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Constitutional Law Case Summaries
People v Burgener S116882
 

This is the fourth published opinion on appeal arising from defendant Michael Ray Burgener’s murder of a convenience store clerk on Halloween morning 1980, and it may not be the last. 

In 1981, a jury convicted defendant of the first degree murder of William Arias by use of a firearm, robbery by use of a firearm and with the infliction of great bodily injury, and being a felon in possession of a firearm.  The jury also found true the special circumstance that defendant murdered Arias in the commission of the robbery, and sentenced defendant to death.  In 1986, we affirmed the guilt judgment but reversed the penalty because defense counsel, at defendant’s instruction, had not presented any mitigating evidence or argument at the penalty trial.  (People v. Burgener (1986) 41 Cal.3d 505.)

In 1988, a jury again sentenced defendant to death.  However, the trial court granted defendant’s application under Penal Code section 190.4, subdivision (e) (section 190.4(e)) to modify the verdict from death to life imprisonment without the possibility of parole.  The Court of Appeal reversed, finding the trial court had considered improper factors in granting the application to modify the death penalty verdict, and remanded with directions for the trial court “to reconsider and rule upon the motion in accordance with the factors listed in Penal Code sections 190.4, subdivision (e), and 190.3 and no others.”  (People v. Burgener (1990) 223 Cal.App.3d 427, 430.) 

Because of the retirement of the judge who had presided at the penalty retrial, the case was reassigned.  In 1991, the substituted judge, the Honorable Ronald R. Heumann, after reading the entire penalty retrial transcript, denied the application to modify the death penalty verdict.  On appeal, we determined that Judge Heumann had failed to exercise his independent judgment in reviewing the application to modify the verdict and, finding no other error, vacated the judgment of death solely to permit the judge to reconsider the automatic application to modify the verdict.  Our disposition provided that any subsequent appeal was to be “limited to issues related to the modification application.”  (People v. Burgener (2003) 29 Cal.4th 833, 893.) 

This time on remand, Judge Heumann at first denied new defense counsel’s motion for a continuance and denied the section 190.4(e) application to modify the verdict.  A month later, Judge Heumann vacated his ruling and set a new hearing date.  At a subsequent hearing, after another continuance was granted, the court granted defendant’s request to represent himself at the resentencing hearing.  (See Faretta v. California (1975) 422 U.S. 806 (Faretta).)  On November 7, 2003, Judge Heumann again denied the section 190.4(e) application and reinstated the judgment of death.  This appeal is automatic.  (Pen. Code, § 1239, subd. (b).) 

We find that the record is insufficient to establish that defendant’s waiver of counsel was knowing and intelligent and therefore once again vacate the judgment of death and remand the matter solely for the purpose of conducting a hearing on defendant’s automatic application to modify the death penalty verdict.

Held:                     

Trial court judgment sentencing defendant to death is vacated where the court erred in granting defendant's motion to represent himself, as the record is insufficient to establish that defendant's waiver of his Sixth Amendment right to the assistance of counsel was knowing and intelligent. The matter is remanded for reconsideration of defendant's request to represent himself and the automatic application for modification of the penalty death verdict.
People  v. Burgener -S116882-5/7/09 SC
People  v. Burgener -S116882-5/7/09 SC-pdf

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