Supreme Court of California Justia
Docket No. S179181

People v. Burgener

Filed 8/11/16
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S179181
v.
Riverside County
MICHAEL RAY BURGENER,
Super. Ct. No. CR 18088
Defendant and Appellant.
___________________________________
In 1981, Michael Ray Burgener was convicted of murdering William Arias during
a convenience store robbery and sentenced to death. We affirmed the guilt judgment but
reversed the penalty verdict because defense counsel at Burgener‘s request ―deliberately
refrained from introducing any evidence in support of a lesser penalty than death, though
such evidence was available.‖ (People v. Burgener (1986) 41 Cal.3d 505, 542 (Burgener
I), disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743; but cf.
People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9 (Bloom) [disapproving the rule that
―failure to present mitigating evidence in and of itself is sufficient to make a death
judgment unreliable‖].
At the penalty retrial, a jury again sentenced Burgener to death, but the trial court
modified the sentence from death to life imprisonment without the possibility of parole.
(See Pen. Code, § 190.4, subd. (e) (hereafter section 190.4(e)); all undesignated statutory
references are to the Penal Code.) The Court of Appeal reversed on the ground that the
trial court, in ruling on the section 190.4(e) motion to modify the verdict, had considered
1


several impermissible factors. (People v. Burgener (1990) 223 Cal.App.3d 427, 430
(Burgener II).) The case was remanded to the trial court for reconsideration of the
section 190.4(e) motion.
On remand, the judge who had presided over the penalty retrial, Judge Mortland,
had retired. So the case was assigned to Judge Heumann, who proceeded to deny the
motion to modify the verdict. On appeal, we held that Judge Heumann, in reviewing the
jury‘s sentencing decision, mistakenly applied a deferential standard of review instead of
exercising ―his duty to independently reweigh the evidence and make an independent
determination whether the evidence supported the verdict of death.‖ (People v. Burgener
(2003) 29 Cal.4th 833, 891 (Burgener III).) We therefore vacated the death judgment
and remanded for another hearing on Burgener‘s application to modify the verdict. (Id. at
p. 892.
On remand, the trial court granted Burgener‘s request to represent himself at the
section 190.4(e) hearing but ultimately denied his application to modify the verdict and
reinstated the death judgment. On appeal, we found that the trial court did not adequately
warn Burgener of the risks of self-representation. (People v. Burgener (2009) 46 Cal.4th
231, 241–243 (Burgener IV).) Because we could not ―conclude that defendant‘s waiver
of counsel was knowing and intelligent,‖ we vacated the death judgment and remanded
―for yet another hearing on the application for modification of the death penalty verdict.‖
(Id. at pp. 243, 245.) We observed that ―[b]ecause Judge Heumann has since passed
away, the motion shall be heard before another judge of the same court.‖ (Id. at p. 245.
On remand, the case was assigned to Judge Riemer, who granted Burgener‘s
request to represent himself but denied his application to modify the verdict. Before us
now is the automatic appeal from this latest denial of Burgener‘s application to modify
the verdict. (§ 1239, subd. (b).) For the reasons that follow, we affirm the death
judgment.
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I.
Burgener contends that the trial court erred in granting his request to represent
himself because his request was equivocal and because the court inadequately warned
him of the risks of self-representation.
As noted, the last time Burgener was before this court, we held that the trial court
granted his motion for self-representation without adequately warning him of its risks.
(Burgener IV, supra, 46 Cal.4th at p. 243.) We reaffirmed that ― ‗ ―[n]o particular form
of words is required in admonishing a defendant who seeks to waive counsel and elect
self-representation.‖ ‘ ‖ (Id. at p. 241.) But we observed that ―the trial court not only
failed to advise defendant that the district attorney would be both experienced and
prepared, that defendant would receive no special consideration or assistance from the
court and would be treated like any other attorney, that he would have no right to standby
or advisory counsel, or that he would be barred from challenging on appeal the adequacy
of his representation, but instead actively encouraged defendant to represent himself.‖
(Id. at p. 243.) This time the colloquy on self-representation proceeded as follows:
―THE COURT: [T]he first order of business today is to determine whether Mr.
Burgener still wishes to represent himself or whether he is going to accept the services of
the Public Defender‘s Office to represent him.
―So Mr. Burgener, what do you wish to do today?
―THE DEFENDANT: For the purposes of the hearing I‘m down here for, I wish
to represent myself.
―THE COURT: All right. Sir, have you ever studied law before?
―THE DEFENDANT: No.
―THE COURT: Have you, other than those proceedings in front of Judge
Heumann which ultimately were reversed by the Supreme Court, have you ever
represented yourself in a criminal action?
―THE DEFENDANT: Just — no.
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―THE COURT: Do you understand the issues that are present in this motion to
modify the judgment?
―THE DEFENDANT: Yes, I do.
―THE COURT: And to your understanding, what are those issues?
―THE DEFENDANT: The issues that I‘m down here for?
―THE COURT: Yes.
―THE DEFENDANT: I‘m down here for the automatic motion to modify the
penalty from death to life.
―THE COURT: Right. But what are the legal issues that are to be decided in
whether I grant that motion or whether I deny that motion? Do you understand that?
―THE DEFENDANT: You‘re to weigh the mitigating, aggravating circumstances
against each other and determine whether the jury‘s findings were enough to give me
death.
―THE COURT: Okay.
―THE DEFENDANT: Or whether you should overturn it to life without.
―THE COURT: Do you realize that if you do represent yourself that you will be
going up against one of the most experienced prosecutors in the Riverside County
District Attorney‘s Office?
―THE DEFENDANT: Yes.
―THE COURT: Do you realize that I cannot give you any advice?
―THE DEFENDANT: Yes, or any help, yes, I do.
―THE COURT: And do you realize that you‘re going to basically not be cut any
slack just because you‘re representing yourself as opposed to being represented by an
attorney?
―THE DEFENDANT: I realize that whether I have the top criminal defense
attorney in the world or myself, what was going to happen — what is going to happen is
going to happen regardless. I realize that.
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―THE COURT: What do you mean by that, sir?
―THE DEFENDANT: I mean what I‘m down here for, the limited scope of what
you‘re to determine is going to be determined the same way that it‘s been determined all
along.
―THE COURT: It‘s been determined two different ways. One judge granted it,
another judge denied it.
―THE DEFENDANT: The judge who granted it was the judge who actually set at
the penalty phase and heard the witnesses, heard all the evidence. What you‘re going to
rule on is going to be by the record, what you read.
―You haven‘t heard the witnesses. You didn‘t sit into the penalty phase. You‘re
only going to go by the record. So by the record, I‘m going to be given the same
sentence. I realize that. I know what the record is, and the mitigating — I mean the
aggravating circumstances do outweigh the mitigating circumstances, but, again, you‘re
not going to be able to hear the witnesses. You‘re not going to be able to make the
determination that Judge Mortland made.
―THE COURT: I see. There is a common saying in legal circles that a person
who represents themselves has a fool for a client. What that means —
―THE DEFENDANT: I understand what that means.
―THE COURT: What that means is that — or what that saying is a reflection of is
an understanding by judges and lawyers alike, that it is a bad idea, even for a lawyer to
represent himself. It is a particularly bad idea for a — for a layperson, someone who is
not schooled in the law, to attempt to represent themselves.
―You have — what I hear you saying is it‘s not going to make any difference. I‘m
confident what the ruling is going to be, therefore, I prefer to represent myself.
―Let me ask you, the — if the decision is going to be the same in your mind either
way, what is the downside of accepting Mr. Kersee‘s representation?
5
―THE DEFENDANT: The downside is the length of time that it‘s going to take.
My case has been in the State courts for — well, you know the number of years it‘s been
in the State court.
―I can‘t sit here before you or anybody else or let anybody — I‘ve had no say in
what‘s happened here throughout this case. All the lawyers I‘ve had have always done
what they wanted to do. Take the penalty phase, for instance, I can‘t in good conscience,
try to mitigate a sentence when I‘m claiming I‘m innocent.
―How can I let an attorney do the things that they do to try to mitigate a sentence
of death? To me, a sentence of life without is worse than death, actually, to me right now
where my case is in the courts. I want to get this hearing over with, and, you know, get
my case in through the courts before I die of old age.
―THE COURT: Understandable. You understand that whether you represent
yourself or not, there is not going to be any ruling made today?
―THE DEFENDANT: I understand that.
―THE COURT: I have hundreds of thousands of pages of reading to do between
now and whenever I make that ruling.
―THE DEFENDANT: You just have to read the transcripts from the penalty
phase, correct?
―THE COURT: That‘s my understanding.
―THE DEFENDANT: So that shouldn‘t take too long, but I don‘t know how long
it‘s going to take. I understand what you‘re saying, I guess.
―THE COURT: I want to make sure that your motion was not based on the
assumption, if I represent myself, this ruling will be made today, and if I accept —
―THE DEFENDANT: I understand that. It‘s just that I could do — I can do for
me just as much as an attorney can do for me. In other words, what can be done for me is
not much at this point for the limited scope of this hearing.
6
―THE COURT: All right, sir. Sir, do you also understand that if you represent
yourself, you‘re not going — if you change your mind midway through the hearing,
there‘s not going to be any other attorney waiting in the wings or sitting at your elbow
waiting to take over for you? You might change your mind after the hearing is over, but
for purposes of this hearing, your decision is going to be irrevocable. It‘s either go with
an attorney for the entire hearing or ruling or go without an attorney for the entire ruling
or hearing.
―THE DEFENDANT: I understand that.
―THE COURT: If the ruling is contrary to you, as you expect it to be, and if that
ruling is appealed, then you cannot raise a common argument on appeal that appellants
often raise which is my attorney was ineffective. My attorney did not do the reasonably
minimum expectable job that an attorney would do for me.
―THE DEFENDANT: Yes, I understand that.
―THE COURT: All right, sir. I have no stake in this case. In fact, I am, until this
week, I was entirely new to this case. I have done very little with respect to this case
other than read the latest opinion from the California Supreme Court. I have no vested
interest one way or the other.
―My advice to you is that you accept Mr. Kersee‘s representation. He is an
excellent attorney. If there is anything that can be done, Mr. Kersee is in an excellent
position to make sure that everything that can be done is done.
―I recognize that you think that‘s a waste of time. I recognize that you think it‘s a
futile effort and the result is going to be the same, but what you think is possible from
your review of the record and from what a very experienced criminal trial attorney, one
very experienced in death penalty cases, thinks is possible might be two different things.
Lightening [sic] does strike. So if you are — it appears to the Court, and the Court will
find that you understand the risks.
7
―You are competent to make this decision, and if it is your desire to make this —
to choose to represent yourself, I will grant that, but I advise you against it.
―THE DEFENDANT: Your Honor, let me just say this. The very best that can
come of this hearing that I‘m down here for is that I be given life without the possibility
of parole. To me, that‘s the very worst thing that can happen, therefore, I do wish to
represent myself.
―THE COURT: Mr. Kersee, anything before I rule on this request?
―MR. KERSEE [defense counsel]: No. In fact I should, for the record, note that I
have had long conversations with Mr. Burgener regarding his position, regarding what he
wants to do considering the 190.4[(e) hearing]. I have spoken with appellate — both
state and federal appellate attorneys who have represented Mr. Burgener and discussed
the issues with them. After I discussed the issues with them, I went back and spoke with
Mr. Burgener again regarding his decision. I am satisfied that Mr. Burgener is well
aware of the legal principles involved.
―He is aware of the scope of the hearing. He is aware of the duties, obligations of
your Honor with respect to this case, and I acknowledge his Constitutional right to
represent himself.
―THE COURT: Miss Carter, any further inquiry you like to make in order to
confirm that the defendant‘s decision is knowing and voluntary?
―MS. CARTER [speaking for the prosecution]: No. I would just note for the
record, just because nobody said it, from the cold record, Mr. Burgener‘s words make
sense, but I watched him have a discussion with the Court. He seems bright. He seems
lucid. He doesn‘t seem to be strange in any way and he seems to be a rather intelligent
man. So making no judgments about those, I would just indicate for the record that those
are my observations about the — not only the words that were said, but the nature in
which the discussion was undertaken between the Court and the defendant.
8
―THE COURT: And Court would confirm those observations. Mr. Burgener
appears to have thought this issue out in a careful and rational manner and has made his
choice. It‘s not the choice that I would make, but it does appear to be a rational choice
from his point of view.
―All right, sir, Court will grant your request. The Court finds that you have made
a knowing and voluntary choice with full understanding of the risks and consequences
involved in representing yourself.‖
Burgener argues that his request for self-representation was equivocal, and
therefore should not have been granted by Judge Riemer, because it was borne of
frustration with his case‘s slow progress and his fatalistic attitude toward the
section 190.4(e) hearing‘s ultimate outcome. (See People v. Doolin (2009) 45 Cal.4th
390, 453 [―a request for self-representation must be unequivocal‖]; People v. Marshall
(1997) 15 Cal.4th 1, 23 [―A motion for self-representation made in passing anger or
frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the
orderly administration of justice may be denied.‖].) Where a trial court has granted a
defendant‘s request for self-representation, the question on appeal is ―whether the
defendant knowingly and intelligently waived the right to counsel.‖ (Burgener IV, supra,
46 Cal.4th at p. 241.) We examine Burgener‘s claim that his request was equivocal as
part of the inquiry into whether he affirmatively made a knowing and intelligent waiver
of his right to counsel. We ―must indulge every reasonable inference against waiver of
the right of counsel.‖ (Marshall, at p. 20.
It is true that Burgener expressed frustration with the progress of his case (―I want
to get this hearing over with, and, you know, get my case in through the courts before I
die of old age‖) as well as resignation that ―I‘m going to be given the same sentence‖
whether or not represented by counsel. But these sentiments do not suggest equivocation
in Burgener‘s desire to represent himself. Burgener had directed his attorney not to
oppose the death penalty during his original penalty trial (Burgener I, supra, 41 Cal.3d at
9
p. 541), and he had asked to represent himself at the previous section 190.4(e) hearing
more than a decade ago (see Burgener IV, supra, 46 Cal.4th at p. 234). After this court
overturned that hearing‘s outcome, Burgener again asked to represent himself because he
wanted to move his case along more quickly, because he objected to his lawyers
presenting mitigating evidence (―I can‘t in good conscience, try to mitigate a sentence
when I‘m claiming I‘m innocent. [¶] How can I let an attorney do the things that they do
to try to mitigate a sentence of death?‖), and because he believed ―I can do for me just as
much as an attorney can do for me.‖ The trial court told Burgener that ―[i]t is a
particularly bad idea . . . for a layperson, someone who is not schooled in the law, to
attempt to represent themselves‖ and that ―[m]y advice to you is that you accept Mr.
Kersee‘s representation.‖ Yet Burgener remained resolute, and at the end of the
colloquy, the trial court, prosecutor, and defense counsel all agreed, based on their direct
observations, that Burgener had made a careful and informed judgment. The record
shows that Burgener knowingly and intelligently waived his right to counsel and
affirmatively chose to represent himself.
In addition, the trial court did not abuse its discretion in granting Burgener‘s
request in the face of his expressed desire to present no mitigating evidence and leave the
death verdict intact. Burgener now contends that his ―request for self-representation here
was clearly made to frustrate the orderly administration of justice by making the
proceedings non-adversarial.‖ But in Bloom, we held that a trial court did not abuse its
discretion ―by granting a competent defendant‘s midtrial motion for self-representation,
when the motion is made for the announced purpose of seeking a verdict of death.‖
(Bloom, supra, 48 Cal.3d at p. 1220.) We explained that although the ―defendant‘s
midtrial motion for self-representation did not have a constitutional basis [citation], the
United States Supreme Court‘s decision in Faretta v. California [(1975) 422 U.S. 806],
recognizing a Sixth Amendment right of self-representation, is nonetheless instructive on
the point raised by defendant. The basic teaching of Faretta is ‗that the state may not
10
constitutionally prevent a defendant charged with commission of a criminal offense from
controlling his own fate by forcing on him counsel who may present a case which is not
consistent with the actual wishes of the defendant.‘ ‖ (Ibid.) ―Given the importance
which the decisions of both this court and the United States Supreme Court have attached
to an accused‘s ability to control his or her own destiny and to make fundamental
decisions affecting trial of the action, and given this court‘s recognition that it is not
irrational to prefer the death penalty to life imprisonment without parole,‖ we concluded
that ―it would be incongruous to hold that a trial court lacked power to grant a midtrial
motion for self-representation in a capital case merely because the accused stated an
intention to seek a death verdict.‖ (Id. at pp. 1222–1223.
Applying this reasoning here, we cannot say that Burgener sought to frustrate the
orderly administration of justice by taking control of his defense, even though his refusal
to argue for mitigation and his desire for a swift resolution might have increased the
likelihood that he would receive a death sentence. The fact that Burgener had convinced
himself that ―by the record, I‘m going to be given the same sentence‖ does not suggest
that his request to represent himself was ambivalent or intended to undermine the
proceedings. Burgener apparently believed he was making the best of the situation by
seeking to expedite a process whose outcome was predetermined. Judge Riemer sought
to convince Burgener otherwise by saying: ―I have no stake in this case. . . . I have no
vested interest one way or the other. [¶] . . . [¶] I recognize that you think [accepting
counsel is] a futile effort and the result is going to be the same, but what you think is
possible from your review of the record and from what a very experienced criminal trial
attorney, one very experienced in death penalty cases, thinks is possible might be two
different things. Lightening [sic] does strike.‖ But Burgener was unconvinced because
Judge Riemer had not heard the penalty phase witnesses and Burgener believed the
―aggravating circumstances do outweigh the mitigating circumstances‖ on the written
record alone. In persisting with his request to represent himself despite Judge Riemer‘s
11
contrary advice, Burgener made clear he was seeking ―to control his . . . own destiny‖
(Bloom, supra, 48 Cal.3d at p. 1222), not to frustrate the orderly administration of justice.
We likewise reject Burgener‘s contention that Judge Riemer failed to fully apprise
him of the dangers of self-representation. ―No particular form of words is required in
admonishing a defendant who seeks to waive counsel and elect self-representation; the
test is whether the record as a whole demonstrates that the defendant understood the
disadvantages of self-representation, including the risks and complexities of the particular
case.‖ (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Judge Riemer actively
counseled Burgener against self-representation, warning Burgener that he was ―going up
against one of the most experienced prosecutors in the Riverside County District
Attorney‘s Office‖; that he would ―not be cut any slack‖ as a self-represented defendant;
that his self-representation decision ―is going to be irrevocable‖ for purposes of the
section 190.4(e) hearing; and that he was forgoing his right to later assert any claim of
ineffective assistance of counsel. In light of the deficiencies we noted in the trial court‘s
warnings concerning self-representation at Burgener‘s previous section 190.4(e) hearing,
it is not surprising that Judge Riemer, who said he had ―read the latest opinion from the
California Supreme Court [i.e., Burgener IV],‖ gave the specific warnings that he did.
(See Burgener IV, supra, 46 Cal.4th at p. 243 [trial court ―failed to advise defendant that
the district attorney would be both experienced and prepared, that defendant would
receive no special consideration or assistance from the court and would be treated like
any other attorney, that he would have no right to standby or advisory counsel, or that he
would be barred from challenging on appeal the adequacy of his representation‖].
Further, unlike Judge Heumann, who had ―actively encouraged defendant to represent
himself‖ (ibid.), Judge Riemer expressly advised Burgener to accept representation by
counsel.
Burgener argues that Judge Riemer did not specifically warn him of the
complexities of a section 190.4(e) hearing. The only complexity Burgener identifies is
12
the necessity of objecting when appropriate in order to preserve claims of error for
appeal. But such a rule is not unique to a section 190.4(e) hearing, and it is no more
complex than the rules of evidence and procedure that a defendant who represents
himself at trial is expected to follow without any specific admonition beforehand. As we
said in Burgener IV, a section 190.4(e) ―proceeding differs markedly from a trial on the
merits, which involves voir dire of potential jurors, the examination and cross-
examination of witnesses, and jury instructions. [Citation.] Indeed, an application for
modification of the death penalty verdict is based only on evidence that has already been
presented to the jury . . . .‖ (Burgener IV, supra, 46 Cal.4th at p. 242.) Judge Riemer‘s
careful colloquy with Burgener was adequate to warn Burgener of the ―risks or
disadvantages‖ of self-representation in the section 190.4(e) hearing. (Burgener IV, at
p. 242.
Finally, Burgener contends that he had no federal constitutional right to represent
himself in the section 190.4(e) hearing, that Judge Riemer had no discretion to allow
Burgener to represent himself, and that even if Judge Riemer did have such discretion,
that discretion was abused on this record. In Burgener IV, our analysis of Burgener‘s
request to represent himself appeared to assume that Faretta applies to a section 190.4(e
hearing. (See Burgener IV, supra, 46 Cal.4th at pp. 240–241, citing Faretta v.
California, supra, 422 U.S. at pp. 835–836 (Faretta).) Yet in Bloom, we explained that a
motion for self-representation made ―after trial has commenced‖ — the motion there was
made at the penalty phase, after the verdicts on guilt had been returned — ―is ‗based on
nonconstitutional grounds‘ [citation] and is addressed to the sound discretion of the trial
court.‖ (Bloom, supra, 48 Cal.3d at p. 1220.) Further, we said ―[t]he rule against invited
error generally precludes a defendant from obtaining reversal of a judgment by asserting
error in the granting of the defendant‘s own motion.‖ (Ibid.
Burgener argues that Judge Riemer did not have discretion to allow him to
represent himself because section 686.1 says that ―the defendant in a capital case shall be
13
represented in court by counsel at all stages of the preliminary and trial proceedings.‖
Under People v. Johnson (2012) 53 Cal.4th 519, 526 (Johnson), section 686.1‘s mandate
applies to the extent it is not inconsistent with Faretta. Burgener reasons that if Faretta
does not apply to a section 190.4(e) hearing and section 686.1‘s requirement of
representation by counsel does, then we must conclude that the trial court erred in
granting his request for self-representation.
We need not decide whether Burgener had a Sixth Amendment right to self-
representation at the section 190.4(e) hearing; even if had no such right, his claim of error
cannot succeed because section 686.1 does not apply to such a hearing. (See People v.
Engram (2010) 50 Cal.4th 1131, 1161 [―a statute must be construed, if reasonably
possible, in a manner that avoids a serious constitutional question‖].) The requirement of
section 686.1 applies ―at all stages of the preliminary and trial proceedings,‖ and a
section 190.4(e) hearing is not a trial proceeding in the usual sense. As noted, a section
190.4(e) hearing is qualitatively different and less procedurally complex than a trial on
the merits. (See Burgener IV, supra, 46 Cal.4th at p. 242 [―Such a proceeding differs
markedly from a trial on the merits, which involves voir dire of potential jurors, the
examination and cross-examination of witnesses, and jury instructions. [Citation.]
Indeed, an application for modification of the death penalty verdict is based only on
evidence that has already been presented to the jury . . . .‖].
In Johnson, we quoted the Legislature‘s finding, when it enacted section 686.1,
that ― ‗persons representing themselves cause unnecessary delays in the trials of charges
against them; that trials are extended by such persons representing themselves; and that
orderly trial procedures are disrupted. Self-representation places a heavy burden upon
the administration of criminal justice without any advantages accruing to those persons
who desire to represent themselves.‘ (Stats. 1971, ch. 1800, § 6, p. 3898; [citation].)‖
(Johnson, supra, 53 Cal.4th at p. 526.) None of these concerns has salience in a section
190.4(e) hearing; there are few opportunities for a self-represented defendant to disrupt or
14
delay the administration of justice. The only burden that could be placed upon the
administration of justice is what happened here: A defendant does not submit any
arguments at the section 190.4(e) hearing. Although that may be unhelpful to the trial
court‘s legal analysis, we have said that ―failure to present mitigating evidence generally
does not make a death judgment unreliable in a constitutional sense in the absence of
misleading or erroneous instructions and argument.‖ (Bloom, supra, 48 Cal.3d at
p. 1228, fn. 9.) We thus conclude that section 190.4(e) hearings are not ―trial
proceedings‖ within the meaning of section 686.1.
Thus, even assuming Burgener had no constitutional right to represent himself, we
conclude in light of Bloom that the trial court had discretion to consider Burgener‘s
request and did not abuse its discretion in granting his request. Here, as in Bloom, ―the
defendant‘s stated intention to incur the death penalty does not in and of itself establish
an abuse of discretion in the granting of the self-representation motion.‖ (Bloom, supra,
48 Cal.3d at p. 1220.) Moreover, the trial court took adequate steps to ensure that
Burgener‘s decision was informed, considered, and not impulsive, equivocal, or designed
to frustrate the orderly administration of justice.
II.
Burgener‘s remaining contention is that the trial court improperly refused to
consider Judge Mortland‘s factual findings in the course of independently reviewing the
record under section 190.4(e). As noted, Judge Mortland presided over the penalty retrial
and, after the jury sentenced Burgener to death, modified the sentence to life
imprisonment without parole in a section 190.4(e) ruling later reversed by the Court of
Appeal. (Burgener II, supra, 223 Cal.App.3d at p. 430.) In his colloquy with Judge
Riemer, Burgener suggested that Judge Mortland‘s decision to modify the sentence was
informed by direct observation of the witnesses at the penalty retrial and that Judge
Riemer, without the benefit of such observation, would not ―be able to make the
determination that Judge Mortland made.‖
15
The record reveals that Burgener has forfeited this claim. Before ruling on
Burgener‘s motion to modify the verdict, Judge Riemer prepared a list of written
questions for the Attorney General, including whether it was the Attorney General‘s
position that the court was ―bound in part‖ by the factual findings of the judge who
presided over Burgener‘s original guilt and penalty trial, and whether the court‘s review
of a ―cold written record‖ in any way affected its duty to ―independently evaluate the
credibility of the witnesses.‖ Citing People v. Crew (2003) 31 Cal.4th 822 (Crew), the
Attorney General responded that Judge Riemer was not bound by the findings of any
judge who had previously ruled on a motion to modify the verdict. And citing People v.
Lewis (2004) 33 Cal.4th 214 (Lewis), the Attorney General further responded that Judge
Riemer was required only to evaluate the credibility of witnesses as best he could from
the written record. Judge Riemer offered Burgener the opportunity to address the
Attorney General‘s responses, but Burgener declined. In denying the motion to modify
the verdict, Judge Riemer said that he had no obligation to ―consider the factual findings
made by the judge who issued the prior ruling‖ and that ―any attempt to do so would be
inconsistent with this court‘s duty to conduct its own independent review of the
evidence.‖ Again, Burgener did not object. By not objecting at the hearing to the
Attorney General‘s responses or to the trial court‘s reasons for its ruling, Burgener
forfeited this claim. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1064.
As to the merits, section 190.4(e) states that the judge hearing an application to
modify the verdict ―shall review the evidence, consider, take into account, and be guided
by the aggravating and mitigating circumstances referred to in Section 190.3, and shall
make a determination as to whether the jury‘s findings and verdicts that the aggravating
circumstances outweigh the mitigating circumstances are contrary to law or the evidence
presented.‖ In Crew, the judge who presided over the defendant‘s trial, Judge Schatz,
granted the defendant‘s motion to modify the verdict under section 190.4(e), but the
ruling was reversed on appeal. On remand to redetermine the section 190.4(e) motion,
16
Judge Schatz was unavailable, so the matter was assigned to Judge Ahern, who denied
the motion. The defendant ―fault[ed] Judge Ahern‘s ruling for not taking into
consideration Judge Schatz‘s previous findings in the prior ruling on the automatic
motion to modify.‖ (Crew, supra, 31 Cal.4th at p. 859.) But we found ―no error,‖
explaining that section 190.4(e) requires the judge ―to review the evidence and to take
into account and be guided by the statutory aggravating and mitigating evidence. Judge
Ahern did so.‖ (Crew, at p. 859.
Similarly, in Lewis, the judge hearing a section 190.4(e) motion, Judge Charvat,
was not the same judge who presided over the penalty trial. The defendant ―sought to
present the guilt and penalty phase evidence to Judge Charvat through live testimony on
the ground that he had not personally observed the witnesses testify and therefore would
be unable to evaluate their credibility in reweighing the evidence.‖ (Lewis, supra, 33
Cal.4th at p. 224.) Judge Charvat declined to allow such testimony, and we found no
error. (Ibid.) We explained that section 190.4(e) requires the judge to evaluate ― ‗the
evidence presented‘ ‖ and that ―a re-presentation of evidence is not ‗the evidence
presented.‘ ‖ (Lewis, at p. 224; see id. at p. 225 [―[A] modification application hearing
‗is limited to review of the evidence that was before the jury . . . . [Citations.] Any
attempt to recreate the evidence would conflict with this mandate.‖].) We rejected the
contention that ―in every case in which the original trial judge is replaced prior to a
modification application, the defendant is in effect automatically entitled to a new trial
because the replacement judge‘s ability to assess the credibility of witnesses is
necessarily limited.‖ (Id. at p. 225.) ―[W]hen the original trial judge is unavailable,
necessity requires the replacement judge to evaluate the credibility of the witnesses as
best he or she can from the written record. We find no constitutional obligation to
provide more.‖ (Id. at p. 226.
Crew and Lewis make clear that Judge Riemer had no obligation to consider the
findings made by any judge who previously presided over this case. As required by
17
section 190.4(e), Judge Riemer reviewed the transcripts of the proceedings, reweighed
the evidence presented to the jury, and stated on the record the reasons for his findings.
However, Burgener‘s claim is not that Judge Riemer was obligated to consider Judge
Mortland‘s findings. Instead, Burgener‘s claim is that ―Judge Riemer was wrong in
concluding that he could not consider Judge Mortland‘s findings because to do so would
be inconsistent with the exercise of his independent judgment.‖ (Italics added.) As the
record shows, Judge Riemer apparently believed he was prohibited from doing so when
he said that ―any attempt to do so would be inconsistent with this court‘s duty to conduct
its own independent review of the evidence.‖
Although our cases establish that a judge deciding a section 190.4(e) motion has
no obligation to consider a prior judge‘s findings, we have not had occasion to consider
whether a replacement judge is required to ignore such findings. The purpose of section
190.4(e) is to provide ―an additional safeguard against arbitrary and capricious imposition
of the death penalty in California.‖ (Lewis, supra, 33 Cal.4th at p. 226.) Burgener argues
that this purpose of ensuring accuracy and reliability in capital sentencing would be
served, not undermined, by allowing a judge who must evaluate witness credibility in the
course of ―review[ing] the evidence‖ (§ 190.4(e)) to consider ―the written findings of the
trial judge who was ideally situated to make the ruling in the first instance.‖ According
to Burgener, allowing Judge Riemer the discretion to consider Judge Mortland‘s findings
would not have been ―incompatible or inconsistent with Judge Riemer‘s ultimate
responsibility to conduct an independent review‖ because Judge Riemer was not
obligated to consider those findings, the findings were not binding on Judge Riemer in
any event, and ―the last call was Judge Riemer‘s to make.‖ ―[N]o good reason appears to
deprive him of the eyes and ears of Judge Mortland, who was present at the critical time
of trial. To the contrary, to the extent that Judge Riemer was able to avail himself of
those findings, the accuracy of his determination was likely to be enhanced. That check
18
on arbitrariness, after all, was the underlying purpose of the section 190.4, subdivision
(e), proceeding itself.‖
We need not decide the merits of Burgener‘s claim because there is no reasonable
possibility that Judge Riemer would have reached a different result even if he had
believed he could consider Judge Mortland‘s findings. As an initial matter, it is uncertain
whether Judge Riemer would have actually exercised his discretion to consider those
findings or what weight he would have given them. Moreover, even if Judge Riemer had
considered and credited Judge Mortland‘s findings, we see no reasonable possibility that
Judge Riemer would have made a different ruling.
Burgener argues that Judge Mortland‘s findings as to the lack of credibility of
prosecution witnesses Joseph DeYoung and Nola England would have aided ―a theory of
lingering doubt‖ as a mitigating factor. (See Burgener III, supra, 29 Cal.4th at pp. 848–
851 [describing Burgener‘s lingering-doubt defense].) In essence, Burgener contends he
was framed by DeYoung and England for Arias‘s murder. Although England was
engaged to Burgener, she had also been romantically involved with DeYoung, who
continued to pursue her after her engagement to Burgener. DeYoung admitted he was
jealous of Burgener and initially called the police to report Burgener‘s crimes. DeYoung
also facilitated Burgener‘s arrest by arranging an exchange of guns, whereby Burgener
would trade a .22-caliber handgun (the apparent murder weapon) for another weapon
supplied by DeYoung, and then informing the police of the time and place of the
exchange. DeYoung, a convicted felon, received $10,000 from the owner of the
convenience store where Arias was killed, and the district attorney reduced felony drug
charges pending against DeYoung to a misdemeanor at the time of the preliminary
hearing.
England initially denied any knowledge of the murder. But after the police
threatened to charge her with perjury and take away her children, she admitted to the
police that Burgener had told her he committed the robbery murder. She later regretted
19
inculpating Burgener and, in a letter to Burgener that she hoped the police would read,
tried to make amends by claiming DeYoung was at fault. At Burgener‘s first trial,
England claimed a lack of memory and implicated DeYoung. At the 1988 penalty retrial,
however, England gave a detailed account of Burgener‘s admission. England also made
a taped statement declaring Burgener‘s innocence, but the tape apparently disappeared.
Burgener asks us to take judicial notice of the record in Burgener II, where Judge
Mortland said he was ―not thrilled with the prosecution witnesses‖ because they ― ‗were
persons who took drugs [and] committed various violations of the law.‘ ‖ (Burgener II,
supra, 223 Cal.App.3d at p. 432.) Although we grant Burgener‘s request (Evid. Code,
§ 452, subd. (d)), Judge Riemer independently determined that ―Nola England was not a
credible witness,‖ so his consideration of Judge Mortland‘s similar assessment would not
have added anything to his own analysis. As to DeYoung, Judge Riemer determined that
―the weight of the evidence‖ did not support the contention that ―Joseph DeYoung had
the motive and opportunity to, and did in fact, frame the defendant for the crime.‖ In
Judge Mortland‘s view, DeYoung gave ― ‗crucial testimony to [Burgener‘s] conviction‘ ‖
but lacked credibility. (Burgener II, at p. 432.) But the possibility that DeYoung had
substantial motives (other than a desire to tell the truth) to pin blame on Burgener is
apparent from the written record: he was jealous of Burgener‘s relationship with
England, he was a convicted felon facing felony drug charges and wanted leniency, and
he received significant payments from the convenience store owner. In addition, because
the murder involved a gun that originally belonged to DeYoung, it is possible that
DeYoung wanted to negate any inference of his own involvement in the crime. We have
no reason to believe Judge Riemer did not consider these circumstances in his
independent review of the evidence. Based on that independent review, Judge Riemer
concluded that ―the evidence of guilt, although circumstantial, is compelling. While
there is a possibility that the defendant was framed, it is not a realistic possibility. The
Court does not find that any doubt in the defendant‘s guilt is strong enough to mitigate
20
against a death penalty.‖ We see no reasonable possibility that Judge Riemer would have
reached a different conclusion if he had considered and credited Judge Mortland‘s doubt
about DeYoung‘s credibility.
CONCLUSION
For the reasons above, we affirm the judgment.
LIU, J.

WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.

21
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Burgener

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted
Opinion No.
S179181
Date Filed: August 11, 2016

Court:
Superior
County: Riverside
Judge: Craig G. Riemer

Counsel:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Harry Gruber and
Elias Batchelder, Deputy State Public Defenders, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,
Assistant Attorney General, Holly D. Wilkens, Robin Urbanski and Meredith S. White, Deputy Attorneys
General, for Plaintiff and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):
Elias Batchelder
Deputy State Public Defender
1111 Broadway, 10th Floor
Oakland, CA 94607-4139
(510) 267-3300

Meredith S. White
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2297


Opinion Information
Date:Docket Number:
Thu, 08/11/2016S179181

Parties
1The People (Plaintiff and Respondent)
Represented by Attorney General - San Diego Office
Robin Urbanski, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2The People (Plaintiff and Respondent)
Represented by Meredith S. White
Office of the Attorney General
600 West Broadway, Suite 1800
San Diego, CA

3Michael Ray Burgener (Defendant and Appellant)
San Quentin State Prison
P.O. Box B-26952
San Quentin, CA 94974

Represented by Office of the State Public Defender - SF
Harry Gruber, Deputy State Public Defender
Oakland City Center
1111 Broadway, 10th Floor
Oakland, CA

4Michael Ray Burgener (Defendant and Appellant)
San Quentin State Prison
P.O. Box B-26952
San Quentin, CA 94974

Represented by Office of the State Public Defender - OK
Elias Batchelder, Deputy State Public Defender
Oakland City Center
1111 Broadway, 10th Floor
Oakland, CA


Disposition
Aug 11 2016Opinion: Affirmed

Dockets
Dec 11 2009Judgment of death
Defendant and Appellant: Michael Ray Burgener
Jan 4 2010Filed certified copy of Judgment of Death Rendered
Defendant and Appellant: Michael Ray Burgener for Michael Ray Burgener on December 11, 2009.
Jan 4 2010Penal Code sections 190.6 et seq. apply to this case
Jan 12 2010Filed:
appellant's application for appointment of counsel (IFP form).
Dec 30 2010Order appointing State Public Defender filed
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF Upon request of appellant for appointment of counsel, the State Public Defender is hereby appointed to represent appellant Michael Ray Burgener for the direct appeal in the above automatic appeal now pending in this court.
Jan 11 2011Received:
notice from superior court that 212 pp. record was sent to appellant's counsel on January 4, 2011.
Jan 10 2011Date trial court delivered record to appellant's counsel
(212 pp. record) (see Cal. Rules of Court, rule 8.600(e)(1); the delivery date is the mailing date plus five days.) (Note: record was sent to appellant's counsel on January 4, 2011.)
Jan 11 2011Appellant's opening brief letter sent, due:
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF on or before August 8, 2011. (See California Rules of Court, rule 8.630(c)(1)(A))
Mar 7 2011Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
May 6 2011Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
May 10 2011Received copy of appellant's record correction motion
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF (6 pp.)
Jul 1 2011Record certified for completeness
Jul 5 2011Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
Jul 8 2011Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
Aug 1 2011Request for extension of time filed
to file appellant's opening brief. (1st request)
Aug 5 2011Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief is extended to and including October 7, 2011.
Aug 31 2011Record arrived from Superior Court
(1 box)
Sep 7 2011Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
Sep 30 2011Request for extension of time filed
to file appellant's opening brief. (2nd request)
Oct 5 2011Extension of time granted
On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening brief is extended to and including December 6, 2011.
Nov 7 2011Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
Nov 9 2011Record on appeal filed
Clerk's transcript 3 volumes (288 pages) and reporter's transcript 4 volumes (51 pages). No juror questionnaires or sealed transcripts exist in this record.
Nov 9 2011Letter sent to:
counsel advising that record on appeal, certified for accuracy, was filed this date.
Nov 29 2011Request for extension of time filed
to file appellant's opening brief. (3rd request)
Dec 7 2011Extension of time granted
Good cause appearing, and based upon Deputy State Public Defender Harry Gruber's representation that he anticipates filing the appellant's opening brief by mid-February 2012, counsel's request for an extension of time in which to file that brief is granted to February 6, 2012. After that date, only one further extension totaling about 10 additional days is contemplated. An application to file an overlength brief must be served and filed no later than 60 days before the anticipated filing date. (See Cal. Rules of Court, rule 8.631(d)(1)(A)(ii) & (B)(ii).)
Jan 9 2012Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
Jan 30 2012Request for extension of time filed
to file appellant's opening brief. (4th request)
Feb 3 2012Extension of time granted
Good cause appearing, and based upon Deputy State Public Defender Harry Gruber's representation that he anticipates filing the appellant's opening brief by March 22, 2012, counsel's request for an extension of time in which to file that brief is granted to March 22, 2012. After that date, no further extension is contemplated. An application to file an overlength brief must be served and filed no later than 60 days before the anticipated filing date. (See Cal. Rules of Court, rule 8.631(d)(1)(A)(ii) & (B)(ii).)
Mar 9 2012Counsel's status report received (confidential)
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
Mar 22 2012Appellant's opening brief filed
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF (13, 832 words; 49 pp.)
Mar 22 2012Filed:
by appellant's counsel, Amended Declaration of Service for opening brief on appellant.
Mar 22 2012Respondent's brief letter sent; due:
July 20, 2012
Jun 6 2012Change of contact information filed for:
Office of the State Public Defender.
Jul 9 2012Received:
letter from Deputy Attorney General Robin Urbanski, dated July 9, 2012, advising she is assigned responsibility for representing respondent in the direct appeal.
Jul 18 2012Respondent's brief filed
Plaintiff and Respondent: The PeopleAttorney: Attorney General - San Diego Office (11, 920 words; 39 pp.)
Jul 18 2012Note:
Appellant's reply brief due September 17, 2012, pursuant to California Rules of Court, rule 8.630(c)(1)(D)
Jul 25 2012Filed:
by appellant, "Amended Declaration of Service".
Sep 21 2012Filed:
letter dated September 21, 2012, from Senior Deputy State Public Defender Harry Gruber indicating counsel has elected not to file a reply brief. (Appellant's reply brief was due on September 17, 2012.)
May 20 2015Change of contact information filed for:
Robin Urbanski, Deputy Attorney General.
Jan 21 2016Oral argument letter sent
to counsel advising that the court could schedule this case for argument as early as the March calendar, to be held the week of February 29, 2016, in San Francisco. The court requests that counsel advise the court and opposing counsel by letter of those issues on which counsel expects to focus the argument. The focus letter should identify the subject of their argument with a short statement of the issue (e.g., the argument heading from the briefs) and the number or letter representing the argument in their briefs. The focus letter should not contain any additional argument, citations to authorities, etc. A party's specification of focus issues will not limit counsel's argument or constrain the court from addressing at oral argument or in its opinion any issue properly raised in the case. If a party wishes to bring to the court's attention new authorities, new legislation, or other matters that were not available in time to be included in the party's brief on the merits, the party must comply with rules 8.630(d) and 8.520(d). The focus letter, notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court and served on opposing counsel within 10 days after the order setting the case for argument is filed.
Jan 28 2016Filed:
Letter from Supervising Deputy State Public Defender Peter R. Silten, dated January 27, 2016, requesting that argument be set no earlier than the late May 2016 calendar. The case is reassigned to Deputy State Public Defender Elias Batchelder because Senior Deputy State Public Defender Harry Gruber is on medical leave. Mr. Batchelder will need time to review the record and briefs in the case.
May 4 2016Case ordered on calendar
to be argued on Friday, May 27, 2016, at 1:30 p.m., in San Francisco.
May 11 2016Filed:
appellant's focus issues letter dated May 10, 2016.
May 12 2016Received:
appearance sheet from Elias Batchelder, Deputy State Public Defender, indicating 30 minutes for oral argument for appellant.
May 27 2016Cause argued and submitted
Aug 10 2016Notice of forthcoming opinion posted
To be filed on Thursday, August 11, 2016 at 10:00 a.m.
Aug 11 2016Opinion filed: Judgment affirmed in full
Majority Opinion by Liu, J. -----joined by Cantil-Sakauye, C. J., Werdegar, Chin, Corrigan, Cuéllar, and Kruger, JJ.

Briefs
Mar 22 2012Appellant's opening brief filed
Defendant and Appellant: Michael Ray BurgenerAttorney: Office of the State Public Defender - SF
Jul 18 2012Respondent's brief filed
Plaintiff and Respondent: The PeopleAttorney: Attorney General - San Diego Office
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website