People v. Bowen

Decision Date22 December 1971
Docket NumberCr. 9278
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. William James BOWEN, Defendant and Appellant.

Evelle J. Younger, Atty. Gen., Robert R. Granucci, Alfred Dovbish, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

Robert E. Breecker, Berkeley, for defendant-appellant.

SIMS, Associate Justice.

Defendant has appealed from a judgment sentencing him to state prison following a jury trial in which he was found guilty of murder in the second degree with five admitted prior convictions. (At an earlier trial a verdict was returned finding defendant guilty of murder in the first degree, but his motion for a new trial was granted.)

Defendant contends: (1) The trial court denied him due process of law in refusing to allow him to interview or depose the victim's four-year-old son who was an eyewitness to the offense; (2) the court erred in failing to hold a hearing on the constitutionality of defendant's prior felony convictions; (3) the court erred in failing to strike defendant's prior felony convictions; (4) the court erred in denying defendant's motion for a mistrial after the prosecution had referred to the impeaching effect of a prior felony conviction on voir dire of the jury; (5) the trial court deprived the defendant of due process of law by failing to hold a hearing to weigh the respective probative value and prejudicial effect of certain demonstrative evidence; and (6) the court erred in failing to properly instruct the jury with respect to the effect of voluntary intoxication.

An examination of these contentions in the light of the record reveals that they are either predicated upon nonexistent postulated facts, or that the principles upon which defendant relies are not applicable to the facts as actually developed in the record. No prejudicial error is found. The judgment must be affirmed.

On April 25, 1969 defendant telephoned the victim, who is referred to in the record as Audrey Gardner or Audrey Neimer, early in the morning. He had known her since 1957 and had dated her steadily since 1965. Admittedly the defendant had engaged in thefts on a regular basis since 1966, and was assisted by the victim in disposing of stolen goods. She told him she was going to Martinez that day to buy lingerie.

Defendant took a bus from his East Oakland home to 30th and San Pablo in Oakland, had breakfast, and then purchased a pint of scotch whiskey at a liquor store across the street. He then proceeded to the victim's home, and when he arrived there at about 8:15 or 8:30 a.m. he had consumed about half of the pint. He and the victim discussed her plans for the day. He gave her $40 which she requested for the purchase of lingerie, and she told him that he could not accompany her to Martinez because the lady from whom the lingerie was to be purchased did not 'want to be bothered with any young man.' Defendant and the victim came out of the house together. He left the half empty bottle of scotch he had brought.

The victim got into her car and offered to give defendant a ride to his niece's house, but he declined. About that time Raymond Tyler, who had also been seeing the victim, 1 walked up toward her car. The victim joined Tyler and defendant left.

Tyler confirmed that he saw defendant with the victim about 8:30 a.m. in front of her house. After defendant left the victim and her four-year-old son, Torino, got into Tyler's car and drove Torino to school. Tyler then drove the victim to San Leandro where they went shopping. They returned about noon to pick Torino up at school, and, about one-half hour after 12:15, when they returned to the victim's home, the victim put her son to bed in her bedroom. Tyler stayed at the victim's house until about 4:30 p.m. when he left.

Meanwhile, defendant walked to his niece's house about three blocks away. He talked and had a few drinks with her, and then returned to the victim's house. When he saw that her car was still there he assumed she had left with Tyler. He let himself into the house with his key to see if the victim was in fact home, and, on ascertaining she was not, he left. He went downtown and visited some bars where he drank scotch. He allegedly was feeling 'pretty high.' He then walked to the Broadway Theatre and entered about noon. There he went to sleep immediately, and did not wake up until after 4 p.m. (He concededly testified at the first trial that he was at the movie house for six hours.)

He testified that he was not completely sober when he left the theater. He walked down San Pablo Avenue, and purchased a half pint of scotch, which he consumed as he walked on to the victim's house.

When he arrived, he rang the bell, and receiving no answer, opened the door with his key. As he walked upstairs the victim was walking out of the bathroom, and the two of them met on the landing. In the living room the victim, in response to defendant's inquiry, told him that she had gone to Martinez with Tyler. They argued over the fact she had refused to take defendant, and went with Tyler, and the victim told him she was through with him. 2 Defendant started to push on her and retorted, 'No, that's not the way it is going to be.'

Then the victim allegedly threatened him by stating, 'You keep on bothering me and the same thing is going to happen to you that happened to Lorenzo--same thing is going to happen to you. I am going to get you killed like I got him killed.' 3 Defendant replied, 'I don't want to talk about it.' The victim then reviled defendant as follows: "Are you stupid! You are just like Lorenzo. He wanted to be the boss and he was stupid like you."

Thereupon defendant slapped her and she ordered him to leave the house. He slapped her again and she picked up the telephone with the comment, 'I know the way to get you out of here.' He pulled the phone from her and threw it on the floor. She went quickly to the kitchen, returned wielding a brown-handled steak knife, and again ordered him out of the house. Defendant saw the blade of the knife sticking up as the victim began a blow to strike him. He grabbed her, twisted her arm, and took the knife away.

The victim turned and ran into the front bedroom with defendant in pursuit. She went to the window and commenced yelling. Defendant seized her from the rear, pulled her back, and they both fell on the bed where they struggled until the victim threw off defendant, got up and ran out toward the stairs. Defendant pursued her, caught her at the first or second step, and stabbed her until she fell on the stairs. He picked her up and pulled her back up on the landing. He asked her to get up and walk and she replied, 'I can't walk.'

About this time defendant felt something poking him. Turning around he discovered that Torino was sticking him with a knife, and he took the knife away from the child.

Defendant picked the victim up and took her into the bathroom and laid her on the bath mat. When he was unable to stop her bleeding with a bathtowel, he picked her up and placed her in the bathtub. Meanwhile, Torino repeatedly attempted to enter the bathroom, and defendant kept ordering him to get out.

Defendant considered and rejected the idea of calling the police because he thought they would not believe him because he had a prison record. He found the victim's handbag on the kitchen floor, looked for money, found none, and removed her car keys. He drove the victim's car to his niece's house because he was confused, frustrated and scared, and wanted to talk to someone. She was not home. He then threw away the two knives he had seized from the victim and Torino, and went home to wash up and change his clothes. After doing so, he left to attempt to find his sister who worked at the Presidio in San Francisco. On the way he bought a pint of scotch, and visited a nightclub to ascertain what band was playing there.

Meanwhile, Burnett Hale, an acquaintance of the victim telephoned her house about 5:45 p.m. Torino answered. He called again about 30 or 40 minutes later and Torino again answered. His suspicions aroused, he went to the victim's home and was admitted by Torino. Hale noticed blood in the apartment, went into the bathroom, and found the victim's body. He called for an ambulance, and in a few minutes an ambulance and the police arrived.

The victim's daughter also telephoned at about the same time as Hale. She spoke with Torino who sounded slightly upset. Her husband went over to the victim's home and found Torino wearing a blood stained T-shirt, and with blood all over the soles of his bare feet.

Officer Perry of the Oakland Police Department answered the call to the victim's address. He inspected the victim's blood stained apartment, and then went to the defendant's residence. There he found a stained bath towel and similarly stained clothing.

An autopsy surgeon testified that the victim's death resulted from shock and hemorrhage from 12 stab wounds, and that he also noted 14 abrasions and contusions on the victim's body.

Defendant's sister testified that he arrived at her place of employment in the cafeteria at the Presidio about 6:30 p.m. The defendant opined he was a 'little high,' then he told her, 'I got rid of Audrey . . . In the bathtub.' He stated that he killed Audrey because she mistreated him. The sister knew that defendant had been seeing Audrey since 1965, and she felt that Audrey had been taking advantage of him. Nevertheless, she thought defendant was kidding because he had made similar statements jokingly in the past, and he subsequently stated that he was going to pick up Audrey later in the evening. She stated that she knew defendant had been drinking before he arrived because of the way the carried himself and because he was calm, in a manner he generally was...

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