*1 22239,24376. Dist., Nos. Div. One. Second Aug. 1976.] [Crim. PEOPLE,
THE Plaintiff and Respondent, al.,
CHARLES MANSON et Defendants and Appellants.
Counsel Silverman, the Court of Appeal, Daye Albert D. under appointment Keith, Berlin, Shinn, A. Kanarek and S. Kanarek & Irving Maxwell Hanson for Defendants Roger Appellants. General, Winkler,
Evelle J. Jack R. Chief Assistant Attorney Younger, Moore, General, General, S. Clark Assistant Norman Attorney Attorney Schwab, General, H. Sokolow and Howard J. Deputy Attorneys Plaintiff and Respondent.
Opinion
VOGEL, J.*
Facts Krenwinkel, Manson, Patricia Atkins1 Charles and Susan Appellants indicted on seven counts of murder and were one count grand jury murder. Van to commit Leslie Houten was of' Appellant conspiracy two of the same seven counts of murder and in the indicted in conspiracy count. all as and further found the
A found guilty charged jury appellants After the the same murders to be of the first degree. penalty phase jury of the Judicial Council. the Chairman * Assigned by all in the indictment on counts were Charles Watson and Linda eight 1 Alsocharged Watson was tried and convicted. Kasabian was granted Kasabian. separately immunity were dismissed as to her.
and the charges The all death sentences resulting judgment upon appellants. imposed Code, 1239, subd. to the Court (Pen. § directly Supreme appealed Anderson (b)). While this case was court decided pending den., P.2d cert. 406 U.S. 880], 6 Cal.3d 344, 92 S.Ct. the death On 2060], L.Ed.2d invalidating penalty. basis, were transferred to this court for determination. these appeals Homicides The in the indictment are rise to the contained The events charges giving in the of Los two successive homicides Angeles occurring City multiple We here recite the nature of the homicides. of 1969.2 during August of this to which Additional facts are discussed opinion segments have relevance. they primary TATE In 1969 Roman Polanski and his
THE MURDERS: August wife, Polanski, Tate were in residence at 10050 Cielo Sharon tenants and Mrs. Drive. this time Mr. Polanski was out of the During country Polanski maintained the residence. Frykowski Abigail Wojiciech her. Mrs. Winifred was the cook and lived with Folger Chapman housekeeper. Chapman Mrs. left the main residence between 4:30 1969.3 p.m. August to the Cielo Mrs. returned
On the day, August Chapman following were discovered a scene. Drive residence and police ghastly homi- five victims of a brutal summoned and on located investigation entrance to the residence and near the cide. Just inside the entry gate vehicle found the located a Rambler automobile. Inside of the they they were on the of Steve Parent. The bodies of Frykowski Folger body room, front lawn. In the connected by piece rope, police living A around of Tate and towel was located bodies Jay Sebring. wrapped neck and covered his face. Sebring’s *21 were found about the
Substantial amounts of blood and blood trails in on the front door.4 The word was written blood “Pig” property. murders, Polanski, of the victims of the first Sharon Tate was an active and 2 One Tate. The second set well-known movie actress name of Sharon stage using wife, were husband and Leño and La flosemary murders involved two victims who events that are the of this shall be Bianca. For convenience the two subject opinion murder the La Bianca murder. referred to as the Tate on the 3 In the main residence there is also guest cottage grounds. During addition to was in residence to care for of 1969 it was William Garretson who by August occupied the owner and lessors’ dogs.. was determined be that Sharon Tate Polanski. 4 Theblood the victims revealed the coroner of the bodies Examination wounds. was 16 stab Tate suffered Folger suffered numerous injuries. seven showed 28 times. been stabbed to have Sebring’s body found fatal wound. and one body stab wounds Frykowski’s gunshot penetrating 13 lacerations his had wounds and stab apparently exhibited scalp instrument; had two with a blunt inflicted body gunshot Frykowski’s five wounds. Parent’s had wounds. gunshot body or evidence of was no
There ransacking larceny. Jewelry apparent on the victims and on the premises. were found money some Struthers, 10, 1969, Frank On August LA BIANCA MURDERS: THE Bianca, La returned from a vacation to old son of the 16-year Rosemary find his at 3267 Drive. mother his home Waverly Expecting Bianca, Leño La Struthers instead discovered dead body stepfather, La were to the residence. Mr. of Leño La Bianca. Police summoned room, with a in the his face covered Bianca’s was body living with a case. His hands were tied behind his back blood-soaked pillow stomach, A the two tines fork was stuck in his leather thong. carving On Mr. La Bianca’s to the where divide. inserted down place they “War.” An electric cord was knotted stomach was scratched word wounds, examination revealed stab his neck. The coroner’s around scratches, made and 14 wounds addition to the puncture apparently A knife from his fork. was found the tines of protruding carving neck. Her were was found in a front bedroom. hands La Bianca’s
Mrs. body A an case was over her head and with an electric cord. tied pillow her neck. Her revealed 41 was wound about electric cord body separate stab wounds. no evidence
There was Rosemary ransacking. Except apparent wallet, the victim’s to be from La Bianca’s no missing property appeared from their home.5 bodies or room; written in blood on a wall in the
“Death to the living Pigs” door, “Rise”; door, Skelter.” and on a “Healter [j/c] over a refrigerator *22 camera 5 The residence contained several diamond rings, expensive wristwatches. rifles and coin collections and many guns. equipment, 126 Conspiratorial Relationship6
The trial, that the At evidence strongly theoiy respondent’s supported homicides were the and activities. product conspiratorial relationships An enormous amount of evidence societal association bearing Manson, Atkins, Krenwinkel, Van and certain third between Houten was introduced. The of these in terms time persons scope relationships it with is While is true that mere association intensity germane. of a crime does not criminal it is a perpetrator prove conspiracy, starting for examination. v. Lewis (1963) place (People Cal.App.2d 1].) Cal.Rptr. [35
The nature of this case and the of the very theory prosecution compel reference to circumstantial evidence of the conduct and relationship v. (1951) 105 P.2d parties. People Kobey Cal.App.2d [234 confirms that such reference is method 251] proper: “Virtually only which a can be is circumstantial evidence—the conspiracy proved actions of the as bear the common It is not parties they upon design. to show themselves, that the closeted necessary directly parties actually attained the of the minds to undertake proverbial meeting agreed the unlawful acts. It is a familiar of the law that in principle [Citation.] whether an was unlawful the triers of the fact agreement deriving may consider the events that occurred ‘at or before’ or to the ‘subsequent’ formation of From the of the occurrences agreement. proof beforehand at the time of the linked with evidence of the agreement overt acts a determine that a criminal was formed. jury may conspiracy of the evidence consist of the major portion might [Citations.] conversations and of the or it consist of the writings conspirators may overt acts done to the Such acts establish the pursuant conspiracy. may and intent of the and relate back to the purpose conspiracy agreement whose be otherwise enshrouded in the hush-hush admoni may purpose tions Whatever be the order of has conspirators. proof jury to determine whether the has been estab finally alleged conspiracy 562; also, lished.” see v. Steccone Kobey, supra, p. People 36 Cal.2d 237-238 P.2d 17]; v. Wheeler People 290, 307 198]; v. Finch (1963) 213 Cal.App.3d Cal.Rptr. Sometime in 1967 Manson found his to the way Haight-Ashbury district of San While Francisco. there he became associated with young of occurrence at trial. Our 6 We discuss certain issues out of order intentionally locate a recitation of relevant facts at the in the text. appropriate places purpose *23 and women who were outs or otherwise disassociat- girls runaways, drop bus, He ed with conventional obtained a collected society. Volkswagen of his female about the some companions, began traveling country. he Ultimately, established commune of about 20 at people Chatsworth, California. of Manson’s from Composed companions others, women, the members were Haight-Ashbury mostly young three of whom had children. The became known as the young group even none were related blood or “Family” though by marriage except itself, for the mothers and children. The unto Family, community conventional and values of rejected organizations society. By August Atkins, Krenwinkel, 1969 the commune included Susan Patricia Leslie Houten, Van and two other Tex co-indictees—Charles Watson and Linda Kasabian.
At Chatsworth the of an established horse Family occupied portions ranch owned and by operated George Spahn. Spahn permitted group to live there in for the women certain domestic exchange young doing and secretarial work and the men the ranch trucks. young maintaining bunkhouses, The used certain and other and also Family buildings,7 maintained one of which was located in Devils (the campsites, Canyon “Waterfall”). doubt,
Without Manson was the leader of the of his Family. scope influence from the most to the most ranged matters. simple complex He decided where the would where would what Family stay; they sleep; have, it; would and when would wear when clothing they they they meal; would take their and when would move. Additional- evening they he concerned himself with the structure and ly, composition Manson directed children not be cared for their Family. natural mothers because he believed the children should be freed of their mothers’ He wanted the children out of because “ego.” kept sight he believed were watched the Black Panthers. they being
Manson ordered one of the male members Paul Family, Watkins, to more females and them to him. get bring Instructing female members of the sexual favors to members of Family provide commune, and to do same for outsiders for the purpose had been in the 7 Spahn business of horses for motion providing picture industry. establishments, addition to the usual structures found at Consequently, other equestrian had been erected as sets for motion buildings pictures. *24 members, new Manson also directed them to their-favors recruiting deny if enlistment seemed unlikely.
Manson established an elaborate At his direction system security. female members were ordered to stand Members were ordered to guard. T-shirts black for use at Walkie talkies were set and used to dye night. up connect the different on the ranch. was used to campsites Camouflage cover some of the Manson’s directions were property. Clearly, designed to insulate the from the outside world. Family
Manson’s was It was position authority firmly acknowledged. understood that in the membership Family required giving up every- to and followers, Manson never him. His thing disobeying including co-appellants, They were him regarded as infallible and compliant. believed that he was a “God man” or Christ. member Family Danny DeCarlo testified that each said that “Charlie sees all and co-appellant knows all.” Kasabian was told the others “We never Charlie. by question We know that what he is is doing right.” to follow Manson’s directions is salient to the Family’s willingness of the case. The establishment and retention of his
People’s theory as the leader was one of A fundamental position unquestioned design. life, method used him to inculcate the with his views of by Family values, and was to address them after meals. On philosophy evening these occasions would Manson do most of the or his talking play guitar of which to sing songs, many purported cariy profound messages. Manson believed these were firmly gatherings necessary.8 8 Thereason for the talks is set forth in the of Paul Watkins: “Q. Several times he told the it was Family why talk? necessary Yes, there, “A. at different to different times because if a new people he person also would want tell them. “Q. What did he as to the reason it was say to talk to the at why necessary Family night? words, “A. Because most were like In other did not know people computers. they churches, schools, friends, relatives, that had not been in them anything put parents, radio, television and other means of communication. everything, every Nothing they own; had was their didn’t know knew is they They anything. only thing they [síc] what had been told and and that he with his music his they words programmed, void, could take those out and leave a or in which unprogram, love programs nothing, could come through. “Q. Did Mr. Manson ever talk to about the you of death? concept “A. Yes. “Q. times? Many “A. Yes.” to members of Family He (including frequently repeated relation- exhortations on the or individually) collectively co-appellants, with love Manson’s and death. between subject preoccupation ship to Paul Watkins: “In order to revealed in a Manson statement vividly them and must be must be die for love someone willing willing you *25 kill them, to them You must be too. You must be have kill you. willing for them.” to anything willing experience had a with
Manson fascination the Beatles9 and with one of their “Helter Skelter” in the and others songs, particular. Telling Family were him the Beatles to of imminent conflict speaking warning whites, the the name Helter gave between blacks and the Manson the to a of race war. To Helter Skelter Skelter chimerical vision Family, revolution to control of by gain meant the occurrence of a started blacks to of the the world subdue conventional establishment college educated, structure. These whites white wealthy community power referred to and his followers as were Manson by “Pigs.” with Manson discussed this revolution members frequently commune, mur- detail how would be in whites atrociously describing be symbolic dered blacks. The would marked ritual of killings with the victims. A theme of Helter Skelter blood of writing major was that Manson lead his would followers safety during and, conclusion, event at its he and would apocalyptic Family from this bottomless located in Death safety—a emerge place pit take the world control of and restore order. Connected to Valley—and the aberration Helter Skelter was of himself to equation Manson’s Christ, Jesus his as the true Christians members of followers conventional white as Romans—otherwise designated society “Pigs.”
A further facet of this included Manson’s interest fantasy pronounced testified, in death. One “Death is Charlie’s It is.” witness really aptly trip. time, With the his Manson Helter Skelter spoke constantly. passage became He he would have to cause concern intense. finally proclaimed evidence Manson declared the belief the revolution. There is specific to do it. member “nigger” Family that he would have to show how . her “. . Dianne Lake that in summer of 1969 Manson told testified revolution had to be kill the black start we pigs help people willing Skelter.” of Lake and of the Helter In the co-appellants presence said, “I Manson am to have to start the revolution.” By going in were of musicians who became entertainment idols 9 The Beatles group popular the 1960’s. summer of the time he Helter Skelter would he predicted begin, it more. Quite talked about more and a fundamental obviously, part life the commune entailed Manson’s obsession with exposure Helter Skelter.
Evidence Other Crimes To the extent of Manson’s influence on the amplify Family, of certain activities was sexual presented. one occasion an unidentified old
Kasabian testified that on 16-year in the center of a room. clad in bikini Many placed girl, only panties, *26 Manson were of the members including Family present, appellants. face, him. He struck her in made advances to this' She bit girl. an act of sexual intercourse to the and committed her knocking ground, members to the other male and female with her. He then bid engage of the directed all the members Manson then sexual acts with girl. and to “make love” to take off their They together. clothing Family his directions. followed a member of the a was
Barbara witness Family. Hoyt, respondent, Manson to she was ordered She described an incident where orally by testified Juan associate of Family. Hoyt Flynn, frequent copulate act, but did so because she that she did not want to perform afraid of Manson. contends the on Evidence Code section Manson
Relying
We find
above matters were
admitted.
highly prejudicial
erroneously
as
no error.
of other crimes is inadmissible
regards
“[E]vidence
when it is offered
to
criminal
because
guilt
solely
prove
disposition
value
to the crime
is
of such evidence as
charged
outweighed
probative
However,
evidence
be
its
effect.
such
by
may
properly
prejudicial
crime
admissible if it is offered to
a fact material
charged
prove
as
such fact.
and meets the
tests
relevancy
‘[T]he
general
it
whether
of evidence in a criminal case is
test of admissibility
general
inference,
to establish
reasonable
tends
any
naturally,
logically,
matter
material
material for the
or to overcome
fact
sought
v. Durham
the defense.’
be
proved
[Citations.]”
den.,
Kasabian’s direct evidence to the commission only tying appellants Tate-La Bianca murders was the member Linda Family 8, 1969, Kasabian. She testified that on the at the August evening her, ranch, Helter Skelter.” He Manson told “Now is time for Spahn ordered her' to a knife and her driver’s license. get change clothing, Kasabian and when she returned with those articles Manson complied to do.”11 She Hold her “. . . to with Tex and to do what Tex told go [her] to an automobile. Watson was next to then standing proceeded and Krenwinkel were in the driver’s side with Manson. Atkins talking leave. back seat. and Watson then in the car and Kasabian began got did. Manson At that moment Manson called for them to and they stop car, I said, know what went to the his head in and “You up put girls *27 mean, then drove to 10050 Cielo Watson something witchy.”12 directly Drive, car, where he out and to cut some stopped got appeared overhead wires. He it. then turned the vehicle around parked held Kasabian three knives and one which Watson had asked her to gun discard if were en route. they stopped some car was and all four out. With Watson carrying parked got hill, an embankment or fence into a over they
rope, proceeded up A towards residence. car the outer of a approached premises private with Watson forward As it onto street. leaped stopped, gate opening I won’t said, don’t hurt me The driver “Please say in hand. gun Tex over. the driver him.13 Kasabian saw Watson shot slump anything.” turned off the ignition. 10 Kasabian, Atkins, and Van Houten were at the described Krenwinkel rape present
and at the sexual activity. group
11 The was Charles “Tex” Watson. reference blaze directed women to its In the Manson 12 The had own. Family argot past This was described as articles in the trees. trails to various of the camp by hanging parts them in material and hanging sticks and other natural little from things making “witchy” “witches”; “the ones.” those under 18 young The women were referred to as trees. his examination testified The coroner testified she heard four shots. 13 Kasabian five wounds. revealed separate gunshot to the house. Watson ordered Kasabian to to the They proceeded go directed, none, back to look for doors or windows. She did as found open and returned to the front house. Kasabian saw Watson cut a not, however, window screen. She did see enter the house as anyone Watson then told her to return to the “car” to stand She did as lookout.14 directed.
Within a few minutes “No, Kasabian heard screams and the words no” from the house. She ran to the please, house. She saw a coming man with blood on his face. The man fell Atkins came exiting ground. out “Sadie, and Kasabian said make it Atkins “It please stop.”15 replied, is too late.” While these remarks were the man who being exchanged had fallen He was attacked Watson who stabbed and clubbed got up. him. Kasabian observed Krenwinkel with a knife in hand her chasing woman. Kasabian ran back to the car Watson had parked. Krenwinkel, Atkins and Watson returned to that car.
Eventually They wheel, had blood on their clothes. Watson behind the the others got got in, and all left. Kasabian discovered no had her knife they they longer with them and that a It was broken.16 had portion gun grip been intact when she it saw earlier that In the course night. traveling Watson, from the residence Atkins and Krenwinkel away changed clothes. At Watson’s direction Kasabian threw the removed out clothing of the car and later did the same with the knives. The remaining group returned to the ranch to find Manson outside for them. Spahn waiting He asked if felt remorse and said no. He directed them not they they to talk about the event with at the ranch and some anyone get sleep. then retired. They
After dinner on the Kasabian with was following day, appellants Krenwinkel and Van Houten at the ranch. Manson told the three Spahn women to a of clothes and to meet him get at the bunkhouse. change Manson, Atkins, When Watson, arrived there Krenwinkel they Steven member, Dennis another were Manson Grogan, Family present. told them were out He said the of the they going again night. killings were too and he was show to them how to preceding night messy going 14 Theclear of this implication is the “car” which into Watson had fired gunshots.
15 SusanAtkins used the alias Sadie Glutz. later, 16 A gun matching Kasabian was found description given by approximately 1.8 miles Broken away. pieces found at Cielo Drive fit the A grip found. weapon knife similar to that described Kasabian was at found the Cielo Drive premises. a leather car Manson Kasabian all it. As entered thong. do gave they directions, about drove and Manson Kasabian With giving they driving out fashion, to Manson to check some in random a stops permit making victims to murder. locations for ostensible locating purpose roads, ordered a maze of Manson After about driving through front of a residence on Drive. Kasabian to the car in stop Waverly True, as to Harold a man the home Kasabian recognized belonging to some of She told Manson he could not there. known the Family. go La residence). stated he was next door Bianca (the Manson going out the others. minutes returned. Manson and left Several later he got had He said that he a man and a woman. Manson then tied up spoke Houten, Watson, to Van Krenwinkel and “Don’t let directly advising, them know are to kill them.” you going Kasabian, exited,
After the others Manson in the car with back got wallet, Atkins and Manson handed a her he Kasabian Grogan. telling a who it black person of it that would be found wanted to so dispose would credit His the blacks use the cards. expressed hope would Houten, be for the crime. Van Krenwinkel and Watson blamed Leaving residence, Kasabian, Atkins, La Bianca and Manson at the Grogan in Kasabian hid the wallet at a station where They stopped gas' departed. he Kasabian a Manson drove to the beach where to restroom. then spoke knife she Manson Kasabian small an actor had met. about gave pocket her the actor. She showed Manson the and instructed to kill apartment and told Manson then house where actor lived.17 Grogan gun gave After the actor’s and Atkins with Kasabian into Grogan go apartment. back, Manson told Atkins to all three hitchhike go telling when she Manson then left. Waterfall returned. wanted to abort
Kasabian claimed she suggested killing two in that she led the other succeeded so. She testified doing purposely Kasabian, and Atkins then started their to the wrong apartment. Grogan find the ranch next and arrived back at return day mid-morning room. Manson asleep parachute Immunity
Kasabian *29 27, it made 1970—Kasabian her From the outset of testimony—July Code, a (Pen. had that she been tendered clear immunity grant to door when 17 Kasabian claimed she to the intentionally wrong responding pointed as to man lived. Manson’s where this inquiry However, for her 1324). no written was filed with §. the request immunity 10, 1970, court until the after direct examination. August completion the trial the order On that date her to answer judge signed requiring questions.18
Manson, the failure on to rule Kasabian’s complaining status to the direct of her immunity prior completion testimony error, constituted on reversible relies the declaration in following People 583, v. Walther 590-591 P.2d “We may 452]: the assume that district has a select one of attorney right arbitrarily two to whom he tender from may coconspirators immunity prosecution in reward for his state’s evidence his but such evidence against colleague, lest the thus to a threatened open suspicion temptation escape of law result in unreliable Under such circum may penalty testimony. stances the evidence of a should be examined with coconspirator great, care. When codefendant is a who has been offered coconspirator from in reward his cause should immunity prosecution testimony, Otherwise, be dismissed him. the maintenance of the promptly against action him the trial serve intimidate the may against throughout witness and furnish an for him to color inducement his testimony.”
We do not Walther as for an inflexible rule of law. interpret standing Walther instructs that should be dismissed. We pending charges promptly therefore hold aof witness who has admissibility testimony been offered must on the In turn facts of each case. contrast to immunity court, the Walther Court confronted a similar situation with Supreme different result P.2d Cal.2d Lyons 556]. In the defendant that his had been Lyons, complained accomplices induced to him. Prior testify untruthfully against testifying had entered a to certain The court accomplices guilty plea charges. had until had testified postponed accomplices they sentencing the defendant. The conceded that against prosecution accomplices had been induced to of reduced sentences. testify by promises
We are of the that no distinction exists between opinion meaningful obtained as the of a result testimony grant immunity testimony obtained the result as of a Both “furnish defendant plea bargain. 27, 30, 1970; 1970, direct 18 Kasabian’s commenced and concluded testimony July July she did her not conclude entire until 1970. The order immunity August signed were dismissed as to Kasabian on August charges August 1970.
135 inherently with credibility a attacking powerful weapon 245, v. Cal.2d (1958) . . .” witnesses. [324 Lyons suspect (People law. unfair as matter P.2d Neither is 556].) necessarily ato an is not It naive that offer is to immunity enticing suggest It is to be serious criminal who would otherwise witness charges. exposed should be naive that entirely, given immunity suggest equally that invited without first testimony finally obtaining completely of Penal A the first fundamental grant immunity purpose place. of criminal 1324 is to make Code section prosecution possible v. 866-868 (1973) Pineda Cal.App.3d [106 conspiracies. 743].) Cal.Rptr. is not cited in contention
Authority applicable. support appellants’ on the hot show that Kasabian was offered evidence does immunity v. Green (see that a conviction condition her People testimony produce it P.2d nor does show 867]) 834-835 (1951) Cal.App.2d that her else Kasabian reason to believe trial or judge anyone gave law made to must conform to certain statements she testimony 30 B.C. 369 D.L.R. enforcement officers. Rex Robinson (See 452-455 v. Medina 755]; the offer of There is no evidence that immunity absolutely was other than her Kasabian conditioned testifying fully anything murders. Her about of the Tate-La Bianca her fairly knowledge was admitted. testimony properly as a Manson out that Kasabian
Collaterally, prior calling points witness, she interviewed From that he invites by prosecution. is than a written conclusion that her more nothing script sense Common The fact her interview hardly startling. respondent. them. to interview witnesses prior calling generally lawyers compels favorable do not call witnesses unless they expect Pragmatic lawyers reason of the interview. Manson was not denied a fair trial by testimony. Competency of Kasabian to have her Manson moved
Prior to Kasabian’s testimony to determine her examined compe- psychiatrist court-appointed *31 136 The motion was declarations20 that
tency.19 by asserting supported Kasabian used had LSD in substantial over amounts and a period M.D., Tweed, several The A. declaration of R. was also years. attached. Doctor Tweed identifies a himself as his declaration renders psychiatrist; the that habitual use term of LSD can affect an individual’s opinion long and otherwise affect mental orientation and ability perceive adversely declares that a examination of Kasabian “would be an psychiatric tool to evaluate” her mental a status and “to important ability give as undistorted as The court denied Manson’s picture possible.” applica- tion to have Kasabian and examined witness to permitted testify. By her own admission Kasabian used had LSD 50 times approximately However, since 1965. used She other as well. she testified hallucinogenics that, she with one did not LSD use or other possible exception, between 1969. admitted She use hallucinogenic May August, this marijuana during period. on Ballard v. Court Cal.2d (1966) Relying Superior 302, 410 P.2d 18 A.L.R.3d Manson and his 1416], Cal.Rptr. co-defendants reasserted their demand that be examined Kasabian time the was made it Each motion court-appointed psychiatrist. denied.
To issue we note that has contention two clarify appellants’ parts: that (1) Kasabian was so because she was disabled incompetent use of LSD that she could not she about which perceive purported the use of LSD had so disabled Kasabian’s mind testify; that her was not credible. testimony The is vested with trial court to determine responsibility competence
(P Blagg eople the standard found in Evidence Code sections 700-702. Here our 446]) by main concern is with Evidence Code section 702 that “the of a witness matter is unless inadmissible he has concerning particular of a matter. such personal knowledge Against objection party, must be shown before witness personal knowledge may testify matter. A witness’ of a matter concerning personal knowledge [If] 19 Thewritten motion asserts that the examination is needed to determine Kasabian’s and authorities and much of the assumes the credibility. points argument supporting examination would on the psychiatric evidence witness’ provide impeaching predicated use of this circumstance we understand basic hallucinogenics. point Notwithstanding of the motion is to Kasabian’s That is an different matter. challenge competence. entirely 20 Thenotice motion to be the declaration of Louise Share. purports supported by That document is not in the clerk’s transcript lodged with this court. We have called and examined all files and original exhibits have located Share’s declaration. evidence, his own otherwise admissible including be shown by any may testimony. ” *32 includes the
The code knowledge” capacity “personal requirement been the to recollect what has to and capacity perceive accurately 26.2, 351.) Evidence Benchbook (1972) Cal. (Jefferson, § p. perceived. time of (2) This to two time frames: the (1) standard points perception; that the In the instant case there was no evidence time of recollection. time of was under the influence at the Kasabian hallucinogenic any the events about which she testified or at the times she testified. critical the Dr. declaration affects Tweed’s concerning Notwithstanding possible LSD, the attend the use of and reactions—flashbacks—that delayed the a of the witness under record does not disqualification support effect of her Code as a of law. While the Evidence matter impeaching the before her use compe hallucinogenics placed jury, properly the court. resolved to be a witness was tence question properly 907, den., 912, cert. 416 Cir. 490 F.2d 1973) States v. Barnard (United (9th v. 49 310, (1957) U.S. L.Ed.2d S.Ct. 1976]; 94 959 People McCaughan [40 409, 420 Cal.2d P.2d 974].) [317 Court, v. is reliance on Ballard supra, misplaced.
Appellants
Superior
of a
to
Ballard and its
for
progeny provide
appointment
psychiatrist
in
to ascertain
examine a
witness
a sex offense case
prosecuting
which
result in the
may
testifying
credibility.
procedure,
psychiatrist
witness,
to
his
the
of the
is
give
opinion concerning
veracity
applicable
the
not
or not a
and
Whether
subject
impeachment
competency.
within
a matter
sound
of the
is
is
discretion
psychiatrist
appointed
210,
trial
v.
195
court.
Russel
Cal.2d
(1968)
Cal.Rptr.
(People
The nature of the in this case is such testimony charges psychiatric not would “In cases be extraordinary. purposes impeachment sex offenses California courts reject involving usually attempts impeach v. Johnson psychiatric testimony.” (People a witness means of While do not 6-7 we 834].) suggest Cal.App.3d Cal.Rptr. offenses, we here sex limited to cases Ballard involving necessarily the admonition credibility testimony psychiatrist’s a] accept “[that may of witness involve testimony dangers: may many psychiatrist’s be not relevant; used and theories advanced not may be techniques better not be position generally may accepted; psychiatrist arise in communica difficulties evaluate than the may credibility juror; be much reliance too tion between may psychiatrist jury; placed upon testimony psychiatrist; partisan psychiatrists may issues; cloud rather than be clarify testimony may distracting, Russel, 69 Cal.2d at time-consuming costly.” (People supra, p. fn. 8.)
The trial court’s denial of the motion for examination was psychiatric In 18 of examination Kasabian testified proper. days clearly Her were not unclear and her demeanor comprehensibly. descriptions was candid. Her in its demonstrates her entirety competency.21 v. Pike We find no error.22
Corroboration of her involvement in the Tate-La Bianca description Kasabian’s murders would have her for those offenses. Accord- justified prosecution the trial court characterized her as an as a ingly, properly accomplice matter of law. Kasabian’s must be corroborated Consequently, testimony Code, to each (Pen. with 1111.)23 respect § appellant. The character and nature of corroborative evidence bemay very and
general
to the
may vaiy
circumstances of
according
each case.
v. Luker
63 Cal.2d
(1965)
(People
209,
MANSON CORROBORATION Among are his Manson in the Tate-La Bianca murders stances implicating a war of Helter Skelter. Predicting frequently proclaimed prophesies homes, white families in off” their “ripping started blacks Manson (the “Pigs” and kill the blacks) against stated that “Blackie” would revolt of 1969 establishment). white From 1968 the summer (the through Manson told various about Helter Skelter and what it entailed. people and testified that between member Barbara April Hoyt
Family He said Helter 1969 Manson Skelter September spoke frequently. to “would like “. . . was down fast” that he Helter Skelter coming how to do show the Blacks it.” June, Manson of 1969
Dianne Lake testified that in July August commune, coappellants, stated to various members including start “had to be to to willing help people kill black they pigs 1969, Manson ‘Helter the summer of revolution Skelter’.” During the revolution. stated that he would have start repeatedly “ ‘Well, I Manson July witness testified that in told him: Another it, is to show the black have come down to only way get going down there and kill a whole bunch of these man and the go pigs ” fuckin’ pigs.’ Watkins, would that Manson told him Helter Skelter Paul testifying would be summer of described Manson’s start in the plan: “[T]here murders; from Watts would come some atrocious ... some of Spades Hills District and some into the Bel-Air and Beverly just really wipe up out, cut bodies and smear blood and write on the just up things people blood, wall in and cut little and make the watch. All boys up parents kinds of crimes that would make the white just super-atrocious really man mad.” Manson told Watkins the deeds would precipitate retaliation whites who would shoot “black like crazy;” people would and shame the white their Muslims ultimately appear people around and “sneaking reaction. The blacks would murder whites by Watkins, their that “He throats.” Manson declared slitting According had to down.” Manson’s bring Significantly, description [Helter Skelter] of the to occur Helter Skelter included the killings during writing word on walls or otherwise with the walls blood “Pig” smearing victims. issue,
Where the of the accused is in his conduct identity prior circumstances, intent, be admitted to motive or under may, prove proper tends to of a and scheme that reasonably knowledge particular plan Code, 1101, subd. (b).) connect him to the crime in (Evid. § question. tends to confirm that Manson of these several witnesses *35 of a The was the consistency purveyor warped fantasy. originator an intense obsession on Manson’s to see the statements reveals part the Helter Skelter fulfillment of his The between prediction. similarity occurred and the manner in which the Tate-La Bianca murders prophesy circumstantial evidence is to be characterized as sufficiently great strong 24 to corroborate the of Kasabian. v. Alcalde (1944) (People 477 P. Cal.2d 177 P.2d v. Wilt 173 Cal. 627]; (1916) People [160 [148 561].) a act were not
Manson
the statements of intent to do future
argues
directed
victims of the crimes with which he was
against
charged
that it was therefore error to admit them. A
contention has been
similar
our
Court. It
that the threats show
rejected by
Supreme
only necessary
“some connection with the
v.
inflicted on the deceased.”
injury
(People
Wilt,
141
The declarations of intent attributed to Manson are admittedly
However,
bloodshed,
declarations to foment
even without
his
general.
victim,
reference
are relevant because the actual
specific
particular
method and manner of the
conformed to Manson’s
killings substantially
The indefiniteness of a threat is not
an obstacle
necessarily
predictions.
if there is sufficient collateral evidence to
its admission
bring
ultimate victims within the
class of the
of the threat.
generic
subject
460,
v.
111 Cal.
466
P.
State v.
(1896)
186];
(People
Craig
Presley
[44
1234,
Evidence,
106;
Moreover, the declarations were admitted as evidence of the properly method and mode which a crime was to be committed in particular the future. were relevant to the issue of motive and They knowledge which in turn tends to v. Neal (See 97 (1950) prove identity. People 668, 673 P.2d 556].) Cal.App.2d [218
Manson’s
to Helter Skelter are
pronouncements pertaining
proper
corroboration of Kasabian’s
Even
and circumstantial
testimony.
slight
which,
evidence
alone, would be insufficient for conviction and
standing
entitled
consideration,
to little
will serve to corroborate an accomplice.
v.
553,
Cal.2d
(1954)
P.2d
v.
31];
(People
Simpson
People
[275
41 Cal.2d
(1953)
P.2d 547];
v. Claasen
Wayne
P.2d
value of this
probative
evidence
to corroborate Manson’s
in the murders
participation
undue
it was
admitted in accordance
outweighed any
prejudice;
properly
with Evidence Code section
subdivision
(b).
Beamon
24 Flynn Mr. he went this “A. Manson walked in and like (indicating). 18, 1970, On trial, to at this had August a prior testifying Flynn given statement to the Los Police were Angeles Department. Appellants with a of that interview. The did provided not 16-page report refer report to the incident and admission.25 Sometime before foregoing Flynn’s were, however, with later testimony, appellants written provided communication Manson’s admission as revealing above.26 quoted inconsistent statement to Flynn’s prior reference Manson’s omitting was admission used to impeach Flynn’s subsequent testimony including the admission. Steuber, to called David
In an rehabilitate attempt Flynn, respondent a California Steuber testified that he interviewed highway patrolman. Shoshone, California, at on December that he Flynn court, the interview. The recorded includes a recording, produced similar statement his in-court by Flynn substantially Manson’s admission. the critical of the concerning Ultimately, portion Steuber was for the tape played jury. “Q. with Brushed his left shoulder his hand? right Well, out, “A. Like that. And yes. girls walked know. you “Q. How after he his left long brushed did walk out? girls shoulder Well, Glutz, out, “A. the first one was She Miss know. walked know. you you “Q. after he this How made to his left did long motion shoulder walk brushing they
out? it, “A. when noticed know. they you Right “Q. Immediately? “A. Immediately, yes. “Q. What is the next Okay. thing happened? Well, know, eat, I was and I am down at the "likethis. you sitting “A. table going “Q. was There and Mr. Manson there? just you food, I wasn’t him. I was Then he “A. Yes. know. watching watching you grabbed hair, throat, said, know, me son-of-a-bitch, he ‘You my knife you put (Italics I am the don’t know one who all these you doing killings?’ added.) “Q. “A. I told is the next What Juan? thing happened, him—well, know, I he was see—so I told you thought just boasting, you said, said, I him—he here, ‘Are to come with me?’ And 7 am and I am eating you going right know.’ So he knife down. And He You kill me.’ I you put ‘Okay. says, says, that,’ don’t want do know.” you that, 25 The “On Mr. to Sergeant parties stipulated August Flynn spoke at the Police and the Sartucci over Los conversation comprised Angeles Department, and there is no in these 16 the knife incident.” reference pages, pages testified an that he had interview with District Vincent T. 26 Flynn Attorney Deputy to the to the one a week time he called Bugliosi, attorneys, prosecuting prior did witness stand. stated he not know of the admission until that time. Bugliosi Bugliosi a written the interview the admission and statement prepared distributed concerning revealing it to each defense counsel. *37 Before the heard the made strenuous jury objections tape appellants on several all of which were overruled. Manson now grounds, as reversible error the admission the Steuber assigns tape.
There is no failure to reveal this critical disagreement Flynn’s admission when interviewed the Los Police by Angeles Department raised the of recent fabrication. It is specter elementary recent fabrication be inferred when it is shown that a did witness may not natural, about an matter it at time when would have been speak important arise,
for him to do so. When that inference does it is generally rehabilitation consistent statement. “Differ proper permit by prior ent considerations come into when a of recent fabrication is play charge made evidence that the witness did not of the matter by negative speak before when it would have been natural His silence then is speak. as inconsistent with his utterances at trial. The evidence of urged consistent statements at that becomes because ‘the point proper sup fact of not from which we are to infer a recent posed speaking formerly, contrivance of the fact, is it to be a story, disposed by denying ” inasmuch as the witness did and tell the same speak story.’ Gentry asserts that the Steuber was admissible
Respondent tape to Evidence Code 1236.27 section Manson that section pursuant argues 1236 is because the witness was shown to have a or bias inapplicable motive for fabrication before time of the consistent statement. prior Code, 791, (Evid. subd. (b).)28 § turns on collateral facts. Manson’s assertion On predicate ranch was raided the Los
August Spahn by Angeles County Sheriff’s office in criminal connection with activity involving suspected 27 Evidence Code section 1236 reads as follows: “Evidence of a statement previously made a witness is not made inadmissible rule if the statement is by by hearsay consistent with his at the is offered with Section testimony hearing compliance 791.” 28 Inits Evidence Code section 791 reads as follows: entirety “Evidence of a statement made a witness that is consistent with his by previously it offered at the is inadmissible to his unless is credibility testimony hearing support after: his, with “(a) Evidence of a statement made him that is inconsistent any part at the has been admitted for -his attacking credibility, hearing purpose statement; statement was made before the inconsistent or alleged at the is “(b) An or has been made that his testimony hearing express implied charge motive, bias or other and the statement fabricated or influenced recently was made before the improper bias, fabrication, motive for or other motive is alleged improper have arisen.”
the dune raid theft of The resulted in number of a buggies. people, On arrested. cross-examination was asked Flynn, including being Flynn whether or not he was at Manson this mad because of incident. Flynn answered that he believed Manson the were Family responsible the raid that he did but not blame Manson. testified Additionally, Flynn that he off and actor. worked on as an On cross-examination was Flynn fame, asked if was he in order to obtain clear the insinuation testifying that was as a witness in order to being Flynn cooperating prosecution own advance his theatrical ambitions. denied Flynn suggestion. on Manson’s turns more the the insinuation of than argument questions answers, of and not Flynn’s any questions, Flynn’s testimony. bias as a a result of his arrested on Flynn suggest developed being 16, 1969. August it fact that fails because the Evidence argument ignores
Appellant’s Code has two Subdivision (a) section evidence of a parts. permits statement consistent to rehabilitate a witness prior impeached by statement to his trial while subdivision (b) allows the contrary consistent statement to rehabilitate after an or prior express charge of recent fabrication or of bias. or not Whether subdivision implication of Evidence Code section 791 is no (b) is of applicable consequence of of subdivision that section. if it is Even assumed the (a) application Steuber of bias or motive to fabricate postdated tape inception on the that fact would bear on its introduction within part Flynn, only the circumstances described in subdivision It section 791. (b) certainly would not of subdivision section 791 and the (a) preclude application 16, 1970, of the Steuber introduction interview. tape predating August The statement was admitted. v. Duvall (Cf. properly People 417, 420-421 708]; Walsh Cal.2d 41-43 P.2d 247].)
An additional about Steuber based on Manson’s complaint tapes assertion that failed with order. prosecution comply discovery The contention lacks merit. The it first learned of prosecution, claiming cross-examination, interview course Steuber during Flynn’s that it had no with Steuber or the District contact represented Attorney for whom until after was Steuber under Flynn Inyo County acting cross-examination. The district offered be sworn and attorney deputy to that fact. testify Furthermore, to cross-examine both appellant opportunity had. Steuber and District and thus to discover Attorney Inyo County *39 of Los the which Angeles County the circumstances representatives by the the Steuber into foregone came Having tapes. possession was known to or not the “Steuber to ascertain whether tape” opportunity trial, cannot now advance of Manson the in successfully prosecution in the There is a void order. claim a violation of discovery simply even with the did to fill evidence that opportunity nothing appellant do so. Manson with to the introduction
Another contention made by respect that was of the Steuber is Sup tape “suppressed.” tape to the defendant which the evidence is that evidence favorable pressed v. to or trial. fails to disclose during prosecution prior Ruthford 261, 534 P.2d In 14 Cal.3d Cal.Rptr. admission was made case, Manson’s this testimony concerning Flynn’s until in itself before trial. known to tape Delay producing appellant into does not transform after trial commenced testimony Flynn’s evidence.29 “suppressed” that Manson asserts
Three other concerning evidentiary complaints must be discounted. Flynn’s testimony life, his threats on his relevant to
Flynn’s
concerning
testimony
state of mind and
was
admitted
Manson’s
credibility,
properly
despite
tend to
in
assertion to the
The threats
Flynn’s delay
contrary.
explain
a
While it is
true that
some
his trial
relating
testimony.
generally
witnesses
defendant cannot be held accountable for threats made against
57 Cal.2d
without his consent or
Terry
authority (People
here the court admonished
565-566
Another of Flynn’s testimony drawing charges aspect *40 said, “Well, Manson don’t we that on one occasion statement why go and cut them to there and tie them pieces.” Referring occupants up whom was in a house with Flynn Flynn’s testimony acquainted, had with to a conversation concerning Flynn response question about was asked on cross- Manson epithet “pig.” question after the was raised on direct. examination inquiry subject Consequently, Code, 356; v. Cal. Western were (Evid. § Long response proper. so, 871, 43 Cal.2d 881 P.2d Even at 43].) Ins. Co. (1955) States [279 Life counsel, the court admonished the the insistence jury appellants’ resulted. attributed to Manson. No the declaration prejudice disregard fire a that on one occasion he saw Manson testified Flynn one of the an exhibit otherwise identified as and he identified handgun, indicated that murder as being gun. Flynn’s testimony weapons and a third at or in the direction of Manson fired the person. gun Flynn error. We cites the of this as Manson receipt prejudicial It is relevant. Manson’s use handgun circumstantially disagree. him to one of the instruments of the Tate murder. The tends to connect insofar as it court admonished jury disregard Flynn’s testimony That admonition and there to Manson’s was sufficient target. pertained was no error. — ITEM 3: The intro
MANSON CORROBORATION handgun as Exhibit 40 was a to which Manson duced in evidence People’s weapon access. Consistent with Kasabian’s the use of a had testimony concerning head, on the of a Watson strike Frykowski pieces righthand by gun at the Tate residence. These fit were found pieces grip People’s pistol contention that was at 40.30 While there is no Manson the Tate Exhibit residence, that a used him was a used in the evidence weapon weapon value in murders has some Tate demonstrating relationship probative 203, event. v. Buono 191 (1961) him and the between Cal.App.2d He an on 1969. located it was found by 11-year-old boy September 30 The handgun Road, home, Glen 1.8 miles from oif of Beverly approximately a hillside his just the Tate residence. v. Channell 604]; Cal.App.2d Cal.Rptr. P.2d 654].) 197 — ITEM 4: It is uncontradicted
MANSON CORROBORATION Drive with the Cielo Manson was to August acquainted prior the La Biancas’ True and with the home of Harold residence adjoining occurred in True’s Drive. Even no homicide home on Waverly though residence, was familiar with both the circumstance that Manson general locations is to an mere coincidence. susceptible interpretation exceeding
“The state of mind' of a is a fact to be like any person proved case; and when fact when it relevant to an issue in the other knowledge issues, evidence is admissible of a fact has bearing important upon to the of the existence or nonexistence of such which relates question v. Solbakken (Larson knowledge, [citations].” *41 — ITEM 5: The fact that Leño La
MANSON CORROBORATION with leather Bianca’s hands were tied thongs circumstantially proba- that Manson wore such tive. Several witnesses testified frequently thongs were recovered and November of 1969 leather around his neck in thongs from Manson’s clothing. In
AGGREGATE OF MANSON CORROBORATION:
more than sufficient.
the evidence is
“Although
aggregate,
of the
the defendant with the commission
corroboration must connect
when
offense,
entitled to little consideration
it
be
‘may
slight
The
corroboration
be
alone.’
may
requisite
provided
standing
[Citation.]
circumstantial evidence.”
Valerio (1970) Cal.App.3d
(People
admissions, his relation to the
In addition to Manson’s
of the
with the locations
Buntline revolver
his
(Exh. 40),
familiarity
crimes,
kind of material
his habit of
on his
the same
and.
having
person
are,
circumstantial
used to bind one of the victims
in the aggregate,
v. Henderson
evidence
of Kasabian.
testimony
corroborating
CORROBORATION—ATKINS, VAN to corroborate An of the evidence HOUTEN: important produced part Atkins, and Van Houten Krenwinkel against accomplice testimony are and declarations. These their admissions consisted of independent summarized as follows: at Brand her arrest and while incarcerated Atkins—After
(1) Sybil trial, in two other inmates Atkins confided concerning Institute awaiting inmates, Graham Tate murder. These in the her Virginia participation Howard, informed the law enforcement and Roni Castro agencies Walker, inmate, Roseanne testified she Another admissions. La the Tate and Bianca listened to a broadcast Atkins concerning broadcast, “That ain’t the it Atkins commented on murders. way inmates, statements made to fellow went down.” In addition to the Tate-La Bianca Atkins wrote several letters herself inculpating these, murders. Of three were marked and admitted into evidence. member Barbara was allowed to that she Finally, Family Hoyt testify overheard Atkins that Sharon Tate was the last to die. say Lake, of Dianne Krenwinkel—Through jury informed that Krenwinkel.admitted she “had dragged Abigail Folger from the bedroom to the room.” living Van Houten—Dianne Lake testified that Van Houten told her in the
she had a dead The substance of the participated stabbing body. that Van Houten in the La Bianca testimony implies participated murders. was instructed that these enumerated admissions were jury
admissible as to each declarant. only respective *42 Atkins,
With there is Krenwinkel and respect co-appellants their admissions and declarations. Krenwinkel’s corroboration beyond her, at the Tate was found residence. As to that is sufficient fingerprint 697, corroboration itself. v. 210 703 (1962) by Ray (People Cal.App.2d [26 Cal.Rptr.
Discarded found a witness in the of Cielo Drive31 clothing vicinity was examined for blood and other evidence. A testified that not chemist was, however, all the stains were of he able to capable interpretation; human, the stains on one item B. as blood positively identify Folger, type he a in a 31 Awitness for the testified that located bundle of clothing prosecution three hillside area near Benedict The consisted of three clothing pairs pants, Canyon. items, color, evidence. shirts and a sweatshirt. These dark in were admitted in The time as the court was taken to motion to strike until such subject conducted a on the of the statement of Susan Atkins. thrust hearing admissibility the motion was on the of Susan Atkins’ contention premised publication story 14, 1969, state action Los Times on December was the Angeles improper product the witness to locate the items of on the clothing. Relying encouraging enabling 441, 471, (1963) stated in 371 488 L.Ed.2d doctrine Sun v. United States U.S. Wong [9
149 and Parent had blood B. Human hair was found on Fiykowski type hair, another items. with Atkins’ showed Compared testing color, similarities in terms of characteristic. While length medullary location clothes with bloodstains in the of Cielo Drive vicinity only substantiates Kasabian’s identification hair similar testimony, Atkins’ hair corroboration within the clothing provides meaning of Penal Code section 1111 as to Atkins. The to such weight given 287, evidence is for the v. Carr 8 Cal.3d (See (1972) jury. People [104 Am.Jur.2d, 705, 502 P.2d 513]; Cal.Rptr. Expert Opinion 129.) § Testimony,
Krenwinkel was ordered
the court to
of her
provide exemplars
counsel,
On the advice of
she refused. Evidence of her
handwriting.
refusal was admitted
Krenwinkel.
of this
against
Obviously
purpose
focused on the
in blood at
the scenes of the
procedure
writings
homicides.32 The refusal to
tends to show a
give handwriting exemplar
consciousness of
and is both corroborative and
guilt
independently
v. Hess
1076-1077
(1970)
probative.
Cal.App.3d
268,
Other evidence included the fact that Van Krenwinkel and Atkins false names when were arrested. The use of an gave they alias is circumstantial evidence of consciousness of It is guilt. relevant and corroborative of therefore Kasabian’s testimony. (People 7 Cal.3d 775-776 499 P.2d 129]; Perry Cal.Rptr. v. Olea Pen. 265]; Code, 1127c.) §
Krenwinkel also contends
there is no corroborative
evidence to
connect her with the commission of the La Bianca murders. She
her
in the Tate murders is not
erroneously presumes
implication
corroborative
within
of Penal Code section 1111. The fact
meaning
*43
455-456, 83 S.Ct.
Manson
reasoned that the
were
incorrectly
testimony
clothing
407]
obtained evidence. The court
admitted the evidence.
unlawfully
correctly
We
cannot
how the witness’
this
location of
evidence can be
simply
perceive
characterized as “Fruit of the Poisonous Tree.” We
no
the
find
authority
proposition
that the location of evidence
a
citizen not
under the direction of law
by
private
actirig
(See
enforcement
is unlawful or
agencies
constitutionally impermissible.
Dyas
(1974)
Court
similar corroborative nature way very probative. the trier of fact. v. Robinson considered (1960) by properly 69, 77 v. Wilson 202]; (1926) Cal.Rptr. People Cal.App. [7 P. 694-695
Aranda-Bruton
When the is in of a declaration prosecution possession inculpat codefendant, not the but another declarant ing only nondeclaring Aranda commands an election from three (1) among procedures: severance of the codefendant nondeclarant him a permit separate trial; a declaration to delete all matter editing inculpating nondeclarant; or, entire declaration if the exclusion case is to as a trial and there is no reasonable to edit the proceed joint way declaration to delete the material. Bruton inculpating expanded Aranda to constitutional dimensions. holding Atkins’,
When Krenwinkel’s and Van Houten’s admissions offered, were the court conducted evidentiary proceedings, editing admissions and references to and Watson. As eliminating co-appellants submitted to declarations read in the first jury, person.
After each admission the was instructed to consider admission jury to the it as declarant whom was attributed. Conse- only particular admissions, we find error in the followed. These no quently, procedure Kasabian, of Linda and items of evidence physical linked each to the commission sufficiently independently appellant of the crimes That connection sufficient discount claim charged. of error admission of the edited statements. We find no case regarding “that it is Bruton or Aranda error to admit in evidence the suggesting or defendant, admission confession of one which reflects his commission evidence, crime that is revealed because it by physical might reflect on the issue whether or not a crime was committed actually another, evidence, not the declarant but also whom other than only *44 confession, links to the declarant’s activities. In fact Aranda suggests
151 It that if references to the contrary. suggests participation anyone else, not, whether or nonexistent, identified or are or directly indirectly deleted, are the trial be and the statement may joint, extrajudicial may be received as the declarant . . . .” v. 34 against (1973) Epps 146, also, 157 see 733]; v. Romo (1975) Cal.App.3d Cal.Rptr. [109 People 976, 47 Cal.Rptr. [121
We contention that the recognize appellants’ theory prosecution is in evidence to the life large part dependent upon pertaining style communal of these In the introduction of organization people. opposing admissions, counsel for Krenwinkel that to admit eloquently argued them would be because other evidence made it highly prejudicial clear these ate had sex people together, slept together, together, functioned aas unit so that identification of one amounted to identifica tion of all. This misses the argument point.
The issue is whether or not declaration of one 'a connects nondeclarant to the crime in confronted question.33 problem by Aranda and Bruton is the case where the evidence typically only linking the nondeclarant codefendant is the admission of his Here accomplice. all are linked to the crimes of Kasabian. appellants by testimony Over and above Kasabian’s there is the substantial corroborat- testimony evidence discussed above. Because each admission ing was edited to delete reference declarant, other than the none explicit anyone was made inadmissible reason of circumstantial implications be drawn might jury.34 that introduction of the declarations of did
Concluding
not
appellants
Bruton,
violate the mandate of Aranda or
that,
event,
we note also
in any
occur,
if error did
it was harmless
a reasonable doubt.
v.
(Brown
beyond
United
208, 215,
States
411 U.S.
(1973)
L.Ed.2d
93 S.Ct.
1565];
Confidential Status Admission After her arrest Atkins was incarcerated at Brand Institute. Sybil with and enforced the Los In accordance regulations adopted by Angeles Sheriff all mail was examined County incoming outgoing opened, and censored. Four letters written Atkins thus came into by respondent’s trial, at three were admitted her and now form they against possession; a violation of her the basis of a contention that their seizure was rights of the federal Constitution. under the First and Fourteenth Amendments without merit.35 Her contention is Atkins is not her surface
The real issue raised objection by turned over to that her mail was but rather prosecuting censorship case, of Los the District Angeles Attorney present authority an unlawful seizure evidence this constitutes She suggests County. conclusion. her. demands authority contrary Compelling against “ cannot ‘A man detained in enjoy jail reasonably expect His lack of is to a in free afforded society. privacy person privacy . . . Officials in to his charge necessary adjunct imprisonment. mail, communications trial censor their regulate awaiting may prisoners circumstances forbid them and outsiders and under certain between certain classes of visitors. such communications between prisoners ” 902-903 v. Dinkins (1966) [Citations.]’ admission of jurisdictions permit majority means if it is obtained mail authored unconvicted prisoners Mail as routine mail Prisoners—Censored (Annot. censorship. Therefore, were issue privilege 35 None of the letters addressed any lawyer. not germane. *46 that a conclusion Here the record 553.) 52 A.L.R.3d Evidence supports were therefore were obtained. exhibits aforementioned lawfully They admitted. properly Testimony
Kasabian’s Logically Inherently Improbable, Irrelevant, Irrelevant must be that Kasabian’s Manson asserts testimony disregarded irrelevant, on the that it is inherently improbable logically grounds made even broader condemnation is This ambiguous. sweeping included in this of the numerous of Kasabian’s reason testimony aspects error. For the most Manson’s is part complaint categorical assignment as over extrinsic and best described specious quibbling speculative are more than conflicts in the issues. These of error nothing assignments evidence. Such are to be resolved the trier of fact. “The conflicts moral which the law in its exacts before certainty humanity upholding the conviction of a man with crime does not exclude every charged and fanciful . . . .” v. Ah Sun 160 speculative possibility Cal. P. 240].) is that Kasabian’s
Manson’s assertion inherently improbable on the of inherent merit. based without is theory improbabili Objections v. Thornton (1974) a substantial burden objector. (People ty place den., 523 P.2d cert. 420 U.S. 267], 11 Cal.3d fails to meet that standard. S.Ct. Manson L.Ed.2d 924 [43 or false on testified to Kasabian physically impossible nothing 690, 693 P.2d 758].) 21 Cal.2d v. Huston (1943) its face. (See are The contentions irrelevancy inapplicable. logical ambiguity it all of Kasabian’s Manson invites us to discount testimony by reading conflicts on some entire record and reference to the without by focusing which, taken do. “Circumstances This we cannot in her descriptions. issue, when as to to afford no inference may seem logical singly, Thus an inference. rise to such with other circumstances considered give to a too the test of must not be single question strictly applied relevancy ‘The evidence. item of theory of a witness or to other asked single not that each ... is admitted which evidence of circumstances upon fact, but ultimate in its circumstance stands flawless proof to the a relation to each certain circumstance- has reasonably points ” 1966) ed. (2d § Cal. Evidence (Witkin, to be fact sought proved.’ 276.) (3), p.
We have reviewed each of the items Manson as catalogued by irrelevant, or irrelevant. We inherently improbable, ambiguous logically with his contentions and find them too devoid of merit to totally disagree discussion of each one.36 justify particularized *47 Prejudicial of Evidence Admission asked what induced her to Kasabian was On direct examination referred to in the first In her answer she to the ranch place. go Spahn commune, another member of the Catherine she had been told what by Share, known as testified that . . Kasabian had Louise Gypsy Gypsy. for, man that we had all been told me that there was a beautiful waiting . . .” and that he had been in for a number of . Manson’s years jail quite for a mistrial. and moved attorney objected denied, was admonished “to motion jury
Although time about Mrs. Kasabian’s remark anybody having spent any disregard Moreover, in Manson’s claim of error is therefore misplaced. jail.” Posten, Brooks Manson’s member cross-examination Family during that Manson had a officer. elicited parole attorney testimony revealing his and the allusion to circumstances Both the admonition indicating reference to status as a convict Kasabian’s jail any purge prior effect. prejudicial made Manson with
A similar of error is by respect assignment examination, and of LSD. On direct Kasabian’s allusion to Manson’s use an occasion when Manson without Brooks Posten testified to objection, cross-examination, the influence of On was under Psilocybin. Paul without Posten that Manson favored LSD. stated objection, Manson Watkins testified without to another occasion when objection an was “... on acid trip.” when
The occasions to which these witnesses referred involved times Manson alluded to himself as a Christ This self-characterization figure. was a that evidence of its contention part respondent’s support Manson was the leader of the state of mind and his Manson’s Family. 36 An of matter has included in this broad assignment example type appellant Drive error is the Kasabian testified to Cielo over following: concerning entry (1) there is no barbed wire fence. Manson on this because places great emphasis the main in view of the fact that to the other than explanation entry gate premises by route; Watson, Krenwinkel, fence was not and Atkins exited the barbed wire by cutters; cut even Watson had wire neither the or though clothing person Kasabian was torn or scratched the barbwires. is therefore relevant. At the least it was on these occasions appearance whether or not Manson’s statements were to show consciously germane event, In this came in made or entertained. seriously any of error on without claim this objection thereby foreclosing appeal. Furthermore, Code, evidence elicited all sides subd. (Evid. (a).) § clear were used at ranch. made it Spahn perfectly hallucinogenics La Bianca Homicide Conduct
Post Kasabian’s his state about testimony concerning Complaining actor, to kill an Manson contends it was ment Kasabian directing to Kasabian this direction was inadmissible hearsay.37 According given she, Manson, after within hours Atkins and had retreated from Grogan La Biancas’ residence. *48 contention of error occurs when the case of this Disposition 15 Cal.3d 541 P.2d Leach 419 is (1975) Cal.Rptr. [124 296] contrasted to the case at bench. In Leach our Court made clear Supreme the rule that declarations of a offered the extrajudicial coconspirator truth are inadmissible if the declarations are made of the matters stated after the the Here the rule of Leach is termination of conspiracy. inapplicable.
The in which were was broader than conspiracy appellants engaged the substantive crime murder. evidence the Circumstantial proves fomentation and their coindictees—the overriding appellants purpose of the race war Manson characterized as Helter-Skelter. Boundaries of a are not limited the substantive crimes committed in conspiracy furtherance the agreement.38 37 Kasabian’s Manson’s is as “And he declarations follows: then testimony concerning
said, said, ‘What that man that met? Isn’t he a And I about ‘Yes. you Sandy piggy?’ he if He is an actor.’ And then further me and he asked me the man would let questioned said, in, I if the me in? And ‘Yes.’ And he asked me man would let friends Sadie and my said, him,’ said, I Clem. And I ‘Yes.’ And he want to kill and he me a ‘Okay. you gave ar., ‘Charlie, said, And at I I I small this not cannot kill point, you. pocketknife. moment, I I And don’t know what took at but was much afraid. anybody.’ very place it, he tell I I And then started to me how to about and remember had the go doing knife hand, said, ‘Yes,’ him, and I asked ‘With this?’ And he he me showed how to my residence, house, said, He ‘As as enter the the do it. soon as soon as (Indicating.) you you man, then, also, the slit his throat And he told Clem to him. see shoot And right away.’ know, if went not to do it.’’ he said anything wrong, you dimension, dimension, the for the like to be object 38 “Itis furthermore party possible would be a indeterminate ‘Murder Incorporated’ group contemplating scope. Each than a definite number of crimes. member of it therefore commission of other chances,’ and to a whose dimension includes the ‘takes his is party conspiracy object
156
Here the to fulfillment of amounted Manson’s conspiracy prophecy. The of Helter Skelter as a is of characterization fanatical no fantasy 682, 684; States v. 245 F. (N.D.Tex. 1917) (United consequence. Bryant 332 U.S. L.Ed. Blumenthal v. United States 556-557 (1947) 167-168, Perkins Law S.Ct. on Criminal ed. 248]; (2d 1969) 635.) p. The of the common gist conspiracy comprehended design, however bizarre and fanciful. It is not that the necessary object out or be carried v. Bedilion (People conspiracy completed. 262, 271 The of that corollary proposition
Cal.App.2d that the continues until it is or abandoned. It is accomplished conspiracy Skelter is obvious that Helter was never realized and conspiracy remained Leach is pending. accordingly inapplicable—the conspiracy had not terminated. Manson’s declara Leach on the
We further distinguish ground their Since the statements were not offered for truth of contents. tions section not of Evidence Code were coconspirator hearsay, exception court, the trial belief to contrary by inapplicable. Despite matter at all truth of the stated. relevance was not dependent upon kill exists in revelation of the of Manson’s orders to relevancy v. Lewis nature conspiracy. Cal.Rptr. 1].)39
Evidentiary Implication of Gestures
and Marks Self-Inflicted their trial. were more than in On Appellants passive participants out, the numerous occasions they proceeding by spoke interrupting to other and third each commenting including gesturing persons, result, As the called Detective Manuel witnesses. Sergeant prosecution Gutierrez the Los Police he F. of Testifying Angeles Department. trial, the Gutierrez described a was in courtroom the specific during was Manson incident observed him. While Kasabian looked testifying her, . “. . his index from to left and made a at took right finger right described, to As motion across the bottom his chin from left.” it right [of] too to that conduct as a is characterize threat.40 imaginative not. the Law—Criminal Conspiracy in fact undertaken.” (Developments offenses 920, 930.) (1959) 72 Harv.L.Rev. not obviates the of whether or the 39 This second necessity determining approach (See was From the Hearsay Pendency still Oakley, Eternity: conspiracy pending. Fiction, (1975) and a 16 in California—Fact, Approach Novel Co-Conspirator Exception 1, 36-38. Santa Clara Law. be 40 Aftermore examination described motion of finger Gutierrez exacting neck, a throat. as slitting made across recognized simulating gesture commonly
157
intimidation of a witness while she is
Testimony establishing
testifying
304,
relevant.
v. Rosoto
Cal.2d
certainly
[23
779,
den.,
978,
373 P.2d
cert.
P.2d cert. 157], 738]; U.S. 206 L.Ed.2d 79 S.Ct. Witkin Cal. Evidence 2d (1974 417.) ed. § Supp.) p.
Gutierrez also that he an “X” stated observed on Manson’s forehead that, Atkins, on the of he saw “X’s” the foreheads following day, Krenwinkel and Van Houten. This behavior had some to show tendency between as well as the asserted affinity appellants leadership Manson. It is not too these decorations were speculative presume observable these could not jury. Testimony concerning markings be and its was well within the discretion prejudicial admissibility Code, (Evid. trial court." circumstance, 352.) The effect of § this stigmatic if act any, produced entirely by voluntary appellants. Negative
Introduction Evidence Witness Schram testified that on Stephanie August night 8, 1969, with her Manson was and that 9 he left when it on August got dark ánd not Manson, she did see him until the next morning. that this evidence tended to him at the ranch complaining place Spahn murders, near the time of the contends it was it because prejudicial gave some confirmation” to Kasabian’s No “synthetic testimony. objection was made at trial this Schram’s The failure to part testimony. object waives defect. Cal. Evidence (Witkin, (2d ed.) 1188.) § p. (Chapman)
Restriction on Cross-examination *50 Atkins’ counsel Winifred attempted question housekeeper about the and narcotics at the Cielo Drive Chapman presence drugs residence. The sustained a court on the prosecution objection grounds irrelevance.
Manson that should have been because at argues inquiry permitted one time the entertained that the homicides might police suspicion have been connected to the sale and use of disagreements relating was Mrs. “be Manson’s offer that able to drugs. proof Chapman might LSD, tell us there whether or not was narcotic in the residence. drugs . . .” It The offer was deficient. did not in relate to the victims any way Moreover, with the evidence was irrelevant because
involvement drugs.41 third to a that some it suspicion only very speculative person pertained had committed the homicides. (People Chapman In-court Identification cross-examination, the course of DeCarlo was asked to During Danny Charles Tex At Watson. of Krenwinkel’s identify attorney request and over Manson’s Watson was We find in court. no objection, produced error in this In-court identification is an method of procedure. accepted Code, a witness’ subd. (Evid. § testing competency credibility. (c).) (DeCarlo)
Restriction of Cross-examination Manson also that he was not fully complains permitted state of mind toward black cross-examine DeCarlo about DeCarlo’s that he did not like some of the black DeCarlo testified things people. asked, that, did. He was then “Tell us about Mr. DeCarlo.” An péople to the was sustained. Manson that DeCarlo’s objection question argues answer have shown that DeCarlo hated black and that may people DeCarlo’s Manson’s black testimony concerning against prejudice was at reflection DeCarlo’s issue is people really Actually prejudice. DeCarlo’s Further of DeCarlo’s bias would not credibility. amplification tend to he lied about what Manson said. The trial reasonably prove court’s was correct. ruling (Lake)
Restriction of Cross-examination Lake, cross-examination of Dianne Manson’s counsel During Tate and wanted to ask if “Tex” Watson had told her he killed Sharon her The record reflects that counsel’s that Tate had life. pleaded to a of a statement Lake to a district reference was deputy report it It is that was relevant because attorney. urged Atkins had to Lake’s statement Susan told her contrary purported she had killed Sharon Tate. The record does not support argument. Lake did not that Susan Atkins told her testify anything. Consequently *51 41 Ifthe the residence was there is evidence of fact of in that drugs significant presence in the record. Michael McGann of the Los testified Police Sergeant Angeles Department hashish, that cocaine and MDA were found on the All marijuana, premises. parties Therefore, the nature these items. even if the excluded to chemical of stipulated relevant, of was its exclusion was not testimony Chapman prejudicial. that was outside with court’s the do find fault the we not ruling question direct. the of scope benefit Manson.
Moreover, we see how such would do not testimony for was liable the thesis that Manson The was vicariously prosecution’s be a Manson to all the If the believed acts of coindictees. juiy was all of the he homicides aider or abettor conspirator, culpable error it the if the court’s of who held knife. Finally, ruling regardless Const., VI, was harmless. art. (Cal. 13.) § of Exhibits
Admission evidence into Over objection, respondent placed appellants’ of which the deceased victims. numerous many depict photographs, color; all show the and white and some are Some are black photographs death the Some of the of or at * either at the victims morgue. place on are at trial and Manson this to exhibits diagrams by appeal objected has The tendered of certain locations or objects. argument appellant the its the exhibits constitute at core assertion “inflamatory Drive and of bodies the victims at Cielo of Waverly photographs with to the we contention Drive.” address this respect Accordingly, of the victims only. photographs must, course, of be
The effect weighed prejudicial photographs Code, their about the (Evid. 352.) § relevance. against striking thing is show numerous wounds inflicted they photographs all bodies of the victims save Steven Earl Parent. Demonstration of stab is it numerous wounds relevant because tends substantiate the a Kasabian. For Kasabian’s example, description scene deal frenzied involving slashing, cutting striking great fortified exhibits. reliance on v. Seastone (1969)
Appellants’ Cal.App.3d not have the contention that exhibits should support Cal.Rptr. 907] been Seastone admission admitted is photo- misplaced. supports the court Seastone In conviction murder rejected graphs. affirming 66.) at contentions made here. (3 same p. admitted- are to which Even objects appellant though photographs an relevant are nonetheless extremely prove gruesome, they ly Their relevance malice. element of crime outweighs charged, denial of effect. The request appellants’ prejudicial possibility *52 160 color with black and white was within
replace photographs photographs discretion the trial court. Manson’s further claim that his attorney should have been allowed to describe each exhibit for the record is silly. We that conclude the trial court did not its abuse discretion by admitting these exhibits.
Jury View the course of trial and while Kasabian on the witness During stand, Manson’s moved to “have at the Tate attorney proceedings residence.” A similar motion was made with to Drive. respect Waverly the trial court Deeming diagrams photographs adequate, considered and denied the motions. We find no error in this exercise of the court’s discretion. Appellants’ Testimony
Restriction chief, At the conclusion case in all defense prosecution’s counsel announced that rested defendants to the subject only admission of certain into then exhibits evidence. Krenwinkel informed Honor, the court: “Your I wish to also two sisters would testify, my like to on our defense.” The defense advised the testify put lawyers court of their their clients the witness stand. The opposition taking female nevertheless insisted on their to do so. The court appellants right Atkins, Krenwinkel and Van Houten concern meticulously questioned their of the risks of stand. In the witness ing knowledge taking clients, of their defense counsel informed the court that it was presence their considered that the was incriminat opinion appellants and amounted to a confession. ing judicial between counsel and clients was so adamant disagreement advised the court would not call their attorneys they respective
clients to the witness stand and would not ask Their any questions. refusal was fixed order the court regardless proposed compel their Manson with the other participation. Ultimately, joined appellants and, counsel, over the of his offered objection testify.
It is fundamental that a has defendant in his testify right own behalf even if so to the advice of his doing contrary attorney. v. 466 Robles Cal.3d 214-215 P.2d (1970) Cal.Rptr. v. Guillen 710]; 43]; People Cal.App.3d Cal.Rptr. Blye
161 The of this was The trial proposition. 231].) cognizant judge a in the the rule context was to created how apply paradox combined with Aranda-Bruton case problems multi-defendant fraught as to counsel of defense by acting with the disinclination cooperate was it counsel declined to Because all defense interrogate interrogator.42 be in a narrative form. that would such testimony recognized rules” the court’s to “relax the to some Notwithstanding disposition it to the remained court’s degree, obligation province regulate exclude inadmissible matter from the conduct to hearing proceedings of the In the instant case the risk that narratives by jury. appellants Therefore, evidence substantial. would include inadmissible was to receive the outside court’s testimony jury proposal presence sound. Carlton v. to it before the was (Cf. Superior prior putting jury 282,292 v. 261 Scherr 568]; Court (1968) People Cal.Rptr. Cal.App.2d [67 When the court 169-170 (1969) 35].) Cal.App.2d Cal.Rptr. [77 that all Manson refused to announced save testify. appellants proposal, short, In demanded the to before the without narrate they right jury any or that insulation Aranda-Bruton error afford against preview might at or all. proper judicial editing—all nothing a
Manson
that the
of a
as
condition
complains
imposition
hearing
Atkins,
was
to the
Krenwinkel and Van Houten
testimony
precedent
error.
v.
Court
(1970)
Citing
Rodriguez
Superior
v.
Court
While an in camera preview give prosecution proceeding not violate case, does of the defendants’ that any certainly procedure that defense counsels’ refusal participate 42 There is not the slightest suggestion of it was based on that assumption of the appellants’ testimony presentation their that of counsel was founded on reluctance presumption apparent perjured. and that their clients’ would was to obtain an their obligation acquittal counsel, that determine also not clients who obliterate that possibility. They suggested a client entitled on these facts. While is will Their testify. assumption wrong advice, it. We do not counsel must he is not to follow obligated suggest competent commenced, However, once trial has tolerate client resistance. certainly necessarily (Cf. can withdraw. it is counsel improbable when it has become protracted, 186 Cal.App.2d Jackson constitutional Since had declared their intention right. appellants was not tantamount testify, proposed proceeding compelling *54 waiver of the self-incrimination. v. Prudhomme (Cf. against privilege 2 129, Cal.3d Court 326 (1970) 673].) 466 P.2d Superior Cal.Rptr. We Manson’s that the trial court the him of reject argument deprived to cross-examine his The fact is elected opportunity coappellants. they to him that the valid and reasonable deprive opportunity by rejecting Moreover, resolution the court. if counsels’ proposed by representations the Atkins, Krenwinkel and Van concerning prospective testimony correct, Houten is it was Neither nor Manson self-incriminatoiy. could such respondent compel testimony.43
Manson/Bugliosi Interview It that interfered is contended the with the defense prosecution a with we interview Manson. by holding private appellant Specifically, are told that District over the objection Deputy Attorney Bugliosi, Manson Manson’s conferred with the trial during attorney, privately v. stifled Prudhomme Manson’s to thereby disposition testily. Citing Court, 2 Cal.3d characterizes these Manson alleged Superior supra, interviews as “unconstitutional discovery” proceedings. Kanarek,
The issue was the trial when before court Irving placed Manson’s the after the noon Mr. advised that recess judge attorney, “just who has stated to me that he was to use Bugliosi, every previously going trick he could find to convict Charles Manson and him possibly put chamber,. Manson, the .. Charles over to gas my approached spoke express objections.” court, it, informed the “All three defense Bugliosi attorneys urged ” said,
Manson T to talk I want Kanarek “But you.’ responded, forbade him.” there is no that the disagreement Apparently deputy district interview least did Manson on at one occasion. It is attorney unclear, however, whether interview was conducted with or without Kanarek’s or consent.44 It but not argued knowledge proved Manson’s out of the 43 Following testimony trial presence jury, judge Atkins, his mind. Krenwinkel and were changed Van Houten advised and offered forward with their opportunity go before refused. The record jury. They also reveals that after before the court without testifying asked jury, judge “No, if Manson he wished before the Manson I’ve testify proceed jury. responded, said I want to everything say.” 44 Paul for Krenwinkel advised court: “I I Fitzgerald, attorney think should be held in if because Mr. did not solicit I this conversation. contempt, anybody, Bugliosi revealed the substance this No evidence invited the interview. Manson conference. Manson-Bugliosi we would be illuminated if took
Manson this argues subject book, Helter-Skelter, notice co-authored judicial prosecutor case; of the trial of this it Helter-Skelter is a account Bugliosi. purported no v. Price constitutes record (Price part appeal. P.2d cf. Pena 101];
Cal.App.2d Moreover, we Manson’s reject that we notice as means more learning suggestion employ judicial *55 Code, his conferences with (Evid. concerning alleged Bugliosi. multiple fact 452, While we take notice of the that the book 459.) §§ may judicial exists, its v. 74 (1946) we decline to notice contents. (Berry Chaplin 669, Even if we assume this 453].) 676 P.2d post-trial [169 Cal.App.2d accurate of all events effort is by Bugliosi reasonably report literary trial, cannot be the his are not and observations surrounding v. 7 (1970) for truth of the matter stated. considered the Long 586, 591 590].) Cal.Rptr. Cal.App.3d [86 of error is that interviewed
The fundamental assignment Bugliosi is as a without Kanarek’s consent. The error best characterized Manson as Miranda and fair trial and an violation Manson’s rights rights interference with his v. (Massiah relationship attorney-client improper 201 S.Ct. United States 377 U.S. L.Ed.2d 84 (1964) 1199]; People [12 v. 484 267 (1968) 294]).45 Isby Cal.App.2d Cal.Rptr. [73 regard to actually Bugliosi approached, our follow Mr. Kanarek’s advice and going against intimidation of intimidate prosecution Bugliosi’s position fault.” do presence, it. Manson knew to be an off-the-record to Mr. at his request. [H] had made Mr. Manson, with had Bugliosi talking the Mr. a conversation was, prosecution about and Hughes He wanted to talk to Mr. witnesses, and to tell him that Mr. Manson wanted to do and that he need not consent friends and acquaintances conversation, and to witnesses. Mr. Mr. with speak and Manson. Shinn, Mf. Mr. to [I] that it was not going Kanarek in which Mr. Bugliosi. Now, Mr. Manson wanted he didn’t have [H] Bugliosi Bugliosi Now, it was to this of Mr. Manson it Mr. Manson knew about our understanding and [1] conversation It was not Mr. Bugliosi’s I had a anything that Mr. representations he said he chose not to to be used in find conversation Bugliosi to and, out attempting do this. was that was what in with that Mr. wanted fact, It it sense with Mr. the to in to and Miranda that the Supreme 45 “Itmust be concluded from our of Massiah reading The first is right Court two rights. has distinct distinguished constitutionally proportioned of the advised his counsel when the accusatory stage that an accused must be criminal has been filed right reached, after a is that criminal charge has been second right' process counsel, not to an he he be may subject a defendant and has against of eliciting law enforcement officers for purpose interrogation instigated incriminatory bench, In the case at without effective aid of his counsel. statements filed, defendant counsel appointed represent criminal had been charge arraigned If an accused instigated by specifically waiving right counsel, out of counsel’s be interrogation may presence permissible. v. Court 696-702 (Griffin Superior Cal.App.3d v. 379]; Rowe Cal.Rptr. People Cal.App.3d 816].) assertion, to Manson’s no demand Cal.Rptr. Contrary an made for on this We therefore can evidentiary hearing subject.46 make no determination the record of this or appeal presence absence of Massiah-Miranda error. Determination of possible prejudice to Manson from interviews with not is obtainable on resulting Bugliosi the record before us of resolution in this incapable (Cf. appeal. Pena (1972) 423-424
In view of claim some additional observa- gravity appellant’s First, tions are the record belies asser- appropriate. appellant’s present tion that he have testified but interview. The fact is Manson might offered to front two month’s Kanarek testify jury after interview. We note also that neither Manson-Bugliosi complained Manson nor Kanarek ever trial court that the interviews argued *56 affected Manson’s about disposition testifying.
If it is that true interview with Manson occurred under Bugliosi’s law, to circumstances then a ethical arises. The contrary major question district is no less a of member the State Bar than deputy attorney any other admitted His to adhere to the Rules of lawyer. obligation Professional Conduct is mandated & the Prof. (Bus. Legislature. by Code, 6076.) We deem it § to mention counsel necessary any to deal an with adverse is venturing trouble.47 inviting party him. From this factual statement it be can concluded that had defendant been advised of his counsel he had elected to be right counsel rather than by represented represent himself. Thereafter was entitled to defendant the effective aid of at counsel any the law enforcement v. instigated officers.” interrogation by Isby, supra, 494-495.) at Cal.App.2d pp. the alleged 46 The of interviews came about subject prosecution’s tangentially when the an a court had before it Manson’s counsel to conduct show cause by application hearing in to determine if should be held of court because of an Bugliosi contempt out-of-court witness, a incident defense Sandra subpoenaed Good. involving prospective Nothing in or alludes to the interview. supporting petition papers Manson-Bugliosi .that Conduct, 7-103, that, 47 The State Bar California Rules Professional rule provides “A member of the State Bar shall not communicate or with a directly indirectly party whom he to be knows counsel a subject without the represented by upon controversy, consent of such rule counsel. This shall not to communications with a express apply board, officer, 12.) committee or public body.” rule (Formerly Ethics, 7-18, that, The Bar American Association’s Canon of EC “The provides legal in its broadest sense when in or system functions best need advice persons legal assistance are a by their own counsel. For this reason should not represented lawyer of this issue we cannot it in seriousness resolve Notwithstanding find Mere unverified assertions are insufficient to reversible abstract. or to draw about error conclusions conduct. questions unprofessional Estoppel
Collateral Watson, to the 2d Crim. Manson refers us case of v. 22241, a No. Court of Second nonpublished opinion Appeal, District, Division Five. He us to take notice Appellate implores judicial of that case in order invoke the doctrine collateral but estoppel, advises that we cannot take notice because of California Rules of judicial Court, rule 977. From that Manson seeks to a construct juxtaposition violation of his constitutional is rights. Appellant’s argument specious. Rule from its specifically exempts operation nonpublished opinions relevant under the doctrine of collateral estoppel.48 Jury Composition
Challenge to Grand that the indictment on the Manson moved to grounds quash was The motion was constituted. interposed jury improperly grand It thereof. of notice of motion and declaration support filing by with evidence. of the defendant contention the burden support with or otherwise no was offered declaration Because evidence indictments, motion to issue raised quash respect more denied. motion must be motion supported by properly bald conclusions. than (People Goodspeed *57 298, 310 12
702 v. Cohen 696]; (1970) Cal.App.3d [90 Cal.Rptr. People [99 612].) Cal.Rptr. Jury
Challenge Procedure to Grand Indictment is indictment next that the of Manson initiation prosecution urges is that of infirm. thrust Goldsby argument constitutionally appellants he his client with a matter of the person on the subject representation communicate law of court to or rule the matter a unless to be in represented by lawyer, pursuant knows not If one is of the for that person. represented unless he has the consent lawyer or counsel, with the have to deal directly unrepresented a another lawyer may representing instance, advice to to the person an a should not undertake lawyer give in such person; himself, to obtain advise him may he except who attempting represent lawyer.” only that collateral rule the construction estoppel 48 Wenote the 977 to susceptibility 70, (1974) 686 v. 12 Cal.3d Cal.Rptr. in civil cases. In of People Taylor [117 light applies 622], we that construction. P.2d question 527 166 343,
v. United States 160 U.S. (1895) 70 L.Ed. 16 should 216], S.Ct. [40 not be the law. has not been reversed. The Court of Goldsby Supreme state this continues constitutional acknowledge grand viability indictments. v. 7 746 (1972) Sirhan Cal.3d jury [102 den., 497 P.2d cert. 410 1121], U.S. 947 L.Ed.2d 93 Cal.Rptr. [35 S.Ct.
In issue of whether or not the is a raising grand jury procedure law, denial due or under the Manson directs process protection equal our attention to Johnson v. 262 Court 15 Cal.3d Superior 32, 539 P.2d We 792], that citation is to Cal.Rptr. presume point underscore the differences between a indictment procedural grand jury and the which Justice Mosk so filing felony complaint meticulously not, however, outlines his Johnson does opinion. concurring support the contention that institution of criminal proceedings by grand jury indictment in constitution hearing any way impaired appellants’ al of due or rights process equal protection. Jury Quash Petit Venire
Motion
filed a
venire.
motion
Appellants
challenge
jury
By
petit
before the court
its
stipulation appellants
respondent placed
consideration in
this
motion
in the
ruling
portions
transcript
Los
Court case entitled
v. Powell
Angeles
and Smith. In
Superior
People
substance,
the motion
numbers of identifiable
argued
significant
classes of the
were omitted from the
community
jury panel. Substantially
the same evidence was considered in
v. Powell
People
den.,
U.S.
109], cert.
L.Ed.2d
Cal.App.3d
677,
The trial court denied the motion correctly challenging petit jury Powell, venire for the same reasons stated in at 123-142.49 pp.
Manson also
that the
venire was
constitut
complains
jury
improperly
ed
the
the excusal of
absence
blacks
by
by
jurors
prospective
their
to the death
Neither
unequivocally declaring
opposition
penalty.
has merit. Manson cannot
on the
of Peters v.
complaint
rely
holding
Kiff
49 Weare aware that in
v. Powell the
the
was to
1968
venire and
challenge
jury
the
that in
the
case
is to the
venire.
present
challenge
That makes the denial of the
all
motion
the
the
more correct since
evidence submitted in
of the motion did
support
not focus on the
venire.
right jury
83,
an
accused
L.Ed.2d
92 S.Ct.
As
to the death
the issue has
to exclusion of
penalty,
persons opposed
v. Rhinehart
been decided
to Manson’s contention.
contrary
(People
139,
34,
9 Cal.3d
Atkins testified before the grand jury for which the murder case Prior to that time she was another charged reason of Richard Caballero to her. court had By appointed represent that fact Atkins Caballero maintained attorney- relationship and. to his formal even with to these client prior respect proceedings fact, As a matter on December 1969. herein appointment his as a witness before the Caballero testified concerning grand jury is a Atkins’ before of Atkins. grand jury testimony representation and her revelation of involvement of herself complete coappellants alone was in the Tate-La Bianca murders. itself By 31 Cal.2d to issue. v. McRae (1947) sufficient for indictment 184, 186-187 P.2d 741].)
On March Caballero was as Atkins’ attorney by replaced Shinn. Shinn filed a “Motion to Set Aside Indictment Under Daye of the the court on Section 995 Penal Code.” motion heard by 13, 1970, It from the record that the court is denied. April apparent of error to reviewed entire Atkins’ jury transcript. assignment grand the denial of the 995 motion is not well taken. the rule that
Our review of trial court’s determination limited by evidence will be aside where there is either no indictment set only no evidence to connect that a crime has been committed or the same criteria as with the crime. Guided defendant we for that look it reviews the trial court when grand jury proceedings, or caution lead a man state of which would facts ordinary prudence entertain, believe, guilt and conscientiously strong suspicion 704, 710 Court (1966) the accused (Simmonds Superior most favorable in the the evidence and consider 195]) light *59 168 order,
to it if it is substantial evidence. upholding by supported 854, v. 40 (1974) 861 McCoy (People Cal.App.3d Cal.Rptr. [115 reviewed the 559].) under the Having grand jury proceedings standards, above we conclude that the trial court’s was correct. ruling 430, v. (1968) Roth 261 444 49].) (People Cal.App.2d Cal.Rptr. [68 Atkins’ motion to Penal Code section 995 was pursuant supported by her declaration that her before the was the testimony grand juiy product of intimidation The of physical psychological pressure. transcript ais total denial of that assertion. she grand There stated jury proceedings under oath that her was after advice that her testimony given willingly, constituted a of waiver constitutional testimony rights.
Atkins’ assertion that her before the was false is grand jury irrelevant the issue here involved. of The function court superior in to not is “substitute its reviewing grand juiy proceedings judgment as to the of the . . evidence . nor weight judge credibility Roth, 444; witnesses.” v. at Cox v. supra, p. Cal.App.2d 562, Cir. 1931) F.2d Our review is (10th 563.)50 limited to the Vaught evidence taken v. Barrett (1969) grand jury. (People 142, 148 [82 Corpus
Habeas
Petition
indictment,
denial of her
motion
set aside the
Atkins
Following
filed a
of Pretrial Motion to
“Notice
Admission and Confes-
Suppress
27,
matter was
off
sion.” The
calendar on
returned to the
placed
May
(1956)
v.
50 Relying
Control Board
351 U.S.
Party
L.Ed.
Communist
[100
663];
(1956)
9]; and
S.Ct.
Mesarosh v. United States
On petition July Penal Code the court as unendorsed in way by required corpus, 14, on 1970. before the court 1476. the matter was section July Curiously, and that it could have We note the absence of verification petition (In on alone. re Newell (1923) been that basis Cal.App. rejected Code, 1474, to the 3.) P. Pen. subd. Attached 425]; § petition declaration, This declaration executed under Atkins’ penalty perjury. is set forth in margin.52 noted in the text.
51 All to the to the unless otherwise references “trial” refer guilt phase 52 “I, ATKINS, and SUSAN declare say: al., Manson, et Los Angeles in the Case of “That I am one of the defendants Case A 156. Court No. Superior 5, 1969, I stated on December before the Grand Jury Hearing “That before testifying CABALLERO, me influenced RICHARD my attorney, I did not want to but testify, that to testify. CABALLERO, a and RICHARD my attorney, “That before December office, BUGLIOSI, discussed at MR. VINCENT T. the District member of CABALLERO’S Attorney’s office, asked at the Grand Jury that would be and answers the questions hearing. I no intentions of giving up my had Hearing, “That at time of Grand Jury silent, did not consequences and my attorney explain constitutional remain rights was that it me attorney advice by my I testified at the only given if hearing; was for benefit. my at that I said I informed my everything “That after the Grand Jury hearing, attorney statements; incorrect, but my my was and that I wanted to retract the Grand Jury hearing CABALLERO, this. to do did not take the necessary steps RICHARD attorney, I was whose name to the Grand Times hearing, Reporter “That Jury subsequent be, COHEN, and operator, present JERRY a stenotype informed with believed book; life for my story at Institute Women Sybil obtaining Brand my attorney were not true at the Grand Jury hearing at time I told them that statements my and and insisted that retracted, but failed to do so. be they my attorney I nor did were not voluntary, statements made at the Grand Jury hearing “That my to remain the Fifth Amendment waive under rights intelligently my knowingly silent. is true and correct. “I declare under foregoing penalty perjury at Los California. Angeles “Executed July *61 viewed the
When it is clear from against backdrop petition Atkins’ declaration that she was a dismissal on the demanding following that Caballero (1) failed her with effective counsel grounds: provide her in her will order to serve a by persuading testify against conflicting economic interest in the of her publication story; copyrighted by-line that she did not waive (2) voluntarily, knowingly intelligently her Fifth Amendment to remain silent. right
These contentions are based on occurrences dehors the grand jury It was for Atkins test proceedings. consequently appropriate of the indictment writ for of habeas re validity (In by petition corpus. 851, Carmen 48 Cal.2d (1957) 854 P.2d 817]; In re Joiner 180 (1960) [313 250-252 In re 134 667]; Flodstrom (1954) Cal.App.2d Cal.Rptr. [4 871 P.2d 101], reinstated Cal.2d 307 P.2d (1955)45 Cal.App.2d [277 [288 Code, 859]; 1487, and Pen. subd. 7.) § the trial court advised Atkins’ counsel that it would not take
Although on evidence writ for of habeas the court did invite an petition corpus, reasons, offer of Without its the court then proof. stating summarily denied the writ. Atkins error to denial. assigns
The fact that the was filed the course of selection petition during jury have been sufficient to denial for a may lack justify diligence. defects in the themselves have action of papers may justified However, court. invited an it having argument petition, appears that the court not did it on but technical rather found it reject grounds however, deficient It as matter law. is not to determine the necessary, correctness of the trial court’s The denial of a for habeas ruling. petition not v. 67 Cal.2d 317 (1967) corpus appealable. (People Griggs 641, 431 P.2d 225]; Cal.Rptr. People Vega Cal.App.2d P.2d of a denial habeas for Upon petition corpus court Atkins’ recourse would been renew have her superior proper court, in the same the Court of or Court. petition Appeal Supreme Cal.Jur.2d, Habeas (24 596.) § Corpus, p.
The court’s denial of for writ of habeas truncated petition corpus the entire of the voluntariness of Atkins’ question testimony. grand juiy there is no fair basis which we now can Consequently, evidentiary upon review that Neither can we treat this as a subject. petition appeal habeas Atkins’ claim of ineffectiveness of counsel does not corpus. our review on in a form in the record appeal. (People permitting appear 513].)53 v. Brotherton Testimony Perjured Use trial; not at but at the
Susan Atkins testified grand jury proceedings did not before Graham Roni Howard testify grand juiy Virginia *62 the to the fact that before trial. draws attention did at Manson but testify At Tate. trial that had killed Sharon Atkins stated Watson juiy grand Atkins she had killed Sharon that claimed Graham and Howard testified Tate. that he was convicted the
From this conflict Manson (1) by argues, and that use of (2) respondent suppressed knowing perjured testimony, are without merit. In the Atkins’ Both contentions grand testimony. jury the the admonished to consider Graham-Howard first was place, jury it was Atkins’ to exercise her as to Atkins right testimony only. Secondly, The could not her to not Fifth Amendment testify. compel right People to to induce her were not to her to and immunity testify obligated grant 470, 475 203 do so. v. (Cf. (1962) Cal.App.2d People Northrup [21 448].) Cal.Rptr.
Manson makes much penalty testimony during Bugliosi’s Tate he to effect that he believed Atkins did stab even though phase she to the knew would before Bugliosi’s testify contrary grand juiy. is that. The record does not reflect on subject just opinion 10 was in fact v. Gordon Cal.3d (Cf. (1973) testimony perjured. 906, 460, 473 516 P.2d In 10 Cal.2d 298]; re (1937) Cal.Rptr. Mooney 1, 85 P.2d
Manson
conflict
Atkins’
testi
between
jury
suggests
any
grand
been resolved
the Graham-Howard trial
could have
mony
of the trial several witnesses were called
the defense to
53 During
penalty phase
December,
In
the sale
Atkins’
by-line stoiy.
give testimony concerning
copyrighted
to the
Caballero was introduced to
owner of
grand
proximate
jury proceedings,
Caruso,
Publications, Inc.,
Schiller,
Paul
Lawrence
another lawyer,
Pimlico
Twenty
Caruso,
office
overhead and courtesies. Ultimately,
with whom Caballero shared
space,
Inc.,
Caballero,
for
Pimlico
entered into an agreement
Atkins and
Publications
Twenty
be
murders. The division of
to
proceeds
of Atkins’
of the Tate-La Bianca
story
sale
Pimlico and the
at 25
for
sale of the
was
story
negotiated
percent
received through
40
to
60
to Atkins and
Caruso
percent
divided
percent
75
remaining
percent
as
reason
which
the underlying
the economic conflict to
Atkins points
Caballero. This is
a commitment
In
Caballero obtained
exchange
of counsel.
for the
ineffectiveness
alleged
Atkins
seek
as to
to not
the death
Attorney
penalty
from
Los
District
Angeles
to contest the charges.
her
her if she decided
against
not use
jury testimony
grand
respondent
granted immunity
if
had
Atkins.
application
immunity solely
(People
an
function
administrative
v. Pineda
743])
Cal.App.3d
Cal.Rptr.
and the
to grant
refusal
it to
not
Atkins did
result in a denial of due
of law
process
appellant.
Cal.App.3d
v. Williams
1164[90
409];
475.)
cf.
People Northrup,supra,
Right
to Counsel
Only
appeal
erroneously
Manson contends
this
that he was
right
proceed pro
appellants
However,
se.
denied the fundamental
all
early
applied
proceed.
case
to the trial
to so
in the
court
The ultimate
appellant
capable
was
decision
lower court
that no
self
appointed
representation.
appellant,
At the time counsel was
for each
*63
right
proceed pro
(People
there
no constitutional
to
se
“[was]
at trial.”
v.
489].)
(1972)
233,
Cal.Rptr.
448,
7
451 [103
Cal.3d
499 P.2d
Sharp
appeal
pending,
While this
was
Sharp
was
invalidated
the United
(Faretta
(1975)
Supreme
States
Court.
v.
Incarceration of Atkins’ Counsel Atkins jailing lawyer during contends that the of her the course of trial constituted error. do The agree. reversible We not record 4, 1970, August presence disclosesthat on out of jury, court Attorney Daye held in and contempt immediately imposed Shinn instructions, In sentence.54 accordance with the court’s Shinn was day During returned to courtroom each of his incarceration. this time commencing you privileges taken 7:00 a.m. each 54 The are from returned court this as soon as this Court you stated: morning, courtroom in the afternoon or to this are “. . . courtroom, to have on the I sentence access following adjourns or after to confer with you you conditions: each to return to the early evening, spend day, starting today, your [1] three You client either before courtroom, nights or in are to in have full at continuing morning your option.” County attorney you before until Jail, are 173 On he and not to that was Shinn proceed. prepared fatigued represented were denied.55 “short” continuances. he these They grounds applied 368], Fusaro Cal.Rptr. v. Citing Cal.App.3d her den., 2445], 92 S.Ct. in L.Ed.2d cert. U.S. support .“. . the absence of contention, that in overwhelming Atkins argues the defense circumstances, caused delay by jailing court-imposed to defendant’s right in midtrial is inherently wrong, damaging lawyer interest to the to trial and antithetical speedy, public speedy Here, however, the order court’s at 890.) (Id., economical justice.” p. trial to client. No access his afford Shinn to avoid (cid:127)fashioned delay an fails to direct our attention revealing was lost. Atkins anything time on Atkins It is incumbent affect on her adverse advocacy. lawyer’s of ineffectiveness some form that the show commitment jail produced 299, 313 of counsel. v. Simms (1970) of reversible this her contention failed to meet obligation, Having Cir. 493 F.2d 1974) fails. United States Schrimsher (5 error (See 854.) Trial
Free Press/Fair extensive news media56 received undeniably coverage fair this case rise to claim that denied them a *64 gives appellants’ publicity and trial. impartial were
When the crimes were discovered in of 1969 August they greatly the The media’s revelations focused on primarily publicized. savageness the of clues the the absence of revealing identity killings, lives and and certain details about the relationships private perpetrators, Tate murder was to the because of the victims. Particular given emphasis the a of victims was movie actress. one
In December 1969 the were identified as early appellants primary and media ensued. The most accelerated coverage suspects. Expanded demonstrates on examination the record beginning cursory was for resulted after Shinn found a responsible placing 55 The citation contempt the the It was used Manson to jury on counsel table. display newspaper 4, 1970, GUILTY, edition of a NIXON DECLARES” banner of the August “MANSON had ordered counsel remove all such court Previously Los Angeles newspaper. table. items from the counsel radio, television, other forms of we and “news media” include 56 By newspapers, directed to the circulation in the and community written for publications prepared at large. populace 1, 1969, December massive tracked the case publicity progress state, No one courts. denies this case attained national through and international We must therefore address what is notoriety. becoming an all-too-common constitutional conundrum: Has a defendant in criminal case received fair when trial extensive is in publicity generated media? public The this case was Details of the attending publicity anticipated.57 Tate-La Bianca murders were laid before the embroi- public colorfully histories, dered with the and aberrant backgrounds, lifestyles appel- other lants and members of the This treatment is found Family. expose banners, headlines, in the and captions published newspapers state. These same events and were transmitted throughout subjects into the domain radio and television broadcasts.58 public
The earliest with the Tate-La Bianca exposition identifying appellants 14, 1969, murders was on December in the Los published Angeles article, a Times.59 This detailed confession substantially conforming Atkins before the in book grand jury, ultimately published form.60 Pretrial Motions
Miscellaneous The several motions for of venue public exposure produced change 16, Manson, and mistrial.61 On February appearing propria persona, Atkins, Krenwinkel, 57 When and Van were appellants Houten before superior court, motion, court on December own arraignment plea, its issued this order an reads as follows: “It publicity. is restricting preamble apparent, fact, notice judicial Court to take that this case has received extensive going further, interest; direct news media as a result of its it is coverage apparent public equally to this Court various that this apparent by reading weekly newspapers periodicals news media is not limited to the Angeles, Los but has been extensive coverage County *65 well, not in the of but in entire State California the as and this fact Nation only Court takes notice.” now judicial review 58 Our included news of seven radio television stations four stations scripts between period March 1970. covering August publication preceded by following 59 The introduction: “EXCLUSIVE DETAILS. SUSAN ATKINS’ STORY 2 NIGHTS OF OF MURDER. The article following in Its today also appears European newspapers magazines. authenticity has been established. It results an interview conducted from before a judicial order was issued those in the Tate murder case from restraining making disclosures taking part it. The article carries the 1969 Susan Atkins regarding following copyright: Copyright by and Lawrence Schiller.” 60 The Tate Schiller. Sharon Lawrence Killing 61 Becauseof the of the issues we will first address complexity relating publicity motions. information in this of the
appellants’ provided part preliminary Background for relief. that the was so he could applied Urging publicity devastating California, not be tried in he for either a fairly anywhere argued time, dismissal or an dismissal “until such if as a fair “interlocutory” any, trial becomes The court as to whether Manson was possible.” inquired a for continuance Manson “The a petitioning only. replied: only way continuance would me would be if it was over a of two or help period three A continuance for six months would all, serve no years. at purpose and further a continuance that would’t be in the best interests long [¿7'c] of the other defendants this, that are involved in and mine also.” Manson’s refusal to waive his to a trial eliminated right speedy continuance as an available solution. a motion for Alternatively, change tendered, venue was with Mánson to the court that he stating regarded such relief as trivial.” We view Manson’s assessment “very as candid and the court’s denial as correct.
At of the the district exhibits this attorney’s stage proceedings 19, 1969, included the edition of Life December Magazine,62 copies and San Francisco Sacramento coverage, including Sunday press Bee,63 the Sacramento and an indexed magazine supplement for all the counties in but newspaper coverage compilation State of California.64 is intended facilitate our later discussion of the issue raised in this opinion primary denied a fair trial. portion appeal—whether publicity appellants On of the crimes and the involved. 62 Thisedition featured a expose persons complete Manson, “THE bannered as follows: a full face of Charles the cover appears photograph THEIR LEADER—THE CULT—THE MAN WHO WAS LOVE AND TERROR CHARGE OF MULTIPLE MURDER—THE HIPPIE LIFE.” Inside is a DARK EDGE OF Charles Manson under which in bold letters full of Susan Atkins and photograph spread A ‘FAMILY’.” is forth the “THE WRECK OF MONSTROUS set following: and editorial 63 The collection of includes straight reporting newspaper clippings Examiner, Nichi Bei Times Francisco Chronicle and comments from December San appearing 12, 1970, Union and the and the Sacramento through January 17, 1969, Sunday 1970. This Bee from December through January Sacramento Bee, 11, 1970, carried a included in edition of Sacramento January supplement, with on the accused. It is entitled: “THE feature article about the crimes emphasis MURDERS, FAMILY’ Shearer.” ‘MANSON by Lloyd manila folders It also includes county. 64 The into segregated compilation Trial California Re: Manson in Northern Newspapers” schedule entitled “Publicity CIRCULATION.” of nine the last entitled “NEWSPAPER being consisting pages, page Times, Los. of that schedule sets forth circulation for Los Angeles The last page Chronicle, Examiner, Francisco Examiner. and San Herald San Francisco Angeles *66 in this which is 13 counties and their for there no population newspaper copy Norte—17,771, Amador—9,900, Calaveras—10,289, del are exhibit Alpine—397, Benito—15,396, Plumas—11,620, Lassen—13,597, Modoc—8,308, Lake—13,786, San Tuolumne—14,404, Sierra—2,247,. Sutter—33,380, We take judicial Trinity—9,706. in State. are rural and of the smallest populations notice that these counties of for moved 24, 1970, Krenwinkel and Manson change On March time considered at that Code, The evidence 1033).. § venue (Pen. exhibits mentioned and additional heretofore exhibits included the Beausoleil, Los Kenneth v. Robert reference incorporated by of A-057452. the number Court case No. By stipulation Superior Angeles some of the identified media viewers, and readers of listeners established.65 Tate, was focused book, of Sharon The by
The upon Killing Robert of Public Defender of a declaration Long submission Investigator been circulated in Southern had that the widely disclosing paperback additional state.66 As California, and, throughout presumably, with communications from radio the court exhibits supplied respondent outside of Los that television stations and Angeles County showing were further transmissions of California airwaves carrying throughout this case. information concerning the material this case
The by goes beyond journalistic energy spawned well clear that the crimes as It is we have mentioned.67 charged, patently counties, too. were distributed in these Populations metropolitan newspapers Obviously 1970. are as of viewers, and and radio listeners readers of television the number of 65 Certainly in the introduced exhibits is relevant. Unfortunately, identified stations and newspapers For the full of these not indicate pervasiveness publications. does stipulation CBS, has 18 hours of news weekly, that KNXT—Channel example, stipulation 413,000 1,018,000 in no news and viewers for the news evening way for the early viewers is with to the us the area referred to. The same true respect the trial court or of informs that the Times has Los Angeles numbers for newspapers. stipulation circulation 1,308,711 975,491, not a determination and a circulation of Sunday circulation daily that true with Los This observation holds limited to Angeles County. this circulation is each member of the media identified. concerning almost all of the stipulations respect at and radio waves are not truncated political of television transmission Obviously, boundaries, markets not by Los are Angeles ignored besides and counties Times-Mirror Corporation. The New American that he advises telephoned publisher, declaration 66 Long’s Inc., that the was a owned fully He ascertained company in New York. Library California. He could not of Los Angeles, Mirror of the Times Corporation subsidiary He or distributed. did ascertain the total number of printed, published, elicit copies 8,725 in of Los had been distributed Orange County parts of the paperback copies 5,000 Moreover, have been declaration advises another copies his County. Angeles received a firm as “Inner designated City Magazines, and distributed an entity had Inner magazines.” City Magazines in the distribution periodicals specializing 5,000, where were disseminated. as to they all but there is no indication distributed 24, 1970, motion for change and Krenwinkel’s on Manson hearing 67 Atthe March her withdrawn venue, counsel for Linda Kasabian support a catalogue prepared that are either of 183 exhibits venue was admitted. It consists change motion 9, 1969,through articles from August or magazine dating newspaper or copies originals *67 as the and the involvement of identity appellants, permeated every corner of this state with The varying degrees intensity. ubiquity such differential one of A media made coverage any insignificant degree. no if of venue offered solution Even change publicity problem. could venue had been have nothing prevented changed, public media from its attention that swinging place. magnetic pull such notorious cases is compelling.68
The same is with conclusion of a required respect suggestion reasonable nature of modem communications media delay.69 “[The] limits the effectiveness of both continuances and of venue” change the Press in Criminal Trials (1975) Harv.Civ. (Gagging Rights—Civ. 608, Lib.L.Rev. Our review of 617-618). the evidence before independent 24, 1970, the court on March reveals that neither of venue nor a change continuance offered a solution to the The denial of practical problem. the Manson-Krenwinkel motion was correct. 5, 1970,
On June Van Houten filed a motion for of venue (Pen. change Code, 1033). With leave of court Atkins and Manson in that § joined motion. After that all evidence submitted in stipulation support earlier Manson and Kasabian motion for of venue be admitted change court, with this motion and after due consideration the motion denied. properly Motion for Mistrial
Provoked the fact that District Aaron Deputy Attorney Stovitz, case, one of the in this had an “off-the-record” prosecutors given January 1970. It includes feature articles crime and in the appellants coveringthe 12, 1969, December editions of Time Magazine. also January Appellants submitted a of a Los for February a feature copy Magazine containing Angeles KILL”; article entitled “COULD YOUR DAUGHTER reference made to the again, 8, 1970, events this case. March By entertainment section of the Los Times Angeles contained an advertisement about a motion that is an unmistakable picture exploitation murders, of the Tate-La'Bianca and the Manson Family. of venue leaves 68 “Change obvious that will be open possibility also publicity Also, in the area to which the trial has been engendered transferred. change [Citation.] or, nationwide, venue is if the useless has been in a court of limited publicity jurisdiction, if the has been the entire publicity spread in through jurisdiction.” (Prejudicial Publicity L.J., 123, 2.) Trials Public 85 Yale fn. Officials if this case over five 69 Krenwinkel’s remarked that: “Even attorney you put years aptly I if doubt would abate. would really publicity substantially publicity Perhaps'... abate two or three but once there was an announcement that the trial was about in years, take I be full and I think would force again swing, place, publicity it would ever abate to the defendants seriously degree doubt substantially could be afforded a fair trial.” *68 a motion mistrial of all filed interview in March just appellants recorded and The interview was to of the the jury. tape impanelling prior that he a his extracted admitted Stovitz promise Testifying participation. name, him and not use the to not use his not from quote reporters the did was Stovitz asserted that most he he information provided, articles the refer containing newspaper previously published reporters of court’s order were Stovitz was the material they seeking. cognizant 10, 1969, interview December The of this of concerning publicity. product Stone, in 61). a article June 1970 (No. was feature Rolling appearing On made this respondent repeats explanation appeal essence, trial to Stovitz’ In at excuse conduct. the argument prosecution office to the from the to shift district attorney’s attempts responsibility Stone. This assertion of maneuver on the Rolling predicated publishers believe his that Stovitz had comments were confidential right no more than a constituted conversation.70 private been, However sincere Mr. Stovitz have his in direct conduct was mav order. Stone the court’s Examination violation of publicity Rolling indicate that Stovitz’ contribution to the article does not total stream A information Stone feature public significant. perusal Rolling small attributable to Stovitz. That no reveals one contains part only part revelations. remarkably unique for most of the Stone was the source Rolling expose apparent and others
interviews Family having members by many granted with them. this observation in no we some By way relationship past misconduct, minimize but stress the abundance of only prosecutor’s media sources information funneled other than the through office. It is that Stovitz’ district contribution was attorney’s apparent in the sea of only publicity. droplet Stone is not in different
Information Rolling appearing particularly 19, 1969, found in a December of Life substance from that edition book, The More in the Sharon Tate. or Killing Magazine paperback member of the was familiar with the no jury important, particular fact, edition Stone. In one veniremen could identify only Rolling 70 To Stovitz’ to a of the admitted underscore sincerity respondent points portion level. wherein Stovitz stated to the “I will with on the conversation reporters, rap you There are no no one saw them. All we are strong. Our case is not fingerprints, Atkins If she which on is the of Susan to now. doesn’t testify, up depending she to, Linda that.” now she isn’t then Kasabian corroborates going says Stone as a We conclude that Stovitz’ publication. violation of Rolling order was and did not contribute to the publicity verdict inconsequential obtained. While its be in the context may propriety questionable, *69 matter before us it was harmless a reasonable doubt. beyond (Chapman 18, v. 386 705, 710-711, U.S. (1967) L.Ed.2d 87 S.Ct. [17 California 824, 695, A.L.R.3d v. 1065]; Modesto Cal.2d (1967) People 124, 427 P.2d 788], e r Cal.Rptr. c t . 29, 1970, the
When motion to was dismiss June much more argued than the Stone interview was addressed. Stovitz/Rolling Appellants’ counsel consternation about comments then District expressed public Evelle and his with to their novel Attorney Younger, deputies, respect to remove Kanarek as Manson’s counsel. procedural application Irving to the district declarations about the Objecting attorney’s public order the of conducted outside publicity proceedings presence described the district to public, appellants attorney’s attempt remove Kanarek aas subtle and invidious device to further pyramid of the case. We are not convinced. notoriety
The district
a
has
in
interest
attorney
legitimate
protecting any
conviction he obtains.
about Kanarek’s
Consequently, apprehension
is not
it
be
it
methodology
ingenuous.
necessarily
Although may
unique,
is not irrational for the
prosecutor
resolution of
request
preappeal
the conflict
between
defendant’s
counsel
his
right
choosing
y.
his
to effective assistance of counsel.
Smith
right
(Compare
Superior
Court
Ibarra
The district conferences numerous attorney’s press criticizing were not Manson’s counsel court’s orders and publicity chastizing re or the “Order within the ambit of “Order Augmenting Publicity” the district Order re No evidence was Publicity.”71 produced headline, Los 71 The Herald Examiner June carried the banner Angeles Times, 5, 1970, “DA SEEKS TO LAWYER.” The Los July OUST MANSON’S Angeles HIT,” contained an TATE JURORS article under “PLAN TO LOCKUP headline you “The District as follows: purporting quote Younger process deprives Attorney or ... obligations an awful lot of who or business good because jurors family personal cannot to jail.” go or innocence of statements made concerning guilt any attorney would be offered evidence that or reference against any appellants, statements that his there no any them. Likewise showing public the course evidence adduced any disclosed proceeding during way conducted of the out jury.72 presence the district nor
While attorney’s neither disapproving approving reason of the difficult to the problems potentially accruing approach not his do believe actions reached incessant we prosecutorial publicity, misconduct dimensions.73 *70 Proceedings
Voir Dire voir the court was advised that course of dire the proceedings During cause, for intended to every juror. challenge, prospective appellants to that of Penal threatened invoke provision appellants Specifically, for “... the existence a state Code section permitting challenge ARB-1, we record have and With this received reviewed Exhibit a 498-page and of news releases identified as follows: “LOS ANGELES compilation reports COUNTY DISTRICT ATTORNEY WEEKLY NEWS—SUMMARY RELEASES TO PRESS, AND RADIO TELEVISION FROM DECEMBER DECEMBER 1969 TO TO 1970 PERTAINING TATE-LA BIANCA CASES.” that the this is Appellants urge demonstration that the office was in with the ultimate news media prosecutor’s league fact, and, in the enormous Our the this case received. review of engendered publicity more than exhibit reveals it to be nor less and court nothing copies public proceedings in a of news releases previously appearing variety publications. reproductions document does not come within the orders issued This operation restraining it It is court. is sterile. unreasonable believe large, relatively wholly Though for would not be contacted comment a sensational public concerning office prosecutor’s of stories carried in the media we view this case. Excluding reprints previously material as the district to meet that demand within a device employed attorney Our other evidence that journalistic limits. examination of demonstrates permissible not of the district endeavors in this case were upon cooperation dependent elsewhere, As out there were innumerable sources to assist the office. attorney’s pointed news media curiosity. in feeding public 73 An that General be as Younger contention is should Attorney disqualified ancillary on this The rationale on the fact counsel appeal. appellants’ pivots respondent when was was District for Los this matter tried Angeles Younger Attorney County that he and his subordinates generated prejudicial publicity. Appellant .assertion merit with the we find in the urges argument by drawing “Watergate” parallels fails in any affair. because District not analogy Attorney Younger implicated Moreover, is no for this substantive criminal there court underlying charge. authority as suggests. counsel” for appellant (People Municipal appoint Court “special 193,208 (1972) 27 A.L.R.3d on the case, of mind in reference to the or to either of part juror which will him from with entire parties, prevent acting impartiality without to the substantial of either which is prejudice rights party, in actual known this Code as bias.”
Krenwinkel’s informed the court that he attorney “plan[ned] as indicated. have been challenge every juror They exposed publici- At that, the core of Krenwinkel’s contention is the as a ty.” assumption law, matter of in a criminal case cannot be if there is jury impartial adverse directed at the individuals with the accusatory publicity charged offense. When the generated publicity part by prosecuting officials, continue, the harm is exacerbated. appellants Issues
Constitutional *71 At this in our discussion it we deem examine to case point necessary law a defendant’s fair trial to a developments (U.S. concerning right Const., Amend. as it is the VI) affected of concomitant the by right Const., to a from free restrictions Amend. (U.S. public press unnecessary I). at
For
least two
the
has
this
In
decades
with
judiciary
grappled
puzzle.
the
1959
United States
Court took a
halt trial
Supreme
major step
by
a federal district court conviction because the
newspaper,
jury
reversing
been
had
accounts
the defendant’s
exposed
newspaper
revealing
v. United
U.S.
convictions.
States
360
(Marshall
previous felony
L.Ed.2d
310
Thereafter,
in Irvin v.
Dowd
entertained guilty. opinion the view harbored the twelve actual that of further found jurors eight was introduced.75 even before evidence the accused was guilty the fact that Irvin court jury percent Although emphasized bias, not fix revealed a court did any percentage panel questioned Cases a determinative of as high prejudice. universally probability On a adhered to factor. Irvin have not rigidly percent following considerable latitude is apparent.76 contrary, a Court made the United States' sharp Supreme Beginning between fair trial conflict in its to cases involving approach departure U.S. 723 L.Ed.2d Rideau v. Louisiana (1963) free In press. court, 663, 83 confronted with 1417], S.Ct. egregious particularly in a a fostered criminal way totally improper prosecution exploitation officials, The Rideau a doctrine prejudice.77 by applied presumed public dire, a of the voir instead court avoided looking particularized inspection from a drawn of “trial before the due jury requirement process televised had not seen and heard Rideau’s who community people Constitution, law, all our ‘Due ‘interview.’ process preserved such as that disclosed this record shall that no commands practice and the court disallowed any his challenges 75 Irvin had exhausted peremptory those for cause as to eight jurors. challenges 1961) nationally F.2d 244 involved the prosecution Gavin Cir. of a (1st 76 Geagan “The Robbery,” known as Brinks The crime occurred notorious case that came be $1,219,000. armed, 17, 1950, resulted in theft of The robbers were January alike, rubber halloween masks. succeeded in They evading dressed and wore police traps *72 It the and made their was not until 1956that robbers were and roadblocks indicted. The entire good escape. event was covered in the news media. After their extensively conviction, the United of First the “Brinks Robbers” States Court petitioned Appeal, Circuit, habeas on the that had ground denied for a writ of so corpus publicity permeated Massachusetts, were the a select fair and they Suffolk County, opportunity Dowd, dictated Irvin v. the the court by methodology supra, jury. Following impartial made dire “. . the voir and found that . almost 28% of of the searching inspection at at called in the case bar to have formed no all as opinion jurors professed prospective court, of the accused.” The in found a 72 to the percent or innocence Geagan actuality, guilt 247.) (P. of bias factor acceptable. murder; and the defendant was of armed bank robbery, 77 Convicted kidnaping, trial, arrest, the his death on the murder Prior to charge. sentenced to day following counsel, was the in the absence of defendant “interviewed” sheriff. any by and “interview,” This to the him. memorialized in charges Defendant confessed against sound track, with a was a television station 20-minute film broadcast over moving picture having in the trial took The above described events been the where community place. conceded, that the was carried out plan court noted that “... circumstances the [showed] (373 local officers.” with the active and the law enforcement cooperation participation at 725 L.Ed.2d at U.S. p. p. [10
183 ” U.S. accused his death.’ at 727 L.Ed.2d at (373 send p. [10 666].)78 p. was in Estes v. Texas 381 U.S. (1965) 532
Prejudice similarly presumed L.Ed.2d 85 S.Ct. 384 Maxwell U.S. Sheppard [14 1628].79 600, 86 333 L.Ed.2d S.Ct. 1507], the brought prejudice presumed [16 doctrine its zenith. as the hallmark case on Though generally regarded issue, “free the trial” the Court did not rest its press/fair Sheppard reversal on the matter of alone but rather characterized the trial publicity as a “carnival U.S. at (384 L.Ed.2d proceedings atmosphere.” p. [16 at p.618].)80
Concerned with media of criminal coverage proceedings, Sheppard criminal from insulate trials suggested specified procedures influence of external forces in and general, pretrial publicity particu- lar. These included the of strict rules the use of the adoption governing courtroom U.S. newsmen (384 L.Ed.2d 617-618]); p. pp. orders; insulation witnesses issuance of silence through prohibiting leads, information; “the release of to the. gossip .press by police officers, witnesses and the counsel for sides” U.S. both (384 p.
L.Ed.2d 618]); continuances until threat of p. prejudicial publicity abates; venue; of the and the aof change sequestration jury; ordering new trial (384 U.S. L.Ed.2d all of 620-621]). these p. pp. Nearly 78 Thedissent in Rideau underscored the from majority’s departure systematic reinforced, of Irvin v. Dowd and its cases approach Other Rideau its progeny. following In Turner v. U.S. L.Ed.2d presumed prejudice 85 S.Ct. of the defendant’s conviction was reversed. Louisiana 466 [13 doctrine. from the fact two sheriffs prejudice given charge presumed deputy 546] its jury deliberation had been witnesses for the The during prosecution. Estes 79 In certain of the were pretrial actual trial televised. proceedings portions This intrusion satisfied the court that the was sufficiently probability prejudice great to deem the trial caused in due The court inherently lacking process. emphasized disruption at and television cameramen the trial and presence photographers in substance that this pretrial proceedings, intrusion turned finding judge, accused, witnesses, into self-conscious actors. total effect jury detracted from the substantially solemnity proceedings. 80 The facts of demonstrate a horrendous Sheppard pretrial publicity example *73 with actually instigating prosecution, a total loss of courtroom control coupled allowing the trial itself. public outrage The court’s reliance on these two factors is permeate in the revealed due statement: “While we cannot following that denied say Sheppard the by refusal to take of process the influence judge’s precautions against pretrial alone, the court’s later must considered in which publicity the trial was held. In the be we believe that the rulings against setting this of made background, arrangements light with the news media caused to be that judge ‘judicial serenity of Sheppard deprived Texas, 536.)” (Estes (384 and at calm to which U.S. was entitled.’ v. at supra, [he] 616].) 354-355 L.Ed.2d pp. at p. [16
184 with intract- methods for a have become established coping seemingly able problem. with the conflict between media
The California
coverage
experience
criminal
the federal
The California
trials parallels
experience.
taken its cue
has embraced the
Court
Sheppard
holding
Supreme
on Minimum Standards for
from the
Bar Association
American
Project
Justice,
Fair Trial and Free Press (1966).
Criminal
Standards Relating
724, 438
375
68 Cal.2d
In Maine
Court (1968)
v.
Cal.Rptr.
[66
Superior
after
writ
a
for a
of mandate
P.2d
the court
372],
petition
granted
even
of venue
trial court refused a
application
though
change
could not be obtained because
asserted that
fair trial
a
prejudicial
“
the standard
‘A
The court delineated
to be applied:
publicity.
or
it
motion for
of venue
continuance shall be
whenever
change
granted
is determined that because of the dissemination of potentially prejudicial
material,
in
there is a reasonable likelihood that
of such
absence
relief,
fair
trial cannot be
This determination
be based on
had.
may
such evidence as
or
public
surveys
qualified
opinion
opinion
individuals,
nature,
offered
or
the court’s own
of the
evaluation
material
involved. A
of actual
frequency,
timing
showing
”
shall not be
Cal.2d at
(68
383.)
prejudice
required.’
p.
rather
issue is here raised on
after conviction
Although
appeal
writ,
of review is the same as
than
standard
by extraordinary
62,
3
68
Cal.3d
(1970)
established in Maine.
v. Tidwell
[89
44,
106,
113
473 P.2d
Cal.3d
748];
(1972)
v. Welch
Cal.Rptr.
People
[104
599,
217,
P.2d
8 Cal.3d
225];
v. Hathcock
Cal.Rptr.
618-620
Looking against backdrop cases, discussed trial. Mr. we first seek to a “fair and define impartial” Justice has said that “the our Holmes theory system evidence and in a will be induced conclusions be reached case only by court, influence, outside whether and not by any argument open (Patterson talk or U.S. Colorado private print.” public Irvin to the court looked 556].) L.Ed. S.Ct. (366 words Lord Coke and “indifference.” equated impartiality U.S. at 722 L.Ed.2d at We do not p. p. interpret requirement
185 be of “indifference” as that demanding totally qualified jurors ignorant of the and issues involved.81 facts
We do not
that courts
retreat
their
from
suggest
may
obligation
the accused with due
We do believe
provide
that
process.
of modem communications and the
pervasiveness
“[g]iven
difficulty
from the minds of the
trial
effacing prejudicial publicity
jurors [that]
must take
courts
measures to
ensure that
balance is never
strong
And
accused.
tribunals have the
weighed against
appellate
duty
make an
of the
evaluation
circumstances.”
v. Sirhan
independent
Cal.3d
730
(1972)
den.,
497 P.2d
cert.
1121],
U.S.
L.Ed.2d
The first of the test be as stated follows: part where Murphy may an there is from fundamental apparent flagrant due departure influences, decorum and an intrusion of external process prejudice will be Rideau, classic cases into this are presumed. falling category Turner, Estes and Sheppard Rideau,
Unlike bench case at does not involve repeated exposure to television broadcasts of a film in which the defendant confessed to the Sirhan, crimes which he was later 7 Cal.3d at charged. (People Here the trial 733.) excluded who p. juror judge specifically any prospective had read the confession of Susan Atkins. There is no evidence that any Moreover, had confessed. had any any juror knowledge appellant Rideau, unlike there is absent circumstance of law deplorable an is an indifferent Indifference has a 81 “Certainly impartial juror juror. unique no one has ever that an indifferent must be totally meaning: suggested juror apathetic. Indeed, in the indifference who has no interest outcome of a imparts juryman personal short, trial. In an not ennui. indifference up conjures neutrality, impression to isolate with efforts associated impartiality vague language Symptomatic v. Wood. in United States ‘Impartiality indifference is the formula suggested terms of of this not a technical "It is a state mind. For the ascertainment mental conception. indifference, the no attitude of Constitution down test and the appropriate particular lays is not chained to and artificial From this ancient formula.’ procedure description [H] it is that the but be definition of is not a static can impartiality concept, only apparent relation to Between Free defined in facts and circumstances.” Press specific (Conflict 306, 307.) L.Q. Fair 51 Cornell Trial *75 the confession and it to media a filmed enforcement extracting releasing case; to the no Neither is Turner witness to trial. analogous present prior the in the maintenance of the of this trial on merits jury participated its during sequestration. on are several In
Both Estes and grounds. Sheppard distinguishable as were here. cases the As neither of those were jurors sequestered they the was substantial in Estes and there press. representation Sheppard, however, the was not out Unlike and here media of Estes Sheppard, trial the of control in the courtroom. The activity judge strictly regulated and others and a order news security representatives by issuing enforcing that, and interviews other news things, among precluded photography in its the the courtroom. the was Through phase jury guilt entirety in accordance with the court’s order maintenance. jury sequestered radios, from The court ordered televisions and removed the telephones rooms, censored of and their and all hotel newspapers magazines jurors material the trial. concerning massive, it .did the this case not surrounding
Although publicity detract “the to which a defendant from is solemnity sobriety Florida, entitled.” at L.Ed.2d 421 U.S. at p. (Murphy supra, Rideau, 594].) Estes “... cannot be stand for made to the p. Sheppard about information a state defendant’s proposition juror exposure or to crime which convictions news accounts of the with he is prior defendant alone of due charged presumptively deprives process.” at (Id, L.Ed.2d at p. p. we outside of the distinctions noted find the case
Because present and trial ambit those cases where The prejudice presumed. pretrial with were conducted restraint proceedings dignity. only this conduct from were digressions atmosphere produced by appellants.82 test,
The second
referred
to as
“totality
part
Murphy
Denial
circumstances”
standard
Due Process
Not
(Goldsmith,
4, 1970,
on
Manson obtained a
of Los
82 Specifically, August
copy
newspaper
Angeles
the banner headline
In
carrying
“Nixon
Manson
Says
Guilty.”
jury,
presence
court,
to the intervention of the
Manson
this
to the
On
prior
exhibited
document
jury.
5, 1970, his
August
chanted
don’t
convict
coappellants
“Why
president says
us
you
we’re
To some
act belies
degree this
contentions of
guilty.”
sincerity
appellants
concern about
The record is
with other events
publicity.
replete
revealing appellants’
To
the effect of
acts the court voir dired each juror
exhibitionist tendencies.
these
mitigate
as to what
seen
effect of it
This
revealed
had been
and the
examination
jurors.'
that the
their
jurors were
without
oath and
violating
obligations.
capable
proceeding
*76
Presumed When
Past Misdeeds Is Possessed
the
Knowledge
by
Jury:
of
Be
Circumstances” Test Will
Used to Determine Fairness
“Totality of
of
Dowd,
Trial
13 Am.Crim.L.Rev.
is derived from Irvin v.
(1975)
285)
supra,
Inferences of
be refuted
information found
possible prejudice may
by
in thé record of the voir dire and trial.
40
Barger
662, 671
298];
v. Quinlan
8
Cal.App.3d
Cal.Rptr.
People
1063
125];
v. Salas
7
(1972) Cal.3d 812
Cal.Rptr.
500
Here,
P.2d
Before 12 were were examined. jurors accepted, prospective jurors Of the 36 for cause and chal- appellants challenged respondent 11. Six were exercised and 18 lenged peremptories appellants of were excused respondent.83 Fifty-nine by stipulation.84 Our examination of the voir dire record discloses that independent 17 of the first 142 an only jurors—12 prospective percent—stated inclination to believe in the If the 59 members of the guilt appellants. excused are subtracted from panel by stipulation percentage veniremen a belief in the is increased to 20 expressing appellants’ guilt In the selection of 6 alternate 74 veniremen were percent. jurors, examined. Of this number 17—22.9 a bias percent—declared against to the in its veniremen Looking panel entirety, including appellants. alternates, examined as indicated an that prospective percent opinion were guilty.85 appellants Van exercised all five individual Houten Kasabian exercised 83 Only one peremptories. exercised Neither Manson nor Atkins
peremptory.
any peremptory.
84 The
were the
of claims of
due
estimation
stipulations
product
hardship
lengthy
trial at three to five
months.
Dowd,
in Irvin v.
Our review of voir dire fails to indicate any appreciable above, less one fourth of the admitted to As noted than potential jurors an reaction in view especially impressive any disqualifying prejudices, would were advance that trial be the fact informed lengthy they consumed 11 in their would be days jury they sequestered. Manson deliberations appellants’ guilt. Although argues indicates the we believe deliberation presence prejudice, lengthy *77 15, 1970, A from June to the contrary. January jury sequestered precisely be to 15, months—would not deliberation 1971—seven protract expected harbored a bias for conviction. if it 10,
In 1969, addition to the order issued on December other publicity were taken court to the of At the blunt effect external influences. steps by the outset of the of voir court dire the conducted of each part questioning in that chambers. Counsel were informed the court prospective juror by with Atkins’ any prospective juror published indicating familiarity confession would be excused. Voir dire continued in chambers until June 1970, 30, at which the to the conduct of time any prosecution objected of outside of the unless presence transcript proceedings public The court such was released for dissemination.86 proceedings public in the voir dire with its continue part disposition expressed to so refused if consented. chambers Appellants appellants personally court and conducted before dire was then removed consent. Voir open 7, initial 1970, court resumed its until when the entire July panel procedure. with allowed voir dire the court respect interrogation
During in-depth conferences For after being apprised press publicity. example, court individual district called attorney, permitted inquiry To counter that each counsel. subject possible appellants’ conferences, the court of the district influence attorney’s press specifi- all admonished the avoid publicity.87 cally jurors prospective not be until 86 Thecourt had ordered that the clerk’s minute orders released previously conclusion of trial. concerning of the district statements attorney’s to the subject 87 With specific respect Kanarek, other “Mr. is to be considered like any the court Kanarek Mr. told panel: in act of the District Attorney He is like other in this case. The attorney. any attorney was an while selected being conference this press jury calling yesterday or statement I are not to consider that act. But admonish you you any irresponsible in this whatever on issues out that conference as having any coming bearing the district statements dire examination concerning attorney’s public The voir case.” 189 We further adversities of note general acknowledgment publicity if are offset trial is conducted in a metropolitan considerably populous 290, 9 304 area. v. Sommerhalder Cal.3d (1973) Cal.Rptr. [107 289, 508 P.2d v. 670 289]; (1974) Cal.App.3d Barger Court 298]; Corona Cal.Rptr. Superior Cal.App.3d 411].)88 Los with a Cal.Rptr. Angeles County, population 6,993,371 was four more than times the second largest populous A in the state. more or area could county metropolitan heterogeneous be found.89 not
As noted in Lansdown v. Court Superior is not alone 154], determina- “Population, qua population, tive; size, it is but one factor and it must be shown how whether area or or neutralizes dilutes the of adverse population, impact publicity.” rural, If the but it is not *78 unlike population large predominantly Court, small counties discussed in v. Maine (Mendocino Superior supra, 135, and Fain v. Court 2 46 (1970) Cal.3d County) Superior Cal.Rptr. [84 465 P.2d Manson that rural (Stanislaus a small County). suggests 23] about the of Manson’s competency manifests the attorney of a advantages obtaining panel of a reflecting sophistication metropolitan area. Pedro R. Prospective juror was Dominguez about his assessment of Mr. queried Younger’s commentary; following occurred: colloquy “Q. And did it was newscaster of a appear news conference reporting portions held the District yesterday by Attorney? “A. Yes. that, “Q. What did think when heard Mr. you you Dominguez? “A. What did I think? really mean, “Q. I honest just your opinion? Well, “A. let me There see. are not that I think of I many things and that there can at the moment. can think of the election be some relation to these coming up might statements he made. It I is only speculation my part, suppose.” 145 (1969) 88 Reliance 276 defendants Smith v. Court Superior Cal.App.2d upon as court on for a rule is was before the Cal.Rptr. standing Smith contrary misplaced. 693] a were mandate a of venue. The Smith petition primarily change charges against Moreover, 148.) of a (276 result at p. newspaper investigation exposure. Cal.App.2d the nature of the of Los because it involved charge parochial alleged bribery City official. Angeles 8, 1976, were this court contemplated letter of all notified that 89 By April parties notice of certain contained taking judicial social and economic statistics in specified the data contained in three of we made a those have publications. By using publications social and of the certain economic characteristics populations comparison 500,000 counties with or made to California more. These are populations comparisons Code, 452, (Evid. of these § demonstrate subd. character counties. heterogeneous larger 397, (h); 93]; 48 People Spears Cal.App.3d Cal.Rptr. Adoption I, 856], T. See post, Michelle Appendix 229-230.) pp. and their commune. be more would sympathetic appellants county it.90 doubt We have not inhibited
Transfer this case to another would county effect, attention. “Even as the if any, publicity upon public benefit, ascertained, is the if so also cannot be jury prospective presently To of a beclouded with remove of venue uncertainty. any, change case ... to a outside of trial of a small community [a highly publicized more would tend focus the brightly spotlight large metropolitan city] communication news have taken the case. Modern means of away upon which have of the reasons the transfer cause celebre may many Cohn Cir. F.2d 1964) existed (2d fifty years ago.” (Application of A tends to with its diverse blunt 977.) metropolitan setting population effect of penetrating publicity.
There is no actual or evidence that simply reasonably presumptive of this transfer case to other have would county provided jury more which in Los than that was available Angeles. panel satisfactory next that several occurrences after the commence- Appellants argue of trial court to ment the trial to voir dire them required permit jury to determine if the had been to these revelations. On jury subjected October the Los Herald Examiner carried an article Angeles William Farr to kill well-known reporting appellants planned *79 entertainment The court denied personalities. applications properly counsel dire the to voir to determine if it been had appellants’ jury to this The not was publicity. application supported by any exposed that the or order had been court’s maintenance showing security jury violated.91 a similar counsel made
Manson’s concerning, reported request 1970, an his client of December involving arraignment proceedings The informed trial court counsel two other of homicide. charges and that the were was satisfied it was jurors monitoring sequestration case. the circumstances the Under not news about subjected elaborate correct. whole court’s decision was purpose had been would frustrated if the court have been required sequestration 798,486 694], 5 Cal.3d P.2d 90 InFrazier v. Court Cal.Rptr. Superior mandated, Santa Cruz local board of where a venue from change County ” “ ‘the same the Sharon Tate that case to as magnitude slayings.’ supervisors equated seen in heard had been the hotel he had that jurors 91 Krenwinkel’s counsel stated However, else he tendered any and near neither nor anyone coffee newsstands. shop evidence of that assertion. to voir dire the if had of the ask information jury they knowledge very that was to be from them. In the absence of hard evidence that kept were to news stories or other information that jurors subjected might have been there was no sense in the court to be drawn prejudicial, allowing into a “Catch 22.” evidence,
To we have found no recapitulate, any flagrant departure from fundamental due standards to this case within the process bring Rideau, of the doctrine.” operation “presumed prejudice Accordingly, Turner, Estes and are not Our Sheppard controlling. independent and examination of the record the voir dire reveals that proceeding “. . . received a fair and trial under the standard of appellants impartial ‘reasonable likelihood’ set forth in Maine.” v. Sommerhalder 9 Cal.3d 508 P.2d
The fact that a case receives enormous does not itself publicity establish error nor does conceded “massive” publicity automatically orders, translate into Here the court issued silence conducted prejudice. a dire, controlled and voir admonished the searching properly jury court to afford implemented procedures appellants dignified addition, restrained trial In most atmosphere. perhaps importantly, selected from a diverse and were jurors, populous county, seques- tered for the entire of the trial. guilt phase with to the use of
Appellants’ posture regard peremptories exposes to rest their entire on the of the case disposition argument prominence and the it received. 6 of and none of the publicity Only separate were used. We the notion that joint peremptory challenges reject can, case, on the refuse to anyone relying solely prominence in the selection. meaningfully participate jury in the cases discussed the courts must
Except extraordinary previously *80 “. . . do all can to the effects of they reasonably mitigate prejudicial in trial. To reverse convictions because publicity possibility [of that some residual would immunize some effectively prejudice remains] defendants in sensational cases.” in Trials highly (Prejudicial Publicity of Public 85 Yale L.J. to alone (1975) 135.) publicity Exposure Officials not does make it for to their impossible jurors perform obligation.92 92 “The... conclusion that mere to necessarily exposure publicity prevents] any person If, instant, from as a has an in this serving juror extremely unsettling sidelight. age communication, mass we were to have heard automatically who about disqualify persons an crime from as alleged a the inevitable result would be that heinous serving juror, truly
192 that the circumstances”
Concluding standard “totality test to us, the case before we note the absence either applicable “prejudice to the from the a appellants thereof.” (United publicity probability [or] v. States Calvert Cir. 895; 523 (8th 1975) F.2d United States v. Cir. (6th Gay 429; 522 F.2d United 1975) v. States Cir. 515 F.2d (D.C. 1975) Chapin 1274; United States v. Cir. (D.C. 1974) 509 F.2d Liddy 428.) Failure
Prosecution’s to Disclose to that failed with the court’s Arguing comply respondent discovery order to disclose information that Kasabian had informed by failing LSD, District of her use of Manson Deputy Attorney Bugliosi prior record to The defense was aware of contrary. ignores fully Kasabian’s use of LSD. to Prior Kasabian’s Manson and prior testimony an his made offer of of their to coappellants proof application support have Kasabian examined The offer to referred psychiatrist. Kasabian’s with LSD. past experience
Manson makes similar contentions with to a respect photograph a dune a letter from the for depicting Kasabian to the buggy, attorneys district office to the attorney’s pertaining grant immunity Kasabian and a belated to Krenwinkel’s of the notes delivery attorney taken when he interviewed Atkins at by Bugliosi Also, Caballero’s office. Manson record argues his interview Bugliosi obligated tape with Atkins. As to each of these of error we note are assignments they “. . . citation or unsupported by any authority by argument showing that the errors the trial court resulted in alleged prejudice appellant, has left it to the court to search the record and the appellant] [that law in order to of error.” claims v. Paramount Citrus uphold (People [his] Assn. 147 (1957) P.2d “It 135].) is not Cal.App.2d proper to shift that burden the court” and we refuse to it. attempt upon accept v. Klimek P.2d 722]; Cal.App.2d Ford
In a vein similar Manson of Lake argues testimony have should been excluded because failed to reveal that prosecution her trial would be her contradictory testimony given by or acts will law citizen notorious does not the informed go unpunished. prohibit concern, In we from in the affairs of cases of national prominent participating justice. *81 allow cannot these matters to our concerning system widespread publicity paralyze 210, 184, (Calley (5th 1975) den., v. Cir. justice.” Callaway F.2d cert. 425 U.S. 760, L.Ed.2d 96 S.Ct. before the the contention is not grand jury. Again, supported by record. Krenwinkel’s conceded in court that the attorney open deputy had, 2, 1970, district on November delivered to the defense a attorney of the statement made Lake that she would copy indicating give adverse to the defense and with consistent she testimony in court. Another statement was to all ultimately gave open provided counsel at the 4, direction of the court Moreover, on November 1970.
court all defense counsel to voir dire Lake out of the permitted presence in detail. Not does it that there was jury great no only appear failure to reveal that trial, Lake would at there is no testify showing misled the defense as to this witness’ respondent any way testimony. Wolfer, A. a criminalist for the Los Police DeWayne Angeles testified for 18, 1969, He related that on Department, respondent. August conduct, he went to the Cielo Drive residence to acoustical testing of the test was to determine whether investigation. primary purpose Garretson, or not William in the at house the rear of the residing guest residence, 9, would have heard the shots fired on It 1969. August contended that the evidence should not have been introduced because failed to disclose this information to the defense to the respondent prior time that Wolfer was called as a witness.
Wolfer testified that he his written within a prepared original report or two after he made the test. When a written was day report the district office it be could not subsequently requested by attorney’s located. Later—a week or two to Wolfer’s prior testimony—another officer found the and so informed Wolfer. From that police original 21, 1970, a revised dated was report report, September prepared, delivered to the district The district then attorney. attorney requested another in narrative form. with his resulted in report Compliance request dated October which was to the district report given deputy the same That to all defense counsel attorney day. report provided on October Wolfer testified. The belated day production lost, Wolfer’s to be the result of the report appears original being coupled with the district dissatisfaction with the attorney’s September report. This events does not add evidence. sequence up suppression
Failure to disclose or
does not consti
evidence
suppression
tute reversible error unless it results in
access to “. .. substantial
denying
material evidence
to an
. . .
to the
accused
relating] directly
favorable
relevant to
or to the
matters
question
guilt,
punishment,
credibility
of a material witness.”
14 Cal.3d
(People Ruthford
*82
261,
Wolfer’s
We conclude that claims of error based upon the record. We are of the material information are not by supported discussed is that even if a act hereinabove further specific opinion doubt within the a reasonable considered as error it is harmless beyond 14 Cal.3d 409. at pp. People Ruthford, supra, meaning Interference With Interviews Witness With Production Defense Interference Witnesses Manson claims he was from prevented cross-examining Danny DeCarlo about an incident where “defense counsel” was purportedly law enforcement officers from DeCarlo.93 We prevented by interviewing understand the core of this contention be a Manson that complaint by his counsel unable to interview DeCarlo. was trial with was at from the record that DeCarlo
It is clear produced law enforcement from out of state California some by difficulty. Brought trial, DeCarlo was officers and custody during placed protective an who was also representing by attorney accompanied represented Nevertheless, an him in a federal prosecution. opportunity pending a noon recess was offered to the defense conduct an interview during as 93 Theincident alluded to is set forth in the record follows: session, Mr. “Q. after the BY MR. KÁNAREK: Do recall this afternoon morning you DeCarlo, I the Hall of Justice here? when was in the lobby Yes, sir. “A. “Q. And I tried to talk to you? “A. Yeah. “Q. And and Mr. Gutierrez left immediate presence? you my “A. I said I would talk to you. off “Q. ended in about a half second going You said would talk to me but you up you Gutierrez, with Mr. right?” Further a sustained objection. precluded *83 that support to contention is no evidence the trial court. There on the any legitimate and reasonable effort with respondent interfered interview DeCarlo. Manson’s to part of counsel respondent also that interfered with his counsel’s
Manson contends support to interview The record not this contention. efforts Lake. does history had a of mental years was 17 at the time of trial. She Lake old When as hallucinogenics. appeared related use of she disturbance to the investigator Gardiner, an for of witness she was the conservatee Jack a appointed Inyo County. The trial court attorney’s office the district complained that he counsel represent to her. When Manson’s counsel Lake, him with advised to consult not communicate with court could any that attorney. The is devoid evidence court-appointed her record Lake. any attempt by the defense to interview with respondent interfered Aadland (1961) (Peoplev. attempts with to respondent
Manson also that interfered his contends was a argument totally interview is untenable. Kasabian Kasabian. This She represented private categorically coindictee and counsel. refused with law that speak attorneys for the defense. We are aware of no compels any any It grant attorney party private witness to or interview. to us that appears range subject might possibly the full matter which accomplished by thorough have been covered private in a interview was complete during course of the in and out cross-examination trial presence The that jurors. respondent contention interfered any cognizable support rejected. with to interview right is without and is complains respondent Manson further that interfered with produc- tion of certain witnesses defense. purported Specifically, for the he attorneys claims the were for the of John prosecuting responsible failure as Breckenridge appear Haden Marsh and James witnesses Marsh, attorney the court With Manson’s advised appellants. respect Angeles States and that Los law that the witness was a United Marine agencies him to patrol. enforcement caused be harassed shore done to deter him from charge insinuation of is this was testimony. potential We are the nature of Marsh’s testifying. not told picked by Linda Breckenridge hitchhiking up purportedly New driving she was after she ranch and while Spahn Kasabian left Breckenridge her name was Yana and allegedly She told Mexico. Breckenridge trial court witch.94 he arrived at the she was a When to herself testified did use the name Yana and sometimes referred 94 Kasabian that she as a witch. with conversation one Kasabian’s engaged attorneys, Gary There no had Fleischman. evidence that the contact prosecution with Breckenridge.
. We are not directed to in the record to show these that anything witnesses were under or that forever unavailable to were they subpoena Furthermore, interfered with shows that appellants. nothing respondent their attendance or in the trial. participation
Another incident characterized as interference with prosecutorial defense witnesses stems from an altercation between Bugliosi It member Sandra Good. is admitted that addressed Family Bugliosi bitch” and threatened her with in Good as a “god-damn prosecution She, conduct her that he as in to by regarded threatening.95 response fact, the defense of the trial. did during penalty phase appear deterred from her assistance. The she was not giving Presumably of error is assignment vapid. Subpoena Service Quash
Motion to Atkins, the time Richard Caballero During representing three removal orders were of the court. These signed by judges superior orders were submission of a for Removal signed upon “Request 1, Prisoner.” The are affidavits dated December requests by supported 1969, 12, 22, December 1970. The affidavits are January signed counsel, Caballero, Atkins’ then District by Deputy Attorney Bugliosi Paul of the Los Sheriff’s office. removal Sergeant Whiteley Angeles office and orders directed the sheriff to Atkins to her attorney’s transport of the case. to various locations to assist the investigation the course of the trial caused to be served Atkins During subpoenas each of the three court removal orders. who superior signed judges counsel the moved to Through county judges quash subpoenas. The motion was their declarations in substance they supported by stating of the at and their had no matters issue relationship knowledge only did have the case had been as officers and what information they judicial was disclosed the records of the court. The trial court granted superior Atkins that this constitutes reversible the motion complains quash. error. 95 The referred to took from the courtroom and out of the away argument place
presence jury. It is true that a defendant in a criminal right compel cause has the (Cal. Const., I, attendance of witnesses in the defendant’s behalf. art. 2.) § 15, § I, However, formerly cl. art. cl. right is not unqualified. The courts have power inherent to control the issuance of process their own preclude and to right subpoena an abuse of the witnesses. v. Fernandez 222 Cal.App.2d Our examination of the record signing reveals that the of the removal orders judges constituted nothing more nor than the less tangential procedural activity surrounding Caballero’s efforts to favora- bly dispose of Atkins’ case. Nothing judges, indicates had *85 more information than is set forth in applications for “Request for Removal of Prisoner.” The declaration opposition totally was insufficient. (In
The trial court’sorder quashing subpoenas fullyjustified was re 807, Finn 54 Cal.2d 813 Cal.Rptr. 356 P.2d 685]; 463]). Rhone 267 Cal.App.2d 657 Cal.Rptr.
Disappearance Hughes of Ronald Hughes Ronald became trial counsel for Van Houten July on 1970,96after commencement of trial and during jury voir dire but any before jury was sworn or evidence taken. He continued to actively represent her through the course of trial Monday, until 30, 1970, November when he appear failed to By in court. that time respondent and appellants rested, had but the trial court had not ruled on all submitted jury instructions and closing arguments had not Hughes commenced. When located, could not be Maxwell Keith was appointed for Van Houten as cocounsel under the provisions of Penal Code section 987.2. The appointment was over Van objection Houten’s that she could represent better argument herself in newly than could appointed Hughes counsel. never returned responsibili to court. The full ty proceeding Keith, behalf of Van Houten then fell to who reading undertook the labor of transcripts examining exhibits. 96 VanHouten was first Part. Marvin Prior to trial she represented by Part replaced 17, 1970, with Ira Reiner on 1970. On she Reiner with February Ronald July replaced 30,1970. 3, 1970, failed to on November On December
Hughes. Hughes Keith was appear Maxwell Van Houten. appointed represent argument
Prior to Van Houten moved Asserting for mistrial. greatly handicapped, he was Keith during contended his absence taking of impossible evidence made it effectively argue for him to credibility.97 issue of The court denied the motion. Predicated on the assumption that Keith incapable of effectivelyarguing behalf, on her 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 appellate review demands that we consider Van Houten’s contention uninfluenced notoriety the sensation and the case at bench or the indicia of her Despite strong bad character. guilt evidence of Van Houten’s enduring challenged “more values are whenever there is reason to doubt that a public notorious trial has been conducted” comporting in a manner requirements with the due “ process guilty of law. always ‘[T]he are almost first to suffer those hardships which are afterwards precedents against used as the inno ” (United (7th 1975) cent.’ 1091,1114-1115, States v. Barrett Cir. 505 F.2d Stevens.) dis. opn. Judge then now Mr. Justice considering So light here, issue in of the record we find merit in Van Houten’s contention on two grounds. First, interrelated she was denied effective representation because Keith was incapable arguing credibility. *86 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
guarantee
Amendment
of assistance of counsel is
the
right
accused’s
closing
have a
summation
jury.
made to the
(Herring v. New York
In a context, somewhat different the United Supreme States Court recognized the importance argument of by tracing its historical roots in 97 In that he advised the court as follows: VI regard advert to the total primarily of or inability, helplessness, other the of the myself any attorney argue credibility in witnesses this case Miss Van Houten because I was not there against when they Now, testified. if the Court well be crucial to the defense in this please, credibility may case. I know is much I in issue. Yet didn’t have the credibility very opportunity observe the demeanor of the the witnesses on stand nor the manner in which they testified, nor was I able to observe their character as testified.” they
199 law of in the and its evolvement American colonies England: the early defense a basic the is can be no doubt “There closing argument trial. in a criminal Accord- the of element adversary factfinding process the defense has a has been held that counsel for it right universally ingly, the case no matter how summation to to make strong jury, closing v. New to the for the may presiding judge.” (Herring prosecution appear York, 858 L.Ed.2d at 598].) U.S. at p. supra, p. on the
An of includes fair comment credibility integral argument part 514, 520 65 Cal.2d of witnesses. v. Roberts (1966) P.2d of of is the issue credibility importance law. Code its inclusion in our Penal section statutory punctuated the court to instruct its as the jury responsibility .mandates also, Code, exclusive" of the Pen. (See witnesses. judge credibility section subd. Evidence Code 6.) § catalogues specific with to the considerations the trier fact entertain may respect witness. trial and trial credibility lawyer any Every judge grasps value attached to the manner which is Counsel presented. this out to the such as addresses issue jurors things by pointing testifies, in which a witness the nuances inflections manner suggested by voice, of the reflections before answering, body language long of truthfulness of other mannerisms on assessment variety bearing witness. be made unless witness Such comments cannot generally observed, the cold for their basis is pages rarely perceivable Keith neither saw nor heard witness during guilt transcript. He could deal with or at trial. not this subject effectively phase all.98
Here, case, more in the so than was of “average” credibility major with, of To the 88 witnesses was in issue importance. credibility begin 98 Neither could Keith take of that of described in advantage part argument “ the the Molina 126 Cal. P. ‘The of merits of right discussing 34]: facts, as to The discussion He cause both the law and is of is wide. unabridged. range in of law. addresses to it is be heard In his the jury may argument upon every question the facts admitted the his to descant or in pleadings; arraign privilege upon proved excuse, as far are conduct of the or condemn motives as parties; they impugn, justify, evidence; witnesses, it is in assail the of when credibility by developed impeached evidence, incoherence of their their manner testimony, direct or or by inconsistency on the His be of their stand or circumstances. illustrations testifying, by may appearance and his as various as of his his as full as genius; argumentation profound resources wit, it; will, or his can and he if he to his may, give wings make learning play ” imagination.’ and corroboration of was The testimony accomplice only required. evidence as to Van Houten consisted of Lake’s corroborating testimony with to Van Houten’s and that in admissions was respect edited from with Aranda and Bruton. While Keith could comport Lake’s lack of from her he was argue credibility instability, precluded of lack observation from conduct of Lake while relating specific to her unstable emotional character. Nor could Keith attack testifying Kasabian Van Houten portion testimony incriminating reference to conduct the witness while testifying. it for whether is us to know conduct of witness
Clearly, impossible observable counsel would have aided Keith’s by competent argument. That is not matter from record on ascertainable a cold It is only appeal. more to a trial as an arbiter and an not slightly sitting apparent judge advocate. For these reasons without fault of defense disappearance counsel near the of a close criminal case a choice. If the presents policy convenience, focus is on new counsel is thrust the defendant to avoid the burden of a trial. If the the Sixth new focus is on Amendment the worth of a trial the defendant is trial to a lawyer, given good right where his counsel with the witness charged credibility duty arguing observe behavior. witness may
The fact that Van Houten’s counsel did not plain provide adequate because he could not the issue of argument argue effectively credibility. In a different context and before the trial court Hughes disappeared, of the case it. At before time it recognized magnitude that another be substituted for the suggested attorney purpose commented on that as questioning appellants. judge suggestion follows: “It would an"undue burden on counsel .undoubtedly, place At into the case. this date been the trial has five coming progress months; 18,000 is in excess of and it would be a pages, transcript terrible burden to a new into the case and him bring attorney expect for the remainder of the adequately effectively represént anyone trial.”99
The structure trial into is divided distinct but related jury with the selection of the with segments. Beginning jury ending it closing arguments, preserves insuring continuity representation *88 each side the to their conten cogently effectively opportunity urge tions. Cannon (See v. Commission Judicial Qualifications Cal.3d Van 537 P.2d In this case 99 Ifthis were not true the convictions of the other defendants would be in jeopardy. the time at a. continuity severing Houten’s counsel severely disappeared of in the structure irreversible an disruption of producing representation, cannot substituted counsel dimension case of this In a the trial process. he is his as by a assume adversary handicapped posture, meaningful In the trial of the argument. absence from process except every segment counsel to effective on Van Houten’s the final right analysis infringement of the trial the from process extraordinary disruption produced at the moment he trial counsel of her the from disappearance resulting trial and within the framework her contentions would have argued the situation from which he had the of defense Viewing developed. plan can be assessed see how the issue we do not by this perspective, It is not a matter with other Keith’s argument. argument comparing how well he The fact or did not or even of what Keith did argued. argue it is of and 88 witnesses after about five months is that he could enter the too much to believe proceedings presuming advocate his client’s case. We hasten to our acknowledge effectively and not to the standard of “effective counsel” adherence accepted own as former trial counsel.” But our lawyers “perfect experience from unusual convinces us that the natural incapacity flowing of minimal circumstances of this case Van Houten deprived requirement. been has recognized significance continuity representation Court of the United States. In
within
past year by
Supreme
to self
that an accused has a constitutional right
representa-
concluding
dilemma
court
tion
pro-
high
disposed
that such
the statement
per-deliberately-disruptive-defendant
be terminated.
defendant’s
self
may
Significantly
representation
right
an event counsel not
that in such
Court does not
suggest
Supreme
the accused.
then be
involved
represent
may
appointed
previously
course,
over
a State
Rather it
“Of
may—even
objection
says:
if and when the
aid the accused
counsel’ to
‘standby
accused—appoint
in the
the accused
and to be available
accused
represent
requests help,
is neces-
the defendant’s self
that termination of
event
representation
806, 834-835, fn. 46
422 U.S.
(Faretta
sary.”
California
562, 581,
202
Because a trial
determination to not
a mistrial
is a
judge’s
grant
matter, it is not
note, however,
with. We
discretionary
lightly tampered
and case law
authorize the
of a mistrial
statutory
authority
granting
on the
of
v.
2
Court (1970)
ground
“legal necessity.” (Curry
Superior
707,
361,
Cal.3d
713
470 P.2d Cal.Rptr.
“Legal
[87
necessity” may
death,
illness,
arise when there is a
or other unavoidable
protracted
Code,
1123,
absence of a
or
(Pen.
Mistrials
1147.)
§§
have
judge
juror.
been
when there has arisen a breakdown in a
granted
relationship
between the accused and his counsel
the realization of a fair
frustrating
trial.
v. Smith
(Cf.
(1970)
Cal.Rptr.
786,
Penal
section
that “In all cases where a
is
provides
jury
or
from
a verdict
of an accident
reason
or
discharged
giving
prevented
cause,
other
where the defendant
is
except
discharged during
trial,
them,
of the
or after the cause is submitted to
the cause
progress
be
tried.”
in this"
the fact
may
again
Implicit
provision
recognition
that circumstances
arise due to the fault of no one—characterized as
may
“accident or other
from
a verdict.
cause”—precluding
jury
rendering
Here the
is an event of
unexplained disappearance
Hughes
“legal
which should have resulted in the
of a mistrial as to
necessity”
granting
Van Houten. To hold otherwise would be to
Van Houten the
deny
right
to have her cause
with
to a
issue in the
effectively argued
respect
major
case. Here the absence of counsel
as
in the same
qualifies
legal necessity
manner as would the absence of
or
(See
judge
juror.
Curry
Superior
Court
Cal.3d
713-714
203 1141 of Penal Code section “other cause” clearly provision is now before us retrial the circumstances retrial under contemplates to Van the harm Houten this in order after reversal.101 Balancing clearly trial at critical of of a caused the absence her stage against lawyer fair administra case, we believe the in of burden retrying respondent 2d v. Davis (1957) 48 Cal. (Cf. of demands reversal.102 tion People justice P.2d 241, 1].) 257-258 [309
Jury Instructions
Diminished Capacity a instruction diminished Appellants requested jury capacity. The court refused. that,
A
record
a sufficient
factual
reason
showing
revealing
otherwise,
defect,
illness,
or
mental
mental
intoxication or
appellants
them could not form
intent
to commit murder
the necessary specific
would
instructions on diminished capacity. require appropriate
721,
Nichols
165
150,
P.2d
3 Cal.3d
474
cert.
(1970)
673],
v.
[89
Cal.Rptr.
v. Mosher
den.,
652,
402
91 S.Ct.
1388];
U.S. 910
L.Ed.2d
People
[28
379
461 P.2d
v.
659];
Cal.3d
Conley
(1969)
Cal.Rptr.
Here,
however,
Although argue supports instructions, do diminished on the rule giving capacity they just .not rely “All will if defendant’s exhibits evidence objective attorney agree illness, client, of his such as with a defense meaningful physical incapacity proceed intoxication, [citation], need sit it should idly by; a nervous the court not or breakdown motion, the affected counsel into on its and if relieve necessary the matter own inquire order a Yet that action be taken with great circumspection and and been exhausted. substitution. even should continuance, alternatives, have after such as the all reasonable only granting standards, a case of Failure to observe these in although undisputed counsel, and this a reversal of ensuing judgment; will incapacity compel physical result will follow counsel of whether the defendant’s substituted regardless ‘fair trial’ with or whether the defendant received a respect competent Court, (Smith 68 Cal.2d at supra, Superior guilt-determining process. [Citation.]” also, 559; 825-826].) A.2d see v. State p. English Md.App. this we a universal loss determination are not rule absence or 102 By pronouncing It must counsel in of the be clear any stage proceedings necessarily compels reversal. Moreover,' case that this is unusual its length complexity. timing of Keith as Van crucial. Each case will have to be substitution decided on its counsel for Houten truly (United (2d facts. No rule can be v. Tramunti Cir. own se stated. States per 1975) 1117.) 513 F.2d to be as follows: since there is
stated. We understand Manson’s argument Watson, with no direct evidence that he made an agreement respondent *91 intent to a has failed to establish specific necessary charge The continues with Manson’s contention that his conspiracy. argument at the of the homicides a lack absence time establishes requisite intents to deliberate and harbor malice with specific premeditate, respect to the substantive crimes. These have to do with the arguments nothing doctrine of diminished capacity.
Van Houten’s claim of error on two other factors: (1) pivots established and use of members hallucinogenic drugs by availability as devoted and (2) Family; depiction Family prosecutor’s of Manson. and fearful followers that at time
No evidence
any
suggests
anyone ingested any drugs
there is no
to the Tate or La Bianca murders.
proximate
Consequently,
affected
that
mental
was
foreign
showing
anyone’s
capacity
If
as an
chemical.
we
this
usage
argument
by prolonged
interpret
is
the contention is not
diminished mental
presumed,
supported
capacity
evidence.
there is a
deal of
Admittedly
great
testimony
drugs
However,
members.
it does not
were
used
commonly
by Family
follow that all members used
indicates
necessarily
drugs
nothing
kind,
with
or
of use
In
particularity
quantity,
regularity
by anyone.
short,
this common circumstance is no more than a generalizátion
without
one
v. Harris
specific
any
application
appellant.
Moreover,
7
926
no evidence
(1970)
46].)
Cal.App.3d
Cal.Rptr.
[87
the affect of such
on a
produced concerning
drugs
particular
defendant.
v. Rocha
3
901
(Cf.
(1971) Cal.3d
People
Cal.Rptr.
[92
172,
The defense of diminished is tendered capacity generally by testimony That is the orthodox method of of the defendant or a or both. psychiatrist case the issue and it was the method employed virtually every raising cited by appellants.103 to the fact that two testified
Manson
psychiatrists
concerning
points
Lake,
of LSD and
Lake. Their
the use
marijuana by
opinions
however,
mental
and no
have no
bearing
appellants’
capacity
(1968)
is
v.
Krenwinkel asks us to determine that the
intent
to
specific
requisite
the crimes
was
alone.
charged
negated by
showing
peer pressure
The evidence that a
not,
is a follower
however,
does
translate
party
itself
into a
facie
of diminished
We find
prima
no
showing
evidence
capacity.
in the record and know of no
to
that
The
authority
support
proposition.
trial court’s
of the tendered instruction
rejection
v.
proper. (People
Carr
287,
8 Cal.3d
(1972)
294-295
705,
The record is devoid of
evidence that
suffered from
any
any appellant
mental illness or from
to
undisputed
incapacity maturely
meaning
reflect
fully
acts.
upon
gravity
contemplated
v.
(People Wolff
(1964) 61 Cal.2d
394 P.2d 959].) No medical
Cal.Rptr.
[40
or other
was offered
to a mental disease
expert testimony
as
or defect of
v.
Henderson
any
60 Cal.2d
appellant
(1963)
488-489
(People
[35
77,
Emphasis shows style its members only embraced bizarre standards and followed a concepts, accepted depraved “It is not from relieve criminal warped philosophy. enough, liability, that the is It is not prisoner he morally depraved. enough [Citation.] has views of at variance with those that find right wrong expression in the law. The variance must have its in some disease of the origin mind. is anarchist not at to break the law because [Citation.] liberty he reasons that all The devotee of a cult government wrong. religious or human sacrifice as a is not enjoins polygamy duty thereby
relieved from before the law. v. (People responsibility [Citations.]” N.Y. 324 Schmidt N.E. (1915) 949-950].) [110 bizarre, evidence of or weird conduct Accordingly, depraved standing alone does not an instruction on diminished Such compel capacity. circumstances are not to common Had subject appellants interpretation. Wells-Gorshen, forward in the classical tradition of court trial gone all would have instructed on diminished probability capacity. den.,
Wells
Compulsion Krenwinkel, for a diminished extending argument capacity *93 instruction reference to 8 26,104 subdivision of Penal Code section óf confuses defense with the defense of diminished compulsion the record in a sua on instruction that capacity. Nothing compels sponte subject. as a defense evidence that
Compulsion legal requires accused acted" reasonable cause and that belief her life was upon and if she refused to presently immediately endangered participate. 768, v. 269 (1969) Richards 773-774 (People Cal.App.2d Cal.Rptr. [75 658, 597]; P.2d People Villegas [85 Here there is no 480].) evidence that Manson’s instructions were threat. orders is not defense by any accompanied Simply, following under the facts of this An instruction on was neither case. compulsion nor required appropriate.
Lesser Included Offenses
The
court
in
contention that the trial
erred
to instruct the
failing
is without merit.
extent the
on
To the
contention is
jury
manslaughter
is
based on
there
evidence
diminished
assumption
capacity,
relevant,
104 As
that section
“All
provides:
are
crimes
persons
capable
committing
(unless
death)
8.
be
Persons
the crime
with
except...
punishable
who committed
[U]
the.
act . . .
under threats or
charged
menaces sufficient to show that
had reasonable
they
cause
did
to and
believe their lives would be
if
refused.”
endangered
they
our discussion of that
It is further contended that
subject
dispositive.
an instruction on
as a
included oifense must
manslaughter
necessarily
be
in a trial on the
of murder. That is not accurate.
always
given
charge
An instruction on
is not
where the evidence does
manslaughter
required
not
it. Here there is no such evidence. The basic
support
posture
defense was to
to its
No
testified
put respondent
proof.
appellant
intent, no evidence was
to show whether or not
concerning
produced
any
was under the influence of an intoxicant or narcotic and no
appellant
evidence
The trial
suggested
appellant
legally incompetent.
court was
to instruct
on the
justified
refusing
jury
theory
v. Preston (1973) 9 Cal.3d
manslaughter.
Cal.Rptr.
300, 508 P.2d
v. Thomas
300];
58 Cal.2d
dism.,
den.,
97],
373 P.2d
cert.
Felony-murder Over the the trial court instructed the objection appellants on the rule. No. (CALJIC The concomitant juiy 8.21.) felony-murder felonies referred Code, to were (Pen. 211) (Pen. § robbery burglary Code, 459). § choice of these felonies was in view of the appropriate entries into residences and the private taking personal property the use of force in each instance.
Because the the contention that both the Tate prosecution emphasized wilful, La Bianca murders were deliberate and premeditated homicides, assert that appellants felony-murder instructing jury *94 however, was error. also evidence on the Respondent, produced bearing doctrine. The trier of fact is not limited felony-murder any hierarchy by of theories selected the If there is substantial by prosecution. evidence to convictions of first murder support degree by proving deliberation and or the of a premeditation by perpetration proving should be instructed on both and on either felony, jury may rely v. 9 532 (1970) 235].) theory. (People Mulqueen Cal.App.3d Cal.Rptr. [88 rule that the homicide be Application felony-murder requires committed in the course of one of the felonies perpetrating designated Penal Code section 189.105 55-56 v. Ford 65 Cal.2d (1966) (People [52 den., 416 P.2d 385 1018 L.Ed.2d 87 132], cert. U.S. S.Ct. 737].) arson, or 105 E.g.,Perpetration attempted perpetration rape, robbery, burglary, and certain sex offenses.
mayhem counsel, TATE MURDER: On cross-examination Manson’s $70 and without Kasabian testified that Watson took from the objection, evidence, Cielo Drive That residence. with the that coupled showing access to the Cielo residence Drive was aby accomplished breaking established a facie Whether Watson harbored entering, burglary. prima animus to was a of fact for requisite prior entering question furandi The fact Watson did take the is a reasonable and jury. money from basis which could that he infer intended to logical jury properly do so to the residence. v. Hamilton (1967) prior entering 506, 508-509 459]; v. Pineda Cal.App.2d [59 Cal.Rptr. 100, 106 P.2d evidence to a to Cal.App.2d relating plan homicides in furtherance the broader perpetrate design ignite “Helter Skelter” did not existence and of other preclude application criminal Finkel purposes. (People
P.2d 298].)106
LA BIANCA MURDER: entered Biancas’ residence Manson the La La subdued them. When he left had in he his Mrs. possession wallet, or her Bianca’s taken from her from within presumably person disclosed, immediate it Manson’s As Kasabian was declared presence. intention this some where it be found wallet could place place black the black with person, thereby community implicating commission that crime. This evidence has a tendency reasonably his demonstrate Manson harbored the intent to steal even prior the La into Bianca home. The evidence is to find that sufficient entry either a or occurred. burglary robbery murders,
In La connection with the Bianca also we must determine whether terminated before La Biancas wére killed. robbery course, contend the before the Appellants, robbery complete and demand reversal on rule ground felony-murder killings instruction was therefore the_ We Within the extraordi-
improper. disagree. could this case the have concluded facts-of either nary jury way. When Manson exited the La Bianca residence he implied Watson, were but alive. At that time he directed occupants tied-up *95 Krenwinkel and Van Houten to the the La perpetrate killings. Assuming alive, Biancas were then in fact still the in time of their proximity not decide the 106 Weneed when animus arose in to the homicides. relationship furandi In view the fact that the the the are homicides interfused it is not entry, larceny unreasonable to view their commission as one transaction. It that the follows could jury that the were the infer homicides committed in course of the either logically burglary perpetrating the or robbery.
209
death is sufficient to cement
the
subsequent
together
burglary-robbery
and the homicides as one indivisible transaction.
v. Ford (1966)
41,
228,
65 Cal.2d
56
416 P.2d
v. Ketchel
132];
(1963)
Cal.Rptr.
People
[52
503,
538,
Cal.2d
523-524
381 P.2d
and revd. on
(vac.
59
Cal.Rptr.
[30
394]
614, 409 P.2d
mod. 71
694];
other
Appellants’
[44
442,
402 P.2d
is absurd. That case holds
felony-murder
Cal.Rptr.
130]
rule
committed
a victim of the
killings
underlying
inapplicable
La
caused
Neither the
Biancas nor
the Tate victims
felony.
any
also,
the deaths with which
are
v. Burton
(See
appellants
charged.
People
375, 388;
203,
6 Cal.3d
v.
2
(1971)
(1969)
People
Stamp
Cal.App.3d
den.,
46,
598], cert.
intended, unintended,
forbidden,
or even
that
actually
provided only
such acts be in furtherance of the common
of the
purpose
conspiracy.
779,
382,
v. Smith
Cal.2d
(1966) 63
409 P.2d
Cal.Rptr.
[48
den.,
cert.
in the indictments. It is not to the guilt defendant that he necessary any particular act, himself committed the overt if was he one of the when such an act was conspirators committed. “The term ‘overt act’ means or act taken committed one or more any step of the which mere or goes beyond to commit a conspirators planning agreement offense public and which or act is done in furtherance of the step accomplishment object conspiracy.”
General Instructions Refused error to the trial court’s refusal to certain Appellants assign give instructions. refer to a host of refused special Although appellants special instructions, the actual issues are not substantial. Many pertain common To their we subjects easily categorized. expedite disposition, address them in that fashion. of the instructions to Kasabian’s
Many rejected pertain grant illness, Lake’s of mental her admitted untruthfulness immunity; history and her statements; inconsistent DeCarlo’s admitted purported prior conviction and other matters Our review felony pertaining credibility. instructions them as rejected special exposes argumentative, redundant, or to the superfluous. Credibility properly explained jury use of CALJIC No. 2.20. 103,” their Instruction No. wanted the
By “Special appellants jury instructed that: “Evidence the defendants on trial before involving you 10, 1969, after not be considered delibera- August may by you your tions as to or whether not the ever conspiracy alleged by prosecution came into existence.” broad; instruction is too it also misstates the requested entirely
law. v. (1957) P.2d Goldberg 151].)111
Manson asserts that he was entitled to an alibi instruction. Since never contended Manson was at the time of the prosecution present homicide, actual commission of and since his was not a presence not, Manson’s absence was as the submitted requirement culpability, states, instruction “. . . defense that we call an alibi.” The complete [a] instruction was refused. properly instructions are
Appellants’ special pertaining accomplice testimony redundant and The court instructed the argumentative. correctly jury law, that Kasabian was an as a matter of that her accomplice corroborated, must . be and that it “.. to be viewed with distrust.” ought more was Nothing required. 111 Nine other related instructions were All also properly rejected. presumed
admissions of one
were admitted
contention
appellant
against
coappellant,
clearly
record.
Appellants’ to direct us have failed any portion are instructions They rejected. instructions should have that the their contention the record supporting of error failed to their assertion have been similarly support They given. Our review of all were instructions that as to the independent given. refused, those convinces us that instructions, those and given including on all of law instructed was and correctly propositions fully jury this case. to the facts of applicable Arguments
Opening
Closing
counsel,
Manson’s
óf Juan
cross-examination
Flynn by
During
was
with one
several
objection
objections. Coupled
interposed
Bugliosi
Kanarek, was
Without
Manson’s
assertion that
attorney,
lying.
else,
the trial
or
immediately
judge
anyone
by appellant
request
admonished the
the court
jury
admonished
Additionally,
Bugliosi.
Kanarek’s
comment
credibility.
concerning
Bugliosi’s
disregard
was
of this case this occurrence
In view of
intensity
length
the matter in the context
than
more
Viewing
unexpected.
regrettable
caused a
was not
to have
trial,
this incident
we conclude
the entire
likely
was affected
likelihood the
There is little
jury
justice.
miscarriage
of the
find no
for reversal
we
event.
this
justification
Consequently,
756,
7
790-791
v.
Cal.3d
(1972)
on this
Perry
(People
ground.
judgment
778,
v. Chavez
50 Cal.2d
161,
129];
(1958)
499 P.2d
People
Cal.Rptr.
[103
353,
den.,
No resulted from comment error that he Bugliosi’s anticipated Manson would claim that “. . . neither he nor else the leader anyone he never ordered in the do Family anyone Family much commit seven less these murders.” That did comment anything, not constitute misconduct. v. Womack (Cf. prosecutorial 761, other Appellants’ exceptions to the statement are well not taken. In the opening aggregate Bugliosi’s were well within *99 comments the bounds of the evidence at trial. produced Manson also an about used the complains epithet prosecutor the course of his and directed to Atkins: “You little during argument bitch.” The exclamation was not a but rather planned part argument, was a reaction the misconduct of Atkins when she and produced by Krenwinkel Atkins walked Bugliosi’s interrupted argument by shouting. to the rostrum and This notes. incident is no basis grabbed Bugliosi’s fair, While the must be he cannot "be complaint. prosecutor expected be a saint. We do not believe that of the remarks were any prosecutor’s so that their absence would have resulted significant appellants’ This is not balanced case. The evidence as to each acquittal. closely is substantial and is shown clear and appellant guilt convincing sum, In evidence. we find no error from the prejudicial arising opening or v. Baker 39 (1974) closing argument prosecution. (People 550, 555 v. 7 248]; Jones (1970) Cal.App.3d Cal.Rptr. People [113 358, 365 Cal.App.3d Cal.Rptr. During Jury
Procedures Deliberation Court Communication
After the commenced deliberations it that certain juiy requested exhibits be It identified. there was some between appeared discrepancy *100 is ridiculous. As out
counsel’s patently pointed by respondent proposal event, there is the In no for authority requested procedure. room. trial never be delivered into the of the should jury transcripts 1137 from the items Penal Code section depositions specifically excepts rule is into room. obvious reason for that that be taken the The may jury The a of inadmissible material. that contain deal may great depositions transcript of same is of the unedited the trial. true Use of Record Player Jury without were two into evidence Received objection phonograph as the a These were identified records in cardboard enclosed jacket. Beatles rendition of musical sound the recording compositions Three were referred “Helter Skelter.” identified compositions including witnesses the course the trial.112 These to various phonograph by records were received into evidence without objection. merits, on the directed a
In of its deliberation the course jury The ostensible for the court for a record to the player. purpose request album. Beatles’ machine was to listen phonograph records All that counsel Manson’s stipulated phonograph except was the bailiff.113 The record could be for the played jury this reversible error. Manson now was contends played were received 112 The each of the recorded in written form. for compositions lyrics 113 The as “With to the was stated the court follows: respect playing stipulation album, a I to have the jury and the record propose Beatle jury’s request player, A within record is Evidence phonograph “writing” meaning Code as section 250. It that such it be admitted into elementary may evidence. v. Marcus Cal.App.3d The admission of a record without of phonograph provision electronic device to use it is inefficacious. one would no
necessary Surely to examine in the dark. In Walker expect jury photographs P.2d 110], was recording tape admitted into evidence. it After deliberations began jury furnished a machine out of the permitted play tape presence court, of the counsel Walker court held there was no parties. error. We reach the same conclusion here. Manson’s failure prejudicial to establish that he was this event our conclusion prejudiced by supports Const., that the did not constitute reversible error. art. (Cal. procedure VI, 13.) § of Verdict
Impeachment the verdict in the of the case offered Following guilt phase appellants one “had taken drink.” declaration prove jurors By based the information and and the belief Manson’s counsel upon of a aof televised interview with the production purported videotape offered to that the stated his juror’s spouse, appellants prove spouse wife was a teetotaler before she was to this case but that she exposed *101 “took to became a alcoholic after she taking consuming beverages” The offer of does not the make sequestered juror. proof slightest that the used alcoholic at time or in suggestion juror beverages any with her to function as a The offer of anyway interfering capacity juror. falls short of the standard that evidence on this be “. . . of issue proof such a character isas to have influenced the verdict likely improperly.” Code, 1150, (Evid. subd. (a).) § trial, counsel,
In of Krenwinkel’s motion for a new her support Paul submitted a declaration state Fitzgerald, concerning purported ments of some of the He declared: that William McBride jurors. juror informed him that McBride had read of the some accounts newspaper time, trial the course his that at an during sequestration; unspecified back and advise them will into court that be furnished with a record brought they piayér; that the bailiff will in be instructed to the Beatles album once its entirety play through the without comment or conversation with between the bailiff and any jurors, any any if the and that thereafter the wants album jurors, jury any particular portion And he that played portion upon that will then back and the go play they request. that, with the then without comment whatever he will completion jury, bring record out of the room and leave room itself.” player jury
McBride had read accounts of criminal newspaper proceedings against “. .. other so-called Manson members who were witnesses in the family case”; instant that McBride was “familiar” with newspaper reports who consumed alcoholic concerning juror allegedly beverages; McBride on occasion had seen headlines to the case newspaper relating the windows of the bus used to through transport jury during time were Additional declara- they sequestered.114 parts Fitzgerald’s McBride, tion not but also to statements pertain only juror purported- Sisto, made Anlee and Herman ly C. Tubick.115 by jurors Larry Shefely Insofar as declaration to indicate McBride’s Fitzgerald’s purports it is deficient to disposition subjective feelings, totally impeach verdict. The statements are more nor less than purported nothing or double and are and insufficient hearsay hearsay incompetent the verdict or to the court to conduct a voir impeach compel post-verdict dire of the v. Aeschlimann jury. (1972) (People Cal.App.3d 689]; 689-690 Cal.Rptr. [104 Spelio Cal.Rptr.
An additional
declaration is the fact that it
deficiency
Fitzgerald’s
unclear when all the events
described
McBride
purportedly
by juror
Furthermore,
occurred.
all the
Sisto,
statements of
purported
jurors
and Tubick
to events
after
Sheely
pertain
had
occurring
guilt phase
been concluded.
overt acts or other conduct
Any
or
occurring during
after the
are irrelevant in view of
penalty
the fact
phase
penalty
verdict was nullified
of law.
v. Anderson
by operation
Cal.3d 628
den.,
493 P.2d
cert.
880],
Unmeritorious
of Error In addition to the we issues have discussed have raised appellants other of error. We have read and considered these assignments addition- al contentions and all authorities cited in thereof. All are support unsubstantial and devoid of merit.117 We each such conten- reject tion.
Disposition The of Ronald in a denial of disappearance effective Hughes, resulting Houten, counsel to Van constitutes valid only assignment reversible error. Without further other contentions exception, appellants’ are rejected.
The of conviction as to Leslie Van Houten is judgment appellant reversed for retrial.118 Manson, of conviction as to Charles Patricia Krenwin- judgments
kel and Susan Atkins are
that,
affirmed in all
insofar as
respects except
death,
are modified to
judgments impose
penalty
they
provide
of life
v. Anderson
punishment
imprisonment pursuant
People
Thompson, 117 Wenote also that these contentions are either generally citations of unsupported by text, or legal references to the record. As noted authority where citations were were reviewed. provided they Houten, 118 Van Houten’s v. Van 2d Crim. companion appeal, is directed to the issue of whether or not she was single entitled to credit for the time she was held in to the time sentence was In custody prior of the reversal of the imposed. light judgment matter, However, of conviction in the this primary ordered dismissed. ancillary appeal *103 if is retried and convicted sentence appellant must allow credit for time all imposed served in (In to Penal Code custody pursuant section 2900.5. re Kapperman 542, 549, 97,522 Cal.3d P.2d Cal.Rptr. and Dissenting. I concurin the WOOD, J., judgment P. Concurring Atkins, Manson, of defendants convictions affirms the which the murder and on on the seven charge Krenwinkel charges concur murder; to modification of and as to commit penalty, conspiracy v. Anderson Court in reason of mandate Supreme of all 493 P.2d The convictions 628, Cal.3d 880]. Houten, be affirmed. defendants, should Van the including Houten the of defendant Van I as to the reversal of dissent conviction Bianca, Mrs. Leño La and on the Mr. and on the charges murdering The verdicts of the to commit murder. jury finding charge conspiracy counts were on all those Van Houten by ample supported guilty months of áfter a trial—about seven She was convicted evidence. long trial, She did not with the testify. jury sequestered. of Van Houten for reversed the conviction
The two other have justices her was reason that the who an represent attorney appointed alleged been all the evidence had and after her (after attorney disappeared because the of witnesses could not effectively credibility argue presented) the or manner of observed the demeanor had not (not he being present) were witnesses while they testifying.1
After all the been and all had evidence had the presented parties rested the case was for to the the ready arguments jury, attorney for Van Houten under circum- (Mr. Hughes) disappeared mysterious stances, and there was as to whether he would return. uncertainty was confronted with a decision as to Thereupon, judge making whether, circumstances, in view of the of the then totality existing another should be cocounsel as for Van Houten and attorney appointed the trial be finished or whether the whole (by presenting arguments), case as to Van Houten should be started over and tried again. judge her, Mr. Maxwell Keith as cocounsel for and continued the appointed date for for 12 in order commencing arguments days give Also, cocounsel time to continuance prepare argument. afforded an for an to be made as to whether opportunity investigation return to court. missing attorney might
When cocounsel for Van Houten was he if he was asked appointed, affirmative, would He in the but he did accept appointment. replied reason, is that the for the reversal asserted the other justices, 1 Another alleged This Mr. attorney Hughes. of the trial continuity interrupted by disappearance is similar about alleged point argument. *104 because he of witnesses not that he could not credibility say argue Thereafter, were and before had not them while observed they testifying. could not he his he said that he made argue credibility argument, had on the because he not observed witnesses basis witness-demeanor as counsel. the witnesses. He did not ask to be relieved counsel on behalf of Van Houten for two and days argued Appointed covered the whole evidence her. With record ably range involving witness Van reference to Kasabian (a credibility against principal Houten and the other said that was a defendants), he she sinister person fraud, who has never been above or theft burglary, practicing deception, wants; what she her of herself as a little in characterization lost get girl falsehood; the forest was a deliberate if she was her attempting by demeanor on the witness stand to lend the that she was impression just out, little lost in the find her that was a facade woods girl way trying and she was a fraud on the she was committing jury; wily, opportunistic, resilient, time no matter she bounces back what frightfully every does; she when he of her he also of her speaks credibility, speaks here; she testified which she testifying immunity expectation trial; into received brings during expectation immunity play motives, is, which can turn of human that strongest self-preservation liars; motives to into he believed that she had the strongest people deceive; if that a witness would be instructed that found they jurors had testified to a material of her are as testimony, falsely part they entitled to disbelieve all of her testimony. that,
He further after Kasabian’s testimony, argued analyzing towards Van Houten’s unreasonable. interpretation pointing guilt After Kasabian’s about in an automobile discussing testimony riding Manson, with Van Houten and others to various look for (to places Pasadena, near a church in he said that the victims) stopping jury should her on the basis of a reasonable doubt as to disregard testimony truth; its there was a reasonable doubt Kasabian’s regarding about Manson’s kill a who was tg planning person driving car; white remember Kasabian should her sports jurors prefaced residence, conversation outside the La Bianca with testimony, regarding “I the words think” and “I’m not positive.” counsel also said that Diane Lake witness testified (a who
Appointed Van Houten and other at defendants) had been discussed against length other counsel their she was a during arguments; 17-year-old drug addict, and had who was disabled been committed to a mental mentally
institution; that her lied when before that she grand jury; testifying caution; over with that in should be viewed Lake’s going testimony Kasabian’s he used for would to use the same he analysis testimony try Houten said she stabbed that Lake’s statement that Van and testimony; off was not who was dead and then someone fingerprints wiped b¿ caution; with that reasonable and must viewed (attorney Hughes Lake; done an excellent and Van had Houten) job cross-examining that was frail. her testimony
With to Van Houten and (witness reference credibility Hoyt against to that when counsel referred her defendants), other testimony appointed were, Van a man came to the house where and Van Houten Hoyt her, to Houten hid under a sheet and told not let the man see Hoyt he had a ride from Griffith Park. Then counsel because her just given said he did not concede that that incident but if it be assumed happened, that it a reasonable inference therefrom would be that Van happened, Houten feared for her own safety. facts;
He further that the are the and since argued jurors judges believe, he did not know what were to he could not take they going chance and he had to meet these issues head on. He also said that as to do did not Van Houten did not she anything; conspiracy, agree Skelter,” to “Helter he said aid or abet in the homicides. After referring there are a lot of other which he thought jurors ought things consider, and these matters had been his brother into gone amply counsel; distrust; if Kasabian’s with must view testimony jurors decide, on to believe Kasabian as after deliberation her credibility, jurors Houten, believe Van then the have to jurors any participation by Lake; Lake, if then whether her believe have decide they they he how the corroborates Kasabian’s did not see testimony testimony; have to all of can convict Van Houten when this go through jurors they analysis. Keith, Houten,
It is clear that Mr. counsel for Van at argued ably, and with that the of Kasabian and Lake was length, emphasis and that should not be believed. they completely lacking credibility, He used much of them and their language very derogatory credibility. fact
The that counsel for Van Houten could not argue credibility witnesses, demeanor, based on their does not mean that credibility for the three witnesses based demeanor was not argued. attorneys other defendants observed the witnesses. the issue argued They witnesses, and referred to witnesses credibility prosecution particularly Kasabian, Lake, and denounced them in Hoyt, derogatory language as unreliable and unbelievable. being thoroughly
In “witness-demeanor,” Kasabian, order to the indicate of particularly Lake, and which was observed and the other defense Hoyt, by argued it bewill to refer to the some of statements their in attorneys, necessary arguments.
Some of the statements Krenwinkel, Mr. for Fitzgerald, attorney were: As he sat in court and watched a time, Kasabian for long period his initial well-mannered, reaction was sincere, that she was straightfor- ward, and She was decorum, a model of gentle, soft-spoken. always contained, and reserved. Her recollection always was bad. Her quiet, for was horrible. She was a memory to be specifics involved peculiar lady this, in a case like but in a one sense cannot a book its really judge cover—the facade was it (her) stood it and was well done. We good, up,
have to draw on our own and see if she is the experience really telling truth.
He further: She was from She argued granted immunity prosecution. was an and the of an must be treated accomplice, testimony accomplice with distrust. An in testifies usually accomplice expectation leniency. If the find that she lied as to a material jurors they may disregard point, her the entire Do not trust liar. In testimony. testimony determining witness, the of a her and consider demeanor credibility jurors may while manner consider whether use testifying; they may drugs or has influenced her recollect. ability perceive
In his further of Kasabian’s argument, referring parts many occurrences, times, relative various “Do he said testimony you many believe that?” He She it after she further: testified that was argued only was with these that she to tell truth. She offenses decided charged cried on three occasions while but should be very testifying, jurors tears. In tears of her the context this case her do not mean suspicious issue look is an It is an make her Her attempt pure. credibility thing. case, whether she was have to determine in the jurors carefully the truth. telling Shinn, of Mr. for statements in the
Some of the attorney argument Krenwinkel, for Kasa- Atkins, covered Mr. were: attorney Fitzgerald, bian’s well in his While adequately very argument. Kasabian was she cried her, when were shown to but testifying pictures should not let that fact make them feel that she jurors telling God, truth. She said she took LSD in order to seek and he (Shinn) that she used the word “God” to more for herself. guessed get sympathy Some of the Kanarek, statements in the of Mr. for argument attorney Manson, were: Witness Kasabian was a great percentage case. She prosecution’s had been told that if she by. prosecution testified to she knew about the seven murders she be everything might from Was it granted her to immunity prosecution. humanly possible tell truth, that such offer had been made? She was knowing conditioned to make dishonest statements. She defrauded Joe Sage *107 he had Her should be viewed with caution. She money paid. testimony was less than candid. She has told us the unbelievable regarding written word the Tate (at She is not house). truth. The “pig” telling is whether she can be believed. She cannot be relied His question upon. was to (Mr. Kanarek’s) see whether her can be used to purpose sustain the view of the case. The same prosecution’s purpose goes Lake. Witness told about Van (who Houten’s under a sheet Hoyt hiding after the La Bianca cannot be believed. murders) stated the most Hoyt incredible of events when she said she went to Kansas to look for someone whose name she did not know. Kasabian is not Clearly, telling know the truth when she said she did not about the death of La Biancas until she read about it in Miami. What she has taken as drugs her factor to be considered in her into body determining credibility. It thus the issue of lack of appears credibility prosecution witnesses, Kasabian, Lake, witnesses was particularly Hoyt, argued and. the four Also, defense it that even by counsel attorneys. appears though for Van Houten did not observe the witnesses while were they testifying, the three other Krenwinkel, Atkins, and Man- attorneys (representing testified, who were son), when the witnesses the matter of present argued shown, demeanor or manner of the witnesses. As in some of those just were there statements Mr. and Mr. Shinn arguments (by Fitzgerald, by who Mr. that Kasabian was well- approved Fitzgerald’s argument) mannered, sincere, reserved; and that on gentle, quiet, soft-spoken, cried; three occasions she and there was a statement Mr. Kanarek) (by that on one occasion she of these squinted. arguments experienced observed the (who witnesses) show the factual back- attorneys meager in this case for a defense on of witnesses on ground argument credibility the basis of demeanor witnesses while were they testifying. these of witness-demeanor
Presumably, the three specifications by other defense were the instances of experienced witness- attorneys only demeanor Kasabian, Lake, observed them (as by Hoyt—principal witnesses Van or the Houten), were the against specifications only instances of witness-demeanor which deemed they worthy being mentioned.
In the reversal of the Van Houten conviction the two other justices, for the asserted reason that her had not observed the witnesses attorney while were there is an that if her had they testifying, implication attorney observed the while witnesses were he have observed they testifying might witness-demeanor which was not observed the three other defense ifor he observed the same demeanor which the other attorneys, only observed he have made a better attorneys might argument credibility than made. they event,
In the reversal of the Van Houten conviction is based on the other principally above-mentioned justices’ application narrow (about not legal witness-demeanor) to a factual point arguing situation where it that, certain in view of the practically arguments the other there was no witness-demeanor attorneys, be significant *108 argued.
Furthermore, it is not in order for a to be always necessary, judgment valid, that an who makes a summation shall be in attorney a argument of witnesses based position his argue observations of credibility upon the witnesses. In this it is to be noted that there are several respect, situations wherein the at a testimony given prior judicial proceeding may be received in evidence in a in the same case subsequent proceeding when the witness who is not a available as witness in gave testimony Code, 1291; Witkin, (Evid. Cal. Evidence (2d § subsequent proceeding ed.) 566-570); under such circumstances a in the pp. judgment not be set aside or reversed because subsequent proceeding may merely an in the could not of attorney subsequent proceeding argue credibility witness based observation of demeanor of the witness missing upon while An of such a circumstance is the of a testifying. example testimony witness at a examination which is received at the trial when preliminary the witness is not available. v. Contreras (1976), 397].) Another such is the of a example testimony 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 those where the in the witness by examples unavailable,
former even the trier of the facts at the proceeding would not have observed the demeanor of that subsequent proceeding witness; under that at (where even situation no one the subsequent trial had observed the would not be set aside or witness) judgment reversed because the trier of the facts had not observed the merely demeanor of the witness. In the instant case the one who did not only however, observe the witnesses was Van Houten’s attorney. jurors, issues, witnesses, who did were decide the factual observe the they were instructed and were told in their judge, by attorneys of were that in witnesses determining credibility they arguments, the demeanor of the witnesses while were entitled to consider they testifying. with the Van
A of the unavailable witness situation comparison witnesses, that, of Houten shows with to observation situation respect in that the Van was in a much more favorable Houten position jurors witnesses, and were who were to decide the facts did observe the in their instructed to consider the witnesses’ demeanor determining whereas, of in the situation where former testimony credibility; clear, course, received, that no one at the unavailable witness is it is observed, witness and no trial had argument testifying, subsequent witness, and no consideration could be made demeanor of the regarding or the demeanor could be the trier the facts (judge jurors) given innumerable valid Over a the witness. years period many an have been rendered in cases where important part judgments and, course, witnesses; evidence is former of unavailable of witnesses made on such cases no could have been credibility argument their demeanor while on the basis of testifying.
The reversal of the Van Houten conviction because her counsel (not *109 witnesses, could not of witnesses) observed the argue having credibility witness-demeanor, inconsistent with on the basis of is statutory rendered, be effect that as above decisional law to the may judgment witnesses, even counsel unavailable cannot shown though regarding witness-demeanor, based on and even of the witnesses credibility argue not observed the witnesses. trier of the facts has though announced the two other tor the Van If the reason justices reversing is then arises as to of Houten conviction proper, question validity be rendered in cases where of unavailable that may judgments and an received cannot of is witnesses attorney argue credibility basis of witness-demeanor. on the witnesses Houten, did not
Furthermore, Keith, for Van Mr. counsel regard demeanor) of of his arguing matter (including question appointment oral case, (At cumulative. he it as in his but as the regarded strong point effect.) to that he made statement argument
After the and after former counsel for Van Houten had disappeared, rested, the trial evidence had been and all the had parties presented in in view of the the exercise of his discretion and judge, totality Van Houten. circumstances, then counsel to existing represent appointed counsel, It is the trial who that at the time of judge, apparent appointing witnesses, had decided that the matter observed the demeanor of the on of witnesses based counsel’s not able to credibility being argue At the time of witness-demeanor was not of material significance. said, Houten, in the trial Keith for Van Mr. as counsel judge appointing trial the entire who have been that there were three counsel through part, witnesses, that some all the and have had the of seeing opportunity Houten, as to and those who testified were witnesses Van of them against who testified as to the same witnesses her were anything involving defendants; and that matters the other any argument involving of those for the other defendants with counsel credibility respect Houten, from to the benefit of Van witnesses would inure apart Mr. Keith make. argument might trial, it
Furthermore,
a new
in view of the order denying
apparent
the four defense
after
that
the trial judge,
hearing
arguments
of Van Houten’s counsel
decided that
argue
inability
attorneys,
not
witnesses
on witness-demeanor was
based
prejudicial.
credibility
In this case it is to be
observed the
jurors
emphasized
witnesses;
and the
told
instructed the
judge
jurors,
attorneys
them,
were
that in
of the witnesses the
determining
credibility
jurors
were
to consider the demeanor of the witnesses while they
testifying;
that,
of the three defense
as above shown
reference to
arguments
witnesses, there was a
factual
who saw the
meager
background
attorneys
on the basis
of witnesses
for a defense argument
credibility
credi-
witness-demeanor;
that those three
argued
attorneys
experienced
witness-demeanor,
on the basis of
witnesses
bility
prosecution
*110
those
few
of demeanor
referred
attorneys
view of the
instances
and
and
as Kasabian’s
having
well-mannered
(such
soft-spoken,
being
no
that there was
clear
it seems
once)
cried three times and squinted
all the defense
and that
to be
witness-demeanor
argued;
significant
lack of
the asserted
and with
credibility
emphasis
argued ably
attorneys
Lake,
Kasabian,
and
witnesses,
witnesses
of prosecution
particularly
affected
whose
Houten),
witnesses
Van
Hoyt
against
(principal
but all the
defendants.
not
Van Houten
other
only
no
Mr. Keith
This is
a case where
was allowed.
not
argued
argument
limitation,
he had not
for two
without
that
very ably
days
except
however,
above
while
were
as
observed
witnesses
testifying;
they
shown,
of
that he did not
lack of
on the basis
fact
argue
credibility
was
of no
was
witness-demeanor
certainly
practically
significance,
F,
In
re William
It referred to seems that opinion part principles to be as the Van Houten conviction are understood meaning reversing on the basis that the of counsel witnesses argue credibility right a that is is so fundamental that the absence of witness-demeanor right however, a noted, It to be that in reason for reversal of the conviction. is effect, said, that which the it is in the determination footnote justices or a universal that absence were were not rule pronouncing making they a loss of counsel in necessarily compels any stage proceedings facts; no reversal; will have on own that each case to be decided its this Van Houten case show se rule can be stated. facts in per to witness-demeanor were made. as arguments repeated In the above of the two other there is justices, opinion quotation in v. Cir.), from the United States Barrett (7th dissenting opinion it F.2d it is said is in a decision wherein tempting acquiesce matter; which and inevitable conclusion may just represent nevertheless, there is reason more values are when enduring challenged In has in a manner. trial been conducted to doubt a notorious proper Illinois, of mail clerk of was convicted that case the Cook County, county fraud, tax It to be that notwith- income evasion. noted bribery, about the asserted in dissenting opinion standing philosophy values,” the affirmed conviction. “enduring majority opinion S.E.2d cited 730], W.Va. In State support Thompson, conviction, the Van Houten the reversal of question appeal *111 a mistrial on the for “manifest whether there was declaring necessity” had been received seized) that certain evidence (unlawfully ground therein, did it was held that the erroneous On ruling erroneously. appeal mistrial. After a constitute “manifest making not necessity” declaring dictum, to state decision, court by way reviewing proceeded, an occur- and in so included of “manifest necessity,” doing examples counsel, involved in that which was not such as illness or death rence case, however, referred to seems the footnote above case. In the present case. The footnote to the dictum in the cited West to be contra Virginia facts; on own and states, will have to be decided its in that each case part, rule can be stated. that no se per of Mr. and murders Van Houten
The verdicts the. guilty finding the evidence. were Mrs. La Bianca amply supported than Manson been a member of the Van Houten had family longer murders, told five Tate Manson On the after the girls. night was too that last Houten and other members of Van night family do it. Then seven of the show them how to and he was messy going an left the ranch in Manson and Van Houten members including hours. About a.m. and drove around for several automobile they where Manson Griffith Park area in front of house in the got stopped car, and Soon thereafter out of the walked the driveway up disappeared. were tied returned to the car and said that a man and woman he up Krenwinkel, Houten, and Watson to out of the house. He told Van get car, and not to let them know not stir fear in those they up people, He told Van Houten and Watson to hitchhike were to kill them. going to the waterfall. Manson back to the ranch and told Krenwinkel go Krenwinkel, Houten, car, and the others went in the Van away leaving dead and in front of the house. Later that the mutilated Watson morning His hands of Mr. and La Bianca were found in the house. bodies Mrs. throat; a was in his were tied. A knife was in his fork sticking sticking stomach; and blood was wounds were on his and stab body, many there 41 stab tied and were Her hands were smeared many things. walls, front in blood on the her Words were written wounds on body. door and refrigerator. had she stabbed that Van Houten told her Lake testified
Diane fun it more dead, did and that the more she who woman already food; ate she was; showered wiped after the it they killings touched; took had killings place off they everything fingerprints blouse, burned a some Van Houten Griffith Park. At the ranch around had been she wéaring. clothing rope, *112 morning to men came Hoyt that later four the testified
Barbara sheet, Hoyt hid a and she did not house, Van under Houten told just her, given because he had her a ride from the men to see one of want Park Griffith the area. trial, only the of attorney disappeared after several months
When argument of and instructions. part the trial was the matter unfinished of viewing the his discretion and my opinion judge, exercising In trial circumstances, counsel for Van Houten. totality properly appointed of shown, As above there was a a meager background factual for defense witnesses, on On argument credibility particularly based demeanor of as Kasabian, Lake, Hoyt. witnesses In view a to of such limited argument, reasonably signifi- for it is certain was no background there credibility event, argued. In of cant witness-demeanor be witnesses, witness-demeanor, argued by based was the three defense on Also, noted, attorneys who had the witnesses. as above there observed statutory where, law various circumstances under and decisional are witnesses), (relative judgment of unavailable a valid former credibility a on may though litigant argue be rendered even cannot indicating of demeanor of witnesses—thus that the matter of basis always that must arguing credibility privilege such is not fundamental a litigant. be accorded prejudice case,
Under was Van the circumstances of this there no subject attorney argue of Houten because her not could for a new trial indicates witness-demeanor. The denial the motion witnesses,. there judge, the trial course decided who of observed the prejudice no to Van Houten. case, as to
Under the this asserted basis for reversal Van facts of form is practically negligible. system justice, Houten is Under our not to be exalted over substance. judgment Houten should affirmed.
The conviction Van be were and the rehearing September Petitions for a denied Wood, P.J., was of opinion printed was modified to read as above. opinion petition respondent People rehearing that the as to for a petitions respon- Van should be appellant granted. Houten appellant hearing by Court were Supreme dent and Manson Mosk, Clark, J., Richardson, J., J. were of denied December 1976. Houten respondent’s Van opinion petition appellant that the as granted. should be notes clerk’s on exhibits. The court jurors’ markings directed bailiff to ask the foreman to all set aside the exhibits about the. which there was some on Penal Code 1138 and section question. Relying v. 27 Cal.2d (1945) 753], P.2d Manson Weatherford asserts such a that communication constitutes reversible error. Here is no or there record other evidence of bailiff’s communica tion to the foreman. In 27 Cal.2d court Weatherford, supra, with affidavits the bailiff and of presented jurors showing bailiff had addressed the on a of law. Here the jurors only point possible is that the an innocuous ministerial inference bailiff foreman gave event, offer no In instruction. showing prejudice appellants 756, House v. reversal. justify other on grounds, People Beagle Cal.Rptr. [overruled 831] 313, 492 P.2d Cal.3d 441 1)].) 699 went based the fact that the court error is A assertion of collateral with The court while counsel. off the record discussing foregoing was no the informal there need informed counsel report exhibit method to be used conversation clarify concerning record In the that a No was made. absence numbers. request objection counsel, court a conference between none is be made of required. Proc., (Code 269.) Civ. § Manson’s moved that “all of the deliberations attorney During jury into evidence into the room so that that was admitted go jury case, all have the benefit of of the evidence.” In this can jury] [the