People v. Bauer

• Citation: 1 Cal.3d 368,82 Cal.Rptr. 357,461 P.2d 637
• Decision Date: 11 December 1969
• Docket Number: Cr. 13189
• Court: United States State Supreme Court (California)
• Parties: , 461 P.2d 637, 37 A.L.R.3d 1398 The PEOPLE, Plaintiff and Respondent, v. Fred Frank BAUER, Defendant and Appellant.

Page 357

82 Cal.Rptr. 357

1 Cal.3d 368, 461 P.2d 637, 37 A.L.R.3d 1398

The PEOPLE, Plaintiff and Respondent, v. Fred Frank BAUER, Defendant and Appellant.

Cr. 13189.

Supreme Court of California,

In Bank.

Dec. 11, 1969.

Rehearing Denied Jan. 8, 1970.

Fred Frank Bauer, in pro. per., Don Edgar Burris, Los Angeles, under appointment by the Supreme Court, and Donald F. Roeschke, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James Asst. Atty. Gen., and Walter E. Wunderlich, Deputy Atty. Gen., for plaintiff and respondent.

PETERS, Justice.

After a jury trial, defendant was found guilty of burglary in the first degree, robbery in the first degree, grand theft and automobile theft. The jury found that he was armed at the time of the commission of each offense. The jury acquitted him on a charge of kidnapping to commit robbery. Defendant was given concurrent sentences of imprisonment for robbery and auto theft. He was not sentenced on the burglary and grand theft counts.

Lorraine Baer, Rose Helbig, and Maybell Cascino, three elderly ladies, resided together in a house in Ventura. At approximately 5 in the afternoon of October 3, 1966, defendant and another man rang the doorbell and introduced themselves as gas company maintenance men, who wished to check the stove. Defendant was carrying what appeared to be a diagram or map, and both men were wearing gloves.

After gaining admittance, defendant drew a revolver and his accomplice a knife. Two of the women were forced to lie face down on the floor and their hands were tied with wire. The third was tied to a chair. The three women were blindfolded with pillowcases, which slipped sufficiently to permit the women to observe defendant and his accomplice. When a blindfold slipped from the face of one of the women, defendant struck her.

The three women observed defendant and his accomplice ransack the house and carry the loot to the garage. After about two hours, defendant and his accomplice drove away in the car of Maybell Cascino. Each of the women found that numerous items of her personal property had been taken, and two of them noticed that several credit cards were missing.

That evening police officers brought mug books to the victims' home. The next morning two of the women attended a lineup at the police station but were unable to identify any of the suspects.

Nearly a week later Officer Stoen observed a Chevrolet travelling approximately 40 miles per hour in a 25-mile-per-hour zone with the right taillight out and a damaged fender. He followed it and observed it cross over the center line six or seven times. He stopped the Chevrolet.

Defendant emerged from the car, gave a fictitious name and said he did not have a driver's license. His manner of speech was slow and slurred. Upon request for identification, he said he had just taken his wife to have a baby and that she had everything. He did not remember where he had taken his wife. After a request for his registration, defendant reached beneath the front seat and pulled out the folder portion of a wallet and extracted an expired, temporary driver's license. The height identification was altered. Noting defendant's general condition and that the pupils of his eyes appeared pinpointed, the officer concluded that he was under the influence of narcotics and arrested him for being in that condition and for being an unlicensed driver. The officer radioed for another police car.

The officer advised defendant that 'he had a right to remain silent at all times and that anything he did say could be used against him in a court of law, and that he could at any time have an attorney present and at all times be represented by an attorney if he so desired; that in the event he was unable for any reason to obtain an attorney, one would be provided for him to represent him.'

Upon being advised of his rights, defendant said he knew his rights, and in response to a question said: 'I shot just before you got me. * * * I'm a hype and you know it.'

The officer searched the automobile and found narcotics equipment, a knife, a box containing gloves, a telephone-type workman's belt with equipment attached, a camera, and a set of blueprints. Beneath the floor mat of the trunk was a license plate and a white bag containing several credit cards bearing the names Helbig and Cascino, and a pink slip to the latter's car.

Each of the victims of the robbery were shown four photographs and, without the other two knowing her selection, each identified defendant's photograph. The victims then went to the police station where they observed defendant through a one-way mirror, and in the presence of each other, each identified defendant.

Defendant denied commission of the robberies and testified that he was in another area of the city when the robbery began and returned to his home at a time which was shortly before the robbery was concluded. As to the time he returned home, he was corroborated by his wife and mother. His mother testified that she remembered the day because her daughter-in-law was expecting a child and she (the mother) had gone to her son's home that evening. Defendant's wife testified that the date was four days before the birth of her child, that her mother and father-in-law came over for dinner as shown by her calendar, that defendant called at 5 p.m., and came home between 6 p.m. and 6:30 p.m., and that because her father-in-law did not like to drive at night he and her mother-in-law spent the night. She also testified that it was about a two-hour drive from Montebello, where she lived, to Ventura, where the robbery occurred.

The extrajudicial identification in the instant case occurred prior to United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and the rules enunciated in that case have been held inapplicable to lineups occurring prior to that decision. (People v. Feggans, 67 Cal.2d 444, 448, 62 Cal.Rptr. 419, 432 P.2d 21.) The question is whether the extrajudicial identification resulted in a denial of due process in that a lineup was unnecessarily suggestive and conducive to irreparable mistaken identification. (Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 18 L.Ed.2d 1199; People v. Caruso, 68 Cal.2d 183, 187--189, 65 Cal.Rptr. 336, 436 P.2d 336; People v. Feggans, Supra, 67 Cal.2d 444, 449, 62 Cal.Rptr. 419, 432 P.2d 21.) Whether a lineup was so unnecessarily suggestive depends on the totality of circumstances. (Stovall v. Denno, supra, 388 U.S. 293, 302, 87 S.Ct. 1967.)

The 'single showup' is not inherently unfair. (Stovall v. Denno, supra, 388 U.S. 392, 302, 87 S.Ct. 1967; People v. Burns, 270 A.C.A. 263, 272, 75 Cal.Rptr. 688; People v. Singletary, 268 at A.C.A. 19, 24, 73 Cal.Rptr. 855; People v. Irvin, 264 Cal.App.2d 747, 759--760, 70 Cal.Rptr. 892; People v. Smith, 263 Cal.App.2d 631, 636--637, 69 Cal.Rptr. 670; People v. Romero, 263 Cal.App.2d 590, 593--594, 69 Cal.Rptr. 748.) Rather we must look to all of the circumstances. When this is done, there was no denial of due process. The witnesses had a substantial opportunity to observe the robbers during the robbery. This was not a case of a hurried look in circumstances where there was no reason to observe with particularity. (Cf. People v. Caruso, Supra, 68 Cal.2d 183, 187--189, 65 Cal.Rptr. 336, 436 P.2d 336.) Each of the witnesses rejected a number of mug shots and two of them also rejected the participants in another lineup before making the identification. The identification was first made through photographs, each witness proceeding separately picking the same photograph. Finally, there was substantial corroborating evidence.

Defendant urges that the admonition given to him by the officer at the time of his arrest did not comply with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, because the officer did not advise him that if he could not afford an attorney one would be appointed. However, the officer told him that if he was unable 'for any reason to obtain an attorney,' one would be provided. The admonition given by the officer, in the light of the quoted term, was even broader than that required.

Defendant also urges it was error to admit his statement made after the Miranda admonition on the ground that he was under the influence of narcotics when he made the statement and thus could not knowingly and intelligently waive his rights. However, the statement was to the effect that he was under the influence of narcotics, and defendant may not be permitted to obtain exclusion of a statement that he is under the influence of narcotics on the sole ground that he in fact was under the influence of narcotics.

Defendant claims that the search of his car and its trunk by the officer was unlawful. His contentions in this regard are predicated either on the inadmissibility of his statement that he was under the influence of narcotics or upon Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. As we have seen, however, the statement was admissible. The search in the instant case took place prior to June 23, 1969, and under the compulsion of People v. Edwards, 71 A.C. 1141, 1151 et seq 80 Cal.Rptr. 633, 458 P.2d 713, it must be be held that Chimel is not applicable.

Defendant next contends that the prosecution suppressed evidence and used perjured testimony in relation to the testimony of one of the victims. Affidavits of a niece of the victim and of the niece's husband have been attached to the brief, and they state that the victim had stated she was convinced that the niece's husband 'had participated in some way in the robbery' and if not him then the niece and that law enforcement officials had said that the husband had been identified as the robber. It is obvious that the victim's statement to the niece is consistent with the view that she believed the robbers somehow had information with...