Michael Wayne Hunter (born 1958) was a death row Prisoner and writer at San Quentin State Prison in the U.S. state of California.

He was incarcerated for murdering his father and stepmother in 1981. Prior to committing his crime, he served four years in the United States Navy. He was married to Teresa "Terri" Hunter, but divorced in 1989.

Originally given a sentence of death in May 1984, his sentence has since been commuted to life without the possibility of parole after a retrial in February 2002.

The Crime And The Trial

On the evening of December 28, 1981, Jay and Ruth Hunter, Michael's father and stepmother, were shot to death in the bedroom of their home in Pacifica, California. The events surrounding their death, as revealed through the evidence and testimony at trial, were as follows.

In November 1981, about a month before the homicides, Hunter told his friend, Thomas Henkemeyer, of plans to kill his father and stepmother. According to Henkemeyer, Hunter laid out several scenarios for possible alibis, including taking out a hiking permit in Yosemite National Park and then returning to commit the murders, or going down to San Diego where friends would purportedly provide an alibi.

Based on earlier conversations with Hunter, Henkemeyer concluded that Hunter's motive for the planned killings was to take "revenge" for a number of perceived grievances, including an incident in which his stepmother had reported Hunter for breaking into his parents' home while they were away on vacation, and his stepmother's handling of his natural mother's will, which Hunter believed resulted in his being cheated out of his inheritance. Hunter also discussed possible methods of transporting and concealing a rifle or shotgun.

About a month later, on the evening of December 28, a neighbor of Jay and Ruth Hunter was awakened by a loud "bang or shot" from the direction of the Hunter residence. He heard four more shots in quick succession. On or about the same evening in late December, Philip Eldred was walking two dogs a short distance from the Hunter residence when he encountered a man wearing a leather jacket and a motorcycle helmet.

For no apparent reason the man told Eldred to leave the area. Eldred refused. In response, the man pointed a long object (which Eldred then realized was a shotgun) at Eldred's face, kicked him in the thigh and retreated behind a cyclone fence several feet away.

He then fired a shotgun blast in Eldred's direction, entered a small, burgundy-colored car parked nearby, and drove away. Eldred stated that the man appeared to be in his early 20's and of medium build. Hunter was 23 at the time of the offenses.

The bodies of Jay and Ruth Hunter were discovered the following day, December 29, 1981, after the police were alerted that the front door of the residence was wide open and a window on the side of the door was broken out. The police found both bodies in the master bedroom.

The body of Jay Hunter was on the bed; that of Ruth Hunter was lying against the far wall, on top of the telephone receiver. Eight expended shotgun casings were found on the floor. Autopsies revealed that Ruth Hunter had died of two shotgun wounds to the head, either of which was sufficient to cause death. Jay Hunter had suffered four shotgun wounds.

One shot to the upper chest that had apparently caused death was fired from a distance. Three other shots, to the neck, abdomen and left knee, had been fired from much closer range and were consistent with having been inflicted where the victim lay.

During the next several days, Henkemeyer, still in Minnesota visiting his family, received two telephone calls from Hunter. In the first call, Hunter told Henkemeyer that he had killed his mother and father and was trying to decide what to do.

During the second call, a day or two later, Hunter said that he had spoken with a lawyer, was preparing to leave the country, and asked him to sell some of his belongings. He also indicated that he had been seen by a stranger after the killings but doubted that an identification could be made because he was wearing a helmet. When Henkemeyer returned home to Sacramento on New Year's Day, he found that the shotgun Hunter had left was missing.

On the to the San Jose Airport, Hunter stopped at a barbershop and had his beard and moustache shaved off. Hunter asked another friend (Jefferson Schar) to obtain a phony birth certificate for him under the name John Dunne. After obtaining a ticket to San Diego under a false name, Hunter told Schar that he planned to contact a friend named Jeffrey Luther in San Diego and instructed Schar to forward the phony birth certificate to him there.

Luther received a telephone call from Hunter on January 3, 1982. The two arranged to meet at a restaurant in San Ysidro, near the U.S.-Mexican border. At the restaurant, Hunter told Luther that he was "wanted for murder" and explained the circumstances of the shootings. Hunter told him that he had confronted his father and threatened to shoot him. His father responded, "You don't have the balls." In response, Hunter told Luther, he "pumped four slugs into him."

Following the conversation in San Ysidro, Luther saw Hunter again in a hotel in the Mexican town of Las Playas. Luther agreed to purchase some items for him. After the meeting in Mexico, however, Luther contacted the police, who advised him not to meet Hunter again in Mexico but rather to lure him back across the border. Accordingly, Luther arranged to meet Hunter again at the restaurant in San Ysidro where they had met earlier. When Hunter appeared at the restaurant, he was arrested.

Following his arrest, Hunter was incarcerated in the San Mateo County jail. Joseph Lauricella, Hunter's cellmate, testified that Hunter gave him a number of descriptions of how the murders occurred. Hunter also told him that he had been turned in by a Navy buddy (Luther) and offered Lauricella $1,000 to have him killed.

Even as Hunter was fleeing to Mexico, the police investigation into the killings was focusing on him as the prime suspect. A search of Hunter's house and two vehicles uncovered a cleaning bill for a leather jacket which stated "pre-spot for blood."

The police also found a shirt with blood on it and a black motorcycle helmet. Glass fragments found inside a pair of Hunter's socks and gloves matched glass fragments from the broken window of the Hunter residence.

Finally, a number of prosecution witnesses testified about Hunter's troubled relationship with his father and stepmother. Hunter's father and natural mother, June Hunter, had separated and divorced in 1973. June Hunter died of cancer in 1979. Following the divorce, Jay Hunter married Ruth Chatburn Hunter. Hunter's sister, who was the administrator of her mother's estate, asked Ruth, a lawyer, to handle the probate.

Ruth eventually removed herself from the case, however, because of an argument with Hunter sometime in 1980. Hunter felt that he had been cheated of his share of the estate. According to a former roommate of Hunter, the dispute became so acrimonious that it caused a rupture of all contacts between Hunter and his father.

The acrimony was apparently mutual. Only a month before the murders, in late November 1981, Hunter's father instructed his attorney to delete from his will any inheritance for Michael. Mr. Hunter indicated that the matter was not urgent, however, and could wait until the new year. At the time of the murders in late December, the will had not been changed.

The petition for a writ of certiorari is denied.

Justice MARSHALL, dissenting.

This petition for certiorari presents the significant issue whether, and under what circumstances, a criminal defendant has a constitutional right to judicially immunized testimony useful to establishing his defense . I have previously expressed my view that this Court should resolve the conflict of lower court authority on this question. See Autry v. McKaskle, 465 U.S. 1085 , 1087-1088, and n. 3, 1460-1461, and n. 3 (1984) (opinion dissenting from denial of certiorari). This petition underscores the importance of settling that conflict because it frames the issue in the most compelling possible setting: the penalty phase of a capital proceeding. [498 U.S. 887 , 888]   Petitioner was convicted of murder and sentenced to death. At trial, petitioner requested the court to confer use immunity upon his girl friend, who declined on Fifth Amendment grounds to testify on petitioner's behalf. Petitioner proffered at both the guilt and the penalty phases that his girl friend's testimony would show that petitioner was mentally distressed at the time of the charged murder. The trial court refused to grant immunity, and the California Supreme Court affirmed its ruling.

The manner in which the California Supreme Court disposed of petitioner's claim highlights the confusion engendered by this Court's failure to resolve definitively the judicial immunity issue. Noting the conflict among the lower courts, the California Supreme Court sought to avoid the question of a criminal defendant's constitutional right to judicially immunized testimony by ruling that petitioner had failed to meet the threshold showing established by Government of Virgin Islands v. Smith, 615 F.2d 964, 972 (CA3 1980), the first decision to recognize such a right. "[T]he proffered testimony," the court explained,

"did not meet Smith's requirement that the evidence be 'clearly exculpatory and essential.' At best, the evidence was cumulative of the extensive testimony of other defense witnesses." 49 Cal.3d 957, 974, 264 Cal.Rptr. 367, 376, 782 P.2d 608, 617 (1989).

The court dismissed in similar terms petitioner's claim that he was entitled to have his girl friend's immunized testimony as mitigating evidence during the penalty phase of the capital trial:

"Even assuming, without purporting to decide, that the trial court had the authority to confer use immunity on the proposed witness, we cannot conclude on this record that the court erred. There is nothing in the record to demonstrate [petitioner] was denied highly relevant mitigating evidence, or to reveal the nature of that evidence. Even assuming that the evidence would have generally related to [petitioner's] state of mind on the morning of the murder, we cannot find that the absence of [the girl friend's] testimony prejudiced [petitioner]. The jury had already been presented evidence of [petitioner's] purported depression at the guilt phase through the testimony of two psychiatrists." Id., at 980-981, 264 Cal.Rptr., at 380, 782 P.2d, at 621 (emphasis added).

In my view, the question whether petitioner had a right to judicially immunized testimony at the penalty phase of the proceed- [498 U.S. 887 , 889]   ings cannot be avoided on these terms. The California Supreme Court was mistaken in presuming that it could resolve the disposition of petitioner's claim to judicially immunized testimony at the penalty phase of a capital proceeding by the same standard used to assess a defendant's right to immunized testimony at trial. It is well established that a criminal defendant's entitlement to present useful evidence is at its strongest in the capital sentencing context; this Court has repeatedly emphasized that the State may not exclude "any relevant mitigating evidence offered by the defendant as the basis for a sentence less than death." Penry v. Lynaugh, 492 U.S. 302, 318 , 2946, 106 L. Ed.2d 256 (1989) (emphasis added); accord, Skipper v. South Carolina, 476 U.S. 1, 4 , 1671 (1986); Eddings v. Oklahoma, 455 U.S. 104 , 114-115, 876-877 (1982). Assuming that a criminal defendant does have the due process right to judicially immunized testimony recognized by the Third Circuit in Smith, the assessment whether a capital defendant has satisfied the threshold showing of need must take account of that defendant's heightened entitlement to present all mitigating evidence to the sentencer. Cf. Green v. Georgia, 442 U.S. 95, 97 , 2151-2152 (1979) (holding that exclusion of mitigating evidence at penalty phase of capital proceeding through operation of generally applicable state hearsay rule denied defendant "a fair trial on the issue of punishment" and thus violated due process). A court could not, in my view, deny the defendant's request, as the California Supreme Court did, simply because the mitigating testimony sought by the defendant was not "highly relevant" or because overlapping evidence "had already been presented" to the sentencer. In sum, if a defendant has a right to judicially immunized testimony, petitioner's death sentence cannot stand.

I would grant the petition so that this Court can determine whether a criminal defendant has a due process right to judicially immunized testimony, and, if so, what standards govern immunized-testimony requests in capital sentencing proceedings. Consequently, I dissent from the denial of certiorari.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231 , 2973, 49 L. Ed.2d 859 (1976) (MARSHALL, J., dissenting), I would also grant the petition and vacate the death penalty in this case even if I did not regard the petition as presenting a question independently meriting this Court's review.

People v. Hunter (1989) 49 C3d 957

[S004613, Crim. 23630 Cal Sup Ct Dec., 7, 1989]

THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL WAYNE HUNTER, Defendant and Appellant

Opinion by Kaufman, J., expressing the unanimous view of the court.

COUNSEL

John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, Dane R. Gillette and Gerald A. Engler, Deputy Attorneys General, for Plaintiff and Respondent.

Frank O. Bell, Jr., and Harvey R. Zall, State Public Defenders, under appointment by the Supreme Court, Roy M. Dahlberg, Deputy State Public Defender, and Cynthia A. Thomas for Defendant and Appellant.

OPINION

KAUFMAN, J.

Michael Wayne Hunter appeals (Pen. Code, § 1239, subd. (b)) fn. 1 from a judgment of death following his conviction of the murders (§ 187) of Jay and Ruth Hunter. The jury also found true the allegation that defendant had personally used a firearm in the commission of the murders (§ 12022.5), and the special circumstance allegation that defendant was convicted, in this proceeding, of more than one murder. (§ 190.2, subd. (a)(3).) Having found no error warranting reversal of the guilt or penalty phase verdicts, we affirm the judgment in its entirety.

I. Facts

A. Prosecution Case

On the evening of December 28, 1981, Jay and Ruth Hunter, defendant's father and stepmother, were shot to death in the bedroom of their home in Pacifica. The events surrounding their death, as revealed through the evidence and testimony at trial, were as follows.

In November 1981, about a month before the homicides, defendant told his friend, Thomas Henkemeyer, of plans to kill his father and stepmother. According to Henkemeyer, defendant laid out several scenarios for possible alibis, including taking out a hiking permit in Yosemite National Park and then returning to commit the murders, or going down to San Diego where friends would purportedly provide an alibi. Based on earlier conversations with defendant, Henkemeyer concluded that defendant's motive for the planned killings was to take "revenge" for a number of perceived grievances; these included an incident in which his stepmother had reported defendant for breaking into his parents' home while they were away on vacation, and his stepmother's handling of his natural mother's will, which defendant believed resulted in his being cheated of his inheritance. Defendant {Page 49 Cal.3d 965} also discussed possible methods of transporting and concealing a rifle or shotgun.

Several weeks later, between December 12th and 14th, defendant brought a shotgun and shells to Henkemeyer's residence in Sacramento. Defendant told Henkemeyer that he planned to use the shotgun to kill his parents during the spring or summer of 1982. Defendant left the shotgun and shells with Henkemeyer.

Shortly thereafter, on December 20th, Henkemeyer left Sacramento to spend the Christmas holidays with his family in Minnesota. Before he left, he drove his car, a brown Toyota Corolla, to defendant's house in Mountain View for safekeeping. He gave defendant the keys to the car and the keys to his residence in Sacramento.

About a week later, on the evening of December 28th, a neighbor of Jay and Ruth Hunter was awakened by a loud "bang or shot" from the direction of the Hunter residence. He heard four more shots in quick succession. On or about the same evening in late December, Philip Eldred was walking two dogs a short distance from the Hunter residence when he encountered a man wearing a leather jacket and a motorcycle helmet. For no apparent reason the man told Eldred to leave the area. Eldred refused. In response, the man pointed a long object (which Eldred then realized was a shotgun) at Eldred's face, kicked him in the thigh and retreated behind a cyclone fence several feet away. He then fired a shotgun blast in Eldred's direction, entered a small, burgundy-colored car parked nearby, and drove away. Eldred stated that the man appeared to be in his early 20's and of medium build. Defendant was 23 at the time of the offenses.

Later the same evening, defendant's roommate, Jeffrey Hansen, was watching television when defendant walked through the front door. According to Hansen, defendant immediately showed him his left arm, which was cut between the wrist and elbow, and explained that he had tripped on the front porch, dropped a six-pack of beer and cut himself.

The bodies of Jay and Ruth Hunter were discovered the following day, December 29, 1981, after the police were alerted that the front door of the residence was wide open and a window on the side of the door was broken out. The police found both bodies in the master bedroom. The body of Jay Hunter was on the bed; that of Ruth Hunter was lying against the far wall, on top of the telephone receiver. Eight expended shotgun casings were found on the floor. Autopsies revealed that Ruth Hunter had died of two shotgun wounds to the head, either of which was sufficient to cause death. Jay Hunter had suffered four shotgun wounds. One shot to the upper chest {Page 49 Cal.3d 966} that had apparently caused death was fired from a distance. Three other shots, to the neck, abdomen and left knee, had been fired from much closer range and were consistent with having been inflicted where the victim lay.

During the next several days, Henkemeyer, still in Minnesota visiting his family, received two telephone calls from defendant. In the first call defendant told Henkemeyer that he had killed his mother and father and was trying to decide what to do. During the second call, a day or two later, defendant said that he had spoken with a lawyer and was preparing to leave the country. He also indicated that he had been seen by a stranger after the killings but doubted that an identification could be made because he was wearing a helmet. When Henkemeyer returned home to Sacramento on New Year's Day, he found that the shotgun defendant had left was missing.

Around the same time period defendant also spoke with his friend Jefferson Schar. Defendant told Schar that his parents had been killed and that he had "a lot to do with it." Defendant told Schar, however, that he had merely accompanied another, unidentified man who had actually committed the murders. Defendant described to Schar the events immediately preceding the shooting. He said that he had entered the house, awakened his father and told him that his entry proved he could "get to [him] at any time." His father responded: "You don't have the balls enough to do anything of that nature." Defendant became angered and told the unidentified gunman to "go ahead and shoot him." The gunman complied. His mother awakened, said, "No, Mike, don't," and the gunman shot her too.

The day after his conversation with Schar, defendant told Henkemeyer that he was trying to leave the country and asked him to sell some of his belongings. At defendant's request, Schar drove defendant to San Jose airport. On the way, defendant stopped at a barbershop and had his beard and moustache shaved off. Defendant asked Schar to obtain a phony birth certificate for him under the name John Dunne. At the airport defendant purchased a ticket to San Diego under a false name. While waiting for the flight, defendant again told Schar that he was involved in the killings but was not the shooter. He explained that after the incident he had disposed of the murder weapon by breaking it into pieces and throwing it into the bay. Defendant said that he planned to contact a friend named Jeffrey Luther in San Diego and instructed Schar to forward the phony birth certificate to him there.

Luther received a telephone call from defendant on January 3, 1982. The two arranged to meet at a restaurant in San Ysidro, near the Mexican border. At the restaurant, defendant told Luther that he was "wanted for murder" and explained the circumstances of the shootings. Defendant said {Page 49 Cal.3d 967} that he had entered his parents home carrying a shotgun and wearing a motorcycle helmet. He confronted his father and threatened to shoot him. His father responded, "[Y]ou don't have the balls." In response, defendant told Luther, he "pumped four slugs into him."

Following the conversation in San Ysidro, Luther saw defendant again in a hotel in Las Playas, Mexico. Luther agreed to purchase some items for defendant. After the meeting in Mexico, however, Luther contacted the police, who advised him not to meet defendant again in Mexico but rather to lure him back across the border. Accordingly, Luther arranged to meet defendant at the restaurant in San Ysidro where they had earlier met. When defendant appeared at the restaurant, he was arrested.

Following his arrest, defendant was incarcerated in the San Mateo County jail. Joseph Lauricella, defendant's cellmate, testified that defendant gave him a number of descriptions of how the murders occurred. Defendant also told him that he had been turned in by a Navy buddy (Luther) and offered Lauricella $1,000 to have him killed.

Even as defendant was fleeing to Mexico, the police investigation into the killings was focusing on defendant as the prime suspect. A search of defendant's house and two vehicles uncovered a cleaning bill for a leather jacket which stated "pre-spot for blood." The police also found a shirt with blood on it and a black motorcycle helmet. Glass fragments found inside a pair of defendant's socks and gloves matched glass fragments from the broken window of the Hunter residence.

Finally, a number of prosecution witnesses testified about defendant's troubled relationship with his father and stepmother. Defendant's father and natural mother, June Hunter, had separated and divorced in 1973. June Hunter died of cancer in 1979. Following the divorce, Jay Hunter married Ruth Chatburn Hunter. Defendant's sister, who was the administrator of her mother's estate, asked Ruth, a lawyer, to handle the probate. Ruth eventually removed herself from the case, however, because of an argument with defendant sometime in 1980. Defendant felt that he had been cheated of his share of the estate. According to a former roommate of defendant, the dispute became so acrimonious that it caused a rupture of all contacts between defendant and his father.

A second source of animosity between defendant and his parents stemmed from an incident in October 1981, when defendant entered his parents' home in Pacifica while they were on vacation. Mrs. Hunter reported the burglary to the police, who questioned defendant. Mrs. Hunter also apparently searched defendant's residence in Mountain View while defendant {Page 49 Cal.3d 968} was absent. Defendant became angered and upset with his stepmother as a result, and told his roommate that if he went to jail for burglary his father "would be dead."

The acrimony was apparently mutual. Only a month before the murders, in late November 1981, defendant's father instructed his attorney to delete from his will any inheritance for defendant. Mr. Hunter indicated that the matter was not urgent, however, and could wait until the new year. At the time of the murders in late December, the will had not been changed.

B. Defense Case

The defense presented extensive testimony in an attempt to show that defendant's intense hatred of his father, stemming from emotional and physical abuse he had received as a child, obscured his reasoning to the extent that he was unable to harbor malice or deliberate and premeditate the crimes.

Four former neighbors and family friends testified about defendant's relationship with his father. Joseph and Maxine Sonia DeHazes were friends and neighbors of the Hunters for many years and both testified that Jay Hunter was abusive toward defendant. Mr. DeHazes testified that defendant had been verbally abused by his father since he was an infant. Mrs. DeHazes stated that she observed a clear difference between Jay Hunter's relationship with his daughters and his sons. Mr. Hunter never displayed any affection toward defendant and often hit him. She recalled one incident in which he hit defendant so hard that Mr. DeHazes had to intervene. She further recalled that as defendant grew older the physical abuse turned to verbal abuse. Mrs. DeHazes believed that Mr. Hunter also abused his first wife; she frequently observed June to have bruises and on one occasion saw her with black eyes. Two other former neighbors of the Hunters felt that Jay was very harsh toward defendant and used excessive force.

Defendant's brother, Tom, and his sister, Mary, also testified about defendant's relationship with his father. Tom recalled that his father had inflicted corporal punishment on defendant on many occasions when he was a youth, and was also abusive toward his mother. Tom described his father as an abusive drinker, possibly an alcoholic, who, when drunk, often hit defendant.

Mary, who testified for both the defense and the prosecution, stated she had never witnessed any beatings of defendant by her father. She recalled speaking with defendant on December 29, 1981, the day after the murders, and that defendant said he had been to a funeral the previous day and was {Page 49 Cal.3d 969} feeling depressed as a result. Carol Lange, a roommate of defendant's girlfriend Judith Goldstein, confirmed that defendant attended her mother's funeral on the morning of December 28, 1981, the day of the murders.

Two psychiatrists also testified on defendant's behalf. Dr. George Wilkinson treated defendant while he was incarcerated in the San Mateo County jail. Dr. Wilkinson stated that he had not observed any evidence of psychosis in defendant, but diagnosed him as clinically depressed; he was unable to determine whether the depression predated defendant's incarceration. Dr. Donald Lunde testified that he had examined defendant on four occasions and concluded that at the time of the killings defendant's mental state limited his ability to premeditate and deliberate, and that it was "unlikely" defendant had premeditated the murders. Dr. Lunde did not detect any evidence of schizophrenia or lack of capacity to obey the law, but believed there was "some diminution of his abilities or his capacity to have harbored malice at that time."

C. Penalty Phase Evidence

The prosecutor presented no additional evidence during the penalty portion of the trial.

The defense presented further testimony from defendant's brother, Tom, who asked the jury to spare his brother's life because he felt that there was hope of his "becoming a Christian." Tom stated that there had been enough death in the family, and that killing his brother would do nothing more than hurt himself and his sisters.

Additionally, defendant presented a lengthy, unsworn oral statement in allocution on his own behalf which was not subject to cross-examination by the prosecutor. In this statement defendant admitted committing several minor juvenile offenses. He stated that he had joined the Navy when he was 17 and described his naval training and experience. He further explained that he had become disenchanted with the Navy when his superior officers allegedly delayed telling him of his mother's death. After that his performance in the Navy deteriorated and he was given a dishonorable discharge that was later upgraded to an honorable discharge.

Defendant stated that his relationship with his father had not been good for several months preceding the killings. His father had become enraged when he learned that defendant had been invited to Tom's high school graduation in June 1981 and , as a result, his father refused to attend.

Defendant stated that he had attended a funeral for Carol Lange's mother on the day of the murders and while there had started to think of his own {Page 49 Cal.3d 970} mother, who died of cancer just as she was getting her life in order. He began to feel it was unfair that she was dead and his father was alive. He admitted responsibility for the murders but denied that they were committed for money. He acknowledged there was no justification, especially for the murder of his stepmother, whom he did not remember being in the room. Defendant stated that he had been receiving counseling and had made steps toward becoming a different person. He felt that, with his Naval training and continued counseling, he could contribute to society.

II. Discussion

A. Guilt Phase Issues

1. Prosecutorial Discovery

[1] Defendant contends that the trial court committed reversible error by allowing the prosecution to discover certain of the defense investigator's reports pursuant to section 1102.5. fn. 2 The contention is not meritorious.

In In re Misener (1985) 38 Cal.3d 543 [213 Cal.Rptr. 569, 698 P.2d 637], decided after the trial of this case, a majority of this court invalidated section 1102.5 on the ground that it contravened the state constitutional privilege against self-incrimination. (Id., at p. 558.) Defendant asserts that Misener is retroactive and compels reversal. The Attorney General counters that Misener was incorrectly decided and should be overruled. We need not address the merits of Misener here, however, for our review of the record reveals that any error under that decision was harmless beyond a reasonable doubt.

The district attorney first requested discovery of a report the defense was using to cross-examine a prosecution witness. The court denied the request, ruling that section 1102.5 permitted discovery only of defense witness statements.

Later, during the testimony of the third defense witness, Joseph DeHazes, the district attorney requested and was permitted discovery of a {Page 49 Cal.3d 971} nine-page report of a defense interview with the witness and his wife, Maxine Sonia DeHazes. The district attorney subsequently obtained written reports of the defense investigator's interviews with two additional defense witnesses, Carol Huelskamp and Tom Hunter, defendant's younger brother. fn. 3

Defendant bases his claim of prejudicial error on the prosecutor's use of the reports to cross-examine the witnesses as follows: During his cross-examination of Mrs. DeHazes, the prosecutor asked about an incident, related in the defense investigator's report, in which defendant appeared at Mrs. DeHazes's door late one night pleading to be let in. Defendant explained to her that the police were chasing him for stealing a motorcycle. Mrs. DeHazes let him stay for a while, gave him something to eat and promised not to tell his mother.

Defendant contends that the revelation of this incident damaged Mrs. DeHazes's credibility because it portrayed her as an "accessory to a crime." The contention is without merit. The prosecutor did not use the incident to impeach Mrs. DeHazes's credibility, nor did it have that effect. Indeed, if anything the incident bolstered Mrs. DeHazes's testimony that defendant was subject to excessive physical and verbal discipline at home, and had good reason to fear his father's reaction should he learn of the incident. Furthermore, even if Mrs. DeHazes's testimony was somehow impeached, the jury was left to consider the testimony of numerous other witnesses who had offered similar testimony that defendant was abused by his father. We conclude there is no reasonable possibility that the prosecutor's reference to the incident prejudiced defendant.

Defendant also makes several claims of prejudicial error flowing from the prosecutor's use of a defense investigator's report to cross-examine Tom Hunter. First, the prosecutor asked Tom about a statement in the report to the effect that defendant was "extremely manipulative and habitually told lies ...." Tom denied making the statement. Moreover, in light of the record as a whole we are confident that the statement's admission was harmless. Tom had already admitted under cross-examination -- before the prosecutor's reference to his statement in the defense report -- that he knew {Page 49 Cal.3d 972} of instances in which defendant had lied and that "part of [defendant's] personality [was] to manipulate." In addition, defendant's sister, Mary Hunter Bizzarri, had previously testified that defendant was "manipulative" and had a "history of lying." Thus, it does not appear that this statement from the defense report appreciably aided the prosecution's case.

Defendant also complains about the prosecutor's reference to an account by Tom, set forth in the defense report, of a 1976 incident in San Diego which resulted in defendant's arrest. The incident was not described in the report, and the prosecutor did not question him about any specifics of the incident at trial. Tom testified that his information had not come from defendant, but rather from his father. The prosecutor referred to the incident only once, very briefly, during guilt phase argument, and not at all during penalty phase argument; indeed, the prosecutor acknowledged at the penalty phase that there was no evidence of any prior crimes or violent conduct by defendant. Thus, we are unable to perceive how this vague, second-hand reference to an unspecified incident during cross-examination could have perceptibly aided the prosecution.

Finally, defendant complains of the prosecutor's questioning of Tom concerning a letter referred to in the defense report that defendant had written to his brother after his arrest. In that letter, according to Tom's statement, defendant wrote that his prison psychiatrist had also examined Charles Manson; the letter closed with the following postscript: "I am quite sane, too bad, it could have been a good defense."

Defendant characterizes this reference to the letter as "nothing less than devastating." The record does not support the claim. Defendant never claimed to be other than sane at the time of the shootings. Indeed, both psychiatrists who testified on his behalf readily admitted that defendant had never exhibited psychotic symptoms or delusions. We are thus unable to perceive how these statements from the defense report appreciably prejudiced defendant or aided the prosecution.

That defendant was the shooter was never seriously in dispute. His defense was premised upon a history of child abuse and depression which ultimately so poisoned his judgment that he was unable to control an impulse to kill his father and stepmother when the opportunity presented itself. Nothing in the defense reports discovered by the prosecution controverted this defense or appreciably aided the prosecution. Accordingly, any error in permitting such discovery was harmless beyond a reasonable doubt.

2. Request for Judicially Conferred Immunity

[2a] Defendant next contends that the trial court erred in denying his request to grant "judicial" use immunity to his girlfriend, Judith Goldstein, {Page 49 Cal.3d 973} so as to overcome Goldstein's Fifth Amendment claim. Defendant premises his argument on the Sixth Amendment right to compulsory process and the Fifth Amendment right to due process.

The district attorney had charged Ms. Goldstein with being an accessory after the fact to the murders. Her case was pending at the time of defendant's trial. The defense called her to testify but she refused to answer any questions on the basis of her Fifth Amendment privilege against self-incrimination. Defense counsel thereupon renewed his request, raised prior to trial, to grant use immunity to Ms. Goldstein. The trial court asked counsel for an offer of proof as to what he expected Ms. Goldstein's testimony to reveal. Counsel, in response, recalled that earlier testimony had established that on the morning of the murder, December 28, 1981, defendant had accompanied Ms. Goldstein to the funeral of the mother of Ms. Goldstein's roommate, Carol Lange. Counsel then explained: "It is my understanding that during the course of that [funeral] ceremony ... [defendant] made the statement to Judith Goldstein -- or a question, possibly -- 'Why is it the good people die and the bad still live.' [¶] I submit, Your Honor, that it is material to the question of the mental state of the defendant on the 28th day of December of 1981." The trial court denied the request.

[3] It is settled in California that the granting of transactional immunity is conditioned upon a written request by the prosecutor that the witness be compelled to answer. (§ 1324; In re Weber (1974) 11 Cal.3d 703, 720 [114 Cal.Rptr. 429, 523 P.2d 229].) [4], [2b] Defendant contends, however, that the defendant in a criminal action should be entitled to request that the court grant use immunity to a defense witness who has knowledge of essential, exculpatory evidence. fn. 4

The contention is unavailing. As the Attorney General points out, the Courts of Appeal of this state have uniformly rejected the notion that a trial court has the inherent power, in such circumstances, to confer use immunity upon a witness called by the defense. (See People v. Estrada (1986) 176 Cal.App.3d 410, 418 [221 Cal.Rptr. 922]; People v. DeFreitas, supra, 140 Cal.App.3d at pp. 839-841; People v. Sutter (1982) 134 Cal.App.3d 806 812-817 [184 Cal.Rptr. 829].) With few exceptions, federal and state judicial authority across the nation is to the same effect. (See People v. DeFreitas, supra, 140 Cal.App.3d at pp. 838-839; Annot. (1981) 4 A.L.R.4th 617.) {Page 49 Cal.3d 974}

Though it is possible to hypothesize cases where a judicially conferred use immunity might possibly be necessary to vindicate a criminal defendant's rights to compulsory process and a fair trial (see e.g., Note, Separation of Powers and Defense Witness Immunity (1977) 66 Georgetown L.J. 51), that is not a question we need here decide. For defendant's offer of proof at trial in support of his request fell well short of the standards set forth in the one case which has clearly recognized such a right, Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964. While holding that in certain cases a court may have authority to confer a judicially fashioned immunity upon a witness whose testimony is essential to an effective defense, the Smith court also recognized that "the opportunities for judicial use of this immunity power must be clearly limited; ... the proffered testimony must be clearly exculpatory; the testimony must be essential; and there must be no strong governmental interests which countervail against a grant of immunity .... [¶] [T]he defendant must make a convincing showing sufficient to satisfy the court that the testimony which will be forthcoming is both clearly exculpatory and essential to the defendant's case. Immunity will be denied if the proffered testimony is found to be ambiguous, not clearly exculpatory, cumulative or it is found to relate only to the credibility of the government's witnesses." (Id., at p. 972.)

As noted above, defense counsel's offer of proof was that Ms. Goldstein would testify that defendant was depressed as a result of attending a funeral, and that he had made the statement, "Why is it the good people die and the bad still live." Even assuming that the proffered testimony was not inadmissible hearsay, it did not meet Smith's requirement that the evidence be "clearly exculpatory and essential." At best, the evidence was cumulative of the extensive testimony of other defense witnesses. It was well established that defendant had been abused by his father. Furthermore, defendant's sister testified that she spoke with defendant the day after the murder, and recalled that defendant stated he was feeling depressed from having attended a funeral the previous day. In addition, Dr. Lunde, a psychiatrist, offered his expert opinion that defendant was clinically depressed on the day of the murder and could not, as a result, have committed a willful, deliberate and premeditated murder. In short, defendant failed to demonstrate that the proffered testimony was "clearly exculpatory and essential" to his defense.

Defendant points out that the testimony of three witnesses for the prosecution, Thomas Henkemeyer, Jefferson Schar and Gary Sayers, had been obtained pursuant to a request for transactional immunity by the district attorney under the authority of section 1324. There is no evidence to suggest, however, that the prosecutor intentionally withheld transactional immunity from Goldstein solely to assure the exclusion of her testimony. [5] We agree the prosecutor's duty is to administer the immunity {Page 49 Cal.3d 975} power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game. (People v. Ruthford (1975) 14 Cal.3d 399, 405 [121 Cal.Rptr. 261, 534 P.2d 1341]; In re Ferguson (1971) 5 Cal.3d 525, 531-532 [96 Cal.Rptr. 594, 487 P.2d 1234]; cf. United States v. DePalma (S.D.N.Y. 1979) 476 F.Supp. 775, 780-782 [conviction reversed because of government's selective grant of immunity to two prosecution witnesses and refusal to grant immunity to two other key defense witnesses]; United States v. Herman (3d Cir. 1978) 589 F.2d 1191, 1204, cert. den. 441 U.S. 913 [60 L.Ed.2d 386, 99 S.Ct. 2014] [government may not selectively grant or refuse immunity "with the deliberate intention of distorting the judicial fact finding process"].) [2c] However, there is no evidence here that the prosecutor intentionally refused to grant immunity to a key defense witness for the purpose of suppressing essential, noncumulative exculpatory evidence.

Thus, even if in appropriate circumstances an essential witness for a criminal defendant should be granted judicial use immunity -- a question we do not decide -- the record establishes that the circumstances were not appropriate here and the court did not err in denying the immunity request.

[6] Defendant also asserts that the trial court erred in denying his request to continue his case until the conclusion of Goldstein's case. As Goldstein's testimony was not shown to be essential, however, we cannot say that the trial court abused its discretion in denying the request.

3. Instruction on CALJIC No. 8.75