People v. Manson (71 Cal. App. 2d 1, 1977)

Opinion

LORING, J.

Charles M. Manson (Manson), Susan Denise Atkins (Atkins) and Bruce McGregor Davis (Davis) were indicted by the grand jury for the murder of Gary Allan Hinman (Hinman) on July 27, 1969, in violation of Penal Code section 187 (count 1); count II charged that Manson, Atkins and Davis entered into a conspiracy to commit murder and robbery on or about the “25th through the 28th day of July 1969 in violation of Penal Code section 182.1.” Three overt acts were alleged: (a) that on or about July 25, 1969, they “did travel to the vicinity of 964 Old Topanga Canyon Road, Malibu, in the County of Los Angeles” (b) on or about July 26, 1969, they entered the residence at the same address (c) on or about July 26, 1969, Manson and Davis “did drive away” from the same address in a Fiat automobile owned by Hinman. Count III of the indictment charged Manson, Davis and Steve Grogan (Grogan) with the murder of Donald Jerome (Shorty) Shea (Shea) “between the 16th day of August, 1969 and the 1st day of September, 1969” in violation of Penal Code section 187.

The trial of Manson was severed from the trial of the other defendants.

Manson made a number of motions prior to or during the trial (all of which were denied): (1) to represent himself as his own lawyer or as cocounsel; (2) to disqualify the trial judge; (3) dismissal; (4) to plead once in jeopardy; (5) change of venue; (6) to sequester jury; (7) to exclude evidence. He also filed a demurrer to the indictment and challenges to the grand jury which were overruled.

A jury was empaneled after 24 days of voir dire examination. After 43 trial days, the jury returned guilty verdicts on counts I, II and III and fixed the penalty as imprisonment for life. Manson’s application for probation and motion for new trial were denied. Manson was sentenced to state prison for the term of life as prescribed by law on each count, but execution of sentence on counts II and III was stayed pending completion of sentence on count I. Manson appeals from the judgment.

Facts

A. The Murder of Hinman

Paul Piet, Los Angeles County Deputy Sheriff, testified that in response to a call from Michael Erwin he arrived at 964 Old Topanga Canyon Road in Malibu on July 31, 1969. He discovered the body of Hinman lying on the floor of the living-bedroom-type room. It was badly decomposed. Investigation disclosed a bullet hole in the kitchen cabinets. Near the body were Buddhist prayer beads known as “Jizu.” Blood was on the body and clothing and splattered around the inside of the house on the walls and furniture. Written in apparent blood on the living room wall were the words “Political Piggy” and a drawing that appeared to be like a paw print of an animal.

An autopsy established that Hinman had been stabbed twice in the chest; that the cause of death was a stab wound through the heart. There was a large cut on the left side of the face through the left ear to the left lip of the mouth, which could have been caused by a sword.

On and for some time prior to September 1, 1969, Manson was the leader of the so-called “Manson family.” People v. Manson, supra, 61 Cal.App.3d 102, describes the composition, activities and modus operandi of the Manson family and need not be repeated here.

A fingerprint of Beausoleil, who was a member of the “Manson family,” was found in Hinman’s house on a door frame between the kitchen and the hall. A nine millimeter bullet was recovered from under the sink which could have been fired from a nine millimeter Radom gun. Hinman’s Fiat station wagon was seen at the Spahn Ranch, where the Manson family lived, on July 28, 1969, by Deputy Sheriff George D. Grapp and other officers.

Beausoleil was found in the Hinman Fiat station wagon on Highway 101 in the San Luis Obispo area on August 6, 1969, by Forest J. Humphry of the Highway Patrol. Beausoleil was arrested. After Hinman’s Fiat was impounded, officers found a knife in the rear spare tire well under a rubber mat.

Ella Jo Bailey testified for the People that she had known Manson since 1967 and travelled extensively throughout the southwestern United States with him, Mary Brunner, Patricia Krenwinkel and Lynne Fromme, and that they moved to the Spahn Ranch in 1968 where she met Davis and Beausoleil. Several times during May and June 1969, Manson talked to Bailey and others about “going out” to get money to buy dune buggies to go to the desert to live. In July of 1969 Manson talked to several members of the family about the need to get money and names were discussed of various persons from whom they could get money. Hinman’s name was discussed and the fact that he owned a house and stocks and bonds. On July 26, 1969, Manson told Bailey and Bill Vance that he wanted them to go to Hinman’s house and persuade him to join the “family” or sign over all of his property and automobiles. Vance said he had better things to do and walked away. That night at about 6 p.m. Bailey saw Manson talking to Beausoleil and Davis. Beausoleil had a knife (People’s exh. 18) and Davis had a nine millimeter Radom gun (People’s exh. 30). Subsequent investigation by officers established that Davis had purchased the gun under an assumed name. Bailey saw Brunner and Atkins dressed in dark clothes. Bailey saw Brunner, Atkins, Beausoleil and a fourth unidentified person drive off in a ranchhand’s car which was driven by the fourth person. Davis was still in the parking lot.

Two nights later Bailey saw Brunner and Atkins drive up to the Spahn Ranch in a Volkswagen microbus which Bailey had previously seen in the possession of Hinman. Bailey went with Brunner in the microbus to a eucalyptus grove on the Spahn Ranch. Bailey observed that there was no key in the microbus and the ignition wires had been wired together. On the seat of the microbus Bailey saw a purse with $27.64 in it. With Bailey’s help, Brunner wiped off the microbus. The next morning Bailey saw Hinman’s Fiat station wagon at the Spahn Ranch. Later that morning Bailey saw Manson in the presence of about six other people carrying a sword. Bailey testified:

“Charles [Manson] stated that after the phone call had come to the ranch asking for help,[] he and Bruce Davis had gone to Gary Hinman’s house, and he stated at the time that they arrived, Mary [Brunner] and Sadie [Atkins] and Bobby [Beausoleil] had gotten the gun back away from Gary Hinman.

“He stated that he had words with Mr. Hinman, and they had a heated argument, and then it became necessary for him to quiet Gary Hinman down, and he stated that he used a sword and cut Gary Hinman from his left ear down to his chin. . ..

“He also said that he had quieted Gary down, and the girls put Gary in bed, and that Mr. Hinman asked for his prayer beads and after that he said that he had left Bobby to finish up.. ..

“He said that two or three shots had been fired at the house. He also said that Bobby was foolish to ever let Sadie hold the gun on Mr. Hinman. .. .

“He said that all they had gained from going to Gary’s house were the two vehicles and around $27.”

Alan Leroy Springer testified that he spent a night at the Spahn Ranch about August 10 or 11, 1969. In effect Manson tried to recruit him to join the family. Manson explained how they got things: “Well, we will go up to the door and knock on the door of their houses, and when they come to the door and open it up, .. . we’ll just do them in or stick them.. .. Everything behind the door is yours, then, ... for the taking.” Manson said that he had “whacked a guy’s ear off; ... a Hinman.” Manson said that he took Hinman’s truck away from him. Manson said: “Well, we cut this guy’s ear off’ and somebody asked “Who was that?” and Manson said “That was Hinman.”

On August 10, 1971, while the instant case was on trial, during the testimony of Springer and. while the prosecutor and Manson’s lawyer were at the bench conferring with the judge, Manson who was seated at counsel table leaned over to Sergeant Paul J. Whiteley, who was also seated at counsel table and said (according to Whiteley’s testimony): “Springer is lying. I’ve never met the man. He just jumped on.” Whiteley said: “I didn’t put you at the Hinman house. Mary Brunner did.” Whiteley then testified further:

“And then Mr. Manson stated, ‘Sure, I went to Hinman’s house and got the gun and sliced his ear. I don’t deny that. I told Bobby [Beausoleil] how to stand up like a man. He had a woman’s thoughts. I told him what to do—no. [Interruption]...

“Uh—T told him what to do. Hinman deserved to die. He was selling bad dope.’

“And then there was a pause, and he said, ‘He was greasy.’

“And that’s the end of the statement.”

Whiteley’s testimony was corroborated by the testimony of Officer Clifford Patrick Blackburn who overheard the counsel table conversation between Manson and Whiteley except that Blackburn testified that Manson said:“...! held the gun on him, and—I told Bobby ... [Bobby Beausoleil]—to kill him. And I even showed him how to do it. . .. it wasn’t really a conversation. .. . Manson did all the talking.” When the court was trying to determine whether Manson’s statements to Whiteley were made voluntarily, Blackburn testified in chambers that about a week previously Manson had made a similar voluntary statement to Whiteley.

When Manson testified in support of a motion to suppress the testimony of Whiteley and Blackburn, he also corroborated the conversation stating: “In general Mr. Whiteley’s statements were right. . . He admitted going to Hinman’s house, that he took the gun away from the guy . . and I had to cut him.” and he requested the girls to stay there and clean the place up and clean Hinman up. Manson testified that he didn’t look at Whiteley as “anything but a brain that I could program. And I dropped a lot of information in his head that would be useful to me later on.” Manson testified that he talked to Whiteley “Eveiy chance I get.” Some of the conversations occurred in the presence of Manson’s lawyer. The court concluded that Manson’s statements to Whiteley were not solicited by Whiteley and that they were freely and voluntarily given by Manson for some purpose of his own, and that they were spontaneous. The court said that it had witnessed conversations between Manson and Whiteley at counsel table while Manson’s lawyer was seated between them.

Marius John Arneson testified that in 1969 he lived at the Spahn Ranch, that he left the ranch and returned in late July or August 1969, that Beausoleil drove him and Manson in a white Fiat station wagon to look at a Volkswagen microbus which was on the Spahn Ranch, that Manson gave him Hinman’s Volkswagen microbus which had to be “hotwired” to drive, that Manson gave him a pink slip and instructed him that if he ever got in a hassle over the registration to say that he had gotten it from a Gary Hinman who was supposed to be a Black Panther.

Brunner was called as a witness by the People. By means of prior inconsistent statements (a transcript of her testimony at the trial of People v. Beausoleil, supra), the People established that in the latter part of July 1969, around midnight, Brunner, Beausoleil and Atkins were driven to Hinman’s house by Davis. Beausoleil asked Hinman for money. Hinman said he did not have any. Beausoleil pulled a gun. Beausoleil and Hinman got in a fight in the kitchen. Beausoleil hit Hinman over the head more than once with the gun. Hinman’s head was cut and bleeding. Beausoleil asked Brunner to clean up Hinman and gave Atkins the gun to hold on Hinman. Beausoleil went into the living room. Hinman took the gun away from Atkins. Beausoleil returned to the kitchen and resumed the fight with Hinman. During the struggle the gun discharged and a bullet went under the sink. Manson and Davis entered the house. Manson had a sword. Manson and Hinman struggled in the living room. Brunner was in the kitchen. Manson came into the kitchen with his finger cut. Brunner bandaged Manson’s finger and went into the living room where Atkins was bandaging Hinman’s ear. Hinman’s ear was cut in two and he had a cut running down his cheek. Manson and Davis left Hinman’s home in Hinman’s Fiat station wagon. Atkins, Brunner and Beausoleil stayed at Hinman’s house Saturday and Sunday for two days and nights. During this period Atkins answered the telephone and, using an English accent, told the callers that Hinman had gone to Colorado because one of his parents was sick.

Jay Hofstadter and Richard Siegel testified that they telephoned the Hinman home. Hofstadter testified that he telephoned Saturday, July 26, 1969, that a female answered the phone and said that Hinman had gone back to Colorado because his parents had gotten in an automobile accident. The girl said she came from London. She spoke with a British accent. Siegel called on Sunday, July 27, 1969. Siegel testified to the same effect.

Brunner’s prior testimony also established that during the two-day period that Atkins, Brunner and Beausoleil stayed at Hinman’s house, Hinman lay bleeding and sleeping. Atkins, Brunner and Beausoleil searched the house for things of value. They found “about twenty bucks” and two pink slips and two white slips to the cars. Beausoleil had Hinman endorse the pink slips. While Atkins and Brunner were in the kitchen, they heard a noise and rushed into the living room and Brunner found Beausoleil with a knife in his hand. Hinman had been stabbed. He was bleeding from the chest. They cleaned the place up obliterating fingerprints. Hinman went into a coma. Beausoleil said it was all over. Hinman then started breathing with a “loud raspy breathing.” Beausoleil put a pillow over Hinman’s head. He asked Brunner to hold it. Brunner did so for about two minutes and gave it to Atkins. They left Hinman’s house in his Volkswagen which they had to “hotwire.” Brunner took the nine millimeter Radom gun with her.

B. The Murder of Shea

Shea took care of horses and was a handyman who lived most of the time at the Spahn Ranch. Although he sometimes obtained temporary employment elsewhere, he always seemed to return to the Spahn Ranch. His ambition was to be an actor and stuntman in motion pictures. Shea owned a matched set of Colt .45’s which he carried in an attache case bearing the lettering “Reverend Donald Shea.” Shea was very proud of the Colt ,45’s stating that he would never sell them. However, when he needed money (which was frequently) he would pawn the guns but always for a small sum so that he would always be able to redeem them. Shea’s wife testified that she last saw Shea on August 16, 1969 (when they separated), and that that night at 7 or 8 p.m. he telephoned her and said he was at the Spahn Ranch and that he was going to stay there for a while. On August 17, 1969, Shea’s wife observed that Shea’s possessions including two suitcases and a footlocker had been removed from the hotel where they had previously stayed together. The footlocker had the words “Donald Jerome” stamped on the top. In a letter Shea told his wife if she wanted to contact him to call his long-time friends, the Babcocks, because they would always know where to reach him. Thereafter, Mrs. Shea called the Babcocks three times and as a result tried to telephone Shea at the Spahn Ranch several times during the period August 27, 1969, through September 1, 1969. On two occasions a female answered the telephone and said Shea had gone to San Francisco. Sharon Babcock testified that she attempted to telephone Shea at the Spahn Ranch three times. A female answered the telephone on each occasion.

Robert Bickston testified that in May of 1969, he talked to Shea about employment in a motion picture which was to start around July 15, 1969. Bickston talked to Shea about the motion picture again in June of 1969 and told him they were getting close to the starting date and to keep in touch with Mrs. Bickston. The starting date was eventually postponed to September 15, 1969. That from 1957 (when Bickston first met Shea) through June 1969, they kept in periodic touch with each other about eveiy three weeks, never longer than six weeks. Bickston last saw Shea between the middle and end of June 1969, and had not seen nor heard from him since.

Although Shea had previously worked for the Leslie Salt Company near San Francisco, he had not been employed by that company since September 5, 1968. Lance Victor who worked with Shea at the Leslie Salt Company and frequently visited him at the Spahn Ranch testified that he spoke to Shea at the Spahn Ranch in August 1969. Shea said he wanted to borrow money, that he wanted to return to work at the Leslie Salt Company. Shea was more nervous than usual. Shea was “kind of afraid.” Victor returned to the Spahn Ranch a few weeks later. Shea was not there.

Jerry Binder, a close friend of Shea who frequently loaned him money which Shea always repaid, testified that he loaned Shea money in July 1969, which Shea never repaid, that prior to July or August 1969, Binder heard from Shea at least once a month and if Shea were going out of town, Binder was the first one he would tell. Binder last talked to Shea (who was staying at that time at Binder’s home) at the end of July 1969.

Frank Retz testified that he purchased a portion of the Spahn Ranch in 1967 or 1968 and thereafter negotiated with Spahn for the purchase of the remainder of the ranch. In June 1969, Retz arranged to purchase the Kelly Ranch adjoining the Spahn Ranch and on June 30, 1969, Retz entered the farmhouse and saw Manson and about 20 people lying on the floor. Retz ordered Manson off of his property. Retz called the sheriff. Retz saw Manson on the Kelly property frequently after June 30, 1969, and ordered him off the property. After June 30, 1969, Retz had several conversations with Spahn, many of which were overheard by “Squeaky” Fromme (a Manson family member) about getting Manson and his family off of the Spahn Ranch. Retz told Manson to leave the ranch because Spahn asked Retz to clean up the ranch of the Manson family and he gave Retz a power of attorney. Retz had conversations with Spahn about the presence of the Manson family on the Spahn Ranch in the presence of Fromme. About one week prior to August 16, 1969, Manson threw a knife at Shea which stuck in a door directly in front of where Shea was walking.

Because of the activities of the Manson family, deputy sheriffs raided the Spahn Ranch on August 16, 1969. Retz told Spahn several times, four or five times, he wanted to hire a guard and on more than one occasion Fromme was present. Spahn told him to hire Shea, which Retz agreed to do. Retz told Spahn in the presence of Fromme that he wanted to keep “Manson and everyone” off of the property. Retz never saw Shea after he talked to Spahn about hiring him as a guard.

Shortly after deputy sheriffs raided the Spahn Ranch on August 16, 1969, and arrested Manson, Manson was released from jail and returned to the Spahn Ranch.

Barbara Hoyt, a member of the Manson family, testified that after his release from jail, Manson, in the presence of various people, said that Shea was responsible for the sheriffs raid, that Shea was an ex-policeman, that Shea was trying to get the Manson family kicked off of the Spahn Ranch and that Shea was an informant. Manson also said that Retz was trying to take over the Spahn Ranch, that when he did he would bring up a bunch of “Nazis” and kick the family off the Spahn Ranch, and that he got his information from Fromme.

John Swartz, who was employed on the Spahn Ranch, testified that Manson told him after the August 16, 1969, raid by the deputy sheriffs that Retz had purchased one-half of the ranch from Spahn and had offered Shea a job as watchman, and that Shea was going down that night to see about it. Ten days or two weeks later Swartz asked Manson if he had seen Shea and Manson said Shea had gone to San Francisco.

Manson and others were arrested again on Retz’ property on August 24, 1969, for possession of marijuana.

Ruby Pearl worked on the Spahn Ranch. Pearl had known Spahn for 18 years and Shea for 15 years. She testified that Manson and members of his family came to the Spahn Ranch in the spring of 1969. In June of 1969, Shea told Pearl he had a part coming up in a motion picture which he was anxious to do. In the latter part of August 1969, “a couple of weeks” after August 16, 1969, Shea asked if he could come and stay at Pearl’s home. He was very nervous. Pearl had no place for Shea to stay except in a shed. Shea did not want to stay there. Pearl drove slowly away. As she drove away Pearl saw a car drive up “real suddenly.” Several Manson family members got out of the car. Pearl saw Manson, Watson, Grogan and Davis get out of the car and they spread out and approached Shea with Shea in the middle. When they were about five feet from Shea, Pearl drove out of sight. Pearl never saw or heard from Shea again.

Hoyt testified that late one night in the latter part of August 1969, when she was going to sleep in the “parachute room,” she heard screaming. She heard many loud screams coming from down by the creek. She recognized the screams as coming from Shea. The screams occurred later that night. Hoyt never saw Shea again. The next afternoon when she was down by the creek, Hoyt overheard a conversation between Manson and Danny DeCarlo, in which Manson said “Shorty [Shea] committed suicide, with a little help from us. And we buried him under some leaves.” Manson said they cut him up in nine pieces and buried him under some leaves. Manson pointed down the creek with his thumb over his shoulder. Manson asked DeCarlo if lye or lime would get rid of the body. DeCarlo said lye would get rid of it; lime would preserve it. Manson asked DeCarlo where he could get some lye. That night Hoyt, Manson and most of the members of the Manson family left the Spahn Ranch and went to Barker Ranch and Meyers’ Ranch in the desert. Hoyt described their route of travel as through Ballarat and Goler Wash. At the Meyers’ Ranch, Manson in the presence of several members of the Manson family, told about the killing of Shea. Hoyt testified:

“Charlie [Manson] said that they had killed Shorty [Shea], Uh, they cut him up in nine pieces.

“And first they asked him—oh, they—they asked him if he would like to see something and, uh, that they had something that they wanted to show him. And then, he got into the dune buggy and they took him away. And then, they hit him in the head with a pipe. Uh, they pulled him out of the car, and they started stabbing him. And then, umm, they kept stabbing him and stabbing him.

“And Charlie said—or Shorty said, ‘Why, Charlie, why?’

“And Charlie said, ‘Why? This is why.’ And then, he stabbed him again.

“And, uh, he said that it was—it was very hard to kill him until they brought him to now. And when they brought him to now, he said that Clem [Grogan] cut his head off.’’

Brooks Poston testified that in September of 1969 at the Barker Ranch and Meyers’ Ranch, Manson in the presence of Davis, Watson and other members of the family said:

“. ... You remember Shorty, don’t you? You know, we had to do him in. He was bad-mouthing the ranch and calling the Man [police] on us, and scheming with Frank Retz to get the ranch. And we warned him two or three times to stop, but he didn’t.

“So we hit him on the head, took him for a ride. And when he started to come to, we stuck him with knives. And when he started to get to now, he was really hard to kill, because he wouldn’t give it up.

“So Clem [Grogan] had to cut his head off.”

Paul Watkins testified that on September 1, 1969, at the Barker Ranch, “He [Manson] said we had to kill Shorty. He said Clem [Grogan] cut his head off. And he said that he’s been bad-mouthing the ranch and that he knew too much about the Fountain of the World and so—that he was messing things up, up there. . . . He’s been calling the Man [police] on the ranch.” Manson said Clem cut Shea’s head off with a machete.

Circumstantial evidence was produced by the prosecution to prove the murder of Shea because Shea’s body was never recovered. Such evidence consisted, inter alia, of the following: that Shea’s car was found on December 9, 1969, parked on a street in Chatsworth with Shea’s foot locker in the trunk of the car, keys underneath the front seat; shoes and papers were in the car; picture negatives were in the foot locker which Shea had agreed to return to Pearl; a fingerprint from Davis was on the foot locker; DeCarlo had redeemed Shea’s pair of Colt .45’s which Shea had pawned with Sam Launer, a Hollywood pawnbroker; DeCarlo had sold the guns to Delma Eugene Baker in Culver City.

John Swartz testified that he had seen Vance and DeCarlo at the Spahn Ranch in possession of Shea’s attache case containing the Colt .45’s.

In February 1970, Richard Davis Barber found Shea’s suitcase and briefcase under some brush in Goler Wash.

A great mass of evidence was presented regarding efforts by law enforcement to locate Shea or his body. None of the efforts were productive.

Issues

Appellant contends:

1. As a preliminary overview, the conviction should be reversed because the case was close on the facts, the evidence (particularly regarding the Shea murder) was circumstantial and the state-inspired publicity tainted and interfered with the truth-seeking function of the trial.

2. Massive publicity deprived appellant of due process of law.

3. The grand jury indictment procedure is constitutionally infirm.

4. There was no competent evidence to support the indictment and therefore the court should have granted appellant’s motion to dismiss under Penal Code section 995.

5. For several reasons it was reversible error to receive in evidence the testimony of Brunner at a prior trial.

6. The conviction of the Hinman murder should be reversed because of: (a) errors in connection with the testimony of Bailey, (b) state misconduct regarding testimony of Arneson, (c) the suppression of evidence regarding the testimony of Springer, (d) the introduction of Whiteley testimony, (e) the fact that the evidence was insufficient to sustain the verdict.

7. The conviction of the Shea murder should be reversed because of: (a) the evidence (apart from Manson’s admissions) is insufficient to establish a corpus delicti, (b) the cumulative effect of numerous errors relating to the admissibility of evidence.

8. The demurrer to count II of the indictment should have been sustained because of ambiguity which denied due process.

9. Jurors were improperly excused from the petit panel.

10. Appellant should have been permitted to represent himself under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525], despite the fact that Faretta is not retroactive.

Discussion

1. The Preliminary Overview

Manson devotes 33 pages of his opening brief to the evaluation of the evidence with reference to both the Hinman and Shea murders as if this appeal were a trial de novo, concludes that the evidence is close, and that the various errors complained of therefore were prejudicial and require reversal.

In our view, the major premise is erroneous. We do not agree that the evidence, viewed in the light most favorable to respondent, indicates that either case was close. In the Hinman case, the corpus delicti was established by direct evidence. Hinman clearly was murdered by someone. The totality of the evidence demonstrates that Hinman was killed in the course of a robbeiy. All of the participants in the robbery are therefore guilty of murder in the first degree (Pen. Code, § 189), even though only one struck the fatal blow. (People v. Sirignano (1974) 42 Cal.App.3d 794 [117 Cal.Rptr. 131].) In People v. Ulsh (1962) 211 Cal.App.2d 258 [27 Cal.Rptr. 408], the court said (p. 266): “Furthermore, it is well established that if a homicide is committed by one of several confederates while engaged in perpetrating the crime of robbeiy in furtherance of a common purpose, the person or persons engaged with him in the perpetration of the robbery but who did not actually do the killing, are as accountable to the law as though their own hands had intentionally fired the fatal shot or given the fatal blow, and such killing is murder in the first degree. The jury has no option but to return a verdict of murder in the first degree whether the killing was intentionally or accidentally done, and it is proper to so instruct the jury.” (Italics in original.)

Manson was clearly an aider and abettor, if not the primary instigator, of the robbeiy. By his own admissions he struck Hinman with a sword in aid of the robbery. The fact that Beausoleil was the person who struck the fatal blow does not relieve Manson of responsibility for the murder of Hinman. The evidence of Manson’s guilt for the Hinman murder was more than substantial beyond a reasonable doubt.

In the Shea case the corpus delicti was established primarily by circumstantial evidence. As we hereafter note in more detail the law in California has been clearly established since People v. Scott (1959) 176 CaI.App.2d 458 [1 Cal.Rptr. 600] (cert, den., 364 U.S. 471 [5 L.Ed.2d 222, 81 S.Ct. 245]; rehg. den. 364 U.S. 944 [5 L.Ed.2d 376, 81 S.Ct. 462]; cert, den., 368 U.S. 849 [7 L.Ed.2d 47, 82 S.Ct. 81] that even in the case of first degree myrder, the corpus delicti may be established by circumstantial evidence. (See 1 Witkin, Cal. Crimes, § 91, p. 87.) The circumstantial evidence of the corpus delicti in the case at bar is far stronger than the evidence involved in People v. Scott, supra. In addition, in the case at bar, there is direct “ear witness” evidence of the actual murder of Shea. Hoyt testified to hearing screams by Shea, at what the juiy presumably concluded was the precise time of the murder. Such ear witness testimony was clearly admissible as direct evidence to establish the corpus delicti. (People v. Marchialette (1975) 45 Cal.App.3d 974, 980 [119 Cal.Rptr. 816].) In the Scott case, there was no direct evidence of murder. In the case at bar, there was some direct evidence of murder even though Shea’s body was successfully disposed of.

In our view the totality of the evidence in the case at bar supports the jury’s verdict that Manson was guilty of the murders of both Hinman and Shea beyond a reasonable doubt and that neither case was a close case. Consequently, the various claims of error can be evaluated on their respective merits.

2. Publicity and Due Process of Law

Manson argues that state-inspired publicity particularly in connection with the Tate-LaBianca murders deprived him of a fair trial and due process of law in the Hinman-Shea case. The publicity in the various news media in connection with the Hinman-Shea murders was only a small fraction of the publicity in connection with the Tate-LaBianca murders. Both Hinman and Shea were obscure and unknown except to a small circle of friends. Neither was socially or otherwise prominent or a well-known motion picture actor as were some of the victims in the Tate-LaBianca case. In short, the Hinman-Shea cases were not as “newsworthy” as the Tate-LaBianca cases. These were some of the factors which the trial court and this court may consider in attempting to determine whether or not publicity deprived Manson of a fair trial. (People v. Sommerhalder (1973) 9 Cal.3d 290, 304 [107 Cal.Rptr. 289, 508 P.2d 289].) However, the court properly issued a gag order.

Manson has attempted to impeach the verdict in the Hinman-Shea case by incorporating by reference the evidence of the publicity introduced in the Tate-LaBianca case. In People v. Manson, supra, the court concluded that the “massive” publicity there involved did not mandate reversal of that judgment. If the massive publicity in connection with the Tate-LaBianca case did not deprive Manson of a fair trial in that case, it is difficult to see how such publicity would deprive Manson of a fair trial in the Hinman-Shea case. This case did not go to trial until approximately six months after the conclusion of the Tate-LaBianca case. Any residual effect of the publicity relating to the Tate-LaBianca case would be extremely minimal if at all. (People v. Sommerhalder, supra.)

As noted the voir dire examination of the jurors and alternate jurors consumed 24 trial days. Except in one instance (hereinafter noted in detail) when Juror Luster was replaced with an alternate, Manson does not indicate the identity of a single juror or alternate who was empaneled whose impartiality or objectivity was affected in any way by any publicity prior to or during trial. The voir dire examination discloses that prior to trial most of the prospective jurors never heard of either Hinman or Shea or their murders or Manson’s connection with their murders. Although many jurors had heard of the Tate-LaBianca case and that Manson had some connection with that case, all jurors who indicated any specific knowledge of the prior case or that it might have some effect on their thinking here were excused for cause. The court was extraordinarily liberal in sustaining challenges for cause.

Manson complains that the jury was not sequestered during the 43-day trial. The sequestration of a jury rests on the sound discretion of the trial court, or the court may permit separation with a proper admonishment. (Pen. Code, § 1121; People v. Murphy (1973) 35 Cal.App.3d 905, 933 [111 Cal.Rptr. 295]; People v. Moore (1962) 209 Cal.App.2d 345, 352-353 [26 Cal.Rptr. 36].) The jury was repeatedly and adequately instructed regarding reading or listening to the news media. Except in the one instance hereinafter noted, there is no evidence that the jury did not adhere to the court’s instructions. The jury was sequestered during deliberation.

While the court was in a two-week recess during the trial in the instant case, a group of Manson’s followers allegedly robbed a gun shop at Hawthorne to obtain guns to “rescue” Manson by taking the judge and prosecutor hostage and such alleged action resulted in some additional publicity in the news media. Manson moved for a mistrial or in the alternative to sequester the jury. He also requested the court to conduct an evidentiary hearing to determine whether the additional publicity had any effect on the jury. The court conducted an evidentiary hearing. In response to the court’s question seven jurors or alternates indicated that they had inadvertently heard or read something about the robbery of the gun shop during the two-week recess. The court then conducted an intensive examination of each of the seven jurors individually in the absence of the other jurors.

Juror Lillian B. Luster testified that while she was on a trip to Oakland and her husband was ill at home alone, her husband was involved in a situation, having no connection with the case at bar, where a girl was killed by a third person at the apartment house where Luster lived. The girl died in Luster’s living room. Luster read the news headline about the robbery of the gun shop and thinking that it might have some connection with the killing of the girl at her apartment house she read the entire article. Luster indicated she was afraid because of what happened at her home. Other jurors indicated that they “accidentally” saw a headline or heard something on the radio but each indicated it would have no influence on his or her state of mind or deliberations and that it had not prejudiced them against Manson. Manson’s lawyer appeared to be satisfied with the questioning by the court. Manson’s counsel stated positively that he had no further questions to ask of the jurors. Eight jurors testified that they had not heard or read anything whatsoever. The case at bar therefore is not unlike People v. Salas (1972) 7 Cal.3d 812 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832], wherein the court said (pp. 818-819): “.. . the jurors’ ignorance of the pretrial publicity is a very strong indication that defendant was not tried by a biased jury, [citation] Eight of the twelve jurors did not recall reading or hearing about the case and the recollection of the remaining four was so dim as to be negligible.” (Fn. omitted.)

It is clear from the court’s interrogation of the jurors that some of the jurors had very slight knowledge of the news media stories about the Hawthorne gun shop robbery and that such slight knowledge had no effect whatsoever on their ability to sit in judgment fairly and impartially. The court denied the motion for a mistrial. The court excused Juror Luster because she had read the news article in violation of the court order and because of her emotional state resulting from the killing at her apartment house. Even the removal of Juror Luster was over defendant’s objection.

The question here is not whether or not there was derogatory publicity about Manson, but whether or not the individual jurors were aware of such publicity and, if so, whether or not it affected their ability to be fair and impartial and to give Manson a fair trial. Substantial evidence sustains the trial court’s findings that some of the jurors had minimal knowledge of such publicity, that such minimal knowledge was accidentally acquired but that such minimal knowledge did not affect their ability to be fair and impartial and to give Manson a fair trial. Our own independent evaluation confirms the conclusion of the trial court. (People v. Sirhan (1972) 7 Cal.3d 710, 730 [102 Cal.Rptr. 385, 497 P.2d 1121].)

We have read the newspaper stories in evidence herein with reference to the Hinman-Shea case that were published prior to and during the trial in the instant case and we find nothing in such news stories which were not entirely factual regarding evidence produced and proceedings in court, with the sole exception of the gun shop robbery already referred to. For example, newspaper stories carried the details regarding the counsel table conversations between Manson and Whiteley (infra, p. 40) which Whiteley and others testified to in open court. Furthermore, it is noteworthy that in the case at bar the juiy imposed only life sentences whereas in the Tate-LaBianca cases the jury imposed death sentences. Here the jury deliberation began on October 21, 1971, and the jury did not return a verdict until November 2, 1971. During this period the jury requested a rereading of significant portions of the testimony. The record demonstrates that the jury acted conscientiously on the evidence and was not influenced by any publicity.

Unlike Estes v. Texas (1965) 381 U.S. 532 [14 L.Ed.2d 543, 85 S.Ct. 1628] and Sheppard v. Maxwell (1966) 384 U.S. 333 [16 L.Ed.2.d 600, 86 S.Ct. 1507], in the case at bar there was no flagrant departure from fundamental due process and the proper courtroom decorum was not upset by external influences. The news media were not out of control in the courtroom. Prejudice therefore will not be presumed. No prejudice in fact is shown.

We conclude that publicity did not deprive Manson of a fair trial or of due process of law. (People v. Sommerhalder, supra, 9 Cal.3d 290, 301.)

3. The Grand Jury Indictment Procedure

Manson argues that the grand jury indictment procedure used to bring Manson to trial is constitutionally infirm. Manson made the identical argument in the Tate-LaBianca case. The decision was adverse there. (People v. Manson, supra, pp. 165-166.) It is adverse here. No reason is shown here which would justify a different conclusion.

If the grand jury indictment is not supported by substantial evidence, Penal Code section 995 affords an adequate remedy.

4. Competence of Grand Jury Evidence

Manson also complains that the grand jury first issued separate indictments for the Hinman and Shea murders and then used certified transcripts of the testimony in the two cases in order to combine counts for the two murders into one consolidated indictment. Manson contends that his section 995 motion to dismiss the grand jury indictment should have been granted because of such alleged impropriety. The procedure was proper and has been approved. (Stern v. Superior Court (1947) 78 Cal.App.2d 9, 14 [177 P.2d 308]; People v. Busick (1939) 32 Cal.App.2d 315, 324 [89 P.2d 657]; People v. Follette (1925) 74 Cal.App. 178, 189-190 [240 P. 502].) In Follette the court said: “.. . when the second indictment is returned by the same grand jury which found the original one, the grand jury may rely upon the evidence given on the hearing, which resulted in the return of the original indictment, and need not hear any additional testimony.” (P. 190.) Penal Code section 939.6 does not compel a different result because the grand jury heard sworn competent testimony.

5. Admissibility of Brunner’s Testimony

a. Were the foundational requirements satisfied?

Manson fires a general barrage at the admissibility of the testimony of Brunner particularly the receipt of Brunner’s testimony in the case of People v. Beausoleil, supra, as prior inconsistent statements. The prosecution called Brunner as a witness and propounded to her many of the same questions propounded to her in Beausoleil. However, in the case at bar, contrary to her testimony in Beausoleil, Brunner denied going to Hinman’s house in July 1969. She specifically denied going to Hinman’s house in the latter part of July 1969, with Bruce Davis, Robert Beausoleil, or Susan Atkins. She admitted knowing in the latter part of July 1969, that Hinman was dead, but denied that she was in any way responsible for his death. She denied seeing Atkins hold a gun on Hinman. She denied seeing Beausoleil strike Hinman with a gun or seeing injuries to Hinman’s head. She denied bandaging Manson’s finger and denied seeing Atkins bandage Hinman’s head. When confronted with a transcript of her testimony in Beausoleil and given an opportunity to explain it, Brunner admitted testifying at the trial of Beausoleil, but testified in the case at bar that her testimony in the prior trial of Beausoleil was a lie, and that she lied in order to obtain immunity, to avoid a revocation of her probation, and to keep out of jail and retain possession of her child which had been fathered by Manson. She was given every opportunity to explain the reasons for the conflict between her testimony in the case at bar and her testimony in Beausoleil.

At the outset of the direct testimony of Brunner, the prosecutor undertook to examine her about a grant of immunity from the district attorney’s office but Manson’s lawyer and Manson personally objected. Because of his interference with the trial Manson then had to be removed from the courtroom and was held in an adjacent detention cell. Manson nevertheless continued to disrupt the proceedings by shouting through the open door of the detention cell and the court was compelled to close the door.

On his own motion, the trial judge undertook an in camera.investigation of the circumstances under which Brunner had been granted immunity in People v. Beausoleil, supra, and the terms of such grant of immunity, but counsel for Manson objected vigorously and repeatedly to any such inquiry by the court. The court appointed a lawyer (from the same law firm which previously represented Brunner) to advise Brunner regarding her rights. The lawyer did so and informed the court that Brunner had been fully advised of her rights. The court impliedly found that the prior testimony of Brunner in Beausoleil had been free and voluntary. (Evid. Code, § 402, subd. (c).)

Prior inconsistent statements of a witness are admissible as substantive evidence if the requirements of Evidence Code section 770 are complied with. (Evid. Code, § 1235; California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930]; People v. Green (1971) 3 Cal.3d 981 [92 Cal.Rptr. 494, 479 P.2d 998]; People v. Romo (1975) 14 Cal.3d 189, 194 [121 Cal.Rptr. 111, 534 P.2d 1015]; People v. Collins (1975) 44 Cal.App.3d 617 [118 Cal.Rptr. 864]; People v. Allen (1974) 41 Cal.App.3d 196 [115 Cal.Rptr. 839]; People v. Marcus (1974) 36 Cal.App.3d 676, 679 [111 Cal.Rptr. 772, 58 A.L.R.3d 594]; People v. Jenkins (1973) 34 Cal.App.3d 893 [110 Cal.Rptr. 465]; People v. Freeman (1971) 20 Cal.App.3d 488 [97 Cal.Rptr. 717].)

Manson now contends that the prosecutor was guilty of suppressing evidence regarding the terms and extent of the grant of immunity given to Brunner. It is painfully evident that the failure, if any, of complete candor and disclosure regarding the grant of immunity was caused by the objections, filibustering and obstructionist tactics of Manson’s counsel and to a lesser degree by Manson personally. At trial Manson successfully objected to the prosecutor doing precisely what he now argues the prosecutor should have done.

Manson also claims that the prosecution withheld from the jury evidence that Brunner was uncertain whether or not Manson was the father of her child. Brunner was asked a direct question and gave a direct answer that Manson was the father of her child. If she had doubts regarding paternity it was incumbent upon her to express them either on direct or cross-examination. The prosecutor is not the witness.

The prosecutor and Manson’s lawyer went over the transcript of Brunner’s testimony in the Beausoleil trial. Manson’s lawyer was allowed to offer any additional part of such testimony which he desired. Manson contends that none of the prior testimony of Brunner should have been received in evidence because the prosecution failed to offer portions of such prior testimony in connection with seven allegedly important facts. The claim is obviously an afterthought raised for the first time on appeal. No such claim was made in the trial court. As noted, Manson was allowed to offer any portion of such prior testimony which he desired.

On direct examination in the case at bar, Brunner at her court-appointed lawyer’s urging, ultimately invoked the Fifth Amendment against 3 of the 72 questions propounded by the prosecutor. But, she nevertheless thereafter testified fully on cross-examination. She did not refuse to answer a single question on cross-examination. Manson’s counsel indicated he had no further questions and subsequently admitted that he had cross-examined as fully as desired. Brunner was not excused as a witness but remained available under court order for recall if desired. We note parenthetically that Manson called Brunner as his witness during the penalty phase of the trial after the jury had returned guilty verdicts on all three counts. At the time of her testimony during the penalty phase of the trial, Brunner had been charged with the murder of Hinman (allegedly because she had violated the terms of the grant of immunity; see People v. Brunner, supra) and she was also charged with perjury. At that time (during the penalty phase of the instant trial) Brunner did consistently invoke her Fifth Amendment rights. This fact does not alter our conclusion that she was fully examined during the trial in chief. In our view what happened at the penalty phase of the trial was nonprejudicial in view of the fact that the jury did not impose the death penalty.

Manson’s lawyer objected to the offer of the testimony of Brunner as given in the Beausoleil case as a prior inconsistent statement on the additional ground that the requirements of Evidence Code sections 770 and 1235 had not been satisfied since Brunner was not “available” for cross-examination in view of the fact that she had invoked the Fifth Amendment. The court ruled that by testifying as fully as she did Brunner had waived the privilege against self-incrimination. (Rogers v. United States (1951) 340 U.S. 367 [95 L.Ed. 344, 71 S.Ct. 438]; People v. Freshour (1880) 55 Cal. 375.)

We conclude that Brunner was legally available for cross-examination; that in fact she was fully cross-examined by Manson during the guilt phase of the trial to the extent that he then desired; that the requirements of Evidence Code sections 770 and 1235 were fully satisfied; and that Brunner’s testimony was not inadmissible because she was not available for cross-examination. Such prior testimony was not inadmissible because it was given under a grant of immunity. The facts regarding such grant of immunity were fully disclosed to the jury in order that it could evaluate such testimony in the light of the fact that it was given under bias and prejudice, if any, generated by a grant of immunity.

Manson also argues that the grant of immunity was unlawful because it was not approved by the court and that therefore Brunner’s prior testimony was inadmissible as a matter of law. The words of the court in People v. Brunner, supra, are apropos: “Yet while these factors bear heavily on the weight [italics in original] to be given the witness’ testimony, they do not impinge upon the validity of the bargain itself.” (P. 915.) The propriety of the grant of immunity has been judicially approved and upheld by a final judgment of this court. (People v. Brunner, supra.)

Since we conclude that Brunner’s testimony was-properly admitted into evidence and that preliminary foundation requirements under Evidence Code section 770, were satisfied, the weight to be accorded such prior testimony as an inconsistent statement was a question for determination by the jury.

b. Was Brunner an accomplice and if so, was her testimony sufficiently corroborated?

Manson argues that the Brunner testimony in People v. Beausoleil, supra, should not have been admitted because Brunner was an accomplice as a matter of law and her testimony was not corroborated. The argument is devoid of merit for two reasons: (1) Brunner was not an accomplice as a matter of law, and (2) the testimony of Brunner (as given in the case of People v. Beausoleil, supra) was sufficiently corroborated.

Brunner was not an accomplice as a matter of law because there was a conflict in her testimony as to whether or not she was even at Hinman’s house in July 1969. Brunner’s testimony (as given in Beausoleil) was corroborated by evidence of the physical facts surrounding the death of Hinman, by the testimony of Bailey (see infra, pp. 36-37), and others, by the fact that Beausoleil’s fingerprint was found in the Hinman residence, and by the several admissions of Manson personally. The corroboration was more than substantial. (People v. Smith (1970) 4 Cal.App.3d 41, 45 [84 Cal.Rptr. 229]; People v. Henderson (1949) 34 Cal.2d 340, 343 [209 P.2d 785]; People v. Scofield (1971) 17 Cal.App.3d 1018 [95 Cal.Rptr. 405]; People v. Williams (1954) 128 Cal.App.2d 458, 462 [275 P.2d 513].)

Manson argues that since Brunner was an accomplice as a matter of law the court should have instructed, sua sponte, that Brunner was an accomplice as a matter of law. As already indicated, the argument is based upon an improper assumption. If Brunner was an accomplice as a matter of law, the conclusion would be correct. (People v. Ferlin (1928) 203 Cal. 587 [265 P. 230]; People v. Jones (1964) 228 Cal.App.2d 74, 94-95 [39 Cal.Rptr. 302].) However, the rule applies only where there is no conflict in the evidence that the person is in fact an accomplice. (People v. Coffey (1911) 161 Cal. 433, 446 [119 P. 901]; People v. Jones, supra.)

The jury instructions which the court gave defined accomplice (CALJIC No. 3.10), advised the jury that the testimony of an accomplice must be corroborated (CALJIC No. 3.11), defined the sufficiency of the evidence which was required to corroborate the testimony of an accomplice (CALJIC No. 3.12), cautioned the jury that the testimony of an accomplice should be viewed with distrust (CALJIC No. 3.18), defined the criminal intent requisite to be an accomplice (CALJIC No. 3.14), and that one accomplice may not provide the requisite corroboration for another accomplice (CALJIC No. 3.13). Mánson’s argument that the court should also have instructed, sua sponte,. that Brunner was an accomplice as a matter of law, ignores the fact that there was a conflict in the evidence as to whether or not she was an accomplice at all. An instruction that Brunner was an accomplice as a matter of law would have clearly constituted prejudicial and reversible error, since such an instruction would have been tantamount to an instruction .that her testimony in the case at bar was untrue and that her testimony in People v. Beausoleil, supra, was true. Such an instruction would have usurped the jury’s function to determine which version of the facts was true. “ . . . Where the facts are in dispute as to the knowledge and intent of the asserted accomplice, the witnesses’ liability for prosecution is a question of fact for the jury.” (People v. Gordon (1973) 10 Cal.3d 460, 467 [110 Cal.Rptr. 906, 516 P.2d 298].)

The court correctly instructed the jury on the law applicable to accomplices and the prosecution correctly argued to the jury that if Brunner told the truth in the case at bar, she was not an accomplice, but if she told the truth in her testimony in People v. Beausoleil, supra, she was an accomplice. (People v. Gordon, supra, pp. 472-473.)

When Manson argues that Brunner was an accomplice as a matter of law, he inferentially admits that she was telling the truth in Beausoleil and lying in the case at bar. Such an admission might have been significant if it had been made at the trial level. It does not change the rule when made in this court.

c. Was the prosecutor guilty of misconduct in arguing that Brunner’s testimony was corroborated?

Manson argues that the prosecutor was guilty of misconduct and was permitted to mislead the jury by misstating the facts and the law in several respects. He argues that what the prosecution characterized as corroborating evidence of Brunner’s testimony (in People v. Beausoleil, supra) was not legally corroborative evidence. Manson devotes 10 pages of his opening brief on appeal to this argument. (Pp. 116-126.) Time and space do not permit a detailed analysis. In many respects the arguments are nonsensical. For example, Manson argues that evidence that Manson admitted slashing Hinman’s ear was not corroborative of the testimony of Brunner because Manson’s admissions did not specifically admit when he slashed Hinman’s ear.

Manson argues in effect that evidence is not corroborative evidence unless each bit of evidence standing alone is sufficient to connect the defendant to the crime. Such is not the law. If the sum total of all of the evidence (other than the accomplice’s testimony), connects the defendant to the commission of the offense the requirements of Penal Code section 1111 are satisfied. Here the defendant’s admissions alone are sufficient to provide corroboration. Direct evidence is not required but circumstantial evidence will be sufficient. (People v. Mardian (1975) 47 Cal.App.3d 16, 43 [121 Cal.Rptr. 269].) The requirements of Penal Code section 1111 are satisfied if the sum total of all of the evidence connects the defendant to the crime and is sufficient to convince the juiy that the accomplice is telling the truth. (People v. Medina (1974) 41 Cal.App.3d 438, 466 [116 Cal.Rptr. 133].) Even slight circumstantial evidence may be sufficient. (People v. Thurman (1972) 28 Cal.App.3d 725 [104 Cal.Rptr. 804]; People v. Manson, supra, 61 Cal.App.3d 102.)

Consequently the prosecutor had a right to argue each bit and piece of the evidence even though each bit and piece standing alone would not have been sufficient to supply the requisite corroboration. Just as an artist creates a mosaic a piece at a time, so a prosecutor creates a picture of guilt by consideration of individual bits of evidence, otherwise insignificant, which in totality convince the seeker of truth. The prosecutor was not guilty of misconduct merely because he characterized bits and pieces of evidence as corroboration when standing alone such bits and pieces would not have been sufficient to sustain a conviction. If the sum total was sufficient, the argument was proper. The sum total was sufficient. (People v. Hathcock (1973) 8 Cal.3d 599 [105 Cal.Rptr. 540, 504 P.2d 476]; People v. Jenkins, supra, 34 Cal.App.3d 893; People v. Randono (1973) 32 Cal.App.3d 164 [108 Cal.Rptr. 326]; People v. McFarland (1971) 17 Cal.App.3d 807 [95 Cal.Rptr. 369].)

6. Alleged Errors in Admission of Evidence Regarding Murder of Hinman

a. The testimony of Bailey:

Manson argues that the testimony of Bailey had three aspects: (1) of tending to prove robbery as a motive for the murder of Hinman, (2) of corroborating the testimony of Brunner, (3) of circumstantial evidence establishing Manson’s guilt independently of Brunner’s testimony and apart from motive. We agree.

Manson assails the admission of Bailey’s testimony on several grounds. He contends that the prosecution violated the court’s discovery order, because although the prosecution produced for inspection a tape recording of a police interview with Bailey prior to trial, the tape recording was full of static and at least partially unintelligible. As a consequence Manson’s lawyer could not fully understand the tape recording. Subsequently a tape recording was produced which amplified the original tape. Manson now claims that he should have been given the amplified tape recording prior to trial although he made no such claim during trial. At trial he contended that the amplified tape “is not pertinent to these proceedings.”

At trial Manson made a motion to strike the testimony of Bailey. The court conducted an evidentiary hearing regarding the tapes and the claim by one of Manson’s lawyers (Berlin) that when he heard the tape recording played, he heard Bailey make reference to “money and concessions.” Manson claims that the prosecution “bought” the testimony of Bailey. He also claims that the original tape recording was altered. As a result of the evidentiary hearing, it appeared that Officer Whiteley had given Bailey $20 for long distance telephone calls and prosecuting authorities in the State of Washington agreed to drop forgery charges against Bailey if she testified as a prosecution witness in the case at bar.

The court concluded as a fact that the original tape recording was not altered, that Berlin and Kanarek were mistaken as to what they thought they heard on the tape, and that the discovery order had been fully complied with. The court denied the motion to strike the testimony of Bailey.

The prosecution did not suppress or conceal evidence within the principles enunciated in People v. Ruthford (1975) 14 Cal.3d 399, 406 [121 Cal.Rptr. 261, 534 P.2d 1341] and People v. Westmoreland (1976) 58 Cal.App.3d 32, 44 [129 Cal.Rptr. 554]. Bailey testified fully that she understood that if she testified truthfully the forgery charges against her would be dropped. The only requirement was that Bailey testify truthfully. The agreement was lawful (People v. Manson, supra) and consequently Bailey’s testimony was properly received in evidence.

Manson argues that Bailey’s testimony should not have been received in evidence because she was an accomplice as a matter of law. The argument is absurd. Bailey was not an accomplice to the murder of Hinman as a matter of law. She was a percipient witness to certain events which occurred prior to and after the robbery and death of Hinman, which constituted circumstantial evidence regarding the murder of Hinman. In addition after thé murder of Hinman, Bailey helped Brunner wipe down Hinman’s Volkswagen microbus after Brunner drove it to the Spahn Ranch. Both sides here seem to assume that the purpose of the “wipe down” was to remove fingerprints, but our reading of the record indicates that Manson successfully objected to Bailey’s testimony that that was the purpose of the “wipe down.”

By virtue of his objection therefore Manson succeeded in preventing the prosecution from proving that Bailey was even an accessory after the fact. If Bailey had been permitted to testify, as the prosecution sought to establish, that she and Brunner had wiped fingerprints from Hinman’s Volkswagen microbus, she may well have been an accessory afte