statements in their arguments.
Some of the statements by Mr. Fitzgerald, attorney for Krenwinkel, were: As he sat in court and watched Kasabian for a long period of time, his initial reaction was that she was well-mannered, sincere, straightforward, gentle, and soft-spoken. She was always a model of decorum, always quiet, contained, and reserved. Her recollection was bad. Her memory for specifics was horrible. She was a peculiar lady to be involved in a case like this, but in a sense one cannot really judge a book by its cover—the (her) facade was good, it stood up, and it was well done. We have to draw on our own experience and see if she is really telling the truth.
He argued further: She was granted immunity from prosecution. She was an accomplice, and the testimony of an accomplice must be treated with distrust. An accomplice usually testifies in expectation of leniency. If the jurors find that she lied as to a material point, they may disregard her entire testimony. Do not trust the testimony of a liar. In determining the credibility of a witness, the jurors may consider her demeanor and manner while testifying; and they may consider whether the use of drugs has influenced her ability to perceive or recollect.
In his further argument, in referring to many parts of Kasabian’s testimony relative to various occurrences, he said many times, “Do you believe that?” He argued further: She testified that it was only after she was charged with these offenses that she decided to tell the truth. She cried on three occasions while testifying, but the jurors should be very suspicious of her tears. In the context of this case her tears do not mean a thing. It is an attempt to make her look pure. Her credibility is an issue in the case, and the jurors have to determine carefully whether she was telling the truth.
Some of the statements in the argument of Mr. Shinn, attorney for Atkins, were: Mr. Fitzgerald, attorney for Krenwinkel, covered Kasabian’s testimony adequately and very well in his argument. While Kasabian was testifying she cried when pictures were shown to her, but the jurors should not let that fact make them feel that she was telling the truth. She said she took LSD in order to seek God, and he (Shinn) guessed that she used the word “God” to get more sympathy for herself.
Some of the statements in the argument of Mr. Kanarek, attorney for Manson, were: Witness Kasabian was a great percentage of the prosecution’s case. She had been told by. the prosecution that if she testified to everything she knew about the seven murders she might be granted immunity from prosecution. Was it humanly possible for her to tell the truth, knowing that such offer had been made? She was conditioned to make dishonest statements. She defrauded J.S. of money he had paid. Her testimony should be viewed with caution. She was less than candid. She has told us the unbelievable regarding the written word “pig” (at the Tate house). She is not telling the truth. The question is whether she can be believed. She cannot be relied upon. His (Mr. Kanarek’s) purpose was to see whether her testimony can be used to sustain the prosecution’s view of the case. The same purpose goes for Lake. Witness Hoyt (who told about Van Houten’s hiding under a sheet after the La Bianca murders) cannot be believed. Hoyt stated the most incredible of events when she said she went to Kansas to look for someone whose name she did not know. Clearly, Kasabian is not telling the truth when she said she did not know about the death of the La Biancas until she read about it in Miami. What she has taken as drugs into her body is a factor to be considered in determining her credibility.
It thus appears that the issue of lack of credibility of prosecution witnesses, particularly witnesses Kasabian, Lake, and. Hoyt, was argued by the four defense attorneys. Also, it appears that even though counsel for Van Houten did not observe the witnesses while they were testifying, the three other attorneys (representing Krenwinkel, Atkins, and Manson), who were present when the witnesses testified, argued the matter of demeanor or manner of the witnesses. As just shown, in some of those arguments there were statements (by Mr. Fitzgerald, and by Mr. Shinn who approved Mr. Fitzgerald’s argument) that Kasabian was well-mannered, sincere, gentle, quiet, soft-spoken, and reserved; and that on three occasions she cried; and there was a statement (by Mr. Kanarek) that on one occasion she squinted. The arguments of these experienced attorneys (who observed the witnesses) show the meager factual background in this case for a defense argument on credibility of witnesses on the basis of demeanor of witnesses while they were testifying.
Presumably, these specifications of witness-demeanor by the three other experienced defense attorneys were the only instances of witness-demeanor observed by them (as to Kasabian, Lake, and Hoyt—principal witnesses against Van Houten), or the specifications were the only instances of witness-demeanor which they deemed worthy of being mentioned.
In the reversal of the Van Houten conviction by the two other justices, for the asserted reason that her attorney had not observed the witnesses while they were testifying, there is an implication that if her attorney had observed the witnesses while they were testifying he might have observed witness-demeanor which was not observed by the three other defense attorneys, or if he observed only the same demeanor which the other attorneys observed he might have made a better argument on credibility than they made.
In any event, the reversal of the Van Houten conviction is based principally on the other justices’ application of the above-mentioned narrow legal point (about not arguing witness-demeanor) to a factual situation where it was practically certain that, in view of the arguments of the other attorneys, there was no significant witness-demeanor to be argued.
Furthermore, it is not always necessary, in order for a judgment to be valid, that an attorney who makes a summation argument shall be in a position to argue credibility of witnesses based upon his observations of the witnesses. In this respect, it is to be noted that there are several situations wherein the testimony given at a prior judicial proceeding may be received in evidence in a subsequent proceeding in the same case when the witness who gave the testimony is not available as a witness in a subsequent proceeding (Evid. Code, § 1291; Witkin, Cal. Evidence (2d ed.) pp. 566-570); and under such circumstances a judgment in the subsequent proceeding may not be set aside or reversed merely because an attorney in the subsequent proceeding could not argue credibility of the missing witness based upon observation of demeanor of the witness while testifying. An example of such a circumstance is the testimony of a witness at a preliminary examination which is received at the trial when the witness is not available. (People v. Contreras (1976), 57 Cal.App.3d 816 [129 Cal.Rptr. 397].) Another such example is the testimony of a witness at a former trial which is received in evidence at a retrial when the witness is not available. It is to be noted further that under such circumstances as indicated by those examples where the witness in the former proceeding was unavailable, even the trier of the facts at the subsequent proceeding would not have observed the demeanor of that witness; and even under that situation (where no one at the subsequent trial had observed the witness) a judgment would not be set aside or reversed merely because the trier of the facts had not observed the demeanor of the witness. In the instant case the only one who did not observe the witnesses was Van Houten’s attorney. The jurors, however, who were to decide the factual issues, did observe the witnesses, and they were instructed by the judge, and were told by attorneys in their arguments, that in determining the credibility of witnesses they were entitled to consider the demeanor of the witnesses while they were testifying.
A comparison of the unavailable witness situation with the Van Houten situation shows that, with respect to observation of witnesses, Van Houten was in a much more favorable position in that the jurors who were to decide the facts did observe the witnesses, and were instructed to consider the witnesses’ demeanor in determining their credibility; whereas, in the situation where former testimony of the unavailable witness is received, it is clear, of course, that no one at the subsequent trial had observed, the witness testifying, and no argument could be made regarding demeanor of the witness, and no consideration could be given by the trier of the facts (judge or jurors) to the demeanor of the witness. Over a period of many years innumerable valid judgments have been rendered in cases where an important part of the evidence is former testimony of unavailable witnesses; and, of course, in such cases no argument could have been made on credibility of witnesses on the basis of their demeanor while testifying.
The reversal of the Van Houten conviction because her counsel (not having observed the witnesses) could not argue credibility of witnesses, on the basis of witness-demeanor, is inconsistent with statutory and decisional law to the effect that judgment may be rendered, as above shown regarding unavailable witnesses, even though counsel cannot argue credibility of the witnesses based on witness-demeanor, and even though the trier of the facts has not observed the witnesses.
If the reason announced by the two other justices tor reversing the Van Houten conviction is proper, then a question arises as to validity of judgments that may be rendered in cases where testimony of unavailable witnesses is received and an attorney cannot argue credibility of witnesses on the basis of witness-demeanor.
Furthermore, Mr. Keith, counsel for Van Houten, did not regard the matter of his appointment (including the question of arguing demeanor) as the strong point in his case, but he regarded it as cumulative. (At oral argument he made a statement to that effect.)
After the former counsel for Van Houten had disappeared, and after the evidence had been presented and all the parties had rested, the trial judge, in the exercise of his discretion and in view of the totality of the then existing circumstances, appointed counsel to represent Van Houten. It is apparent that at the time of appointing counsel, the trial judge, who had observed the demeanor of the witnesses, decided that the matter of counsel’s not being able to argue credibility of witnesses based on witness-demeanor was not of material significance. At the time of appointing Mr. Keith as counsel for Van Houten, the trial judge said, in part, that there were three counsel who have been through the entire trial and have had the opportunity of seeing all the witnesses, and that some of them were witnesses against Van Houten, and those who testified as to anything involving her were the same witnesses who testified as to matters involving the other defendants; and that any argument of counsel for the other defendants with respect to credibility of those witnesses would inure to the benefit of Van Houten, apart from any argument Mr. Keith might make.
Furthermore, in view of the order denying a new trial, it is apparent that the trial judge, after hearing the arguments of the four defense attorneys, decided that the inability of Van Houten’s counsel to argue credibility of witnesses based on witness-demeanor was not prejudicial.
In this case it is to be emphasized that the jurors observed the witnesses; that the judge instructed the jurors, and the attorneys told them, that in determining the credibility of the witnesses the jurors were to consider the demeanor of the witnesses while they were testifying; that, as above shown by reference to arguments of the three defense attorneys who saw the witnesses, there was a meager factual background for a defense argument on credibility of witnesses on the basis of witness-demeanor; that those three experienced attorneys argued credibility of prosecution witnesses on the basis of witness-demeanor, and in view of the few instances of demeanor referred to by those attorneys (such as Kasabian’s being well-mannered and soft-spoken, and having cried three times and squinted once) it seems clear that there was no significant witness-demeanor to be argued; and that all the defense attorneys argued ably and with emphasis the asserted lack of credibility of prosecution witnesses, particularly witnesses Kasabian, Lake, and Hoyt (principal witnesses against Van Houten), whose testimony affected not only Van Houten but all the other defendants.
This is not a case where no argument was allowed. Mr. Keith argued very ably for two days without any limitation, except that he had not observed the witnesses while they were testifying; however, as above shown, the fact that he did not argue lack of credibility on the basis of witness-demeanor was practically of no significance, and certainly was not significantly prejudicial. In In re William F, 11 Cal.3d 249 [113 Cal.Rptr. 170, 520 P.2d 986], it was said (p. 256 in fn. 6): “We do not imply that each infringement on, as distinguished from a denial of, the right to counsel is to be deemed .so fundamental that prejudice must be presumed without further inquiry.” The above detailed statements specifying references to witness-demeanor, which were made in arguments of defense attorneys who had observed the witnesses, show that in practical effect there was no prejudicial infringement or limitation on the right of Van Houten’s attorney to argue credibility on the basis of witness-demeanor.
It seems that principles of law referred to in the part of the opinion reversing the Van Houten conviction are to be understood as meaning that the right of counsel to argue credibility of witnesses on the basis of witness-demeanor is so fundamental that the absence of that right is a reason for reversal of the conviction. It is to be noted, however, that in a footnote it is said, in effect, that by the determination which the justices were making they were not pronouncing a universal rule that absence or loss of counsel in any stage of the proceedings necessarily compels a reversal; that each case will have to be decided on its own facts; and no per se rule can be stated. The facts in this Van Houten case show that repeated arguments as to witness-demeanor were made.
In the above opinion of the two other justices, there is a quotation from the dissenting opinion in United States v. Barrett (7th Cir.), 505 F.2d 1091, wherein it is said it is tempting to acquiesce in a decision which may represent the just and inevitable conclusion of the matter; nevertheless, more enduring values are challenged when there is reason to doubt that a notorious trial has been conducted in a proper manner. In that case the county clerk of Cook County, Illinois, was convicted of mail fraud, bribery, and income tax evasion. It is to be noted that notwithstanding the asserted philosophy in the dissenting opinion about “enduring values,” the majority opinion affirmed the conviction.
In State v. Thompson, 148 W.Va. 263 [134 S.E.2d 730], cited in support of the reversal of the Van Houten conviction, a question on appeal was whether there was “manifest necessity” for declaring a mistrial on the ground that certain evidence (unlawfully seized) had been received erroneously. On appeal therein, it was held that the erroneous ruling did not constitute “manifest necessity” for declaring a mistrial. After making that decision, the reviewing court proceeded, by way of dictum, to state examples of “manifest necessity,” and in so doing included an occurrence such as illness or death of counsel, which was not involved in that case. In the present case, however, the footnote above referred to seems to be contra to the dictum in the cited West Virginia case. The footnote states, in part, that each case will have to be decided on its own facts; and that no per se rule can be stated.
The verdicts finding Van Houten guilty of the. murders of Mr. and Mrs. La Bianca were amply supported by the evidence.
Van Houten had been a member of the Manson family longer than any of the girls. On the night after the five Tate murders, Manson told Van Houten and other members of the family that last night was too messy and he was going to show them how to do it. Then seven of the members including Manson and Van Houten left the ranch in an automobile and drove around for several hours. About 2 a.m. they stopped in the Griffith Park area in front of a house where Manson got out of the car, walked up the driveway and disappeared. Soon thereafter he returned to the car and said that a man and woman were tied up in the house. He told Van Houten, Krenwinkel, and Watson to get out of the car, not to stir up fear in those people, and not to let them know they were going to kill them. He told Van Houten and Watson to hitchhike back to the ranch and told Krenwinkel to go to the waterfall. Manson and the others went away in the car, leaving Van Houten, Krenwinkel, and Watson in front of the house. Later that morning the mutilated dead bodies of Mr. and Mrs. La Bianca were found in the house. His hands were tied. A knife was sticking in his throat; a fork was sticking in his stomach; and many stab wounds were on his body, and blood was smeared on many things. Her hands were tied and there were 41 stab wounds on her body. Words were written in blood on the walls, front door and refrigerator.
Diane Lake testified that Van Houten told her she had stabbed a woman who was already dead, and that the more she did it the more fun it was; after the killings they showered and ate food; she wiped fingerprints off everything they had touched; and the killings took place around Griffith Park. At the ranch Van Houten burned a blouse, some rope, and clothing she had been wéaring.
Barbara Hoyt testified that later that morning four men came to the house, and Van Houten hid under a sheet, and told Hoyt she did not want one of the men to see her, because he had just given her a ride from the Griffith Park area.
When the attorney disappeared after several months of trial, the only unfinished part of the trial was the matter of argument and instructions. In my opinion the trial judge, in exercising his discretion and viewing the totality of circumstances, properly appointed counsel for Van Houten.
As above shown, there was a meager factual background for a defense argument on credibility based On demeanor of witnesses, particularly as to witnesses Kasabian, Lake, and Hoyt. In view of such a limited background for argument, it is reasonably certain there was no significant witness-demeanor to be argued. In any event, the credibility of witnesses, based on witness-demeanor, was argued by the three defense attorneys who had observed the witnesses. Also, as above noted, there are various circumstances where, under statutory and decisional law (relative to former testimony of unavailable witnesses), a valid judgment may be rendered even though a litigant cannot argue credibility on the basis of demeanor of witnesses—thus indicating that the matter of arguing such credibility is not a fundamental privilege that must always be accorded a litigant.
Under the circumstances of this case, there was no prejudice to Van Houten because her attorney could not argue on the subject of witness-demeanor. The denial of the motion for a new trial indicates that the trial judge, who of course observed the witnesses,. decided there was no prejudice to Van Houten.
Under the facts of this case, the asserted basis for reversal as to Van Houten is practically negligible. Under our system of justice, form is not to be exalted over substance.
The judgment of conviction of Van Houten should be affirmed.
Petitions for a rehearing were denied September 10, 1976, and the opinion was modified to read as printed above. Wood, P.J., was of the opinion that the petition of respondent People for a rehearing as to appellant Van Houten should be granted. The petitions of the respondent and of appellant Manson for a hearing by the Supreme Court were denied December 9, 1976. Mosk, J., Clark, J., and Richardson, J. were of the opinion that the respondent’s petition as to appellant Van Houten should be granted.
Another alleged reason, asserted by the other justices, for the reversal is that the continuity of the trial was interrupted by the disappearance of attorney Mr. Hughes. This is similar to the alleged point about argument.
[Crim. No. 21765.
Second Dist., Div. One.
June 23, 1977.]
THE PEOPLE, Plaintiff and Respondent, v. CHARLES M. MANSON, Defendant and Appellant.
Counsel
Kanarek & Berlin, Sheldon Berlin and Irving A. Kanarek for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman
H. Sokolow and Howard J. Schwab, Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY LORING, J. type=majority]
Opinion
LORING, J.
Charles M. Manson (Manson), Susan Denise Atkins (Atkins) and Bruce McGregor Davis (Davis) were indicted by the grand jury for the murder of Gary Allan Hinman (Hinman) on July 27, 1969, in violation of Penal Code section 187 (count 1); count II charged that Manson, Atkins and Davis entered into a conspiracy to commit murder and robbery on or about the “25th through the 28th day of July 1969 in violation of Penal Code section 182.1.” Three overt acts were alleged: (a) that on or about July 25, 1969, they “did travel to the vicinity of 964 Old Topanga Canyon Road, Malibu, in the County of Los Angeles” (b) on or about July 26, 1969, they entered the residence at the same address (c) on or about July 26, 1969, Manson and Davis “did drive away” from the same address in a Fiat automobile owned by Hinman. Count III of the indictment charged Manson, Davis and Steve Grogan (Grogan) with the murder of Donald Jerome (Shorty) Shea (Shea) “between the 16th day of August, 1969 and the 1st day of September, 1969” in violation of Penal Code section 187.
The trial of Manson was severed from the trial of the other defendants.
Manson made a number of motions prior to or during the trial (all of which were denied): (1) to represent himself as his own lawyer or as cocounsel; (2) to disqualify the trial judge; (3) dismissal; (4) to plead once in jeopardy; (5) change of venue; (6) to sequester jury; (7) to exclude evidence. He also filed a demurrer to the indictment and challenges to the grand jury which were overruled.
A jury was empaneled after 24 days of voir dire examination. After 43 trial days, the jury returned guilty verdicts on counts I, II and III and fixed the penalty as imprisonment for life. Manson’s application for probation and motion for new trial were denied. Manson was sentenced to state prison for the term of life as prescribed by law on each count, but execution of sentence on counts II and III was stayed pending completion of sentence on count I. Manson appeals from the judgment.
Facts
A. The Murder of Hinman
Paul Piet, Los Angeles County Deputy Sheriff, testified that in response to a call from Michael Erwin he arrived at 964 Old Topanga Canyon Road in Malibu on July 31, 1969. He discovered the body of Hinman lying on the floor of the living-bedroom-type room. It was badly decomposed. Investigation disclosed a bullet hole in the kitchen cabinets. Near the body were Buddhist prayer beads known as “Jizu.” Blood was on the body and clothing and splattered around the inside of the house on the walls and furniture. Written in apparent blood on the living room wall were the words “Political Piggy” and a drawing that appeared to be like a paw print of an animal.
An autopsy established that Hinman had been stabbed twice in the chest; that the cause of death was a stab wound through the heart. There was a large cut on the left side of the face through the left ear to the left lip of the mouth, which could have been caused by a sword.
On and for some time prior to September 1, 1969, Manson was the leader of the so-called “Manson family.” People v. Manson, supra, 61 Cal.App.3d 102, describes the composition, activities and modus operandi of the Manson family and need not be repeated here.
A fingerprint of Beausoleil, who was a member of the “Manson family,” was found in Hinman’s house on a door frame between the kitchen and the hall. A nine millimeter bullet was recovered from under the sink which could have been fired from a nine millimeter Radom gun. Hinman’s Fiat station wagon was seen at the Spahn Ranch, where the Manson family lived, on July 28, 1969, by Deputy Sheriff George D. Grapp and other officers.
Beausoleil was found in the Hinman Fiat station wagon on Highway 101 in the San Luis Obispo area on August 6, 1969, by Forest J. Humphry of the Highway Patrol. Beausoleil was arrested. After Hinman’s Fiat was impounded, officers found a knife in the rear spare tire well under a rubber mat.
Ella Jo Bailey testified for the People that she had known Manson since 1967 and travelled extensively throughout the southwestern United States with him, Mary Brunner, Patricia Krenwinkel and Lynne Fromme, and that they moved to the Spahn Ranch in 1968 where she met Davis and Beausoleil. Several times during May and June 1969, Manson talked to Bailey and others about “going out” to get money to buy dune buggies to go to the desert to live. In July of 1969 Manson talked to several members of the family about the need to get money and names were discussed of various persons from whom they could get money. Hinman’s name was discussed and the fact that he owned a house and stocks and bonds. On July 26, 1969, Manson told Bailey and Bill Vance that he wanted them to go to Hinman’s house and persuade him to join the “family” or sign over all of his property and automobiles. Vance said he had better things to do and walked away. That night at about 6 p.m. Bailey saw Manson talking to Beausoleil and Davis. Beausoleil had a knife (People’s exh. 18) and Davis had a nine millimeter Radom gun (People’s exh. 30). Subsequent investigation by officers established that Davis had purchased the gun under an assumed name. Bailey saw Brunner and Atkins dressed in dark clothes. Bailey saw Brunner, Atkins, Beausoleil and a fourth unidentified person drive off in a ranchhand’s car which was driven by the fourth person. Davis was still in the parking lot.
Two nights later Bailey saw Brunner and Atkins drive up to the Spahn Ranch in a Volkswagen microbus which Bailey had previously seen in the possession of Hinman. Bailey went with Brunner in the microbus to a eucalyptus grove on the Spahn Ranch. Bailey observed that there was no key in the microbus and the ignition wires had been wired together. On the seat of the microbus Bailey saw a purse with $27.64 in it. With Bailey’s help, Brunner wiped off the microbus. The next morning Bailey saw Hinman’s Fiat station wagon at the Spahn Ranch. Later that morning Bailey saw Manson in the presence of about six other people carrying a sword. Bailey testified:
“Charles [Manson] stated that after the phone call had come to the ranch asking for help,[] he and Bruce Davis had gone to Gary Hinman’s house, and he stated at the time that they arrived, Mary [Brunner] and Sadie [Atkins] and Bobby [Beausoleil] had gotten the gun back away from Gary Hinman.
“He stated that he had words with Mr. Hinman, and they had a heated argument, and then it became necessary for him to quiet Gary Hinman down, and he stated that he used a sword and cut Gary Hinman from his left ear down to his chin.. ..
“He also said that he had quieted Gary down, and the girls put Gary in bed, and that Mr. Hinman asked for his prayer beads and after that he said that he had left Bobby to finish up.. ..
“He said that two or three shots had been fired at the house. He also said that Bobby was foolish to ever let Sadie hold the gun on Mr. Hinman. ...
“He said that all they had gained from going to Gary’s house were the two vehicles and around $27.”
Alan Leroy Springer testified that he spent a night at the Spahn Ranch about August 10 or 11, 1969. In effect Manson tried to recruit him to join the family. Manson explained how they got things: “Well, we will go up to the door and knock on the door of their houses, and when they come to the door and open it up, ... we’ll just do them in or stick them.. .. Everything behind the door is yours, then, ... for the taking.” Manson said that he had “whacked a guy’s ear off; ... a Hinman.” Manson said that he took Hinman’s truck away from him. Manson said: “Well, we cut this guy’s ear off’ and somebody asked “Who was that?” and Manson said “That was Hinman.”
On August 10, 1971, while the instant case was on trial, during the testimony of Springer and. while the prosecutor and Manson’s lawyer were at the bench conferring with the judge, Manson who was seated at counsel table leaned over to Sergeant Paul J. Whiteley, who was also seated at counsel table and said (according to Whiteley’s testimony): “Springer is lying. I’ve never met the man. He just jumped on.” Whiteley said: “I didn’t put you at the Hinman house. Mary Brunner did.” Whiteley then testified further:
“And then Mr. Manson stated, ‘Sure, I went to Hinman’s house and got the gun and sliced his ear. I don’t deny that. I told Bobby [Beausoleil] how to stand up like a man. He had a woman’s thoughts. I told him what to do—no. [Interruption]...
“Uh—T told him what to do. Hinman deserved to die. He was selling bad dope.’
“And then there was a pause, and he said, ‘He was greasy.’
“And that’s the end of the statement.”
Whiteley’s testimony was corroborated by the testimony of Officer Clifford Patrick Blackburn who overheard the counsel table conversation between Manson and Whiteley except that Blackburn testified that Manson said:“...! held the gun on him, and—I told Bobby ... [Bobby Beausoleil]—to kill him. And I even showed him how to do it.. .. it wasn’t really a conversation. ... Manson did all the talking.” When the court was trying to determine whether Manson’s statements to Whiteley were made voluntarily, Blackburn testified in chambers that about a week previously Manson had made a similar voluntary statement to Whiteley.
When Manson testified in support of a motion to suppress the testimony of Whiteley and Blackburn, he also corroborated the conversation stating: “In general Mr. Whiteley’s statements were right... He admitted going to Hinman’s house, that he took the gun away from the guy.. and I had to cut him.” and he requested the girls to stay there and clean the place up and clean Hinman up. Manson testified that he didn’t look at Whiteley as “anything but a brain that I could program. And I dropped a lot of information in his head that would be useful to me later on.” Manson testified that he talked to Whiteley “Eveiy chance I get.” Some of the conversations occurred in the presence of Manson’s lawyer. The court concluded that Manson’s statements to Whiteley were not solicited by Whiteley and that they were freely and voluntarily given by Manson for some purpose of his own, and that they were spontaneous. The court said that it had witnessed conversations between Manson and Whiteley at counsel table while Manson’s lawyer was seated between them.
Marius John Arneson testified that in 1969 he lived at the Spahn Ranch, that he left the ranch and returned in late July or August 1969, that Beausoleil drove him and Manson in a white Fiat station wagon to look at a Volkswagen microbus which was on the Spahn Ranch, that Manson gave him Hinman’s Volkswagen microbus which had to be “hotwired” to drive, that Manson gave him a pink slip and instructed him that if he ever got in a hassle over the registration to say that he had gotten it from a Gary Hinman who was supposed to be a Black Panther.
Brunner was called as a witness by the People. By means of prior inconsistent statements (a transcript of her testimony at the trial of People v. Beausoleil, supra), the People established that in the latter part of July 1969, around midnight, Brunner, Beausoleil and Atkins were driven to Hinman’s house by Davis. Beausoleil asked Hinman for money. Hinman said he did not have any. Beausoleil pulled a gun. Beausoleil and Hinman got in a fight in the kitchen. Beausoleil hit Hinman over the head more than once with the gun. Hinman’s head was cut and bleeding. Beausoleil asked Brunner to clean up Hinman and gave Atkins the gun to hold on Hinman. Beausoleil went into the living room. Hinman took the gun away from Atkins. Beausoleil returned to the kitchen and resumed the fight with Hinman. During the struggle the gun discharged and a bullet went under the sink. Manson and Davis entered the house. Manson had a sword. Manson and Hinman struggled in the living room. Brunner was in the kitchen. Manson came into the kitchen with his finger cut. Brunner bandaged Manson’s finger and went into the living room where Atkins was bandaging Hinman’s ear. Hinman’s ear was cut in two and he had a cut running down his cheek. Manson and Davis left Hinman’s home in Hinman’s Fiat station wagon. Atkins, Brunner and Beausoleil stayed at Hinman’s house Saturday and Sunday for two days and nights. During this period Atkins answered the telephone and, using an English accent, told the callers that Hinman had gone to Colorado because one of his parents was sick.
Jay Hofstadter and Richard Siegel testified that they telephoned the Hinman home. Hofstadter testified that he telephoned Saturday, July 26, 1969, that a female answered the phone and said that Hinman had gone back to Colorado because his parents had gotten in an automobile accident. The girl said she came from London. She spoke with a British accent. Siegel called on Sunday, July 27, 1969. Siegel testified to the same effect.
Brunner’s prior testimony also established that during the two-day period that Atkins, Brunner and Beausoleil stayed at Hinman’s house, Hinman lay bleeding and sleeping. Atkins, Brunner and Beausoleil searched the house for things of value. They found “about twenty bucks” and two pink slips and two white slips to the cars. Beausoleil had Hinman endorse the pink slips. While Atkins and Brunner were in the kitchen, they heard a noise and rushed into the living room and Brunner found Beausoleil with a knife in his hand. Hinman had been stabbed. He was bleeding from the chest. They cleaned the place up obliterating fingerprints. Hinman went into a coma. Beausoleil said it was all over. Hinman then started breathing with a “loud raspy breathing.” Beausoleil put a pillow over Hinman’s head. He asked Brunner to hold it. Brunner did so for about two minutes and gave it to Atkins. They left Hinman’s house in his Volkswagen which they had to “hotwire.” Brunner took the nine millimeter Radom gun with her.
B. The Murder of Shea
Shea took care of horses and was a handyman who lived most of the time at the Spahn Ranch. Although he sometimes obtained temporary employment elsewhere, he always seemed to return to the Spahn Ranch. His ambition was to be an actor and stuntman in motion pictures. Shea owned a matched set of Colt .45’s which he carried in an attache case bearing the lettering “Reverend Donald Shea.” Shea was very proud of the Colt ,45’s stating that he would never sell them. However, when he needed money (which was frequently) he would pawn the guns but always for a small sum so that he would always be able to redeem them. Shea’s wife testified that she last saw Shea on August 16, 1969 (when they separated), and that that night at 7 or 8 p.m. he telephoned her and said he was at the Spahn Ranch and that he was going to stay there for a while. On August 17, 1969, Shea’s wife observed that Shea’s possessions including two suitcases and a footlocker had been removed from the hotel where they had previously stayed together. The footlocker had the words “Donald Jerome” stamped on the top. In a letter Shea told his wife if she wanted to contact him to call his long-time friends, the Babcocks, because they would always know where to reach him. Thereafter, Mrs. Shea called the Babcocks three times and as a result tried to telephone Shea at the Spahn Ranch several times during the period August 27, 1969, through September 1, 1969. On two occasions a female answered the telephone and said Shea had gone to San Francisco. Sharon Babcock testified that she attempted to telephone Shea at the Spahn Ranch three times. A female answered the telephone on each occasion.
Robert Bickston testified that in May of 1969, he talked to Shea about employment in a motion picture which was to start around July 15, 1969. Bickston talked to Shea about the motion picture again in June of 1969 and told him they were getting close to the starting date and to keep in touch with Mrs. Bickston. The starting date was eventually postponed to September 15, 1969. That from 1957 (when Bickston first met Shea) through June 1969, they kept in periodic touch with each other about eveiy three weeks, never longer than six weeks. Bickston last saw Shea between the middle and end of June 1969, and had not seen nor heard from him since.
Although Shea had previously worked for the Leslie Salt Company near San Francisco, he had not been employed by that company since September 5, 1968. Lance Victor who worked with Shea at the Leslie Salt Company and frequently visited him at the Spahn Ranch testified that he spoke to Shea at the Spahn Ranch in August 1969. Shea said he wanted to borrow money, that he wanted to return to work at the Leslie Salt Company. Shea was more nervous than usual. Shea was “kind of afraid.” Victor returned to the Spahn Ranch a few weeks later. Shea was not there.
Jerry M.B., a close friend of Shea who frequently loaned him money which Shea always repaid, testified that he loaned Shea money in July 1969, which Shea never repaid, that prior to July or August 1969, M.B. heard from Shea at least once a month and if Shea were going out of town, M.B. was the first one he would tell. M.B. last talked to Shea (who was staying at that time at M.B.’s home) at the end of July 1969.
F.R. testified that he purchased a portion of the Spahn Ranch in 1967 or 1968 and thereafter negotiated with Spahn for the purchase of the remainder of the ranch. In June 1969, F.R. arranged to purchase the Kelly Ranch adjoining the Spahn Ranch and on June 30, 1969, F.R. entered the farmhouse and saw Manson and about 20 people lying on the floor. F.R. ordered Manson off of his property. F.R. called the sheriff. F.R. saw Manson on the Kelly property frequently after June 30, 1969, and ordered him off the property. After June 30, 1969, F.R. had several conversations with Spahn, many of which were overheard by “Squeaky” Fromme (a Manson family member) about getting Manson and his family off of the Spahn Ranch. F.R. told Manson to leave the ranch because Spahn asked F.R. to clean up the ranch of the Manson family and he gave F.R. a power of attorney. F.R. had conversations with Spahn about the presence of the Manson family on the Spahn Ranch in the presence of Fromme. About one week prior to August 16, 1969, Manson threw a knife at Shea which stuck in a door directly in front of where Shea was walking.
Because of the activities of the Manson family, deputy sheriffs raided the Spahn Ranch on August 16, 1969. F.R. told Spahn several times, four or five times, he wanted to hire a guard and on more than one occasion Fromme was present. Spahn told him to hire Shea, which F.R. agreed to do. F.R. told Spahn in the presence of Fromme that he wanted to keep “Manson and everyone” off of the property. F.R. never saw Shea after he talked to Spahn about hiring him as a guard.
Shortly after deputy sheriffs raided the Spahn Ranch on August 16, 1969, and arrested Manson, Manson was released from jail and returned to the Spahn Ranch.
Barbara Hoyt, a member of the Manson family, testified that after his release from jail, Manson, in the presence of various people, said that Shea was responsible for the sheriffs raid, that Shea was an ex-policeman, that Shea was trying to get the Manson family kicked off of the Spahn Ranch and that Shea was an informant. Manson also said that F.R. was trying to take over the Spahn Ranch, that when he did he would bring up a bunch of “Nazis” and kick the family off the Spahn Ranch, and that he got his information from Fromme.
J.S., who was employed on the Spahn Ranch, testified that Manson told him after the August 16, 1969, raid by the deputy sheriffs that F.R. had purchased one-half of the ranch from Spahn and had offered Shea a job as watchman, and that Shea was going down that night to see about it. Ten days or two weeks later J.S. asked Manson if he had seen Shea and Manson said Shea had gone to San Francisco.
Manson and others were arrested again on F.R.’ property on August 24, 1969, for possession of marijuana.
Ruby Pearl worked on the Spahn Ranch. Pearl had known Spahn for 18 years and Shea for 15 years. She testified that Manson and members of his family came to the Spahn Ranch in the spring of 1969. In June of 1969, Shea told Pearl he had a part coming up in a motion picture which he was anxious to do. In the latter part of August 1969, “a couple of weeks” after August 16, 1969, Shea asked if he could come and stay at Pearl’s home. He was very nervous. Pearl had no place for Shea to stay except in a shed. Shea did not want to stay there. Pearl drove slowly away. As she drove away Pearl saw a car drive up “real suddenly.” Several Manson family members got out of the car. Pearl saw Manson, Watson, Grogan and Davis get out of the car and they spread out and approached Shea with Shea in the middle. When they were about five feet from Shea, Pearl drove out of sight. Pearl never saw or heard from Shea again.
Hoyt testified that late one night in the latter part of August 1969, when she was going to sleep in the “parachute room,” she heard screaming. She heard many loud screams coming from down by the creek. She recognized the screams as coming from Shea. The screams occurred later that night. Hoyt never saw Shea again. The next afternoon when she was down by the creek, Hoyt overheard a conversation between Manson and Danny DeCarlo, in which Manson said “Shorty [Shea] committed suicide, with a little help from us. And we buried him under some leaves.” Manson said they cut him up in nine pieces and buried him under some leaves. Manson pointed down the creek with his thumb over his shoulder. Manson asked DeCarlo if lye or lime would get rid of the body. DeCarlo said lye would get rid of it; lime would preserve it. Manson asked DeCarlo where he could get some lye. That night Hoyt, Manson and most of the members of the Manson family left the Spahn Ranch and went to Barker Ranch and Meyers’ Ranch in the desert. Hoyt described their route of travel as through Ballarat and Goler Wash. At the Meyers’ Ranch, Manson in the presence of several members of the Manson family, told about the killing of Shea. Hoyt testified:
“Charlie [Manson] said that they had killed Shorty [Shea], Uh, they cut him up in nine pieces.
“And first they asked him—oh, they—they asked him if he would like to see something and, uh, that they had something that they wanted to show him. And then, he got into the dune buggy and they took him away. And then, they hit him in the head with a pipe. Uh, they pulled him out of the car, and they started stabbing him. And then, umm, they kept stabbing him and stabbing him.
“And Charlie said—or Shorty said, ‘Why, Charlie, why?’
“And Charlie said, ‘Why? This is why.’ And then, he stabbed him again.
“And, uh, he said that it was—it was very hard to kill him until they brought him to now. And when they brought him to now, he said that Clem [Grogan] cut his head off.’’
Brooks Poston testified that in September of 1969 at the Barker Ranch and Meyers’ Ranch, Manson in the presence of Davis, Watson and other members of the family said:
“. ... You remember Shorty, don’t you? You know, we had to do him in. He was bad-mouthing the ranch and calling the Man [police] on us, and scheming with F.R. to get the ranch. And we warned him two or three times to stop, but he didn’t.
“So we hit him on the head, took him for a ride. And when he started to come to, we stuck him with knives. And when he started to get to now, he was really hard to kill, because he wouldn’t give it up.
“So Clem [Grogan] had to cut his head off.”
Paul Watkins testified that on September 1, 1969, at the Barker Ranch, “He [Manson] said we had to kill Shorty. He said Clem [Grogan] cut his head off. And he said that he’s been bad-mouthing the ranch and that he knew too much about the Fountain of the World and so—that he was messing things up, up there.... He’s been calling the Man [police] on the ranch.” Manson said Clem cut Shea’s head off with a machete.
Circumstantial evidence was produced by the prosecution to prove the murder of Shea because Shea’s body was never recovered. Such evidence consisted, inter alia, of the following: that Shea’s car was found on December 9, 1969, parked on a street in Chatsworth with Shea’s foot locker in the trunk of the car, keys underneath the front seat; shoes and papers were in the car; picture negatives were in the foot locker which Shea had agreed to return to Pearl; a fingerprint from Davis was on the foot locker; DeCarlo had redeemed Shea’s pair of Colt .45’s which Shea had pawned with Sam Launer, a Hollywood pawnbroker; DeCarlo had sold the guns to Delma Eugene Baker in Culver City.
J.S. testified that he had seen Vance and DeCarlo at the Spahn Ranch in possession of Shea’s attache case containing the Colt .45’s.
In February 1970, Richard Davis Barber found Shea’s suitcase and briefcase under some brush in Goler Wash.
A great mass of evidence was presented regarding efforts by law enforcement to locate Shea or his body. None of the efforts were productive.
Issues
Appellant contends:
1. As a preliminary overview, the conviction should be reversed because the case was close on the facts, the evidence (particularly regarding the Shea murder) was circumstantial and the state-inspired publicity tainted and interfered with the truth-seeking function of the trial.
2. Massive publicity deprived appellant of due process of law.
3. The grand jury indictment procedure is constitutionally infirm.
4. There was no competent evidence to support the indictment and therefore the court should have granted appellant’s motion to dismiss under Penal Code section 995.
5. For several reasons it was reversible error to receive in evidence the testimony of Brunner at a prior trial.
6. The conviction of the Hinman murder should be reversed because of: (a) errors in connection with the testimony of Bailey, (b) state misconduct regarding testimony of Arneson, (c) the suppression of evidence regarding the testimony of Springer, (d) the introduction of Whiteley testimony, (e) the fact that the evidence was insufficient to sustain the verdict.
7. The conviction of the Shea murder should be reversed because of: (a) the evidence (apart from Manson’s admissions) is insufficient to establish a corpus delicti, (b) the cumulative effect of numerous errors relating to the admissibility of evidence.
8. The demurrer to count II of the indictment should have been sustained because of ambiguity which denied due process.
9. Jurors were improperly excused from the petit panel.
10. Appellant should have been permitted to represent himself under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], despite the fact that Faretta is not retroactive.
Discussion
1. The Preliminary Overview
Manson devotes 33 pages of his opening brief to the evaluation of the evidence with reference to both the Hinman and Shea murders as if this appeal were a trial de novo, concludes that the evidence is close, and that the various errors complained of therefore were prejudicial and require reversal.
In our view, the major premise is erroneous. We do not agree that the evidence, viewed in the light most favorable to respondent, indicates that either case was close. In the Hinman case, the corpus delicti was established by direct evidence. Hinman clearly was murdered by someone. The totality of the evidence demonstrates that Hinman was killed in the course of a robbeiy. All of the participants in the robbery are therefore guilty of murder in the first degree (Pen. Code, § 189), even though only one struck the fatal blow. (People v. Sirignano (1974) 42 Cal.App.3d 794 [117 Cal.Rptr. 131].) In People v. Ulsh (1962) 211 Cal.App.2d 258 [27 Cal.Rptr. 408], the court said (p. 266): “Furthermore, it is well established that if a homicide is committed by one of several confederates while engaged in perpetrating the crime of robbeiy in furtherance of a common purpose, the person or persons engaged with him in the perpetration of the robbery but who did not actually do the killing, are as accountable to the law as though their own hands had intentionally fired the fatal shot or given the fatal blow, and such killing is murder in the first degree. The jury has no option but to return a verdict of murder in the first degree whether the killing was intentionally or accidentally done, and it is proper to so instruct the jury.” (Italics in original.)
Manson was clearly an aider and abettor, if not the primary instigator, of the robbeiy. By his own admissions he struck Hinman with a sword in aid of the robbery. The fact that Beausoleil was the person who struck the fatal blow does not relieve Manson of responsibility for the murder of Hinman. The evidence of Manson’s guilt for the Hinman murder was more than substantial beyond a reasonable doubt.
In the Shea case the corpus delicti was established primarily by circumstantial evidence. As we hereafter note in more detail the law in California has been clearly established since People v. Scott (1959) 176 CaI.App.2d 458 [1 Cal.Rptr. 600] (cert, den., 364 U.S. 471 [5 L.Ed.2d 222, 81 S.Ct. 245]; rehg. den. 364 U.S. 944 [5 L.Ed.2d 376, 81 S.Ct. 462]; cert, den., 368 U.S. 849 [7 L.Ed.2d 47, 82 S.Ct. 81] that even in the case of first degree myrder, the corpus delicti may be established by circumstantial evidence. (See 1 Witkin, Cal. Crimes, § 91, p. 87.) The circumstantial evidence of the corpus delicti in the case at bar is far stronger than the evidence involved in People v. Scott, supra. In addition, in the case at bar, there is direct “ear witness” evidence of the actual murder of Shea. Hoyt testified to hearing screams by Shea, at what the juiy presumably concluded was the precise time of the murder. Such ear witness testimony was clearly admissible as direct evidence to establish the corpus delicti. (People v. Marchialette (1975) 45 Cal.App.3d 974, 980 [119 Cal.Rptr. 816].) In the Scott case, there was no direct evidence of murder. In the case at bar, there was some direct evidence of murder even though Shea’s body was successfully disposed of.
In our view the totality of the evidence in the case at bar supports the jury’s verdict that Manson was guilty of the murders of both Hinman and Shea beyond a reasonable doubt and that neither case was a close case. Consequently, the various claims of error can be evaluated on their respective merits.
2. Publicity and Due Process of Law
Manson argues that state-inspired publicity particularly in connection with the Tate-LaBianca murders deprived him of a fair trial and due process of law in the Hinman-Shea case. The publicity in the various news media in connection with the Hinman-Shea murders was only a small fraction of the publicity in connection with the Tate-LaBianca murders. Both Hinman and Shea were obscure and unknown except to a small circle of friends. Neither was socially or otherwise prominent or a well-known motion picture actor as were some of the victims in the Tate-LaBianca case. In short, the Hinman-Shea cases were not as “newsworthy” as the Tate-LaBianca cases. These were some of the factors which the trial court and this court may consider in attempting to determine whether or not publicity deprived Manson of a fair trial. (People v. Sommerhalder (1973) 9 Cal.3d 290, 304 [107 Cal.Rptr. 289, 508 P.2d 289].) However, the court properly issued a gag order.
Manson has attempted to impeach the verdict in the Hinman-Shea case by incorporating by reference the evidence of the publicity introduced in the Tate-LaBianca case. In People v. Manson, supra, the court concluded that the “massive” publicity there involved did not mandate reversal of that judgment. If the massive publicity in connection with the Tate-LaBianca case did not deprive Manson of a fair trial in that case, it is difficult to see how such publicity would deprive Manson of a fair trial in the Hinman-Shea case. This case did not go to trial until approximately six months after the conclusion of the Tate-LaBianca case. Any residual effect of the publicity relating to the Tate-LaBianca case would be extremely minimal if at all. (People v. Sommerhalder, supra.)
As noted the voir dire examination of the jurors and alternate jurors consumed 24 trial days. Except in one instance (hereinafter noted in detail) when Juror L.L. was replaced with an alternate, Manson does not indicate the identity of a single juror or alternate who was empaneled whose impartiality or objectivity was affected in any way by any publicity prior to or during trial. The voir dire examination discloses that prior to trial most of the prospective jurors never heard of either Hinman or Shea or their murders or Manson’s connection with their murders. Although many jurors had heard of the Tate-LaBianca case and that Manson had some connection with that case, all jurors who indicated any specific knowledge of the prior case or that it might have some effect on their thinking here were excused for cause. The court was extraordinarily liberal in sustaining challenges for cause.
Manson complains that the jury was not sequestered during the 43-day trial. The sequestration of a jury rests on the sound discretion of the trial court, or the court may permit separation with a proper admonishment. (Pen. Code, § 1121; People v. Murphy (1973) 35 Cal.App.3d 905, 933 [111 Cal.Rptr. 295]; People v. Moore (1962) 209 Cal.App.2d 345, 352-353 [26 Cal.Rptr. 36].) The jury was repeatedly and adequately instructed regarding reading or listening to the news media. Except in the one instance hereinafter noted, there is no evidence that the jury did not adhere to the court’s instructions. The jury was sequestered during deliberation.
While the court was in a two-week recess during the trial in the instant case, a group of Manson’s followers allegedly robbed a gun shop at Hawthorne to obtain guns to “rescue” Manson by taking the judge and prosecutor hostage and such alleged action resulted in some additional publicity in the news media. Manson moved for a mistrial or in the alternative to sequester the jury. He also requested the court to conduct an evidentiary hearing to determine whether the additional publicity had any effect on the jury. The court conducted an evidentiary hearing. In response to the court’s question seven jurors or alternates indicated that they had inadvertently heard or read something about the robbery of the gun shop during the two-week recess. The court then conducted an intensive examination of each of the seven jurors individually in the absence of the other jurors.
Juror L.L. testified that while she was on a trip to Oakland and her husband was ill at home alone, her husband was involved in a situation, having no connection with the case at bar, where a girl was killed by a third person at the apartment house where L.L. lived. The girl died in L.L.’s living room. L.L. read the news headline about the robbery of the gun shop and thinking that it might have some connection with the killing of the girl at her apartment house she read the entire article. L.L. indicated she was afraid because of what happened at her home. Other jurors indicated that they “accidentally” saw a headline or heard something on the radio but each indicated it would have no influence on his or her state of mind or deliberations and that it had not prejudiced them against Manson. Manson’s lawyer appeared to be satisfied with the questioning by the court. Manson’s counsel stated positively that he had no further questions to ask of the jurors. Eight jurors testified that they had not heard or read anything whatsoever. The case at bar therefore is not unlike People v. Salas (1972) 7 Cal.3d 812 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832], wherein the court said (pp. 818-819): “... the jurors’ ignorance of the pretrial publicity is a very strong indication that defendant was not tried by a biased jury, [citation] Eight of the twelve jurors did not recall reading or hearing about the case and the recollection of the remaining four was so dim as to be negligible.” (Fn. omitted.)
It is clear from the court’s interrogation of the jurors that some of the jurors had very slight knowledge of the news media stories about the Hawthorne gun shop robbery and that such slight knowledge had no effect whatsoever on their ability to sit in judgment fairly and impartially. The court denied the motion for a mistrial. The court excused Juror L.L. because she had read the news article in violation of the court order and because of her emotional state resulting from the killing at her apartment house. Even the removal of Juror L.L. was over defendant’s objection.
The question here is not whether or not there was derogatory publicity about Manson, but whether or not the individual jurors were aware of such publicity and, if so, whether or not it affected their ability to be fair and impartial and to give Manson a fair trial. Substantial evidence sustains the trial court’s findings that some of the jurors had minimal knowledge of such publicity, that such minimal knowledge was accidentally acquired but that such minimal knowledge did not affect their ability to be fair and impartial and to give Manson a fair trial. Our own independent evaluation confirms the conclusion of the trial court. (People v. Sirhan (1972) 7 Cal.3d 710, 730 [102 Cal.Rptr. 385, 497 P.2d 1121].)
We have read the newspaper stories in evidence herein with reference to the Hinman-Shea case that were published prior to and during the trial in the instant case and we find nothing in such news stories which were not entirely factual regarding evidence produced and proceedings in court, with the sole exception of the gun shop robbery already referred to. For example, newspaper stories carried the details regarding the counsel table conversations between Manson and Whiteley (infra, p. 40) which Whiteley and others testified to in open court. Furthermore, it is noteworthy that in the case at bar the juiy imposed only life sentences whereas in the Tate-LaBianca cases the jury imposed death sentences. Here the jury deliberation began on October 21, 1971, and the jury did not return a verdict until November 2, 1971. During this period the jury requested a rereading of significant portions of the testimony. The record demonstrates that the jury acted conscientiously on the evidence and was not influenced by any publicity.
Unlike Estes v. Texas (1965) 381 U.S. 532 [14 L.Ed.2d 543, 85 S.Ct. 1628] and Sheppard v. Maxwell (1966) 384 U.S. 333 [16 L.Ed.2.d 600, 86 S.Ct. 1507], in the case at bar there was no flagrant departure from fundamental due process and the proper courtroom decorum was not upset by external influences. The news media were not out of control in the courtroom. Prejudice therefore will not be presumed. No prejudice in fact is shown.
We conclude that publicity did not deprive Manson of a fair trial or of due process of law. (People v. Sommerhalder, supra, 9 Cal.3d 290, 301.)
3. The Grand Jury Indictment Procedure
Manson argues that the grand jury indictment procedure used to bring Manson to trial is constitutionally infirm. Manson made the identical argument in the Tate-LaBianca case. The decision was adverse there. (People v. Manson, supra, pp. 165-166.) It is adverse here. No reason is shown here which would justify a different conclusion.
If the grand jury indictment is not supported by substantial evidence, Penal Code section 995 affords an adequate remedy.
4. Competence of Grand Jury Evidence
Manson also complains that the grand jury first issued separate indictments for the Hinman and Shea murders and then used certified transcripts of the testimony in the two cases in order to combine counts for the two murders into one consolidated indictment. Manson contends that his section 995 motion to dismiss the grand jury indictment should have been granted because of such alleged impropriety. The procedure was proper and has been approved. (Stern v. Superior Court (1947) 78 Cal.App.2d 9, 14 [177 P.2d 308]; People v. Busick (1939) 32 Cal.App.2d 315, 324 [89 P.2d 657]; People v. Follette (1925) 74 Cal.App. 178, 189-190 [240 P. 502].) In Follette the court said: “... when the second indictment is returned by the same grand jury which found the original one, the grand jury may rely upon the evidence given on the hearing, which resulted in the return of the original indictment, and need not hear any additional testimony.” (P. 190.) Penal Code section 939.6 does not compel a different result because the grand jury heard sworn competent testimony.
5. Admissibility of Brunner’s Testimony
a. Were the foundational requirements satisfied?
Manson fires a general barrage at the admissibility of the testimony of Brunner particularly the receipt of Brunner’s testimony in the case of People v. Beausoleil, supra, as prior inconsistent statements. The prosecution called Brunner as a witness and propounded to her many of the same questions propounded to her in Beausoleil. However, in the case at bar, contrary to her testimony in Beausoleil, Brunner denied going to Hinman’s house in July 1969. She specifically denied going to Hinman’s house in the latter part of July 1969, with Bruce Davis, Robert Beausoleil, or Susan Atkins. She admitted knowing in the latter part of July 1969, that Hinman was dead, but denied that she was in any way responsible for his death. She denied seeing Atkins hold a gun on Hinman. She denied seeing Beausoleil strike Hinman with a gun or seeing injuries to Hinman’s head. She denied bandaging Manson’s finger and denied seeing Atkins bandage Hinman’s head. When confronted with a transcript of her testimony in Beausoleil and given an opportunity to explain it, Brunner admitted testifying at the trial of Beausoleil, but testified in the case at bar that her testimony in the prior trial of Beausoleil was a lie, and that she lied in order to obtain immunity, to avoid a revocation of her probation, and to keep out of jail and retain possession of her child which had been fathered by Manson. She was given every opportunity to explain the reasons for the conflict between her testimony in the case at bar and her testimony in Beausoleil.
At the outset of the direct testimony of Brunner, the prosecutor undertook to examine her about a grant of immunity from the district attorney’s office but Manson’s lawyer and Manson personally objected. Because of his interference with the trial Manson then had to be removed from the courtroom and was held in an adjacent detention cell. Manson nevertheless continued to disrupt the proceedings by shouting through the open door of the detention cell and the court was compelled to close the door.
On his own motion, the trial judge undertook an in camera.investigation of the circumstances under which Brunner had been granted immunity in People v. Beausoleil, supra, and the terms of such grant of immunity, but counsel for Manson objected vigorously and repeatedly to any such inquiry by the court. The court appointed a lawyer (from the same law firm which previously represented Brunner) to advise Brunner regarding her rights. The lawyer did so and informed the court that Brunner had been fully advised of her rights. The court impliedly found that the prior testimony of Brunner in Beausoleil had been free and voluntary. (Evid. Code, § 402, subd. (c).)
Prior inconsistent statements of a witness are admissible as substantive evidence if the requirements of Evidence Code section 770 are complied with. (Evid. Code, § 1235; California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930]; People v. Green (1971) 3 Cal.3d 981 [92 Cal.Rptr. 494, 479 P.2d 998]; People v. Romo (1975) 14 Cal.3d 189, 194 [121 Cal.Rptr. 111, 534 P.2d 1015]; People v. Collins (1975) 44 Cal.App.3d 617 [118 Cal.Rptr. 864]; People v. Allen (1974) 41 Cal.App.3d 196 [115 Cal.Rptr. 839]; People v. Marcus (1974) 36 Cal.App.3d 676, 679 [111 Cal.Rptr. 772, 58 A.L.R.3d 594]; People v. Jenkins (1973) 34 Cal.App.3d 893 [110 Cal.Rptr. 465]; People v. Freeman (1971) 20 Cal.App.3d 488 [97 Cal.Rptr. 717].)
Manson now contends that the prosecutor was guilty of suppressing evidence regarding the terms and extent of the grant of immunity given to Brunner. It is painfully evident that the failure, if any, of complete candor and disclosure regarding the grant of immunity was caused by the objections, filibustering and obstructionist tactics of Manson’s counsel and to a lesser degree by Manson personally. At trial Manson successfully objected to the prosecutor doing precisely what he now argues the prosecutor should have done.
Manson also claims that the prosecution withheld from the jury evidence that Brunner was uncertain whether or not Manson was the father of her child. Brunner was asked a direct question and gave a direct answer that Manson was the father of her child. If she had doubts regarding paternity it was incumbent upon her to express them either on direct or cross-examination. The prosecutor is not the witness.
The prosecutor and Manson’s lawyer went over the transcript of Brunner’s testimony in the Beausoleil trial. Manson’s lawyer was allowed to offer any additional part of such testimony which he desired. Manson contends that none of the prior testimony of Brunner should have been received in evidence because the prosecution failed to offer portions of such prior testimony in connection with seven allegedly important facts. The claim is obviously an afterthought raised for the first time on appeal. No such claim was made in the trial court. As noted, Manson was allowed to offer any portion of such prior testimony which he desired.
On direct examination in the case at bar, Brunner at her court-appointed lawyer’s urging, ultimately invoked the Fifth Amendment against 3 of the 72 questions propounded by the prosecutor. But, she nevertheless thereafter testified fully on cross-examination. She did not refuse to answer a single question on cross-examination. Manson’s counsel indicated he had no further questions and subsequently admitted that he had cross-examined as fully as desired. Brunner was not excused as a witness but remained available under court order for recall if desired. We note parenthetically that Manson called Brunner as his witness during the penalty phase of the trial after the jury had returned guilty verdicts on all three counts. At the time of her testimony during the penalty phase of the trial, Brunner had been charged with the murder of Hinman (allegedly because she had violated the terms of the grant of immunity; see People v. Brunner, supra) and she was also charged with perjury. At that time (during the penalty phase of the instant trial) Brunner did consistently invoke her Fifth Amendment rights. This fact does not alter our conclusion that she was fully examined during the trial in chief. In our view what happened at the penalty phase of the trial was nonprejudicial in view of the fact that the jury did not impose the death penalty.
Manson’s lawyer objected to the offer of the testimony of Brunner as given in the Beausoleil case as a prior inconsistent statement on the additional ground that the requirements of Evidence Code sections 770 and 1235 had not been satisfied since Brunner was not “available” for cross-examination in view of the fact that she had invoked the Fifth Amendment. The court ruled that by testifying as fully as she did Brunner had waived the privilege against self-incrimination. (Rogers v. United States (1951) 340 U.S. 367 [95 L.Ed. 344, 71 S.Ct. 438]; People v. Freshour (1880) 55 Cal. 375.)
We conclude that Brunner was legally available for cross-examination; that in fact she was fully cross-examined by Manson during the guilt phase of the trial to the extent that he then desired; that the requirements of Evidence Code sections 770 and 1235 were fully satisfied; and that Brunner’s testimony was not inadmissible because she was not available for cross-examination. Such prior testimony was not inadmissible because it was given under a grant of immunity. The facts regarding such grant of immunity were fully disclosed to the jury in order that it could evaluate such testimony in the light of the fact that it was given under bias and prejudice, if any, generated by a grant of immunity.
Manson also argues that the grant of immunity was unlawful because it was not approved by the court and that therefore Brunner’s prior testimony was inadmissible as a matter of law. The words of the court in People v. Brunner, supra, are apropos: “Yet while these factors bear heavily on the weight [italics in original] to be given the witness’ testimony, they do not impinge upon the validity of the bargain itself.” (P. 915.) The propriety of the grant of immunity has been judicially approved and upheld by a final judgment of this court. (People v. Brunner, supra.)
Since we conclude that Brunner’s testimony was-properly admitted into evidence and that preliminary foundation requirements under Evidence Code section 770, were satisfied, the weight to be accorded such prior testimony as an inconsistent statement was a question for determination by the jury.
b. Was Brunner an accomplice and if so, was her testimony sufficiently corroborated?
Manson argues that the Brunner testimony in People v. Beausoleil, supra, should not have been admitted because Brunner was an accomplice as a matter of law and her testimony was not corroborated. The argument is devoid of merit for two reasons: (1) Brunner was not an accomplice as a matter of law, and (2) the testimony of Brunner (as given in the case of People v. Beausoleil, supra) was sufficiently corroborated.
Brunner was not an accomplice as a matter of law because there was a conflict in her testimony as to whether or not she was even at Hinman’s house in July 1969. Brunner’s testimony (as given in Beausoleil) was corroborated by evidence of the physical facts surrounding the death of Hinman, by the testimony of Bailey (see infra, pp. 36-37), and others, by the fact that Beausoleil’s fingerprint was found in the Hinman residence, and by the several admissions of Manson personally. The corroboration was more than substantial. (People v. Smith (1970) 4 Cal.App.3d 41, 45 [84 Cal.Rptr. 229]; People v. Henderson (1949) 34 Cal.2d 340, 343 [209 P.2d 785]; People v. Scofield (1971) 17 Cal.App.3d 1018 [95 Cal.Rptr. 405]; People v. Williams (1954) 128 Cal.App.2d 458, 462 [275 P.2d 513].)
Manson argues that since Brunner was an accomplice as a matter of law the court should have instructed, sua sponte, that Brunner was an accomplice as a matter of law. As already indicated, the argument is based upon an improper assumption. If Brunner was an accomplice as a matter of law, the conclusion would be correct. (People v. Ferlin (1928) 203 Cal. 587 [265 P. 230]; People v. Jones (1964) 228 Cal.App.2d 74, 94-95 [39 Cal.Rptr. 302].) However, the rule applies only where there is no conflict in the evidence that the person is in fact an accomplice. (People v. Coffey (1911) 161 Cal. 433, 446 [119 P. 901]; People v. Jones, supra.)
The jury instructions which the court gave defined accomplice (CALJIC No. 3.10), advised the jury that the testimony of an accomplice must be corroborated (CALJIC No. 3.11), defined the sufficiency of the evidence which was required to corroborate the testimony of an accomplice (CALJIC No. 3.12), cautioned the jury that the testimony of an accomplice should be viewed with distrust (CALJIC No. 3.18), defined the criminal intent requisite to be an accomplice (CALJIC No. 3.14), and that one accomplice may not provide the requisite corroboration for another accomplice (CALJIC No. 3.13). Mánson’s argument that the court should also have instructed, sua sponte,. that Brunner was an accomplice as a matter of law, ignores the fact that there was a conflict in the evidence as to whether or not she was an accomplice at all. An instruction that Brunner was an accomplice as a matter of law would have clearly constituted prejudicial and reversible error, since such an instruction would have been tantamount to an instruction .that her testimony in the case at bar was untrue and that her testimony in People v. Beausoleil, supra, was true. Such an instruction would have usurped the jury’s function to determine which version of the facts was true. “... Where the facts are in dispute as to the knowledge and intent of the asserted accomplice, the witnesses’ liability for prosecution is a question of fact for the jury.” (People v. Gordon (1973) 10 Cal.3d 460, 467 [110 Cal.Rptr. 906, 516 P.2d 298].)
The court correctly instructed the jury on the law applicable to accomplices and the prosecution correctly argued to the jury that if Brunner told the truth in the case at bar, she was not an accomplice, but if she told the truth in her testimony in People v. Beausoleil, supra, she was an accomplice. (People v. Gordon, supra, pp. 472-473.)
When Manson argues that Brunner was an accomplice as a matter of law, he inferentially admits that she was telling the truth in Beausoleil and lying in the case at bar. Such an admission might have been significant if it had been made at the trial level. It does not change the rule when made in this court.
c. Was the prosecutor guilty of misconduct in arguing that Brunner’s testimony was corroborated?
Manson argues that the prosecutor was guilty of misconduct and was permitted to mislead the jury by misstating the facts and the law in several respects. He argues that what the prosecution characterized as corroborating evidence of Brunner’s testimony (in People v. Beausoleil, supra) was not legally corroborative evidence. Manson devotes 10 pages of his opening brief on appeal to this argument. (Pp. 116-126.) Time and space do not permit a detailed analysis. In many respects the arguments are nonsensical. For example, Manson argues that evidence that Manson admitted slashing Hinman’s ear was not corroborative of the testimony of Brunner because Manson’s admissions did not specifically admit when he slashed Hinman’s ear.
Manson argues in effect that evidence is not corroborative evidence unless each bit of evidence standing alone is sufficient to connect the defendant to the crime. Such is not the law. If the sum total of all of the evidence (other than the accomplice’s testimony), connects the defendant to the commission of the offense the requirements of Penal Code section 1111 are satisfied. Here the defendant’s admissions alone are sufficient to provide corroboration. Direct evidence is not required but circumstantial evidence will be sufficient. (People v. Mardian (1975) 47 Cal.App.3d 16, 43 [121 Cal.Rptr. 269].) The requirements of Penal Code section 1111 are satisfied if the sum total of all of the evidence connects the defendant to the crime and is sufficient to convince the juiy that the accomplice is telling the truth. (People v. Medina (1974) 41 Cal.App.3d 438, 466 [116 Cal.Rptr. 133].) Even slight circumstantial evidence may be sufficient. (People v. Thurman (1972) 28 Cal.App.3d 725 [104 Cal.Rptr. 804]; People v. Manson, supra, 61 Cal.App.3d 102.)
Consequently the prosecutor had a right to argue each bit and piece of the evidence even though each bit and piece standing alone would not have been sufficient to supply the requisite corroboration. Just as an artist creates a mosaic a piece at a time, so a prosecutor creates a picture of guilt by consideration of individual bits of evidence, otherwise insignificant, which in totality convince the seeker of truth. The prosecutor was not guilty of misconduct merely because he characterized bits and pieces of evidence as corroboration when standing alone such bits and pieces would not have been sufficient to sustain a conviction. If the sum total was sufficient, the argument was proper. The sum total was sufficient. (People v. Hathcock (1973) 8 Cal.3d 599 [105 Cal.Rptr. 540, 504 P.2d 476]; People v. Jenkins, supra, 34 Cal.App.3d 893; People v. Randono (1973) 32 Cal.App.3d 164 [108 Cal.Rptr. 326]; People v. McFarland (1971) 17 Cal.App.3d 807 [95 Cal.Rptr. 369].)
6. Alleged Errors in Admission of Evidence Regarding Murder of Hinman
a. The testimony of Bailey:
Manson argues that the testimony of Bailey had three aspects: (1) of tending to prove robbery as a motive for the murder of Hinman, (2) of corroborating the testimony of Brunner, (3) of circumstantial evidence establishing Manson’s guilt independently of Brunner’s testimony and apart from motive. We agree.
Manson assails the admission of Bailey’s testimony on several grounds. He contends that the prosecution violated the court’s discovery order, because although the prosecution produced for inspection a tape recording of a police interview with Bailey prior to trial, the tape recording was full of static and at least partially unintelligible. As a consequence Manson’s lawyer could not fully understand the tape recording. Subsequently a tape recording was produced which amplified the original tape. Manson now claims that he should have been given the amplified tape recording prior to trial although he made no such claim during trial. At trial he contended that the amplified tape “is not pertinent to these proceedings.”
At trial Manson made a motion to strike the testimony of Bailey. The court conducted an evidentiary hearing regarding the tapes and the claim by one of Manson’s lawyers (Berlin) that when he heard the tape recording played, he heard Bailey make reference to “money and concessions.” Manson claims that the prosecution “bought” the testimony of Bailey. He also claims that the original tape recording was altered. As a result of the evidentiary hearing, it appeared that Officer Whiteley had given Bailey $20 for long distance telephone calls and prosecuting authorities in the State of Washington agreed to drop forgery charges against Bailey if she testified as a prosecution witness in the case at bar.
The court concluded as a fact that the original tape recording was not altered, that Berlin and Kanarek were mistaken as to what they thought they heard on the tape, and that the discovery order had been fully complied with. The court denied the motion to strike the testimony of Bailey.
The prosecution did not suppress or conceal evidence within the principles enunciated in People v. Ruthford (1975) 14 Cal.3d 399, 406 [121 Cal.Rptr. 261, 534 P.2d 1341] and People v. Westmoreland (1976) 58 Cal.App.3d 32, 44 [129 Cal.Rptr. 554]. Bailey testified fully that she understood that if she testified truthfully the forgery charges against her would be dropped. The only requirement was that Bailey testify truthfully. The agreement was lawful (People v. Manson, supra) and consequently Bailey’s testimony was properly received in evidence.
Manson argues that Bailey’s testimony should not have been received in evidence because she was an accomplice as a matter of law. The argument is absurd. Bailey was not an accomplice to the murder of Hinman as a matter of law. She was a percipient witness to certain events which occurred prior to and after the robbery and death of Hinman, which constituted circumstantial evidence regarding the murder of Hinman. In addition after thé murder of Hinman, Bailey helped Brunner wipe down Hinman’s Volkswagen microbus after Brunner drove it to the Spahn Ranch. Both sides here seem to assume that the purpose of the “wipe down” was to remove fingerprints, but our reading of the record indicates that Manson successfully objected to Bailey’s testimony that that was the purpose of the “wipe down.”
By virtue of his objection therefore Manson succeeded in preventing the prosecution from proving that Bailey was even an accessory after the fact. If Bailey had been permitted to testify, as the prosecution sought to establish, that she and Brunner had wiped fingerprints from Hinman’s Volkswagen microbus, she may well have been an accessory after the fact. (Pen. Code, §§ 30, 32; People v. Rutkowsky (1975) 53 Cal.App.3d 1069 [126 Cal.Rptr. 104]; People v. Mitten (1974) 37 Cal.App.3d 879 [112 Cal.Rptr. 713]; People v. Tewksbury (1976) 15 Cal.3d 953 [127 Cal.Rptr. 135, 544 P.2d 1335].) But she was not an accomplice (Pen. Code, § 31). The court, therefore, was not required to instruct that Bailey was an accomplice as a matter of law, and Bailey’s testimony was properly admitted without such an instruction. (People v. Randono, supra; People v. Tewksbury, supra.)
b. The testimony of Arneson:
Manson complains that the trial court erroneously admitted testimony by Arneson that he acquired the Hinman Volkswagen microbus from Manson at the end of July or early August 1969. The police interviewed Arneson on March 10, 1970, and made a tape recording of the interview. During the interview, Arneson could not remember precisely when he obtained the Volkswagen microbus from Manson but thought that he may have acquired it prior to his birthday which was June 24th. The interrogating officer pointed out that that date was impossible and that he must have gotten it at the end of July or early August and Arneson then said: “Yeah.” Typically Manson now accuses the officers of subornation of per jury.
We do not so read the record. In our view, the officer who conducted the interview was merely attempting to clarify Arneson’s recollection which was obviously hazy, unclear and inaccurate. When the correct date was suggested, the witness recognized his error. But in any event, the issue was an issue of fact, the credibility of a witness, not an issue of law for an appellate court. All relevant evidence was presented to the trier of fact and the juiy impliedly concluded that Arneson obtained the automobile in the latter part of July or early August and that his original hazy recollection that it was prior to June 24 was inaccurate.
The argument presents no issue of law for this court to resolve.
c. The testimony of Springer:
Manson contends that the prosecution suppressed evidence regarding the rap sheet relating to Springer and that if Springer’s rap sheet had been produced, the defense would have obtained evidence with which the defense could have discredited or impeached Springer. However, the record discloses that Manson was permitted to conduct an examination of Springer outside the presence of the jury regarding his prior criminal record. The trial court ruled that the discovery order had been complied with. The record here fails to establish that the prosecution suppressed any evidence within the meaning of People, v. Ruthford, supra, page 406.
d. The introduction of Whiteley’s testimony:
Manson argues that the court should have excluded testimony by Officer Whiteley regarding the conversation at counsel table in which Manson admitted that he slashed Hinman’s ear.
Manson argues that during the evidentiary hearing regarding the circumstances under which Manson made his admissions to Whiteley, “It further developed that Whiteley took advantage of every opportunity when defense counsel was at the bench to engage Manson in conversation and that Manson was lured into these conversations by the hope that he could ‘program’ Whiteley, a desperate hope indeed.”
This perversion of the record needs no reply except to refer to the record (ante, p. 16) in which the trial court found that the statements made by Manson were voluntary and not solicited by Whiteley. Where a defendant makes a voluntary admission to police which is unsolicited by the police, evidence of the admission is properly received in evidence. (Griffin v. Superior Court (1972) 26 Cal.App.3d 672, 696-697 [103 Cal.Rptr. 379].)
e. The sufficiency of the evidence regarding Hinman’s murder:
The evidence, direct and circumstantial, was uncontradicted that Hinman was murdered by someone. The totality of the evidence demonstrates that Hinman was murdered in the course of the robbery of Hinman by Beausoleil, Brunner, Atkins, Manson and Davis. While it is true that Brunner was a turncoat witness, unlike In re Eugene M. (1976) 55 Cal.App.3d 650 [127 Cal.Rptr. 851], here there was substantial evidence of Manson’s guilt beyond a reasonable doubt, other than the testimony of Brunner. Here five witnesses (Whiteley, Blackburn, Springer, Hoyt and Bailey) testified to four admissions of guilt by Manson, at different times and places in the presence of different witnesses, any one of which would have been sufficient to connect Manson to the murder. Other evidence, such as. Manson’s possession and sale of property acquired as the result of the robbery and murder of Hinman, demonstrates an overwhelming basis beyond a reasonable doubt for the jury’s verdict of guilt. We conclude that there was substantial evidence to sustain the jury’s verdict that Manson was guilty of the murder of Hinman within the scope of Penal Code section 189.
7. The Murder of Shea
a. Sufficiency of evidence to establish corpus delicti:
Manson argues that the evidence was insufficient to establish the corpus delicti that Shea was murdered.
“The corpus delicti is established when it is proved that a crime has been committed by someone.” (People v. White (1960) 186 Cal.App.2d 853, 857 [9 Cal.Rptr. 99], citing People v. Cobb, 45 Cal.2d 158 [287 P.2d 752]; People v. McMonigle, 29 Cal.2d 730 [177 P.2d 745]; People v. Selby, 198 Cal. 426 [245 P. 426].) “The corpus delicti consists of two elements, namely (1) the injury or loss or harm; and (2) a criminal agency causing them to exist.” (People v. Wong (1973) 35 Cal.App.3d 812, 839 [111 Cal.Rptr. 314], citing People v. Frey, 165 Cal. 140, 146 [131 P. 127]; Iiams v. Superior Court, 236 Cal.App.2d 80, 82 [45 Cal.Rptr. 627].) “In homicide, the corpus delicti may consist of the death of the alleged victim and the existence of some criminal agency as the cause.” (People v. Beach (1963) 212 Cal.App.2d 486, 492 [28 Cal.Rptr. 62].)
“The preliminary proof of the corpus delicti need not be ‘beyond a reasonable doubt’ but only a slight or prima facie showing is necessary.” (People v. Wong, supra, p. 839, citing People v. Mehaffey, 32 Cal.2d 535, 545 (197 P.2d 12) [cert, den., 335 U.S. 900 [93 L.Ed. 435, 69 S.Ct. 399]]; Ureta v. Superior Court, 199 Cal.App.2d 672, 675 [18 Cal.Rptr. 873]; see People v. Huber, 225 Cal.App.2d 536, 542 [37 Cal.Rptr. 512].) In California any element of the corpus delicti may be established by circumstantial evidence. In fact, the corpus delicti may be established in its entirety by circumstantial evidence. (People v. Westfall (1961) 198 Cal.App.2d 598, 601-602 [18 Cal.Rptr. 356]; People v. Huber, supra, 225 Cal.App.2d 536, 542, citing People v. Scott, supra, 176 Cal.App.2d 458; People v. Amaya, 40 Cal.2d 70, 75 [251 P.2d 324]; see People v. Wong, supra, p. 839.)
The identity of the perpetrator of the crime is never an essential element of the corpus delicti. “ ‘Proof of the corpus delicti does not require proof of the identity of the perpetrators of the crime, nor proof that the crime was committed by the defendant.’ ” (People v. Huber, supra, p. 542, citing People v. Cobb, 45 Cal.2d 158, 161 [287 P.2d 125]; see People v. White, supra.) “[N]o part of it [the corpus delicti] can be proved by the extrajudicial admissions or confessions of the defendant, and unless the corpus delicti is established such statements cannot be admitted in evidence.” (People v. Wong, supra, p. 839, citing People v. Quarez, 196 Cal. 404, 409 [238 P. 363]; People v. Lopez, 254 Cal.App.2d 185, 189-190 [62 Cal.Rptr. 47]; People v. Parker, 122 Cal.App.2d 867, 872 [265 P.2d 933].) This principle is considered to be sufficient protection to guard against a defendant confessing to a crime which was never committed.
However, once a prima facie showing of the corpus delicti has been presented, even by circumstantial evidence, then admissions and confessions of the defendant are admissible in evidence and may be considered along with other evidence. When the admissions become admissible they may be sufficient to raise the quantity of proof to proof beyond a reasonable doubt. (People v. Beach, supra, 212 Cal.App.2d 486, 492.)
Numerous cases quote the following language from People v. Selby, supra, 198 Cal. 426, 437: “It is apparent from this review of the cases that the general trend of authority has been to hold that upon prima facie proof of the corpus delicti the extrajudicial statements, admissions, or confessions of the accused may be admitted in evidence and having been so properly admitted they may, with the evidence aliunde, be considered by the jury in its determination whether or not all the elements of the crime and the connection therewith of the accused have been established to a moral certainty and beyond all reasonable doubt.” (See also People v. Hudson (1934) 139 Cal.App. 543, 544 [34 P.2d 741], quoted in People v. Huber, supra, 225 Cal.App.2d 536; People v. Westfall, supra, 198 Cal.App.2d 598, 602; italics in original.)
The defendant’s admissions or confessions are competent evidence after prima facie proof of- the corpus delicti is made and may of themselves be sufficient to establish his connection with the crime. (People v. Watson (1961) 198 Cal.App.2d 707, 712 [18 Cal.Rptr. 234].)
Here Manson places great emphasis on the fact that Shea’s body was never recovered. The fact that Shea’s body was never recovered would justify an inference by the jury that death was caused by a criminal agency. It is highly unlikely that a person who dies from natural causes will successfully dispose of his own body. Although such a result may be a theoretical possibility, it is contrary to the normal course of human affairs.
The fact that a murderer may successfully dispose of the body of the victim does not entitle him to an acquittal. That is one form of success for which society has no reward. Production of the body is not a condition precedent to the prosecution for murder. (People v. Cullen (1951) 37 Cal.2d 614, 624 [234 P.2d 1]; People v. Scott, supra.) In People v. Cullen, supra, the court said (pp. 624, 625): “Here the corpus delicti consists of two elements, the death of the alleged victims and the existence of some criminal agency as the cause, either or both of which may be proved circumstantially or inferentially. [Citations.] [¶ It is not necessary in order to support the conviction that the bodies actually be found. ... [¶ Proof of the corpus delicti does not require identity of the perpetrators. It is not necessaiy that it connect the defendant with the commission of the crime although it may do so. [Citations.] Nor does motive form any part of the corpus delicti. [Citations.] [¶ It is the settled rule, however, that the corpus delicti must be established independently of admissions of the defendant. Conviction cannot be had on his extrajudicial admissions or confessions without proof aliunde of the corpus delicti; but full proof of the body of the crime, sufficient to convince the jury of its conclusive character, is not necessary before the admissions may be received. A prima facie showing that the alleged victims met death by a criminal agency is all that is required. The defendant’s extrajudicial statements are then admissible, the order of proof being discretionary, and together with the prima facie showing must satisfy the jury beyond a reasonable doubt. [Citations.] The purpose of the rule is to protect the defendant against the possibility of fabricated testimony which might wrongfully establish the crime and the perpetrator. [Citations.]” (Italics in original.)
Here the prosecution’s evidence established that Shea was dead and that he met death by criminal means; it established that Manson, and his family, had a significant motive to murder Shea. Manson’s own admissible admissions established guilt beyond a reasonable doubt. The evidence was clearly sufficient.
b. The “Screaming lineup”
Manson claims that the trial court committed reversible error because it denied his request to conduct a “screaming lineup” in the presence of the jury at the Spahn Ranch to determine whether or not Hoyt was truthfull when she testified that she heard Shea screaming late at night in the latter part of August 1969. Manson wanted to use a “group” of people in the test. For obvious reasons Shea would not have been one of the group.
In effect, Manson wanted to conduct an experiment. The trial court’s discretion to refuse an experiment is very broad. (People v. Skinner (1954) 123 Cal.App.2d 741, 751 [267 P.2d 875]; People v. King (1951) 104 Cal.App.2d 298, 307 [231 P.2d 156]; People v. Sherman (1950) 97 Cal.App.2d 245, 253 [217 P.2d 715]; Schauf v. Southern Cal. Edison Co. (1966) 243 Cal.App.2d 450, 455 [52 Cal.Rptr. 518].) Experiment evidence may be rejected if it consumes an undue amount of time. (Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, 521 [109 Cal.Rptr. 110].) Before such experiments are permitted, it must be established that the conditions will be substantially similar. (Chambers v. Silver (1951) 103 Cal.App.2d 633 [230 P.2d 146]; Yecny v. Eclipse Fuel Engineering Co. (1962) 210 Cal.App.2d 192, 203-205 [26 Cal.Rptr. 402]; Culpepper v. Volkswagen of America, Inc., supra; People v. Terry (1974) 38 Cal.App.3d 432, 445 [113 Cal.Rptr. 233].)
In People v. Spencer (1922) 58 Cal.App. 197 [280 P. 380], the prosecution was permitted to produce evidence of an experiment that it would have been possible for a witness at one designated point to hear a woman screaming at another designated point. In Spencer, supra, the prosecution did not seek to identify the screaming of a particular individual but just the fact of screaming generally. However, that was not the purpose of Manson’s motion in the case at bar. His motion was to conduct a screaming lineup to establish that the witness would not have been able to identify the screams of a particular designated person (Shea) who would not have been in the lineup.
The fact, if it be a fact, that the witness might or might not have been able to identify the screams of one or even several persons would have no probative value as to whether or not she would have been able to identify the voice of Shea had he been in the lineup, or more importantly whether she identified the voice of Shea on the particular night in question. The identifying characteristics of individual human voices are very disparate. The ability to identify the voice of a particular individual depends upon the characteristics of that individual’s voice and the familiarity of the witness with that individual’s voice. Identification or failure to identify one human voice does not necessarily prove or disprove the ability to identify another human voice. Furthermore, experiment evidence must be conducted under substantially similar circumstances. Here Hoyt heard Shea scream late at night. It is a matter of common knowledge that background noises are usually at a minimum and that sounds usually carry better and are more distinct late at night. “The still of the night” is more than a poetic phrase. Atmospheric conditions may well be different at different times of the day. To grant Manson’s request, therefore, the jury would have been required to go to the Spahn Ranch late at night in order to have the experiment conducted under substantially similar conditions. Furthermore, since the precise place of murder was unknown to the prosecution and court, the court would have been unable to determine whether or not the persons who would be doing the “screaming” would be at the point where Shea was when he screamed and was heard by Hoyt. The trial court, in the exercise of its sound discretion, may refuse such experiment under dissimilar circumstances and where the trial would have been unduly disrupted.
If so-called scientific voice print experiments are not admissible in evidence (People v. King (1968) 266 Cal.App.2d 437 [72 Cal.Rptr. 478]; People v. Law (1974) 40 Cal.App.3d 69 [114 Cal.Rptr. 708]; People v. Kelly (1976) 17 Cal.3d 24, 35 [130 Cal.Rptr. 144, 549 P.2d 1240]), it is clear that the court did not abuse its discretion in the case at bar by refusing the request for a “screaming lineup.” Certainly no abuse of discretion is shown here.
c. The testimony of M.S.:
Manson claims that his cross-examination of M.S. (wife of Shea) was unduly restricted and that he was not permitted to establish that Shea was afraid of the boy friends of M.S. and that he might have left town because of such fear.
The court ruled that the defense would be permitted to establish “. .. that there was a threat made to Shorty Shea by someone in her [M.S.’s] presence,” that if there was a threat made to kill Shea “. .. that it might establish some motive for Mr. Shea leaving town, disappearing” that since the prosecution was trying to prove that the disappearance of Shea was due to his demise “The defense has a right to show that he might have had the possible state of mind that he was fearful of someone, and left as a result of that.” Thereafter, Manson was permitted to cross-examine M.S. extensively and he never asked a single question about threats made to or in the presence of Shea or any other event which would have provided motivation for Shea to leave town. We conclude that the claim that cross-examination of M.S. was unduly restricted is a distortion of the record.
Manson called M.B. as a defense witness and attempted to establish a conversation between M.B. and Shea in which M.B. quoted Shea’s wife, M.S., as saying that she [M.S.] was leaving Shea because of M.S.’s fear of what her boy friends might do to Shea. The court sustained an objection on the ground that such statement did not show Shea’s state of mind but only showed M.S.’s state of mind. The court characterized it as second party—third party hearsay. We find no error in the ruling. M.S.’s state of mind was not in issue. M.S.’s state of mind would have no probative value on the issue of whether or not Shea’s state of mind was such that Shea might have fled and gone into hiding.
d. Cross-examination of Officer Whiteley:
Manson contends that the trial court committed error in receiving evidence from Officer Whiteley of efforts made by him to determine the existence or whereabouts of Shea. Since the body of Shea was not recovered, it was incumbent upon the prosecution to prove that Shea was not alive which, of course, had to be done by negative evidence. Whiteley testified to contacts which he made with jails, hospitals, governmental agencies, utilities, credit organizations, prospective employers and similar agencies, relatives, and persons throughout all of the states of the United States with which Shea had any previous contact. The evidence was clearly relevant, competent and admissible to prove by negative inference that Shea was not alive which was a necessary element of proof of the crime of murder when the body was not recovered. (People v. Scott, supra.)
Manson also claims that the court unduly restricted his cross-examination of Whiteley regarding Whiteley’s contacts with M.B. regarding declarations made by Shea to M.B. regarding statements made by M.S. to Shea regarding threats made to her by her boy friends. (See ante, p. 45.) In our view of the record the cross-examination of Whiteley was not unduly restricted because it is manifest from the testimony of M.B. that evidence from M.B. (if discovered by Whiteley’s investigation) would have related only to M.S.’s state of mind and not Shea’s state of mind.
We find no prejudice in any event since M.B. testified personally as a defense witness and she was fully examined to the extent that her testimony was relevant and competent.
8. Demurrer to count II of the Indictment
Manson contends that his section 995 motion to dismiss the indictment and his demurrer to count II of the indictment for uncertainty should have been granted and sustained.
Manson contends that count II of the indictment was ambiguous because it did not allege the specific identity of the person the conspirators intended to rob and murder. The gravamen of the offense of conspiracy to commit a crime is the unlawful agreement of two or more people and the overt act or acts in furtherance thereof, not that the substantive crime is actually committed. (People v. Manson, supra, p. 156; 1 Witkin, Cal. Crimes, Elements of Crime, § 105, p. 99.) Under Manson’s argument if two or more persons conspire to go out on the street and rob and murder the first person they meet (and they committed an overt act in furtherance of the conspiracy) no offense would have been committed since the conspirators did not know in advance the identity of the person who would be the first person they would meet on the street. No case is cited which holds that conspirators must know in advance the identity of their victim or that the indictment must allege the identity of the victim of the conspiracy.
Under Penal Code section 182, subdivision l, it is sufficient to state the offense of conspiracy if the object of the conspiracy is “To commit any crime.” (1 Witkin, Cal. Crimes, §§ 114, 117, pp. 108, 110; Witkin, Cal. Criminal Procedure, § 192.) Count II of the indictment properly charged the offense of conspiracy to commit robbery and murder even though the victim was unnamed. (Pen. Code, § 952.)
One of the reasons for the requirement of specificity in the indictment or information is to advise the defendant of the charge against which he must defend. (People v. Marshall (1957) 48 Cal.2d 394, 399, fn. 5 [309 P.2d 456]; People v. Beesly (1931) 119 Cal.App. 82, 85-86 [6 P.2d 114, 970].) Here count II of the indictment set forth a specific street address at which the unlawful object of the conspiracy —robbery and murder—was to be accomplished. “Notice of the particular circumstances of the offense is given not by detailed pleading but by the transcript of the evidence before the committing magistrate (or the grand jury); ...” (People v. Roberts (1953) 40 Cal.2d 483, 486 [254 P.2d 501].) Manson was therefore adequately informed of the details of the charge against which he was required to defend even though the specific victim was not named in the indictment. “No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.” (Pen. Code § 960; People v. Powell (1974) 40 Cal.App.3d 107, 123 [115 Cal.Rptr. 109]; People v. Koch (1970) 4 Cal.App.3d 270, 276 [84 Cal.Rptr. 629].) There is nothing in this record to suggest that Manson was misled or prejudiced in any way. By virtue of the allegations of count I of the indictment, Manson was fully advised that he was accused of the murder of Hinman.
9. Selection of the Petit Jury
Manson claims that a large number of prospective trial jurors were excused because of financial hardship and thus the jury was composed primarily of upper-middle-class persons who have their salaries paid while on jury duty. He claims that consequently he was “deprived of the services of persons whose outlook toward the Manson ogre myth might have been entirely different than that of the jurors actually chosen.”
The purpose of the jury is to guard against the exercise of arbitrary power. The requirement that a jury represent a fair cross-section of the community is a fundamental part of the Sixth Amendment guarantee to a jury trial (Taylor v. Louisiana (1974) 419 U.S. 522 [42 L.Ed.2d 690, 95 S.Ct. 692]), which is made binding on the states by virtue of the Fourteenth Amendment. (Duncan v. Louisiana (1968) 391 U.S. 145 [20 L.Ed.2d 491, 88 S.Ct. 1444].)
Manson’s argument misconceives the function of the jury in our judicial system. A jury does not exist to serve either party, but to serve society and the cause of justice. It should not be partisan to either side. The argument is essentially that Manson was entitled to be tried by a jury which was prejudiced in his favor. There is no principle of law, constitutional or otherwise, of which we are aware, which supports this position. Defendants are not entitled to a jury of any particular composition nor is there a requirement that petit juries actually chosen be representative of the various distinct, economic, political, social or racial groups in the community. (Thiel v. Southern Pacific Co. (1946) 328 U.S. 217, 220 [90 L.Ed. 1181, 1184, 66 S.Ct. 984, 166 A.L.R. 1412]; Taylor v. Louisiana, supra, p. 538 [42 L.Ed.2d, p. 702].) Likewise, a defendant of one economic status is not entitled to be tried by only jurors of the same economic status.
The constitutional requirement is that the jury he drawn from a pool as broadly representative of the community as possible. There can be no systematic and intentional exclusion of any group by court officials. (Thiel v. Southern Pacific Co., supra, p. 220.) The defendant has the burden of establishing intentional discrimination or systematic exclusion of a certain social group or economic class from the jury. (People v. Gibbs (1970) 12 Cal.App.3d 526, 539 [90 Cal.Rptr. 866].) Manson makes no showing that either an economic class is underrepresented in the jury pool, or that such underrepresentation is due to purposeful state action.
The procedure of compiling jury venires in Los Angeles County by random withdrawal of names from voter registration lists was carefully examined and held to be constitutionally valid in People v. Powell, supra, 40 Cal.App.3d 107, 126, citing, inter alia, People v. Sirhan, supra, 7 Cal.3d 710, 749-750. Powell rejected a contention that this random process resulted in the exclusion of lower socio-economic elements from jury service while People v. Murphy (1973) 35 Cal.App.3d 905 [111 Cal.Rptr. 295], found no merit in the claim that a similar selection process in Orange County resulted in the systematic exclusion of businessmen or wage earners.
“Jury service is a duty as well as a privilege of citizenship;.. .” (Thiel, supra, p. 224 [90 L.Ed., p. 1187].) A state may grant exemptions from jury service to individuals in case of special hardship or incapacity and such exemptions do not impose a threat that the remaining pool of jurors would not be representative of the community. (Taylor, supra, p. 534 [42 L.Ed.2d, p. 700].) Persons whose income levels reach both ends of the spectrum work for private companies or governmental agencies that pay their employees while on jury duty. This practice, rather than being condemned, should be applauded as a means of eliminating, often at private expense, what could be a substantial financial burden upon many, particularly the poor, and thus enable thousands of people to perform their civic duty.
A substantially similar attack on the petit jury was made and denied in the Tate-LaBianca cases. (People v. Manson, supra, p. 166.) There is no factual or legal basis for a different ruling here.
10. Manson’s Right to Act as His Own Lawyer
Manson contends that the judgment must be reversed because the trial court erroneously denied his numerous requests to act as his own lawyer. He relies on Faretta v. California, supra. Prior to Faretta, California did not recognize the principle that a defendant had the constitutional right to act as his own counsel. (People v. Sharp (1972) 7 Cal.3d 448, 461 [103 Cal.Rptr. 233, 499 P.2d 489]; People v. Floyd (1970) 1. Cal.3d 694 [83 Cal.Rptr. 608, 464 P.2d 64].)
The argument is devoid of merit for four reasons: (1) Faretta is not retroactive (People v. McDaniel (1976) 16 Cal.3d 156, 168 [127 Cal.Rptr. 467, 545 P.2d 843]; People v. Manson, supra, p. 172 [a point which Manson concedes]). (2) Faretta recognizes an exception to the general rule that a defendant has a constitutional right to act as his own lawyer—the exception is that the court may deny the right where it is abused by disruptive conduct—(Faretta v. California, supra, pp. 834-835, fn. 46 [45 L.Ed.2d, pp. 580-581]). In the case at bar (as in the Tate-LaBianca cases), the court was frequently (on almost a daily basis) compelled to remove Manson physically from the courtroom because of his disruptive conduct. In fact he frequently continued to disrupt the trial after he was removed from the courtroom and while he was held in an adjacent detention area. The case at bar, therefore, comes within the exception rather than the general rule. (3) Faretta declares that before a defendant may serve as his own lawyer, the court must find that he has made a knowing and intelligent waiver of his right to counsel. In the case at bar, after an extensive examination, the trial court found that Manson did not have the capacity to make a knowing and intelligent waiver of his right to be represented by counsel. The court found that Manson did not have the “capacity to make an intelligent waiver” of the right to counsel “or any real conception ... of the consequences of a waiver.” The court said: “You don’t have the capacity to waive counsel.” (4) If Manson had been permitted to represent himself from the outset this appeal would not even be in this court because Manson attempted to plead guilty in the court below. In addition on July 14, 1971, while this case was on trial, Manson also stated (in the absence of the jury) “I enter a plea of guilty. I chopped his head off.” The trial court refused to allow Manson to enter a plea of guilty solely because his attorney of record would not join therein. It is clear therefore that if Manson had been permitted to act as his own attorney from the outset, he would have entered a plea of guilty, and this appeal would not now be before this court. Consequently, the denial of his right to act as his own attorney was not prejudicial to Manson although it was clearly prejudicial to the People.
We have carefully reviewed all of Manson’s arguments and claims of error whether or not discussed herein in detail, and we conclude that there was no prejudicial error which requires reversal of the judgment.
The judgment is affirmed.
Wood, P. J„ and Hanson, J.,'concurred.
A petition for a rehearing was denied July 19, 1977, and appellant’s petition for a hearing by the Supreme Court was denied September 21, 1977.
Assigned by the Chairperson of the Judicial Council.
Manson has requested us to take judicial notice of the records in all companion cases and in all related cases involving the so-called Tate-LaBianca murders which occurred on August 9 and 10, 1969. (People v. Manson (1976) 61 Cal.App.3d 102 [132 Cal.Rptr. 265], cert. den. April 25, 1977; 430 U.S. 986 [52 L.Ed.2d 382, 97 S.Ct. 1686].) Davis was tried separately for the murder of Hinman and judgment of conviction was affirmed in People v. Davis, 2d Crim. 22505 on March 31, 1976 (unpublished opinion). Grogan was tried separately for the murder of Shea and judgment of conviction was affirmed. (People v. Grogan, 2d Crim. 21932 on January 19, 1973 [unpublished opinion].) Kenneth Beausoleil (Beausoleil) was separately indicted and separately tried for the murder of Hinman and judgment of conviction was affirmed. (People v. Beausoleil, 2d Crim. 22232 [unpublished opinion].) Atkins entered a plea of guilty and was given life imprisonment.
The reporter’s transcript consists of 11,1 ¡8 pages. Fifty-one witnesses were called by the People, 23 witnesses were called by Manson; 98 exhibits were offered by the People; 54 exhibits were offered by Manson. Many additional special' exhibits were offered by both sides.
In view of the voluminous record we summarize only that evidence which is most relevant to a consideration and understanding of the issues on appeal. We do not summarize the evidence in the sequence presented in the trial court. In accordance with well established rules on appeal, we summarize the evidence in the light most favorable to respondent. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal.Rptr. 417, 475 P.2d 649]; People v. McDowell (1976) 59 Cal.App.3d 807, 810 [130 Cal.Rptr. 839]; People v. Alfaro (1976) 61 Cal.App.3d 414, 418 [132 Cal.Rptr. 356].)
For a description of the Spahn Ranch and activities of the Manson family there see People v. Manson, supra, 61 Cal.App.3d 102, 127-130.
The trial court sustained Manson’s objections to the prosecution’s efforts to prove by Brunner that while at the ranch Beausoleil had telephoned Manson for help.
Whiteley was one of the officers in charge of the investigation and assisted the prosecutor throughout the trial.
Manson testified in part as follows:
“Q. By MR. KANAREK: Let’s say last Tuesday.
Do you have any recollection, Mr. Manson, of any conversation last Tuesday?
“A. To recall the conversation verbatim would be impossible.
“Uh, the conversation went something into the likeness of what the sergeant [Whiteley] had said on the stand.
“We were talking, uh, about my being at the Hinman house. I was programming him for something. I forgot what it was at the time. But we were talking about the Hinman house. And I told him that I had to go over there because my brother couldn’t stand up. He was stuck in his mother’s mind. And I says that I took the gun away from the guy and I had to cut him. And I felt bad about it. And that I had asked the girls to stay there and clean the place up and clean Mr. Hinman up. That this was two days before Mr. Hinman was supposedly murdered. And that I couldn’t see why I was being held responsible for something someone else did.
“That very same day we were talking about the social consciousness. We were talking about casting spells upon the social consciousness. We were talking about fires. We were talking about the revolution, in general police talk, procedure talk.
“The newspaperman—I seen him leaning over with his big ear. He’s had it there ever since we came to the trial. And I could see why he would call it a confession because he some headlines from it. It was no more than what I said here.
“I did mention to Mr. Whiteley another day about how many people could be held responsible for one murder, for one crime.
“In general, Mr. Whiteley’s statements were right, except for the last two or three words he said on the last statement about what I said and the day—on the date in question. And if I can recall—oh, that—that I left Bobby to do something. Bobby does what Bobby does. I don’t direct Bobby in any direction. I said that I had to show Bobby with a motion how to stand up and be his own father, and that Gary Hinman being dead was no loss to the world, because he dealt bad dope anyway.
“And then, I also said that ‘Wouldn’t it be funny if you got a telephone call from Shorty Shea?’ And we both laughed.
“And then, I said, ‘It doesn’t—it seems doubtful that that will happen.’
“As strange as the words seem, like holes in sound, you people change them to suit yourselves.”
Brunner had been granted immunity for her testimony in People v. Beausoleil. (See People v. Brunner (1973) 32 Cal.App.3d 908 [108 Cal.Rptr. 501 ].)
This last portion was stricken as a result of a barrage of motions and objections by Manson’s lawyer. Our examination of the record discloses that an estimated 20 percent of the record during the People’s case consists of defense objections and motions, most of which were inappropriate, unnecessary and ill advised. For example, when the People offered evidence of declarations by Shea evidencing Shea’s state of mind for the purpose of proving that Shea was dead, Manson objected on the ground that it violated-his Sixth and Fourteenth Amendments right to confront the dead declarant. In at least one instance, Manson’s counsel refused an offer from the court of a continuous running motion for mistrial. We are convinced that the orderly presentation of the prosecution was obstructed by the sheer mass of objections and motions by Manson’s lawyer, most of which were devoid of merit, but which had the effect of obscuring vital evidence. The trial court erroneously sustained some of the objections and erroneously granted some of the motions. The sheer mass of motions and objections obviously interfered with the thought processes of the prosecutor and witnesses which is apparently what they were intended to do. This case can most accurately be characterized as trial by filibuster.
Apparently the defense technique was to attempt to submerge the material in a sea of immateriality in the hope that the jury would lose sight of the salient points of the People’s case. If so, the technique was not successful.
Manson’s statements of issues in his opening brief encompasses more than four pages. Time and space require that they be restated here in abbreviated form.
Inconsistently he then admits that the prosecutor’s evidence “appears overwhelming in favor of guilt.”
At the conclusion of the examination of the jurors the court made the following statement which we interpret as the equivalent of findings:
“THE COURT: The Court has listened to these jurors and watched them as they have responded to the Court’s questions and to counsel’s questions. And I am convinced that except in one case that the exposure to any publicity was unintentional on the part of the jurors and I’m convinced, except in one case, that there’s no likelihood that what the have been to will affect their in the case.
“The court is convinced that the jury remains fair and impartial and that the jury will base its judgments called for in the case solely upon the evidence and the Court’s instructions of law.
“However, the Court invites any comment from either counsel as to the situation in the state of mind of Mrs. L.L. She has had a shooting occur in her neighborhood, apparently in front of her house, and the person as a result of that shooting has apparently died in her living room. And she did appear to the Court to be quite emotionally upset when she was responding to the Court’s questions this morning.”
We note that in the opinion in People v. Brunner, supra, 32 Cal.App.3d 908, the court there recites that in May 1970, in connection with a motion for a new trial in People v. Beausoleil, supra, an affidavit was filed executed by Brunner in which she asserted that her testimony in that case had been untrue but “She then recanted and said her testimony before the grand jury and at the trial was true'... .” (P. 911.)
The transcript discloses the following:
“Q. On Sunday, July 27th of 1969, were you present at the Hinman home when a call was made from the Hinman home to the Spahn Ranch?
“MR. KANAREK: Your Honor, that assumes facts not in evidence.
“THE COURT: The objection is overruled.
“Q. By MR. MANZELLA: You may answer the question.
“A. These questions are all repetitious. They don’t mean anything.
“DEFENDANT MANSON: (Through the door of the detention room.) He’s trying to put it in the jury’s head, girl.
“THE WITNESS: I know. I can see. They can see it, too.
“Q. BY MR. MANZELLA: Would you answer the question, Miss Brunner?
“THE COURT: Mr.—the Court is now speaking to Mr. Manson, who is in the lockup in the rear, and who just shouted through the opening—
“DEFENDANT MANSON: When is it going to be turn?
“THE COURT:—through the opening ■ in the door. And the Court is telling Mr. Manson that if he continues to shout through the door, if she [«'c he] shouts through the door once more, the Court will order that the small door be closed.
“DEFENDANT MANSON: Where’a all the human rights I’m supposed to have?
“THE COURT: All right. Close it.
“DEFENDANT MANSON: Big businessman.’’
We agree that the question of paternity may well have had a direct bearing on the credibility of Brunner and the motivation for perjury for or against Manson. However, under our adversary system that is one of the reasons for cross-examination. Manson’s right of cross-examination of Brunner was not abridged or circumscribed in any way. Brunner’s doubt about the paternity was fully disclosed in the transcript of her testimony in People v. Beausoleil, supra, and was as well known to Manson’s lawyer as it was to the prosecutor.
The court’s remarks and findings were as follows:
“THE COURT: The Court decides that the motion is not well taken. The motion is predicated on your theory, Mr. Kanarek, that the tape has been altered, and you’ve presented Mr. Berlin and his declaration, but the Court believes that it is a very fanciful motion and it is really not worthy of great consideration. I’ve listened to Mr. Berlin and I believe that he is incorrect. That his memory is faulty. I do not believe—and the Court finds that the tape was not altered. And the Court believes that you have been accorded the right to listen to this tape. That you have heard the original tape.
“And in addition to that, within the last week you’ve heard the amplified copy of the tape.
“The Court believes and finds that there was no statement made by Ella Jo Bailey. ‘How about my money and my concessions,’ or any similar statement.
“All right, the motion is denied.”
Penal Code section 182, subdivision 1, reads:
“If two or more persons conspire:
"1. To commit any crime."
For example, on one occasion Manson yelled at the judge from the detention area. “Fuck you. You dog.” and pounded on the door after it had been closed. The judge always treated Manson with utmost civility and courtesy.
After the court appointed an additional independent lawyer to confer with Manson. he changed his mind. According to Manson’s statements, the lawyer advised Manson to plead guilty.
[Crim. No. 19806.
July 15, 1977.]
In re CHARLES DENTON WATSON on Habeas Corpus.
Counsel
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Edward T. Fogel, Jr., and Nancy A. Saggese, Deputy Attorneys General, for Appellant.
Albert D. Silverman, under appointment by the Supreme Court, for Petitioner.
[OPINION BY SULLIVAN, J. type=majority]
Opinion
SULLIVAN, J.
D. J. McCarthy, Superintendent of the California Men’s Colony at San Litis Obispo appeals from an order granting Charles Denton Watson’s petition for a writ of habeas corpus seeking, pursuant to section 2900.5 of the Penal Code, 285 days presentence credit for jail time spent in custody in Texas, The central question which we face is whether petitioner is entitled to have such time credited upon his sentence where it was spent in jail in a foreign jurisdiction while he was resisting extradition to California for trial upon charges of which he was ultimately convicted. As will appear, we conclude that he is entitled to the credit. We affirm the order.
The facts are not in dispute. On November 30, 1969, petitioner was arrested in McKinney, Texas at the request of the Los Angeles Police Department as a part of its investigation of the Tate-LaBianca murders. The next day the department obtained a warrant for petitioner’s arrest for murder (§ 187) and sent officers to Texas to effect his return to this state. Petitioner refused to return.
On December 8, 1969, he was charged by indictment in California with seven counts of murder and one count of conspiracy to commit murder and a bench warrant was issued for his arrest. After formal demand by this state, the Governor of Texas granted extradition but petitioner resisted it, pursuing various proceedings in an effort to invalidate the Texas extradition order. All of these failed and he was returned to California on September 11, 1970.
After trial by jury, petitioner was found guilty of seven counts of murder of the first degree and one count of conspiracy to commit murder. He was eventually sentenced to life imprisonment on merged counts, counts two through eight having been consolidated into one count. While seiving this sentence at California Men’s Colony, San Luis Obispo, California, petitioner applied for presentence jail time credit pursuant to the newly enacted section 2900.5 as interpreted by this court in In re Kapperman (1974) 11 Cal.3d 542 [114 Cal.Rptr. 97, 522 P.2d 657], This request was denied by the prison authorities. On October 29, 1974, petitioner filed the instant petition for a writ of habeas corpus in the Superior Court of San Luis Obispo County seeking credit against his prison sentence for the 285 days of presentence jail time spent in custody in the Texas jail from his initial arrest on November 30, 1969, to his return to California on September 11, 1970. The petition was granted. This appeal followed.
Section 2900.5, as it read at the applicable time, provided that any defendant convicted of a felony who “has been in custody in any city, county, or city and county jail” shall receive “credit upon his sentence” for “all days of custody of the defendant from the date of arrest to the date on which the serving of the sentence imposed commences,” if “the custody to be credited is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.” Since petitioner had been incarcerated in a Texas county jail upon his arrest for the murder charges of which he was ultimately convicted, it would appear that under a literal application of the statute he was entitled to credit for “all days of custody ... from date of arrest to the date on which the serving of the sentence imposed commences,” namely, the 285 days spent in custody in Texas.
Appellant concedes that a literal reading of the statute would grant petitioner the credit sought, but urges that the section should not be read literally since to do so would benefit fugitives from justice—a result contrary to the public policy of this state. Such policy, according to appellant, has been established by section 3064 which provides: “From and after the suspension or revocation of the parole of any prisoner and until his return to custody he shall be deemed an escapee and fugitive from justice and no part of the time during which he is an escapee and fugitive from justice shall be part of his term.” Therefore, argues appellant, the Legislature has demonstrated that fugitives should not benefit from their flight and must have intended to extend its section 3064 treatment of fugitives to section 2900.5. Appellant offers no support for such an assertion of legislative intention other than the suggestion that it is necessary to consider the holding of In re Pearce (1974) 40 Cal.App.3d 399 [115 Cal.Rptr. 222] in respect to the allegedly analogous section 3064.
In Pearce, the defendant’s parole was suspended in California and he was thereafter apprehended and placed in jail in Alabama solely because of his suspended parole. He successfully resisted extradition to California in Alabama’s courts for 15 months after which he was returned to state prison in California. Pearce then sought credit against his term of imprisonment for the time spent in jail in Alabama while resisting extradition to this state. The court held that he was not entitled to the credit because “ ‘return to custody’ [in § 3064] beyond any doubt means return to the custody of California’s prison authorities” (id., at p. 401), that he was not in the control or custody of the California prison authorities while resisting extradition in Alabama, and that he therefore remained a fugitive from justice until he returned to California.
JLn the case at bench, appellant argues that since petitioner was a fugitive from justice during the time he spent in jail in Texas while resisting extradition to California, then similarly and consistently with the public policy set forth in section 3064 he is entitled to no credit for such time.
While petitioner having been charged with the commission of a crime within California and thereafter having been found in Texas was a fugitive from justice for purposes of extradition (Appleyard v. Massachusetts (1906) 203 U.S. 222, 227-228 [51 L.Ed. 161, 163-164, 27 S.Ct. 122]; Roberts v. Reilly (1885) 116 US. 80, 97 [29 L.Ed. 544, 549, 6 S.Ct. 291]; see In re Murdock (1936) 5 Cal.2d 644, 648 [55 P.2d 843]) and remained such even though in custody in Texas, this circumstance does not equate petitioner, charged with a crime but not yet tried or convicted, with a California prisoner, convicted and paroled, whose parole has been suspended or revoked. Nor does such circumstance establish that the Legislature intended to apply its policy with respect to the latter, to persons like petitioner who were not paroled prisoners. Indeed the Pearce court emphasized the absence of any relationship between section 3064 and section 2900.5 in stating: “The recent cases of In re Kapperman, 11 Cal.3d 542 [114 Cal.Rptr. 97, 522 P.2d 657], and In re Grey, 11 Cal.3d 554 [114 Cal.Rptr. 104, 522 P.2d 664], are found to be inapposite on this appeal. They concern Penal Code section 2900.5 providing generally for credit on a felony conviction for all county jail time served prior to sentence as a result of the charge leading to the conviction.” (40 Cal.App.3d at p. 402.)
We think it clear that section 2900.5 deals with a different type of custody than does section 3064. The latter section obviously pertains to a convicted and paroled prisoner who, after the suspension or revocation of his parole, is entitled to no credit for any of his escape time against the term of his.sentence until he has returned to the custody of the California prison authorities. The former section on the contrary pertains to the pretrial incarceration of a person charged with crime but not yet tried much less convicted, and therefore clothed with the presumption of innocence. To implement the underlying philosophy of section 2900.5, the courts have therefore given the term “custody” as used in that section a liberal interpretation. {In re Jordan (1975) 50 Cal.App.3d 155, 157-158 [123 Cal.Rptr. 268], presentence time credit for time spent in federal medical center; People v. Meals (1975) 48 Cal.App.3d 215, 226 [121 Cal.Rptr. 742], presentence time credit although defendant also on parole hold prior to sentencing.) As the court stated in People v. Williams (1975) 53 Cal.App.3d 720, 723 [125 Cal.Rptr. 901]), “Both sections 2900.5 and 2900.6 reflect the basic philosophy that when a person is incarcerated he is being punished by the reality of incarceration. Thus, in both sections any presentence time is credited toward his ultimate sentence. Section 2900 reflects the older philosophy that a person was sent to a prison to be punished as opposed to the philosophy expressed in [2900.5] that the fact of incarceration is punishment.” (Italics in original.)
The crucial element of the statute is not where or under what conditions the defendant has been deprived of his liberty but rather whether the custody to which he has been subjected “is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.” (§ 2900.5, subd. (b).) In recognition of this element the courts have placed the emphasis on the fact of the defendant’s custody prior to the commencement of his sentence regardless of the particular locale, institution, facility or environment of his incarceration. Thus in In re Jordan, supra, 50 Cal.App.3d 155, the court held that custody in a “city and county jail” must be read to include custody in a federal mental hospital. The defendant was arrested in California for stealing explosives, both a federal and a state crime. Having been first charged with the federal offense, upon his own motion he was committed to a mental hospital for federal prisoners in Missouri for a medical examination to determine whether he was competent to stand trial. He remained in federal custody until the charges against him were dismissed, at which time he was taken into custody by California authorities. He pleaded guilty to the state charges and was sentenced to prison. Upon denial of his request for presentence time credit for the two years spent in federal custody, he sought relief by habeas corpus. The Court of Appeal granted the writ and held him entitled to the credit, reasoning that although section 2900.5 did not on its face require the credit, nevertheless under its holding in In re Young (1973) 32 Cal.App.3d 68, 75 [107 Cal.Rptr. 915], the presentence jail time amounted to a “ ‘deprivation of liberty’ ” which “ ‘suffered only by the indigent does not meet federal standards of equal protection ....’” (50 Cal.App.3d at pp. 157-158.) Concluded the Jordan court: “Though we do not have here an unconstitutional discrimination based on indigency, we do have a defendant who was deprived of his liberty for a period of two years because of a circumstance (incompetency) beyond his control. This can operate to create an unconstitutional discrimination fully as serious to the alleged incompetent as exists in Young with reference to an indigent. In the light of Young we find no reason why the equal protection clause should not apply to the petitioner so that he will receive credit for the time spent in federal custody.” (50 Cal.App.3d at p. 158.)
It is noteworthy that in 1976 the Legislature, in apparent acceptance of the liberal rationale of the above decisions, amended section 2900.5, to broaden the term “custody” without limitation as to place of presentence custody. It is also noteworthy that the Courts of Appeal have at least impliedly recognized that presentence custody in another jurisdiction qualifies for credit. In Jordan, as we have seen, the court granted credit for custody in a mental hospital in Missouri; in In re Miller (1974) 41 Cal.App.3d 1046 [116 Cal.Rptr. 624], the court suggested that custody in a Texas jail qualified provided it was attributable to charges arising from the same criminal act. The only distinction between the case, at bench on the one hand and Miller and Jordan on the other, is that.the defendants in the latter two cases were not resisting extradition while in custody in the foreign jurisdiction.
Additionally we observe that both New York and Michigan have interpreted their comparable statutes as allowing presentence jail time credit to defendants incarcerated in foreign jurisdictions while resisting extradition. In People v. Havey (1968) 11 Mich.App. 69 [160 N.W.2d 629, 636], the Michigan Court of Appeals, quoting 24B Corpus Juris Secundum, Criminal Law, section 1995(5), page 645, held that under a comparable statute the defendant was entitled to credit against his sentence for time spent in jail in Oregon awaiting extradition to Michigan. In People v. Nagler (1964) 21 App.Div.2d 490 [251 N.Y.S.2d 107], it was held that the broad scope of the New York statute permitted the granting of credit for detention in France pending extradition to New York._
Finally, we apprehend no public policy in this state against those defendants charged with crime who have resisted California’s demand for their extradition. Any person arrested and held for extradition or ordered to be extradited has both a federal and state right to test the validity of the arrest and extradition. (See Indigents’ Right to Appointed Counsel in Interstate Extradition Proceedings (1975) 28 Stan.L.Rev. 1039.) “Whenever the executive of the State, upon whom such demand has been made, by virtue of his warrant, causes the arrest for delivery of a person charged as a fugitive from the justice of another State, the prisoner is held in custody only under color of authority derived from the Constitution and laws of the United States and is entitled to invoke the judgment of the judicial tribunals whether of the State or the United States, by the writ of habeas corpus, upon the lawfulness of his arrest and imprisonment.” (Roberts v. Reilly, supra, 116 U.S. 80, 94 [29 L.Ed. 544, 548].) California in 1937 adopted the Uniform Criminal Extradition Act (§ 1547 et seq.) which extends many rights to fugitives from justice faced with extradition and which specifically authorizes procedures to resist extradition by resort to the courts. Texas adopted the same act in 1951 and accorded the same rights. If a defendant were denied credit for time spent in jail solely because he was resisting extradition it would seriously penalize a person for exercising his right to resist extradition. Defendants under section 2900.5 are not deprived of presentence credit for jail time in California because they exercise their rights to make motions pursuant to sections 995 or 1538.5. No good reason has been advanced to suggest that the statutory right to challenge extradition should be treated any differently. In both situations, the defendants are in jail to face criminal charges, they are presumed innocent and are exercising their statutory rights to challenge the validity of those charges and of their custody.
In sum, we hold that a defendant convicted of a felony is entitled to credit pursuant to section 2900.5 against his sentence for the presentence time spent in jail in a foreign jurisdiction resisting extradition to this state on charges of which he has been ultimately convicted.
The order is affirmed.
Bird, C. J., Tobriner, J., Mosk, J., Clark, J., Richardson, J., and Manuel, J., concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
hereafter, unless otherwise indicated, all section references are to the Penal Code.
Section 2900.5 as added to the Penal Code in 1971 (Stats. 1971, ch. 1732, § 2, p. 3686) provided:
“(a) In all felony convictions, either by plea or by verdict, when the defendant has been in custody in any city, county, or city and county jail, all days of custody of the defendant from the date of arrest to the date on which the serving of the sentence imposed commences, including days served as a condition of probation in compliance with a court order, shall be credited upon his sentence, or credited to any fine which may be imposed, at the rate of not less than twenty dollars ($20) per day, or more, in the discretion of the court imposing the sentence. If the total number of days in custody exceeds the number of days of the sentence to be imposed, the entire sentence shall be deemed to have been served. In any case where the court has imposed both a prison sentence and a fine, any days to be credited to the defendant shall first be applied to the sentence imposed, and thereafter such remaining days, if any, shall be applied to the fine.
“(b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to charges arising from the same criminal act or acts for which the defendant has been convicted.
“(c) This section shall be applicable only to those persons who are delivered into the custody of the Director of Corrections on or after the effective date of this section.”
As originally enacted the section was applicable only to those persons delivered into the custody of the Director of Corrections on or after March 4, 1972, and would not have provided for presentence jail time credit for petitioner. However, this court in In re Kapperman, supra, 11 Cal.3d 542, 550 held that the section should be given full retroactive effect, concluding “that the credit under section 2900.5 should be extended to those incarcerated or on parole for felony offenses regardless of the date of their commitment to state prison.” The section was amended in 1976 so as to broaden the definition of custody.
In Young the court granted presentence jail time credit on the petitioner’s prison term, holding that since he could not afford bail due to his indigency, any denial of such credit would constitute a denial of equal protection of the laws, petitioner’s jail time amounting to an additional deprivation of liberty not imposed upon other defendants having the means to post bail and secure their liberty pending trial.
Section 2900.5 as amended in 1976 provides:
“(a) In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including but not limited to any time spent in a jail, camp, work furlough facility, halfway house, rehabilitation facility, hospital, prison, or similar institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, shall be credited upon his sentence, or credited to any fine which may be imposed, at the rate of not less than thirty dollars ($30) per day, or more, in the discretion of the court-imposing the sentence. If the total number of days in custody exceeds the number of days of the sentence to be imposed, the entire sentence shall be deemed to have been served. In any case where the court has imposed both a prison or jail sentence and a fine, any days to be credited to the defendant shall first be applied to the sentence imposed, and thereafter such remaining days, if any, shall be applied to the fine.
“(b) For the purposes of this section, credit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted.
“(c) For the purposes of this section, ‘sentence’ includes any fine or period of imprisonment imposed as a condition of probation or otherwise ordered by a court in imposing or suspending the imposition of any sentence, and also includes any term of imprisonment, including any period of imprisonment prior to release on parole and any period of imprisonment and parole, prior to discharge, whether established or fixed by statute, by any court, or by any duly authorized administrative agency. The credits provided by this section shall not be considered in establishing or fixing any condition of probation, parole date, or term of imprisonment; but such credits shall be applied to any such condition of probation, parole date, or term of imprisonment no later than one week after it has been established or fixed.
“(d) It shall be the duty of the, court imposing the sentence to determine the total number, of days to be credited pursuant to the provisions of this section. The total number of days to be credited shall be contained in the abstract of judgment provided for in Section 1213.”
[Crim. No. 33752.
Second Dist., Div. One.
Dec. 15, 1980.]
THE PEOPLE, Plaintiff and Respondent, v. LESLIE VAN HOUTEN, Defendant and Appellant. In re LESLIE VAN HOUTEN on Habeas Corpus.
[Crim. No. 37644.
Second Dist., Div. One.
Dec. 15, 1980.]
Counsel
Paul J. Fitzgerald, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.
George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman H. Sokolow and Howard J. Schwab, Deputy Attorneys General, for Plaintiff and Respondent.
[OPINION BY BAFFA, J. type=majority]
Opinion
BAFFA, J.
I
Leslie Van Houten was convicted in 1971 of two counts of murder and one count of conspiracy to commit murder, along with codefendants, Charles Manson, Patricia Krenwinkel and Susan Atkins. After the penalty phase, the same jury imposed death sentences upon all defendants. The resulting judgment was appealed directly to the Supreme Court, and while the case was pending, the Supreme Court decided People v. Anderson (1972) 6 Cal.3d.628 [100 Cal.Rptr. 152, 493 P.2d 880], invalidating the death penalty. The appeals were then transferred to the Court of Appeal, Second Appellate District, Division One. In that case, People v. Manson (1976) 61 Cal.App.3d 102 [132 Cal.Rptr. 265], the Court of Appeal reversed the judgment of conviction of appellant Van Houten and affirmed the judgments as to the other defendants.
Pursuant to the remittitur filed on December 10, 1976, reversing the judgment of conviction, the matter was retried by a jury. The jury was hopelessly deadlocked and a mistrial was declared.
Appellant was retried by a jury. Appellant was found guilty as charged of two counts of first degree murder arising out of the murder of Rosemary and Leño La Bianca, and guilty of conspiracy to commit murder in the first degree. Appellant was ordered imprisoned in the state prison for the term of life, with each of said counts to run concurrently with each other. Appellant was given credit for eight years and twenty days in custody. This appeal is from the judgment.
Appellant has also filed a petition for writ of habeas corpus, during the pendency of this appeal, and said petition will be ruled upon along with her appeal.
II
Appellant, Leslie Van Houten, was member of a group called the Manson Family who was responsible for two sets of homicides in August 1969. Manson Family members, Susan Atkins, Patricia Krenwinkel, Linda Kasabian and Tex Watson, under orders of family leader Charles Manson, killed Sharon Tate Polanski, Voitcek Frykowski, Abigail Folger, Jay Sebring and Steven Parent on the night of August 9, 1969. The next night, August 10, Manson Family members Tex Watson, Patricia Krenwinkel and Leslie Van Houten, at the order of Manson, killed Leño and Rosemary La Bianca. Those homicides became known respectively as the “Tate Killings” and the “La Bianca Killings.” Both sets of killings were instigated by Charles Manson to trigger off his so-called “Helter Skelter” revolution. The killings were grotesque, gruesome, horrendous affairs, involving in most instances, a great deal of cutting and hacking as per the instruction of Charles Manson.
At the trial, appellant admitted her full participation in the La Bianca homicides. It was conceded that she did not participate in the Tate Killings. The defense was diminished capacity based on mental illness. The mental illness was allegedly induced by family leader, Charles Manson, the peculiar nature of the Manson Family communal organization, and the chronic, prolonged use of hallucinagenic drugs.
Appellant raises three basic issues on appeal, and makes the following contentions:
1. The trial court erred in discharging a juror without good cause and replacing the juror with an alternate juror, thereby depriving appellant of her right to a jury trial.
2. The trial court committed prejudicial error in admitting evidence and details of crimes committed pursuant to a conspiracy before appellant joined the conspiracy.
3. The admission, by the trial court, into evidence of numerous grotesque, gruesome photographs of the victims, constituted prejudicial error.
In her petition for writ of habeas corpus, petitioner contends her trial counsel, Maxwell S. Keith, was incompetent and ineffective regarding certain aspects of the trial, and appropriate relief is requested predicated upon these contentions.
Ill
The appellant argues that the trial court committed prejudicial error in dismissing one of the jurors during the trial. This particular juror, Sandra Driscoll, on the third day of trial evidence taking, had requested, in a conversation with the court clerk, that she be excused from jury duty. The juror had appeared back at the afternoon session of court with her husband, a law student. Out of the presence of the jury, but unsworn, Mr. Driscoll told the court his wife called him at home on his lunch break and was very upset. She said she couldn’t go back into the courtroom. What she had been listening to in the courtroom that morning was making her sick. The preceding day, after oourt, after looking at grisly pictures in the courtroom, she was very upset. She also stated to him that the coroner’s testimony had been so graphic, she was having trouble keeping her composure and was trying to think of other things.
The court conducted a hearing in chambers with the juror, advising her that she was still under oath “just like you were earlier” and a series of questions were asked by the court and all counsel inquiring into the situation. The record is thorough and complete in this area and the trial judge is to be commended for the manner in which he handled the proceeding. Mrs. Driscoll stated: “The pictures that we had looked at and some of the things that we had been discussing are upsetting me both physically and emotionally to a point where I feel I really can’t continue as a juror. [H] This is not something that I take lightly. I realize my responsibilities, and I spent the entire lunch hour walking around thinking about it. [1f] I feel very uncomfortable having to say it, but it is really causing me severe problems, and I feel it would be a detriment both to me and to the court for myself to continue.”
The court made this direct inquiry of the juror: “Your husband said —I hate to quote your husband... he said something about how you were tending to tune out what the witnesses were saying. Is that true?”
Mrs. Driscoll responded: “This morning I did, yes. I had to force myself to do that in order to keep from getting physically ill.”
Along this same train of thought, Deputy District Attorney Kay, made the following direct inquiry of the juror: “Do you think you would be unable to follow the rest of the case?”
Mrs. Driscoll responded: “Yes, that’s my problem.”
The court in summation, after a series of questions by the court and all counsel, and answers by the juror stated that although Mrs. Driscoll was a mature young woman in her late thirties, she was obviously unable to cope with the situation she found herself in as a trial juror in this particular case. The record indicates that the trial judge was confronted with a situation in which a trial juror, because of the photographs and the testimony, was losing her composure; was being upset to the point that she felt she really could not continue as a juror; was affected to the point that she would think of other matters rather than concentrate on the testimony therein so as not to lose her composure; was crying; was having trouble sleeping; was afraid that she might become physically ill by reason of the service as a juror and did not think that she could sit and actually follow the evidence during the rest of the trial.
In determining that good cause existed for excusing Mrs. Driscoll, the court made the following statements:
“I don’t have to make a detailed record of my ruling, but I will say very briefly since we are on the record that I don’t think she can participate with her full mind for the remainder of the trial.
“It is not simply the pictures, but it is the pictures and the descriptions.
“We cannot tailor admissibility of evidence to suit the sensibilities of one juror. That cannot be done.
“Simply the bare facts of the injury, even without photographs, are going to be on her mind all the way through this case.
“She prides herself, notwithstanding all of the psychological problems of the family, with being able to cope. She is a mature lady, what, late 30’s? That is my guess.
“And here she has something that is bigger than herself she can’t handle.
“And she would be sort of a loose cannon on the deck of a sailing ship in high wind.
“I don’t know even that she could deliberate. I don’t think she is inflating or exaggerating. If she just wanted to get off this case, she could have come up with something else.
“I regret it, but in my view she has good cause for being excused. ... ”
Appellant labels the court’s action in excusing the juror as prejudicial error, contending that the court exceeded its discretion under sections 1089 and 1123 of the Penal Code to dismiss a juror for “good cause.” In particular appellant claims there is no “demonstrable reality” of the inability of Mrs. Driscoll to perform her duties as a juror. Appellant urges there is at best a possibility of inability, and the trial court should have denied her request at least until something more substantial occurred. We cannot agree with this proposition. While it is true we may at times become very rigid in the demands we make of trial jurors, we are not insensitive or inflexible to their genuine problems and conflicts. We do not require that something “more substantial” should have occurred in the instant case. We uphold the propriety of the court’s discharge of this juror, and therefore need not reach appellant’s argument as to the prejudicial effect of the juror’s dismissal.
Sections 1089 and 1123 of the Penal Code authorize the court to discharge a juror before the jury returns its verdict “If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty, or if a juror requests a discharge and good cause appears therefor, the Court may order him to be discharged. ...”
A “good cause” determination in this context is one calling for the exercise of the court’s discretion (e.g., People v. Manriquez (1976) 59 Cal.App.3d 426, 431 [130 Cal.Rptr. 585]; People v. Franklin (1976) 56 Cal.App.3d 18, 25 [128 Cal.Rptr. 94]), and if there is any substantial evidence supporting the decision, it will be upheld on appeal (People v. Manriquez, supra, at pp. 431-432).
It is a juror’s duty to weigh the evidence and credibility of witnesses and to reach a verdict with impartiality. (See Code Civ. Proc., § 604; People v. Compton (1971) 6 Cal.3d 55, 60 [98 Cal.Rptr. 217, 490 P.2d 537].)
If at any time during the trial the juror loses the ability to render a fair and unbiased verdict, he can, under section 1123 of the Penal Code, be dismissed from the case. But the juror’s inability to perform his functions must appear as a “demonstrable reality.” (People v. Collins (1976) 17 Cal.3d 687, 696 [131 Cal.Rptr. 782, 552 P.2d 742]; People v. Compton, supra, 6 Cal.3d 55, 60; People v. Hamilton (1963) 60 Cal.2d 105, 124-127 [32. Cal.Rptr. 4, 383 P.2d 412].)
Pursuant to the foregoing guidelines, we feel that “good cause” was amply demonstrated supporting the dismissal of the juror in the instant case. We find that Mrs. Driscoll’s physical and emotional reaction to the photographs and the testimony would be such that she would be unable to participate in the deliberation process and would not be able to follow the testimony in the trial so as to make an informed decision in the matter. The record supports these conclusions, and it substantially supports the demonstrable reality, that she would not be able, to perform the function of a juror.
IV
Over appellant’s objection, respondent placed into evidence certain photographs and introduced testimony concerning the Tate murders which occurred before appellant joined the conspiracy. The appellant contends the trial court committed prejudicial error in so doing and urges a reversal. It was admitted that appellant Van Houten did not join the conspiracy charged in count VIII until after the commission of the Tate Killings, consequently she could not have been criminally responsible for acts of coconspirators committed before she joined the conspiracy. (People v. Weiss (1958) 50 Cal.2d 535, 566 [327 P.2d 527]; People v. Donahue (1975) 46 Cal.App.3d 832 [120 Cal.Rptr. 489]; CALJIC No. 6.19.)
CALJIC No. 6.19: “Every person who joins a criminal conspiracy after its formation and who adopts its purposes and objects, is liable for and bound by the acts and declarations of other members of the conspiracy done and made during the time that he is a member and in pursuance and furtherance of the conspiracy.
“A person who joins a conspiracy after its formation is not liable or bound by the acts of the coconspirators or for any crime committed by the coconspirators before such person joins and becomes a member of the conspiracy.
“[Evidence of any acts or declarations of other conspirators prior to the time such person becomes a member of the conspiracy may be considered by you in determining the nature, objectives and purposes of the conspiracy, but for no other purpose.]” (Bracketed material in original.)
Respondent urges that these issues are disposed of in the case of People v. Manson, supra, 61 Cal.App.3d 102, and as such are law of the case.
Very simply stated, when an appellate court has rendered a decision and stated in its opinion a rule that is necessary to that decision, that rule is to be followed in subsequent proceedings in the same action. (People v. Scott (1976) 16 Cal.3d 242, 246 [128 Cal.Rptr. 39, 546 P.2d 327]; People v. Shuey (1975) 13 Cal.3d 835, 847-848 [120 Cal.Rptr. 83, 533 P.2d 211]; People v. Hillery (1967) 65 Cal.2d 795, 803 [56 Cal.Rptr. 280, 423 P.2d 208]; People v. Terry (1964) 61 Cal.2d 137, 151 [37 Cal.Rptr. 605, 390 P.2d 381].)
The court in People v. Shuey, supra, at page 841, in discussing the doctrine of law of the case, and the attempt to avoid multiple trials of the same issue, sets forth the principle as follows: “Fortunately, fundamental rules of appellate review are specifically designed to preclude the possibility of this type of multiple litigation of the same issue. Among these is the doctrine known as the ‘law of the case’ or the ‘law of the former decision.’ In the early case of Tally v. Ganahl (1907) 151 Cal. 418, 421 [90 P. 1049] this rule was aptly described. The doctrine of the law of the case is this: That where, upon an appeal, the Supreme Court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here, assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.”
This principle applies to criminal as well as civil matters (People v. Durbin (1966) 64 Cal.2d 474 [50 Cal.Rptr. 657, 413 P.2d 433], Castiel v. Superior Court (1958) 162 Cal.App.2d 710 [328 P.2d 476]), and to decision of intermediate courts as well as courts of last resort. (United Dredging Co. v. Industrial Acc. Com. (1930) 208 Cal. 705, 712 [284 P. 922]; People v. Shuey, supra, 13 Cal.3d 835.)
The application of the rule is also now subject to the qualifications that the point of law involved must have been actually presented and determined by the court, and that the application of the doctrine will not result in an unjust decision. (People v. Medina (1972) 6 Cal.3d 484, 491 [99 Cal.Rptr. 630, 492 P.2d 433]; People v. Shuey, supra.)
This court finds that both the appellant and respondent are bound by the principle of law of the case, and we further find that the decision in People v. Manson, supra, 61 Cal.App.3d 102, went to the merits of the issues presented before this court and that the issues themselves were necessary to the decision, and said issues have been determined.
We must finally consider whether application of the doctrine in this case would result in an “unjust decision.” (People v. Medina, supra, 6 Cal.3d at p. 492; People v. Shuey, supra, 13 Cal.3d at p. 846.) We conclude that it would not, consequently we find that appellant’s position is without merit. The decision is just in light of the record before this court.
V
Appellant also urges that it was improper for the trial court to admit into evidence a number of grotesque, gruesome photographs of the victims and this constitutes prejudicial error. Appellant further contends, because the prosecutor utilized these photographs in his argument to the jury, he is guilty of misconduct. We do not agree, indeed, we find it was proper just as we found the admission and utilization of the testimony and photographs relating to the Tate murders were proper.
We further find, that once again, appellant and respondent are bound by the principle of law of the case as set forth in People v. Manson, supra, 61 Cal.App.3d 102, and that said case went to the merits of the issues presently before this court, and that the issues themselves were necessary to the decision, and said issues have been determined. Once again, we find the application of the doctrine of law of the case would not result in an “unjust decision,” to the contrary the evidence of guilt is overwhelming in the record before this court.
Appellant contends the prosecutor, in utilizing photographs of the victims in both killings in his argument, attempted to persuade the jury by the use of “reprehensible methods” and thus misconduct. Appellant further avers that the argument not only was misconduct because it was calculated to mislead the jury and was an appeal to passion and prejudice, but also because the photographs were introduced for a limited purpose (to prove aspects of the conspiracy), and were argued as substantive evidence “of the facts therein recited.” We find no merit in these contentions.
The statement of facts not in evidence by the prosecuting attorney in his argument to the jury constitutes misconduct. (People v. Bolton (1979) 23 Cal.3d 208 [152 Cal.Rptr. 141, 589 P.2d 396]; People v. Taylor (1961) 197 Cal.App.2d 372, 381-384 [17 Cal.Rptr. 233].)
The court in the Bolton case, supra, at page 213, indicates: “In the present case, the prosecutor implied that there was additional evidence about the appellant’s past known to him but unavailable to the jury. These implications tended to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’” This is not our instant case, and we conclude the prosecutor’s statements were proper.
In summation, the burden of proof is on the defendant to show the existence of misconduct. Even if misconduct exists, it is waived on appeal by no objection at the trial level and is not prejudicial if the objection is sustained as to the misconduct and the jury is told to disregard it unless the case is a close one where there is grave doubt as to the defendant’s guilt or if the harm suffered by the misconduct is irreparable. (People v. Perez (1962) 58 Cal.2d 229, 247-248 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946]; People v. Lyons (1958) 50 Cal.2d 245, 252 [324 P.2d 556].) This burden of proof was not met in the instant case, and the record reflects no objections were made to the prosecutor’s statements.
We would close this issue with a direct quote by the court from the case of People v. Manson, supra, 61 Cal.App.3d 102, 213, to wit: “While the prosecutor must be fair, he cannot be expected to be a saint.”
In her petition for writ of habeas corpus, petitioner contends her imprisonment is illegal and in contravention of rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and by article I, sections 7, subdivision (a) and 15 of the California Constitution, in that she was denied the effective assistance of counsel at her trial. More specifically, petitioner contends her trial counsel, Maxwell S. Keith, was ineffective for failing to object or move to suppress petitioner’s taped alleged incriminatory statements to homicide investigator, Michael McGann, which statements were bereft of warnings under Miranda v. Arizona, (1966) 384 U.S. 436 [76 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. There is absolutely no merit in these contentions.
The record before this court clearly reflects a well-tried, well-considered, difficult tactical decision-making effort by petitioner’s counsel, Mr. Keith. We do not expect trial lawyers to be soothsayers, with the ability to gaze into crystal balls and predict future holdings of the appellate courts; rather, we expect trial lawyers to be reasonably competent attorneys acting as diligent, conscientious advocates as per the standard set forth in People v. Pope (1979) 23 Cal.3d 412 [152 Cal.Rptr. 732, 590 P.2d 859]. We find Mr. Keith has more than met that standard.
Petitioner relies upon the case of People v. Rucker (1980) 26 Cal.3d 368 [162 Cal.Rptr. 13, 605 P.2d 843], wherein statements bereft of Miranda warnings were held not admissible on the issue of state of mind or diminished capacity as an issue. The Rucker case, supra, is clearly distinguishable from the case at bar. In that case, the defendant’s state of mind was in issue when he was interrogated; he was the prime suspect; he was in custody for the crime involved, murder; and the entire police focus was on him, and him alone, for the commission of the crime involved. This is not our case. When petitioner was interrogated by Investigator McGann, she was not a suspect in the La Bianca murders; there was no central focus on her as the prime suspect; and certainly no concern about her state of mind at that time and place. Petitioner was in custody, however, not for the La Bianca murders, but for receiving stolen property.
The record reflects the trial judge carefully conferred with all counsel regarding any objections before the tapes were played. It is quite obvious to the court, petitioner’s counsel made a tactical decision as to the tapes, and that at a much later time, after the completion of the trial, he deems that decision inappropriate. It is too late.
The judgment is affirmed, and the petition for writ of habeas corpus is denied.
Lillie, Acting P. J., and Hanson (Thaxton), J., concurred.
Appellant’s petitions for a hearing by the Supreme Court were denied March 11, 1981.
Assigned by the Chairperson of the Judicial Council.