Charles Manson's Grandson Not Required to Submit to DNA Testing, Court of Appeal Holds

Timothy Kowal, Esq.
  •  
April 16, 2021

The Second District Court of Appeal has the latest update in the fight over Charles Manson's estate.

As previously reported in Forbes and elsewhere, there are three principal players in the dispute. First is Charles Manson's penpal and memorabilia collector Michael Channels. Channels purports to be the sole beneficiary of the Manson estate under a disputed 2002 will. But Channels was the sole witness to the will (generally two witnesses are required). And Channels was not present during the signing.

Second is Jason Freeman, Manson's grandson by his recognized son, Charles Manson, Jr. (Manson, Jr. later changed his name and committed suicide). Freeman has petitioned to be appointed administrator of the Manson estate.

Third is Matt Lentz, a putative grandson of Manson's by an unrecognized Manson child.

After Manson died in 2017, the Kern County Superior Court ordered Freeman was the sole surviving adult next of kin, and authorized to determine the disposition of Manson's remains. Channels disputed Freeman's kinship, and moved for genetic testing under Probate Code section 6453.

But there is no authority to require genetic testing under section 6453. So held (and without much trouble, really) the Second District in Freeman v. Channels (D2d2 Apr. 13, 2021) no. B303594 (not published).

Appeal of Nonappealable Order Treated as Petition for Writ of Mandate:

Before reaching the question, however, the court found a jurisdictional defect. The court concluded the order appealed was not an appealable order. "If an appealed order is not made appealable by the Probate Code, an appellate court lacks jurisdiction to consider the appeal. (Katzentstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 771.) Ordinarily, an appellate court must dismiss the appeal on its own motion. (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)"

This is an odd finding, because Probate Code section 1303(f) expressly makes appealable orders "determining heirship, succession, entitlement, or the persons to whom distribution should be made." That seems fairly close to what was appealed here.

But that is not now the Second District saw it. "Here, the question is whether the order compelling genetic testing qualifies as one of those appealable orders." The order compelling genetic testing, the court continued, did not determine any rights in the estate. "At most, the order might be a precursor to a future order regarding whether Freeman is an heir."

This is an important nuance in understanding how appellate courts approach appealability. As the court would go on to hold, the probate court's order was wrong as a matter of law. It denied Freeman's rights of heirship unless and until he performed an act the court was powerless to require. In effect, it denied his right of heirship.

But in effect is not enough to establish appealability. To make the order appealable, Freeman would have had to refuse to comply with the improper order, await the claims of Channels and Lentz sort themselves out, all while dear granddad's body awaited its final rest (theoretical in this particular case). Only when all that had sorted out could Freeman then appeal.

As the court noted, “ ‘[A]n order is appealable, even if not mentioned in the Probate Code as appealable, if it has the same effect as an order the Probate Code expressly makes appealable.’ [Citation.]” (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125–1126.) The circumstances here seem to me to fit that rule. But the court did not pursue this option.

Instead, the court treated the appeal as a petition for an extraordinary writ. (Olson v. Cory (1983) 35 Cal.3d 390, 400–401 [if there is no adequate remedy at law]; Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [if the circumstances are unusual].)

The other "Olson factors" for treating an appeal as a writ are not addressed in the opinion. They are: (1) exigent/unusual circumstances; (2) treatment as a writ would not burden courts with review of intermediate orders; (3) appealability is unclear; (4) all other substantive issues have been resolved; (5) issue taken up has been fully briefed and argued; and (6) there is an adequate record for review, including in substance all elements of a writ petition. (Olson v. Cory, supra, 35 Cal.3d at 401; see also Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 744-747 (accord).)

Here, the court exercised its discretion to treat the appeal as a writ petition. "Because the matter at issue is an order compelling a genetic test, and because that test will involve an invasion of Freeman's privacy that cannot be undone, we exercise our discretion to treat this appeal as a de facto petition for writ of mandate. The issues have been fully briefed by the parties, the record is adequate for review, and this is an unusual circumstance in which Freeman has no adequate remedy at law."

So Freeman will get to handle the disposition of Manson's remains. He is legally (perhaps strictly so) the prevailing party.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.