People v. Bauer

• Decision Date: 21 April 1966
• Docket Number: Cr. 173
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Arthur BAUER, Defendant and Appellant.

Page 687

50 Cal.Rptr. 687

241 Cal.App.2d 632

The PEOPLE, Plaintiff and Respondent, v. Arthur BAUER, Defendant and Appellant.

Cr. 173.

District Court of Appeal, Fifth District,

California.

April 21, 1966.

As Modified May 17, 1966.

Hearing Denied June 17, 1966.

Ben Curry, Merced, under appointment by the District Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Edsel W. Haws and Roger E. Venturi, Deputy Attys. Gen., Sacramento, for respondent.

CONLEY, Presiding Justice.

Arthur Bauer was convicted of the first degree murder of Mary Livingston and sentenced to life imprisonment. After being represented by appointed counsel at the trial, the defendant filed a late appeal in propria persona from the 'sentencing.' This court, after due consideration of his application, permitted the late appeal and upon request appointed appellate counsel for the defendant.

Although, in the conclusion of the able brief filed in behalf of the defendant, the request is made only that this court reduce the degree of the offense (Pen.Code, § 1260; People v. Tubby, 34 Cal.2d 72, 79--80, 207 P.2d 51), we note that as to several of the points raised, if they are sound, a reversal rather than a mere lowering of the degree of the crime would be required.

While the notice of appeal states that it is from the 'sentence,' it will be considered as being from the judgment of conviction (People v. McDonough, 198 Cal.App.2d 84, 17 Cal.Rptr. 643), since the judgment and the sentence are in fact one in common parlance and contemplation. (People v. Sweeney, 55 Cal.2d 27, 33, 9 Cal.Rptr. 793, 357 P.2d 1049.)

The defendant, through court-appointed counsel, presents five contentions: (1) that the trial court erred in receiving in evidence confessions made by the defendant to the county coroner and the district attorney; (2) that there were errors in giving and in failing to give instructions; (3) that there was prejudicial misconduct on the part of the prosecutor; (4) that error was committed in receiving evidence which was the product of an illegal search; and (5) that defendant did not enjoy effective representation by counsel at the trial.

Arthur Bauer met the victim, Mary Livingston, at a bar in Merced on October 31, 1964. After drinking all evening, the defendant and Mary went to Mariposa in her automobile where they stayed together at a motel until Sunday night, November 1; they then checked out and drove toward Merced. On the way, they stopped at Planada and between them drank two or three dollars worth of beer. At about 2 a.m., they left the bar and drove directly to Mary's home in Merced where they both disrobed and went to bed. They commenced sexual intercourse, but the defendant said in his testimony that he did not remember whether they had finished before he strangled Mary. On the witness stand, Bauer testified that he 'blacked out' during the commission of the crime and the first thing he then recalls was sitting on the edge of the bed smoking a cigarette. He noticed that Mary was dead and uncovered; he put an electric blanket over her, turned it on, tuned a radio which was already operating to an all-night station, dressed, abstracted from Mary's purse the keys to her car and went outside, entered her car and drove it back to the main part of the city where he parked it, entered his hotel just before daylight and went to bed. Mary's car was used by the defendant thereafter in driving to Prather and Madera and about Merced until it was surrendered to the sheriff and his deputy as hereinafter stated.

Mrs. Ann Jackson, a casual acquaintance of the defendant, testified that on November 2, 1964, she met him in a bar and he told her that she was fortunate that she had not been with him over the weekend. The following day she again saw Bauer in the same bar and he then said that she was fortunate that she had not been with 'them' over the weekend. On November 4th, the witness also saw the defendant in a saloon and he told her that he needed help; that he had killed a woman. She told him that she did not believe him and he stated that it was true. The witness asked the defendant why he had killed her, and he said because he wanted her car. The defendant gave Mrs. Jackson a bunch of keys and said, 'These are her keys.' The witness asked, 'Whose keys?' and the defendant replied, 'The woman I Killed.' The witness again asked 'Who,' and the defendant replied, 'Mary.' The defendant said that he had wanted her car 'To go home and kill his wife.' Mrs. Jackson testified that the defendant had been drinking but that he seemed to be responsive to questions and apparently knew what he was talking about. Mrs. Jackson telephoned Sheriff Latorraca, who arrived at the bar shortly thereafter, accompanied by Deputy Sheriff Earle McKeown. Mrs. Jackson introduced the sheriff to the defendant, but heard very little of the ensuing conversation, other than that Bauer stated he would show the sheriff where the body was. She handed the car keys to the sheriff.

Sheriff Latorraca testified that when he arrived at the bar he asked the defendant what kind of story he had to tell and the defendant replied, 'This isn't a story, this is a true thing.' He then told the sheriff that he had killed a woman. He told the sheriff that the woman was at her home and that her car was then parked in a parking lot on Sixteenth Street. The sheriff placed the defendant under arrest, had him enter the sheriff's car and drove across the parking lot to the victim's car. Deputy Sheriff McKeown verified the fact that the automobile keys fitted the ignition lock of the automobile which was registered in the name of Mary Livingston. The defendant stated he would show the officers where the house was located. Deputy Sheriff McKeown then advised the defendant of his right to remain silent, that anything he might say could be used against him in a court of law, that he was entitled to an attorney and 'an attorney at the present time if he so wished.' The defendant responded that he was the one who had had Mrs. Jackson call the police.

At the victim's home, the defendant remained in the automobile while the two officers went to the door. After a brief talk with a neighbor and receiving no answer to a knock, Deputy McKeown forced the latch on the screen, opened the door which was slightly ajar, and entered the house with the sheriff. They discovered the body of the victim in the bedroom. The sheriff turned off the electric blanket which covered the body. The deputy noticed that the radio beside the bed was playing. A drinking glass on a night stand bore the fingerprints of the defendant. The deputy left the house and questioned the defendant for 15 or 20 minutes. Mr. McKeown testified that Bauer appeared to have been drinking but was not intoxicated; he was responsive to the officer's questions. The defendant admitted killing Mary on November 2d. He stated that they had gone to bed and he had considered killing her for approximately 30 minutes before strangling her. He told the deputy, 'I just had to have her car. It is the only excuse I have got. It is a sorry excuse to kill a woman * * *.' He stated that he hoped he killed her before she suffered. He did not try to revive her and he left within an hour after killing her. The defendant further stated that he had gone to Prather afterwards for the purpose of killing his wife but was not successful because his stepson blocked entry into the house and his wife threatened to shoot him if he came inside.

Kenneth Riggs, the county coroner, arrived pursuant to a telephone call. He talked with Bauer for about five minutes while the defendant was seated in the sheriff's car. The coroner inquired if the defendant knew the next of kin or any relatives of the decedent, to which the defendant answered, 'No.' The coroner asked if he had used a pillow, and Bauer replied that he had strangled Mary. The defendant said, 'She did not deserve to die,' and told Riggs that he wanted to use the victim's car for the purpose of going to Prather to kill his wife. Riggs testified that the defendant appeared to have been drinking, that his speech was 'kind of slurry,' but that the answers were quite direct and the defendant was very cooperative.

Subsequently, Bauer was transported to the office of the district attorney, where a full confession was made, with a court reporter present. At the outset of the examination, the district attorney again advised the defendant of his right to counsel and his right to remain silent and asked if the defendant understood that he could have an attorney and that he could remain silent if he chose to do so, to which the defendant answered, 'Yes.' Bauer also acknowledged that he had already voluntarily given a statement to Deputy Sheriff McKeown and that the latter had advised him of his rights. After making a full confession but while interrogation was still under way, the following transpired:

'A. (Defendant) Am I allowed a representative, because I really think you are getting close. I have admitted it, but * * *

'Q. (District Attorney) You are allowed anything you wish. You have your full constitutional rights as I have already told you.

'A. I don't have but twenty bucks and that wouldn't buy a very good lawyer.

'Q. Well, if you are indigent you have a right to a Public Defender. As I have informed you you have a right to counsel, you have a right to remain silent and as stated Mr. McKeown has so advised you also.'

The interrogation then continued.

Subsequent independent investigation confirmed the fact that the defendant and the victim had been with each other for a period of approximately two days prior to the commission of the crime; that they had been staying together and had been drinking but that the defendant did not appear to be intoxicated. The condition of the body confirmed the fact that the victim's death had been caused by strangulation. The evidence also disclosed that the defendant had...