People v. Brunner

• Decision Date: 12 June 1973
• Docket Number: Cr. 22125
• Citation: 108 Cal.Rptr. 501,32 Cal.App.3d 908
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Mary Theresa BRUNNER, Defendant and Respondent.

Page 501

108 Cal.Rptr. 501

32 Cal.App.3d 908

The PEOPLE of the State of California, Plaintiff and Appellant, v. Mary Theresa BRUNNER, Defendant and Respondent.

Cr. 22125.

Court of Appeal, Second District, Division 2, California.

June 12, 1973.

Rehearing Denied July 11, 1973.

Joseph P. Busch, Dist. Atty., Harry Wood, Head, App. Div., Eugene D. Tavris, Deputy Dist. Atty., for plaintiff and appellant.

Howard L. Weitzman, Beverly Hills, under appointment by the Court of Appeal, for defendant and respondent.

FLEMING, Associate Justice.

The grand jury indicated Mary Brunner for the murder of Gary Hinman, whereupon Brunner moved to dismiss the indictment on the claim she had been promised immunity from prosecution by the district attorney in return for her testimony about the Hinman murder. The superior court dismissed the indictment and permanently restrained Brunner's prosecution for the Hinman murder. The People have appealed.

I

In December 1969 and March 1970 at Eau Claire, Wisconsin, Brunner met representatives of the Los Angeles County Sheriff and the Los Angeles District Attorney, who offered her immunity from prosecution in return for her testimony relating to the Hinman murder. In April 1970 Brunner appeared in Los Angeles before the grand jury and at the trial of Robert Beausoleil for the Hinman murder, and testified that in July 1969 she, Denise Atkins, and Robert Beausoleil had held Hinman captive in his house in Malibu for three days, beaten him, stabbed him, and finally smothered him; that during part of Hinman's ordeal, Charles Manson with a sword and Bruce Davis with a knife had been present in the house. As a consequence of her testimony Beausoleil was convicted of the Hinman murder.

In May 1970 Beausoleil moved for a new trial, offering an affidavit by Brunner which said in part: 'Everything I testified to at the Robert Beausoleil trial, and the Grand Jury was not true and did not happen as so testified.' At the hearing on Beausoleil's motion, Brunner first said her affidavit was true. She then recanted and said her testimony before the grand jury and at the trial was true. The court denied the motion for a new trial.

In March 1971 Brunner testified at the penalty phase of the trial of Manson, Atkins, Leslie Van Houten, and Patricia Krenwinkel for the Tate-La Bianca murders. She denied participation in the Hinman murder.

In August 1971 Brunner testified at the trial of Manson for the Hinman murder. She again denied participation in the murder and disclaimed any knowledge of participation by Manson. Under further questioning about the murder, she invoked her privilege against self-incrimination. The prosecution then introduced the testimony implicating Manson that she had given at the Beausoleil trial, and Manson was convicted of the Hinman murder.

In September 1971 the grand jury indicted Brunner for the Hinman murder.

II

The People raise a procedural point, contending the dismissal was void because reasons for the dismissal had not been set forth in the court's minutes as required by Penal Code section 1385. ¹ We do not think the point well-taken. The order signed by the court and filed in the record clearly states it was based on Brunner's motion for immunity from prosecution. The statutory requirement for entry of reasons for dismissal on the court's minutes is designed to protect the public interest against corrupt or improper dismissals (People v. Superior Court, 13 Cal.App.3d 672, 678, 91 Cal.Rptr. 651), and corruption is not an issue here. The trial court's order set forth its reasons for dismissal in sufficient fashion to enable a reviewing court to rule on the correctness of the order. Any remand to require the trial court to expand its reasoning for entry upon the court minutes would be an idle act which we decline to undertake.

III

The district attorney next challenges the substantive basis for the order. He contends that Brunner has no right to immunity because the only authority for a grant of immunity is found in the immunity statute, and in this instance the requirements of the statute were not met.

Penal Code section 1324 provides:

'(a) In any felony proceeding, . . . if a person refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby, and if the district attorney of the county . . . in writing requests the superior court for that county to order that person to answer the question or produce the evidence, a judge of the superior court shall set a time for hearing and order the person to appear before the court and show cause, if any, why the question should not be answered or the evidence produced, and the court shall order the question answered or the evidence produced unless it finds that to do so would be clearly contrary to the public interest, or could subject the witness to a criminal prosecution in another jurisdiction, and that person shall comply with the order. After complying, and if, but for this section, he would have been privileged to withhold the answer given or the evidence produced by him, that person shall not be prosecuted or subjected to penalty or forfeiture . . . But he may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order.' (Italics added.)

We agree with the district attorney that section 1324, the witness immunity act, regulates the grant of immunity from criminal prosecution. The section applies in two distinct factual situations. The first arises when a witness not himself within the target area of the pending investigation or prosecution refuses to testify or produce evidence on the ground of possible incrimination. In such instances, the prosecution is primarily concerned with securing an answer and only secondarily concerned with the nature of the answer, either because only one answer is possible or because the sanction of a perjury prosecution furnishes a sufficient guaranty of the truth of the witness's answer. The grant of immunity to a reluctant witness located outside the target area of the inquiry follows a relatively straightforward course and may be effected by a relatively simple procedure.

But the statute also applies to the prospective witness who himself is situated within the target area of the pending investigation or prosecution. Typically, this witness is a party to a multiparty crime, but his conduct is considered less culpable than that of others involved, and his testimony is believed necessary for the successful prosecution of his fellow wrongdoers. Under these circumstances the prosecutor may be willing to promise immunity to the lesser offender in order to secure testimony with which to pursue the greater offenders. A bargain may be struck under which immunity is promised the lesser offender in return for testimony that will unravel the crime and bring the greater offenders to justice. Section 1324 sets out the procedure for court supervision and control of such bargains.

In negotiating ² and carrying out an agreement with target-area witnesses for immunity from prosecution in return for testimony two dangers are involved. The first is that of the treacherous witness--who promises to testify in return for a grant of immunity from prosecution and then, having secured immunity, does not testify in the manner he said he would or refuses to testify beyond a certain point. It is a fact of life that the quality of veracity and honor among thieves and murderes leaves something to be desired, and an overly-trusting district attorney may find that in granting immunity to one he could have prosecuted he has exchanged gold for brass.

The other danger in the exchange of immunity for testimony is the obverse of the first--a witness may be so influenced by his hopes and fears that he will promise to testify to anything desired by the prosecution in order to obtain a grant of immunity. Because the satisfaction of the prosecutor is the witness's ticket to freedom, the prosecutor, by dangling the promise of immunity, can put the words he wishes into the witness's mouth. This danger is especially grave when the witness knows he is expected to give particular testimony, absent which he will not receive the promised immunity.

These twin dangers point up the desirability for court approval of immunity bargains with target-area witnesses. Properly used, section 1324 is broad enough to protect the prosecutor against double-dealing and enable him to make an enforceable agreement with the most duplicitous witness. Properly used, the section also protects the witness against prosecution pressure to color existing or create additional testimony in order to obtain previously-promised immunity. The statute establishes a procedure under which the bargain between prosecutor and witness, each to perform certain acts in the future, can be made a matter of record so that dishonesty, equivocation, and misunderstanding may be minimized. In our view whenever target-area witnesses have been promised immunity in return for their promise to testify, the prosecutor's request for court approval should set out the terms of the agreement, the subject-matter of the testimony, the proceedings at which it will be given, the representations of the witness (or his counsel) as to the specific content of his testimony, and the promise of the witness to testify fully and truthfully in return for the promised grant of immunity. On court approval of the agreement immunity will be granted the witness after he has complied with the representations of the agreement. ³

As with plea bargains, terms of a promise of immunity should appear clearly on the record and be supported by court order. Full disclosure of the terms of the bargain not only protects against double-dealing, coercion, and misunderstanding (so apparent...