IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
MICHAEL RAY BURGENER,
Defendant and Appellant.
Super. Ct. No. CR18088
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.1 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
Less than three months after his release from that prison commitment, he
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
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 counsel under the Sixth Amendment. We agree.
A. Proceedings Below
Defendant first indicated that he wanted to represent himself for purposes
of sentencing during a status hearing on October 23, 2003, when defense counsel
stated his intent to request another continuance. The discussion proceeded as
“THE COURT: All right. Mr. Burgener, you understand that this matter is
coming up for sentencing on the 7th of November, and you have been represented
by the Public Defender’s Office in Riverside County . . . since this matter began
back in . . . about 1980. At this point in time, we’re coming up for the sentencing
matter. Is it your desire to represent yourself at the time of sentencing?
“THE DEFENDANT: For the purpose of sentencing, yes, and also I’d like
to request that you just go ahead and do it today.
“THE COURT: Well, we can’t do it today because we have already
scheduled it for the 7th. I don’t have all the necessary paperwork here to proceed,
and I wasn’t prepared to proceed on the matter today.
“THE DEFENDANT: Well, my concern is, well not concern, but I think
everyone involved in this particular part of the case knows what’s going to
happen, so I don’t feel there’s any further delay that’s going to change anything, or
anything that will be brought to your attention will change anything, so I’d like to
just proceed with the sentencing as soon as possible.
“THE COURT: We have a—well, I think I would be remiss if I didn’t
advise you at least with regard to certain possible pitfalls with regard to self-
representation, but this matter has been in and out of the courts and on appeal so
long, I’m sure that you’re familiar with all of the obligations and—that are
concerned in this particular matter, what the consequences are.
“Mr. Butler has been making efforts, and I know he wishes to come in and
argue the matter with regard to the penalty phase that the penalty should not be as
previously imposed or as recommended by the jury in this case.
“And Mr. Butler, I would assume that you are prepared to proceed along
those lines on [November] the 7th, although I . . . understand you want to continue
it even further?
“MR. BUTLER: Correct, and we were going to address that on the 31st.
That’s what Mr. Mitchell [the district attorney] and I talked about.
“THE COURT: I’ll tell you what I’ll do. I’ll put this matter over to the
31st, and take under advisement your request, and we will hear the whole matter
on the 31st, as far as continuance, or keeping our date of the 7th of November, and
we will just take care of the matters at that point in time.”
At the next hearing on October 31, 2003, defendant announced that he still
wanted to represent himself.
“THE COURT: You understand that Mr. Butler . . . is requesting that this
matter be continued until . . . January 16, to enable him to have time to complete
the review of all of the files in this particular matter, and the transcripts so he
would be prepared to represent you at the time of the reconsideration of the
sentencing in this matter. You still wish to represent yourself, and not have Mr.
Butler do that additional work and be prepared?
“THE DEFENDANT: For the purpose of the resentence, yes, I wish to
“THE COURT: I guess the problem I have with this is that the Public
Defender’s Office is representing him on this matter for quite a number of years. I
realize that Mr. Morris, the man who represented you on this matter back in the
1980s is now deceased. Consequently, obviously, not able to represent you in this
matter. He was the one that was familiar. He filed all the paperwork in the case.
I’m somewhat reluctant, but actually, it’s not my reluctance that governs this
matter. It’s a question of whether or not you are fully aware of the consequences
of representing yourself.
“I think based upon the history of this particular case, and the number of
times that you have been in court, and the representations that you’ve had, I think
you’re fully aware, probably more so than most of us, as to what is taking place
and has taken place in this case. You’re the only one who’s present here today
who sat through all of these hearings, and trials, and motions. All of the rest of us,
myself included, came in after—at the end. I came in simply because Judge
Mortland . . . had retired and then passed away. Mr. Butler is here because [of] the
fact that Mr. Morris passed away, and Mr. Mitchell is here because Mr. Astin from
his office is no longer a member of the District Attorney’s Office, and hasn’t been
for the last two or three years.
“Having made all those comments, and knowing the history of this
particular matter, I am going to grant your motion to represent yourself at the
resentencing hearing in this particular matter, and therefore, we will not be
continuing the matter unless you wish to have it continued to January so that you
can be prepared.
“THE DEFENDANT: No, I’m fully prepared today if you wish to do so.
“THE COURT: We’ll keep it on calendar for next Friday.”
At this point, the district attorney spoke up and urged the court to “make a
couple of other inquiries regarding his understanding of what the issues are on that
“THE COURT: You understand, sir, this matter was sent back by the
Supreme Court for my reconsideration of the issue of whether or not the death
penalty provision recommended by the jury should be set aside. It’s an automatic
appeal. I had previously indicated that I would not set that aside, and I did impose
the death sentence. The Supreme Court has sent it back, as you’re fully aware,
I’m sure, in your conversations with counsel, in reading the documents, that I did
not make it clear that I was exercising my own personal judgment, and not simply
deferring to the jury’s recommendations.
“So the subject matter of our hearing would be the question of whether or
not the death penalty should be imposed, or whether it should be set aside, and life
without the possibility of parole entered in place thereof. That’s what we’re going
to be determining next Friday on our calendar, our 8:30 a.m. calendar. . . . [¶]
And I think that, I should . . . I shouldn’t say I think. I’m aware of the fact that
Mr. Burgener is fully aware of the circumstances of this case. As I previously
noted, he has more knowledge of this case, probably than of us that are present,
although we have all read the transcript. Albeit, Mr. Butler has indicated that he
hadn’t completed his review of the total amount of transcripts, but I’m going to
allow Mr. Burgener to represent himself in this particular matter. He meets all of
the criteria that is required for a person who represents himself, and I will relieve
the Public Defender’s Office from further representation . . . in this matter,
because if the death penalty is reimposed next Friday, it would be an automatic
appeal, and counsel would be appointed by the Supreme Court to represent the
“MR. MITCHELL: I don’t mean to interrupt. I know the Court just related
what the issues were, but I don’t know that the Court actually got an
acknowledgement from Mr. Burgener he understands those issues, and has a right
to argue against the Court affirming the jury’s verdict.
“THE DEFENDANT: Yes, I do understand all that.
“MR. MITCHELL: Thank you, Mr. Burgener.
“THE DEFENDANT: I understand everything that you’ve said.”
Defendant did not submit any additional briefing in support of his section
190.4(e) application and his argument to the court at the hearing was very brief:
“The only thing I have to say is I maintain my innocence; therefore, I cannot argue
mitigation. That’s all I have to say.”
B. Whether Defendant’s Waiver of Counsel Was Knowing and
“A criminal defendant has a right, under the Sixth Amendment to the
federal Constitution, to conduct his own defense, provided that he knowingly and
intelligently waives his Sixth Amendment right to the assistance of counsel.
(Faretta, supra, 422 U.S. at pp. 835-836; People v. Bradford (1997) 15 Cal.4th
1229, 1363.) A defendant seeking to represent himself ‘should be made aware of
the dangers and disadvantages of self-representation, so that the record will
establish that “he knows what he is doing and his choice is made with eyes open.”
[Citation].’ (Faretta, supra, 422 U.S. at p. 835.) ‘No particular form of words is
required in admonishing a defendant who seeks to waive counsel and elect self-
representation.’ (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Rather, ‘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.’ (Ibid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140;
People v. Marshall (1997) 15 Cal.4th 1, 24.)” (People v. Blair (2005) 36 Cal.4th
686, 708.) Thus, “[a]s long as the record as a whole shows that the defendant
understood the dangers of self-representation, no particular form of warning is
required.” (People v. Pinholster (1992) 1 Cal.4th 865, 928-929; accord, U.S. v.
Lopez-Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [“the focus should be on what
the defendant understood, rather than on what the court said or understood”].)
On appeal, we independently examine the entire record to determine
whether the defendant knowingly and intelligently waived the right to counsel.
(People v. Doolin (2009) 45 Cal.4th 390, 453.)
The record indicates the trial court was aware of its duty to advise
defendant of the dangers and disadvantages of self-representation. Promptly upon
learning of defendant’s interest in representing himself, the court stated, “I think I
would be remiss if I didn’t advise you at least with regard to certain possible
pitfalls with regard to self-representation.” Then, at the subsequent hearing, the
court acknowledged that its own opinion on the matter was not determinative;
“[i]t’s a question of whether or not you are fully aware of the consequences of
The record concerning defendant’s understanding of the dangers and
disadvantages of self-representation, however, is rather thin. Despite the
foregoing statements of intent, the court did not actually follow through and advise
defendant of the “possible pitfalls” or “consequences” of self-representation.
Instead, the court simply assumed that defendant was aware of them, at first
declaring, “I’m sure that you’re familiar with all of the obligations and—that are
concerned in this particular matter, what the consequences are.” The court added
later that defendant was “the only one who’s present here today who sat through
all of these hearings, and trials, and motions” and therefore had “more knowledge
of this case, probably, than of us that are present” and was “fully aware, probably
more so than most of us, as to what is taking place and has taken place in this
case.” Far from explaining the risks of self-representation, these statements
reasonably would have conveyed to the listener that the greater danger lay with
continuing to be represented by counsel. (People v. Noriega (1997) 59
Cal.App.4th 311, 321.) This is plainly insufficient to establish a knowing and
intelligent waiver of the right to the assistance of counsel.
The Attorney General argues, correctly, that the scope of a proper
advisement of the right to counsel depends on the particular facts and
circumstances of the case as well as the stage of the proceedings. (Iowa v. Tovar
(2004) 541 U.S. 77, 88.) The high court has adopted “a ‘pragmatic approach to
the waiver question,’ one that asks ‘what purposes a lawyer can serve at the
particular stage of the proceedings in question, and what assistance he could
provide to an accused at that stage,’ in order ‘to determine the scope of the Sixth
Amendment right to counsel, and the type of warnings and procedures that should
be required before a waiver of that right will be recognized.’ ” (Id. at p. 90.)
In this case, defendant asked to represent himself for the limited purpose of
the trial court’s reconsideration of his application to modify the verdict under
section 190.4(e). 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. (U.S. v. Salemo (3d Cir. 1995) 61
F.3d 214, 219 [“the [Faretta] inquiry at sentencing need only be tailored to that
proceeding and the consequences that may flow from it” and “need not be as
exhaustive and searching as a similar inquiry before the conclusion of trial”].)
Indeed, an application for modification of the death penalty verdict is based only
on evidence that has already been presented to the jury (People v. Burgener,
supra, 29 Cal.4th at pp. 888-889), and the application in this case had already been
briefed. These circumstances may have justified a less searching or formal
colloquy in response to defendant’s request to represent himself. But they did not
relieve the court of its duty altogether to ensure that defendant be made aware “of
the hazards ahead” if he proceeded without the assistance of counsel. (Iowa v.
Tovar, supra, 541 U.S. at p. 89.) In this instance, defendant was told only of the
benefits of self-representation, not its risks or disadvantages.
The Attorney General contends that the court’s colloquy was nonetheless
sufficient in that “the trial court’s warning to Burgener that by electing to
represent himself he would be giving up the assistance of his appointed counsel
communicated to Burgener the ‘disadvantages of proceeding pro se,’ and that is all
Faretta requires.” Indeed, this sophistic contention constitutes the entirety of the
Attorney General’s argument. Not surprisingly, the Attorney General offers no
authority for the proposition that a trial court discharges its duty to ensure a
defendant “ ‘actually . . . understand[s] the significance and consequences’ of the
decision” to waive counsel (People v. Stewart (2004) 33 Cal.4th 425, 513) by
informing the defendant that self-representation means that the defendant will not
be represented by counsel. Such a construct “conflates [defendant]’s
determination to proceed pro se, with his understanding of the challenges of doing
so.” (U.S. v. Crawford (8th Cir. 2007) 487 F.3d 1101, 1106.) Informing a
defendant that self-representation means a waiver of counsel is not an advisement
of the associated dangers and disadvantages; it is merely a rephrasing of the
defendant’s choice. (People v. Barnum (2003) 29 Cal.4th 1210, 1221 [“A
defendant who . . . chooses self-representation necessarily forgoes counsel’s
assistance”]; People v. Koontz, supra, 27 Cal.4th at p. 1070 [“In order to make a
valid waiver of the right to counsel, a defendant ‘should be made aware of the
dangers and disadvantages of self-representation’ ”]; see also People v. Noriega,
supra, 59 Cal.App.4th at pp. 317, 319-320.) On this record, where 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, we cannot conclude that defendant’s
waiver of counsel was knowing and intelligent. (See People v. Noriega, supra, 59
Cal.App.4th at pp. 319-321.)
We therefore turn to the question of prejudice. Defendant contends that we
recognized a rule of automatic reversal for defective Faretta waivers in People v.
Crayton (2002) 28 Cal.4th 346. Yet Crayton involved a distinct issue—i.e., a
failure to readvise a defendant who had previously elected self-representation of
his or her right to counsel at the arraignment in superior court—and we held that
the omission was subject to harmless error analysis under People v. Watson (1956)
46 Cal.2d 818. As to the circumstance presented here, we observed in dicta only
that “a reversible per se rule may apply under California Constitution, article VI,
section 13, when a defendant erroneously is denied the right to counsel or never
has knowingly or voluntarily waived that right.” (Crayton, supra, 28 Cal.4th at p.
364, italics added.) The United States Supreme Court similarly has not yet
decided whether a defective Faretta waiver is reversible per se, although it has
stated somewhat cryptically that the right to be represented by counsel, “as with
most constitutional rights, [is] subject to harmless-error analysis . . . unless the
deprivation, by its very nature, cannot be harmless. See, e.g., Gideon v.
Wainwright, 372 U.S. 335 (1963).” (Rushen v. Spain (1983) 464 U.S. 114, 119,
fn. 2 (per curiam).)
Courts in our own state are divided. Some courts have held that the
absence of a knowing and intelligent waiver of the right to counsel is reversible
per se. (E.g., People v. Hall (1990) 218 Cal.App.3d 1102, 1108-1109; People v.
Lopez (1977) 71 Cal.App.3d 568, 571.) Other courts hold that the failure to obtain
a knowing and intelligent waiver is prejudicial unless the People can show beyond
a reasonable doubt that the defendant would have waived counsel even with
proper advisements (e.g., People v. Wilder (1995) 35 Cal.App.4th 489, 500-502
(Wilder) [applying Chapman v. California (1967) 386 U.S. 18]) or that the
absence of counsel had no effect on the outcome of the proceeding (e.g., People v.
Cervantes (1978) 87 Cal.App.3d 281, 293-294 [same]).
The division in the federal circuits is narrower. With one exception, every
federal circuit to have considered the issue has concluded “that harmless error
analysis is inapplicable to failure-to-warn Faretta violations.” (U.S. v. Virgil (5th
Cir. 2006) 444 F.3d 447, 455 [overruling Richardson v. Lucas (5th Cir. 1984) 741
F.2d 753]; see Cordova v. Baca (9th Cir. 2003) 346 F.3d 924, 929-930 & fn. 7
[declaring that Wilder, supra, 35 Cal.App.4th 489, is “an outlier,” its reasoning
“suspect,” and its ruling “ ‘contrary to’ a long line of Supreme Court cases”]; U.S.
v. Allen (10th Cir. 1990) 895 F.2d 1577, 1579-1580 [overruling U.S. v. Gipson
(10th Cir. 1982) 693 F.2d 109]; Strozier v. Newsome (11th Cir. 1989) 871 F.2d
995, 997 & fn. 3; U.S. v. Welty (3d Cir. 1982) 674 F.2d 185, 194, fn. 6; see
generally Duvall, Judicial Review of Right-to-Counsel Violations That Occur at
Sentencing: The Rule of Automatic Reversal and the Doctrine of Harmless Error
(2008) 23 St. John’s J. Legal Comment. 111.) One circuit has held that the
Chapman standard may be applied to a defective Faretta waiver at sentencing in
“the unique circumstance presented . . . when the district court lacked the authority
to impose a more lenient sentence than the defendant received.” (U.S. v.
Crawford, supra, 487 F.3d at p. 1108; see also U.S. v. Salemo, supra, 61 F.3d 214,
223, fn. 1 (conc. opn. of Alito, J.) [noting the “strange results” of an inflexible rule
of automatic reversal; “suppose that a defendant does not validly waive counsel at
sentencing but is given the mandatory minimum sentence prescribed by statute”].)
Under those circumstances, “there is nothing any attorney could have done to
achieve a more favorable result at sentencing.” (Crawford, supra, 487 F.3d at p.
1108.) That exception, of course, is inapplicable here.
We need not decide which standard of prejudice applies, however, because
defendant would be entitled to relief even if the error were subject to harmless-
error review under Chapman in some form. (People v. Fabricant (1979) 91
Cal.App.3d 706, 713-714.) Defendant had not previously represented himself in
this case at any stage. Indeed, there is no evidence that he had ever represented
himself in any criminal proceeding. Moreover, there was no evidence that he had
sought to abuse his Faretta right (cf. Wilder, supra, 35 Cal.App.4th at p. 503) or
that he had been offered counsel subsequent to his waiver and had refused it (cf.
People v. Cervantes, supra, 87 Cal.App.3d at p. 294). The record also reveals that
defendant’s formal education after the age of 11 or 12 was rather erratic, that he
had spent most of his adult life in prison, and that he suffered from adjustment and
personality disorders. (People v. Burgener, supra, 29 Cal.4th at pp. 854-855.)
One cannot say beyond a reasonable doubt that defendant would have waived the
assistance of counsel if the trial court had refrained from actively encouraging him
to represent himself and had instead advised him of the risks of self-
representation, nor can one say beyond a reasonable doubt that the resolution of
the section 190.4(e) application (on which different jurists had already expressed
divergent views) would have been the same had counsel been present. Finally, we
note that the People have not even argued that a defective Faretta waiver is
amenable to harmless error analysis or that the error here was harmless—which is
significant, inasmuch as it would be their burden, under the harmless error inquiry,
to establish the absence of prejudice. (Chapman v. California, supra, 386 U.S. 18,
We therefore are compelled to vacate the judgment of death and remand to
the superior court for yet another hearing on the application for modification of the
death penalty verdict. Because Judge Heumann has since passed away, the motion
shall be heard before another judge of the same court. (People v. Burgener, supra,
29 Cal.4th at p. 892, fn. 9; see also People v. Lewis (2004) 33 Cal.4th 214, 225-
The judgment of death is vacated and the cause remanded to the superior
court for reconsideration of defendant’s request to represent himself (unless
defendant withdraws his request in the interim) and the automatic application for
modification of the death verdict. (See People v. Crayton, supra, 28 Cal.4th at pp.
362-363.) If the superior court, upon application of the appropriate standards,
denies the application for modification of the verdict, it shall reinstate the
judgment of death. If it grants the application, it shall enter a judgment of life
imprisonment without the possibility of parole. Any subsequent appeal shall be
limited to issues related to the modification application. (See People v. Burgener,
supra, 29 Cal.4th at p. 893.)
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Burgener
Original Appeal XXX
Date Filed: May 7, 2009
Judge: Ronald R. Heumann
Attorneys for Appellant:Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Harry Gruber,
Deputy State Public Defender, for Defendant and Appellant.
Attorneys for Respondent:Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W.
Schons, Assistant Attorney General, Annie Fraser and Lilia E. Garcia, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):Harry Gruber
Deputy State Public Defender
221 Main Street, Suite 1000
San Francisco, CA 94150
Lilia E. Garcia
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92010
Automatic appeal from a judgment of death.
|Date:||Citation:||Docket Number:||Category:||Status:||Cross Referenced Cases:|
|Thu, 05/07/2009||46 Cal. 4th 231, 206 P.3d 420, 92 Cal. Rptr. 3d 883||S116882||Automatic Appeal||closed; remittitur issued|| |
PEOPLE v. BURGENER (MICHAEL RAY) (S004393)
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Lilia Garcia, Deputy Attorney General
P.O. Box 85266
110 West "A" Street, Suite 1100
San Diego, CA
|2||Burgener, Michael Ray (Appellant)|
San Quentin State Prison
Represented by Office Of The State Public Defender-Sf
Harry Gruber, Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA
|Opinion||Justice Marvin R. Baxter|
|May 7 2009||Opinion: Affirmed|
|May 16 2003||Judgment of death|
Note: on 11-7-2003, the superior court vacated this 5-16-2003 judgment, and resentenced him to death.
|Jun 19 2003||Filed certified copy of Judgment of Death Rendered|
May 16, 2003.
|Jun 19 2003||Penal Code sections 190.6 et seq. apply to this case|
|Jun 30 2003||Filed:|
Application for appointment of counsel (IFP form).
|Jul 1 2003||Received:|
copy of June 27, 2003, minute order from superior court (reflecting that the superior court rescinded certain orders of May 16, 2003.)
|Jul 9 2003||Letter sent to:|
Hon. Ronald Heumann inquiring as to the status.
|Jul 21 2003||Received letter from:|
Judge Ronald Heumann, dated 7-16-2003, in response to letter of 7-9-2003.
|Nov 21 2003||Received:|
copy of minute order from superior court, dated 11-7-2003, vacating previous death sentence, and resentencing Burgener to death.
|Dec 5 2003||Filed:|
certified copy of commitment judgment of death rendered 11-7-2003. (Note: 5-16-2003 sentence vacated by the superior court, and defendant resentenced to death).
|Jan 22 2004||Record certified for completeness|
|Dec 1 2005||Order appointing State Public Defender filed|
to represent appellant for the direct appeal.
|Dec 27 2005||Date trial court delivered record to appellant's counsel|
(204 pp. record) (see Cal. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.) (Note: record was sent to appellant's counsel on 12-21-2005.)
|Dec 30 2005||Received:|
notice from superior court that 204 pp. record was sent to appellant's counsel on 12-21-2005.
|Jan 17 2006||Appellant's opening brief letter sent, due:|
July 25, 2006. (see Cal. Rules of Court, rule 36(c)(1)(A))
|Jan 30 2006||Counsel's status report received (confidential)|
from State P.D.
|Mar 30 2006||Counsel's status report received (confidential)|
from State P.D.
|May 30 2006||Counsel's status report received (confidential)|
from State P.D.
|May 30 2006||Received copy of appellant's record correction motion|
Motion to correct and augment the record on appeal. (10 pp.)
|Jul 18 2006||Counsel's status report received (confidential)|
from State P.D.
|Jul 18 2006||Request for extension of time filed|
to file appellant's opening brief. (1st request)
|Jul 24 2006||Extension of time granted|
to September 25, 2006 to file appellant's opening brief.
|Sep 18 2006||Request for extension of time filed|
to file appellant's opening brief. (2nd request)
|Sep 18 2006||Counsel's status report received (confidential)|
from State P.D.
|Sep 21 2006||Extension of time granted|
to November 27, 2006 to file appellant's opening brief.
|Nov 20 2006||Counsel's status report received (confidential)|
from State P.D.
|Nov 20 2006||Request for extension of time filed|
to file appellant's opening brief. (3rd request)
|Nov 28 2006||Extension of time granted|
to January 26, 2007 to file appellant's opening brief.
|Jan 19 2007||Request for extension of time filed|
to file appellant's opening brief. (4th request)
|Jan 19 2007||Counsel's status report received (confidential)|
from State PD.
|Jan 23 2007||Extension 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 March 27, 2007.
|Mar 20 2007||Request for extension of time filed|
to file appellant's opening brief. (5th request)
|Mar 20 2007||Counsel's status report received (confidential)|
from State P.D.
|Mar 21 2007||Record certified for accuracy|
|Mar 21 2007||Extension 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 May 29, 2007.
|Apr 19 2007||Note:|
record arrived from superior court
|May 22 2007||Request for extension of time filed|
to file appellant's opening brief. (6th request)
|May 22 2007||Counsel's status report received (confidential)|
from State P.D.
|Jun 5 2007||Record on appeal filed|
6 vols. of clerk's transcript (409 pp.) and 5 vols. of reporter's transcript (141 pp.). Note: there are no juror questionnaires. Received one ASCII disk.
|Jun 5 2007||Letter sent to:|
counsel advising that the record certified for accuracy was filed this date.
|Jun 7 2007||Extension of time granted|
to August 6, 2007 to file the appellant's opening brief. After that date, no futher extension is contemplated. Extension is granted based upon Deputy State Public Defender Harry Gruber's representation that he anticipates filing that brief by August 6, 2007.
|Aug 6 2007||Appellant's opening brief filed|
(13,658 words; 48 pp.)
|Aug 10 2007||Respondent's brief letter sent; due:|
December 10, 2007. (see California Rules of Court, rule 8.630(c)(1)(B))
|Dec 6 2007||Request for extension of time filed|
to file respondent's brief. (1st request)
|Dec 11 2007||Extension of time granted|
Good cause appearing, and based upon Supervising Deputy Attorney General Lilia E. Garcia's representation that she anticipates filing the respondent's brief by April 7, 2008, counsel's request for an extension of time in which to file that brief is granted to February 8, 2008. After that date, only one further extension totaling about 60 additional days is contemplated.
|Feb 5 2008||Request for extension of time filed|
to file respondent's brief. (2nd request)
|Feb 11 2008||Extension of time granted|
Good cause appearing, and based upon Supervising Deputy Attorney General Lilia E. Garcia's representation that she anticipates filing the respondent's brief by April 10, 2008, counsel's request for an extension of time in which to file that brief is granted to April 10, 2008. After that date, no further extension is contemplated.
|Apr 10 2008||Respondent's brief filed|
(10,978 words; 36 pp.)
|Apr 14 2008||Note:|
appellant's reply brief is due: June 13, 2008. Pursuant to California Rule of Court 8.630(c)(2)(D).
|Jun 6 2008||Request for extension of time filed (AA)|
to file appellant's reply brief. (1st request)
|Jun 12 2008||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Harry Gruber's representation that he anticipates filing the appellant's reply brief by October 3, 2008, counsel's request for an extension of time in which to file that brief is granted to August 12, 2008. After that date, only one further extension totaling about 52 additional days is contemplated.
|Aug 5 2008||Request for extension of time filed (AA)|
to file appellant's reply brief. (2nd request)
|Aug 8 2008||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Harry Gruber's representation that he anticipates filing the appellant's reply brief by October 13, 2008, counsel's request for an extension of time in which to file that brief is granted to October 14, 2008. After that date, no further extension is contemplated.
|Oct 8 2008||Request for extension of time filed (AA)|
to file appellant's reply brief. (3rd request)
|Oct 15 2008||Extension of time granted|
Good cause appearing, and based upon Deputy State Public Defender Harry Gruber's representation that he anticipates filing the appellant's reply brief by November 13, 2008, counsel's request for an extension of time in which to file that brief is granted to November 13, 2008. After that date, no further extension is contemplated.
|Nov 13 2008||Appellant's reply brief filed|
(7,587 words; 29 pp.)
|Feb 6 2009||Oral argument letter sent|
advising counsel that the court could schedule this case for argument as early as the April calendar, to be held the week of April 6, 2009, in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
|Feb 11 2009||Received:|
Letter from Deputy State Public Defender, Harry Gruber, dated February 11, 2009, requesting that the court schedule oral argument for this case in the during the week of April 6, 2009; preferably the afternoon of April 7, 2009. This request is to limit expenses for hotel, meals and per diem, etc., due to budget contstraints.
|Feb 20 2009||Letter sent to:|
Deputy SPD Harry Gruber regarding oral argument.
|Feb 20 2009||Note:|
corrected oral argument letter sent to Deputy SPD Gruber advising that the case will be scheduled for oral argument in the afternoon of Tuesday, April 7, 2009.
|Feb 26 2009||Received:|
amended declaration of service from Deputy State Public Defender, Harry Gruber, for letter dated February 11, 2009.
|Mar 11 2009||Case ordered on calendar|
to be argued Monday, April 6, 2009, at 1:30 p.m., in Los Angeles
|Mar 19 2009||Filed:|
appellant's focus issues letter, dated March 19, 2009.
|Mar 20 2009||Received:|
appearance sheet from Deputy State Public Defender Harry Gruber, indicating 30 minutes for oral argument for appellant.
|Mar 23 2009||Filed:|
respondent's focus issues letter, dated March 18, 2009.
|Mar 24 2009||Received:|
appearance sheet from Deputy Attorney General Lilia A. Garcia, indicating 30 minutes for oral argument for respondent.
|Apr 6 2009||Cause argued and submitted|
|May 6 2009||Notice of forthcoming opinion posted|
|May 7 2009||Opinion filed: Judgment vacated|
The judgment of death is vacated and the cause remanded to the superior court for reconsideration of defendant's request to represent himself (unless defendant withdraws his request in the interim) and the automatic application for modification of the death verdict. (See People v. Crayton, supra, 28 Cal.4th at pp. 362-363.) If the superior court, upon application of the appropriate standards, denies the application for modification of the verdict, it shall reinstate the judgment of death. If it grants the application, it shall enter a judgment of life imprisonment without the possibility of parole. Any subsequent appeal shall be limited to issues related to the modification application. (See People v. Burgener, supra, 29 Cal.4th at p. 893.) opinion by Baxter, J. ----- joined by George, C.J., Kennard, Werdegar, Chin, Moreno and Corrigan, JJ.
|Jun 9 2009||Remittitur issued|
|Jun 15 2009||Received:|
acknowlegment for receipt of remittitur from superior court.
|Aug 6 2007||Appellant's opening brief filed|
(13,658 words; 48 pp.)
|Apr 10 2008||Respondent's brief filed|
(10,978 words; 36 pp.)
|Nov 13 2008||Appellant's reply brief filed|
(7,587 words; 29 pp.)
|May 4, 2010|
Annotated by bneitzel
Issues: Faretta Waiver, Sixth amendment, Right to Counsel, Appeal from Death Sentence
A unanimous Court ruled that defendant’s waiver of counsel in this capital case was not knowing and intelligent, as required by the United States Supreme Court’s holding in Faretta v. California, 422 U.S. 806 (1975), because the lower court did not advise defendant of the dangers and disadvantages of self-representation. The Court acknowledged that “a less searching or formal colloquy” was required in response to defendant’s pro se request, because he sought only to represent himself in a sentencing modification hearing in which the issues had already been briefed. But this context “did not relieve the court of its duty altogether to ensure that defendant be made aware ‘of the hazards ahead’ if he proceeded without the assistance of counsel.” Instead of conducting a proper Faretta inquiry, the lower court assumed—based on the lengthy litigation record in this case—that defendant was aware of the risks of pro se representation. Because this defective Faretta waiver was not clearly harmless error, the Court vacated the judgment of death and remanded the case to the lower court for the sentencing modification hearing.
In 1981, defendant Burgener shot and killed William Arias, a clerk at a 7-Eleven in Riverside, California while robbing the convenience store. Defendant shot Arias five times at close range and then emptied the cash register of $50. The jury found Burgener guilty of first degree murder, robbery by use of a firearm and with infliction of great bodily injury, and being a felon in possession of a firearm. Based on these crimes and defendant’s violent criminal history, the jury sentenced Burgener to death. The California Supreme Court reversed the sentence in 1986, because defense counsel presented no mitigating evidence at the penalty trial. After a second sentencing trial in 1988, a jury again imposed the death penalty.
Section 190.4(e) of the California Penal Code provides for an automatic application to modify a death sentence to life in prison without the possibility of parole. As the Court notes in its decision, the history of this automatic application is “a long and unhappy one” here. After the sentencing retrial, the trial court granted defendant’s § 190.4(e) application to modify the verdict to life imprisonment. The Court of Appeal reversed, however, finding that the trial court had considered improper factors in granting the application. Owing to the retirement of the presiding trial judge, the case was then reassigned to a different judge who denied defendant’s 190.4(e) application. But on appeal, the California Supreme Court reversed the denial, finding that the judge “had failed to exercise his independent judgment in reviewing the application to modify the verdict.” The Court again vacated the death penalty and directed the judge to reconsider the application. The defective Faretta waiver arose in the context of this reconsideration.
Holding and Court Order:
Defendant’s waiver of counsel was not knowing and intelligent, because he was not made aware of the risks and disadvantages of self-representation. And because the People did not prove that the defective Faretta waiver was harmless error here, the judgment of death was vacated and the cause remanded to the lower court for reconsideration.
Under the Sixth Amendment to the United States Constitution, a defendant may represent himself in court, provided that he knowingly and intelligently waives his right to legal counsel. Specifically, the Court notes that a defendant should be advised that opposing counsel will be experienced and prepared; that he will receive no special consideration or assistance from the court; and that he will be barred from appealing the outcome by challenging the competence of his representation. In this case, the lower court did not caution defendant about the risks of pro se representation. Instead, based on the many “hearings, and trials, and motions” that defendant had witnessed, the lower court assumed that defendant understood the obligations and potential consequences of representing himself.
The government made two arguments in support of the lower court’s approval of the pro se request. First, the Attorney General argued that the appropriate scope of a Faretta inquiry depends on context. In other words, the government urged that because defendant sought only to represent himself in a sentencing modification hearing in which the issues had already been briefed, the lower court’s cursory inquiry was sufficient. The Court acknowledged that the scope of a proper advisement of the right to counsel does indeed turn on the circumstances of the case and the stage in the proceedings. But a limited pro se role—as in this case—does not altogether relieve a court of its duty to ensure that the defendant understands the dangers of self-representation. Regardless of the context, a defendant’s decision to waive his right to counsel must be knowing and intelligent. Second, the Attorney General claimed that the lower court’s inquiry met the Faretta standard, because defendant was advised that “by electing to represent himself he would be giving up the assistance of his appointed counsel.” The Court quickly dismissed this “sophistic contention,” noting that a court’s duty to ensure that a defendant understands the risks of pro se representation requires more than informing him “that self-representation means that [he] will not be represented by counsel.”
Finally, the opinion considers whether or not a defective Faretta waiver requires automatic reversal. After discussing the split among state courts and the (relatively) narrow division in the federal circuits—“[w]ith one exception, every federal court to have considered the issue has concluded that harmless error analysis is inapplicable to failure-to-warn Faretta violations”—the Court opted to leave that question for another day. “We need not decide which standard of prejudice applies,” because the People failed to show that the error was harmless in this case.
By Beth Neitzel