People v. Booker

• Decision Date: 11 May 1977
• Docket Number: Cr. 29948
• Citation: 138 Cal.Rptr. 347,69 Cal.App.3d 654
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Joe BOOKER, Defendant and Appellant.

Page 347

138 Cal.Rptr. 347

69 Cal.App.3d 654

The PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Joe BOOKER, Defendant and Appellant.

Cr. 29948.

Court of Appeal, Second District, Division 2, California.

May 11, 1977.

Herbert F. Blanck, Encino, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

FLEMING, Associate Justice.

This case was originally an automatic appeal from a judgment imposing the death sentence after a jury convicted appellant of four counts of first degree murder and kidnapping for the purpose of robbery. The Supreme Court transferred the case here after holding unconstitutional the California death penalty statutes than in effect. (Rockwell v. Superior Court (1976) 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101.) Accordingly we must reduce the penalty imposed to confinement in the state prison for life. (Pen.Code, § 190.)

Appellant's contentions are as follows: that no substantial evidence was presented to show that the murders were deliberate and premeditated; that he was denied effective assistance of counsel at the trial; that his confessions taped on 29 August and 30 August 1974 were inadmissible both because they were involuntary and because they were taken in violation of his Miranda ¹ rights; and that he was improperly excluded from the courtroom during his trial. His other contentions go to the constitutionality of the sentence of death and accordingly are no longer relevant.

The facts show that appellant kidnapped a 25-year-old woman and her 14-month-old daughter, Audrey Lee Gaines and Heather Michelle Gaines, from a Lucky Shopping Center in the City of Monrovia on 22 August 1974, drove about with them for some two and one half to three hours, and eventually took them to a remote location in Monrovia Canyon Park about 4/10 mile north of the canyon park gate where he murdered both of them in a particularly violent and brutal manner, as well as raping or attempting to rape the mother. Defendant and his brothers then absconded to New Mexico where they were taken into custody for robbery committed in Hobbs, New Mexico, on or about August 26. The Los Angeles County Sheriff's deputies found the bodies of the victims on August 28. On August 29 and August 30, while incarcerated in New Mexico appellant made statements to Sergeant Sett of the Los Angeles County Sheriff's Department and Sergeant Buck of the Monrovia police department, confessing to the kidnap and murder of both Audrey and Heather Gaines, but denying rape or attempted rape. Appellant stated that on August 22 his common-law wife, Verna Aulenback, had hung up on him; he was enraged and took a kitchen knife from his mother's home. In front of the laundromat in the Lucky Shopping Center he saw the victim's station wagon; the young mother had just loaded her laundry into her station wagon and was sitting in it with her baby. He wrapped a denim jacket around his arm and told Audrey that he had a gun and would kill her if she did not cooperate, and that he wanted her car. He got into the back seat of the car and forced her to drive around for about half-an-hour, following which he caused her to park the car in the canyon park, to get out of the car and walk toward some hedges, which she did, carrying her baby. He told her to undress and lay down upon a yellow blanket which he had taken from the car; she put the baby down and obeyed. He then got on top of her, strangled her and cut her with his knife; then he strangled the baby and beat both victims with a rock. Then he drove some distance away and at about 7:30 p.m. he robbed one Michael Cotton at a USA gas station in Monrovia, using the kitchen knife previously used to slash the victims. He later abandoned the car, which the police located about 8:00 p.m. on East Olive St. in Monrovia containing the victim's purse and the baby's car seat. He had wiped his fingerprints off the car with a towel.

Three eyewitnesses to the kidnapping testified. Eugene Tapia, a barber whose shop is located in the Lucky Shopping Center in Monrovia, observed the victims' station wagon parked in the lot outside his shop on August 22. He saw Audrey putting clothes in her car and her little girl. He saw appellant coming around the corner of Lucky's market as if he were in a hurry; he talked to Audrey at the window of the car, leaning on the car with one arm halfway in the car window and a coat over his hand. He was wearing a flashy purple knitted shirt, which Mr. Tapia identified at trial. Audrey reached back and opened the back door of her car, and appellant jumped in the back and sat behind her. Audrey appeared to mouth something to Mr. Tapia which he thought was 'Help. Call the police.' Mr. Tapia was 'kind of shocked' and made a note of the car license plate and called the police. He testified that these events took place about 4:30 p.m. on 22 August 1974. He identified appellant as the man he had seen and identified the victims from pictures.

The witness Bradford Brown testified that about 6:10 p.m. on August 22 he observed a station wagon near the intersection of Loma Alta and Skyview in Altadena, with appellant in the back seat and Audrey Gaines, the victim, driving. She had a very blank expression and they were going very slow. Mr. Brown took the license number, which eventually proved to be that of Mrs. Gaines' automobile. Mr. Brown also identified appellant's purple shirt.

At about 7:00 that evening a David R. Anchondo observed a white station wagon near Myrtle and Hillcrest. The car was going slowly north; a woman and child were in the front seat and a 'huge black man' was sitting in the back seat, wearing a leather hat with silver buttons on it and glaring out of the window. Anchondo identified the car he had seen as the victim's from pictures.

Two of the foregoing eyewitnesses identified appellant as the man they had seen in the back of the victim's car and all three identified the mother, Audrey Gaines, or her car, from pictures and from the car's license plate. Also, appellant's sister identified the purple shirt belonging to appellant which Mr. Tapia recognized at trial, and the sister testified that appellant was carrying the shirt when he came home some time on the evening of August 22.

When the bodies of Audrey Gaines and her 14-month-old daughter Heather were found on August 28, the mother was lying on her back wearing only a halter top, and some trees or branches had been dragged over her face. To the north of her head was a large rock with a reddish brown stain later found to be human blood. There was a four-inch gash on her neck and chest and numerous scratch wounds and severe abrasions on her body. A vaginal smear taken from her body indicated the presence of sperm. The child's body lying near the mother's showed multiple severe injuries to the head and face including massive skull fractures probably resulting from very severe crushing or blunt force. Unusual dark red bruises on the child's thigh probably resulted, according to the coroner, from squeezing by a human hand. The coroner's evidence indicated that the mother probably died from severe crushing injuries to the face or possibly strangulation (there was evidence of both), rather than from repeated slashing wounds which were not fatal. As stated, there was also evidence of rape, but no way to ascertain if it occurred before or after the victim's death. In the interests of decency we refrain from summarizing in further detail the coroner's evidence, which was of course undisputed and showed incredibly brutal and vicious beatings of both victims.

The circumstances surrounding appellant's confessions were as follows: as stated, appellant and two of his brothers were in custody in the Lea County Jail, Lovington, New Mexico, for a robbery in Hobbs, New Mexico, committed about August 26. At that time the victim of the USA gas station robbery in Monrovia had tentatively identified the robber from pictures as appellant's brother, Lonnie Ray Booker. Upon hearing that three of the Booker brothers were in custody in New Mexico, Sergeant Sett and Sergenant Buck went from California to New Mexico to investigate the disappearance of Audrey and Heather Gaines. Meanwhile Lieutenant Wright of the Hobbs police had on August 24 fully advised appellant of his Miranda rights by giving him an 'advice of rights' card which he read and also reading the card to him. Wright asked appellant to read the rights and to sign them if he understood them. Appellant did sign the card, and stated that he could read and write English and had two years of college. Appellant was willing to talk about the New Mexico charges, but wanted an attorney. Accordingly at his New Mexico arraignment on August 26, he was assigned counsel, a deputy public defender who apparently advised him not to talk to anyone. When Sergeant Sett of California (sheriff's department) came to the jail on August 27, Lieutenant Wright told him that appellant had been advised of his rights and given counsel. That evening Officer Sett questioned appellant and his brother Lonnie at the jail about their activities on August 22 (the day of the murders). Appellant stated that he had been in Monrovia all day engaged in activities such as shopping and dice, and that subsequently they had come to Hobbs to see appellant's girlfriend Verna. No confessions were made on that day.

The following day, August 28, at about 5:00 p.m., Sett learned of the discovery of the victims' bodies in Monrovia. He then returned to the Lea County Jail and interrogated Lonnie and Mack Charles Booker further. Just as Sergeant Sett was about to conclude his interview with them, Lonnie said that he had been talking to his brother and he thought appellant wanted to...