Riverside County Super. Ct. No. CR18088 Judge: Ronald R. Heumann.
The opinion of the court was delivered by: Baxter, J.
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.
The facts of the crime are set out in our prior opinion. (People v. Burgener, supra, 29 Cal.4th at pp. 847-855.) For purposes of this appeal, it is sufficient to note that defendant shot and killed William Arias, a clerk at a 7-Eleven in Riverside, with five shots from a .22-caliber weapon at close range and emptied the store's cash register of approximately $50. At the penalty retrial, the People presented evidence that, in 1969, defendant had attempted to rob and kill a clerk at a liquor store located a block and a half away from the 7-Eleven where Arias was murdered. In 1977, just over two months after being released from prison, defendant robbed a pawnshop clerk.*fn1 The People also presented evidence of defendant's violent conduct against correctional officers and fellow inmates. Defendant presented evidence that he did not kill Arias, that he had not even been present at the scene, and that he had been framed by two of the prosecution witnesses. The defense also offered evidence that he had been abused as a child and suffered from adjustment and personality disorders.
As stated above, the history of the section 190.4(e) automatic application to modify the verdict in this case is a long and unhappy one. Following the penalty retrial, a ruling granting the application and a ruling denying the application has each been reversed. In our opinion overturning the denial of defendant's application after retrial, we stated that the record contained no indication that Judge Heumann "understood his duty to independently reweigh the evidence and make an independent determination whether the evidence supported the verdict of death. Indeed, the court's statements betray reliance on a lesser standard of review. After quoting the relevant portion of the statutory text, the court stated: 'I don't know exactly what that means, but I assume it means to review the aggravating factors listed in [section] 190.3 to determine if the jury could find that the aggravating circumstances outweigh the mitigating factors. [¶] In doing this, I look to see if there was evidence on each of the factors and, if so, could the jury, based upon such evidence, find as they did?' This articulation bears a disturbing resemblance to the deferential substantial-evidence standard. (E.g., People v. Steele (2002) 27 Cal.4th 1230, 1249 [whether evidence is reasonable, credible, and of solid value such that the jury ' "could find" ' as they did].)
"Unfortunately, the remainder of the court's comments offers no assurance the court was aware of and exercised its independent judgment. At no point did the court indicate that it had undertaken an independent review of the evidence or balancing of the aggravating and mitigating circumstances. Rather, the court consistently deferred to the jury's implied findings. As to section 190.3, factor (b), for example, the court said, 'The People contend and the jury could have believed that murder, not robbery, was the real motive for the crime.' In discussing factor (k), the court again avoided expressing its own views as to the significance of the two $5 bills found in the crumpled 7-Eleven paper bag recovered from [a prosecution witness's] apartment: 'This could be interpreted, as the defendant contends, as a clear sign he was set up by his former girlfriend and her former boyfriend to take the fall in this matter or it could be interpreted, as the People contend, [as] a sign that the robbery was not the real motive and that the crime did not exhibit a high degree of intelligence to start with.' The court likewise observed that 'the jurors apparently were not swayed by the testimony about weapons in prison, defendant's early life and juvenile record or the severe paranoia he's alleged to have suffered from' and that the 'jurors also apparently did not accept the defendant's theory of lingering doubt about his conviction.' In summing up, the court said merely that '[t]he jury had sufficient aggravating factors presented to them that I cannot say their verdict, finding the aggravating circumstances . . . outweighed the mitigating circumstances, and, hence, imposing the penalty of death was contrary to law or the evidence presented.' " (People v. Burgener, supra, 29 Cal.4th at pp. 891-892.)
At the first hearing on remand under our instructions, new attorneys appeared for both parties. Defense counsel had died and was replaced with Charles Butler. The assigned deputy district attorney was no longer with the office and was replaced with William Mitchell. The court stated that it had reviewed the briefing previously submitted in connection with the section 190.4(e) application as well as the transcript of the 1991 hearing on remand from the Court of Appeal but did not reread the entire transcript of the penalty retrial "because I didn't feel it was necessary to do so because I still have a remembrance and recollection of the matters and general detail that I looked at." The court added that it had in fact made an independent review at the previous hearing on the section 190.4(e) application but simply had not "used the proper terminology" in doing so and had not made it clear "that my ruling was based upon my own independent review of the matter, and not just simply reviewing as to whether or not the jury could have made the findings that they did." When the district attorney urged the court to proceed with its reconsideration of the application, defense counsel announced that he knew "nothing about the case," had not yet had the opportunity to review the trial or sentencing transcripts, had discovered the case was on calendar only 10 or 15 minutes earlier, and had met defendant only a few minutes earlier-although he acknowledged that the public defender's office had been sent a letter regarding the hearing four weeks earlier. Counsel stated he was not ready and therefore objected to going forward. Defendant, on the other hand, preferred that the court proceed so that he could "get his case out of the California courts, which apparently it's been in for the last 23 years, and get it into federal court."
The court expressed doubt that counsel would be at a disadvantage by immediate reconsideration of the section 190.4(e) application-"I don't know if any additional time would be of any benefit to you. Well, it certainly would be of benefit to you, Mr. Butler, but whether or not it would change anything in this particular matter, I don't know if there's anything else that you would have to add at this time"-and announced that it was "going to proceed at this time with the reconsideration." The court then denied the section 190.4(e) application. The court's statement of reasons included defendant's attempt to escape from the Riverside County jail, but, after defendant and the People both objected that the court could not consider evidence that had not been presented to the jury (see People v. Burgener, supra, 29 Cal.4th at p. 873), the court insisted that the escape had not weighed as a factor in its decision and reiterated that "striking that from my consideration does not change my decision that the death verdict is the proper verdict to be rendered in this particular case."
Six weeks later, upon defendant's motion and a concurrent request by the Riverside County District Attorney's Office and the Attorney General, the court vacated its ruling denying the section 190.4(e) application and set a new hearing date. After another continuance, defendant indicated at a status hearing that he wanted to represent himself at sentencing. The court put the matter over for a week. At the subsequent status hearing, the court granted defendant's Faretta motion. On November 7, 2003, the court denied the application to modify the verdict and reinstated the judgment of death.
Defendant contends the trial court erred in granting his motion to represent himself without obtaining a knowing and intelligent waiver of his right to the assistance of ...