People v. Burgener

• Citation: 224 Cal.Rptr. 112,714 P.2d 1251,41 Cal.3d 505
• Parties: , 714 P.2d 1251, 54 USLW 2534 The PEOPLE, Plaintiff and Respondent, v. Michael Ray BURGENER, Defendant and Appellant. Crim. 22219.
• Decision Date: 27 March 1986
• Court: United States State Supreme Court (California)

Page 112

224 Cal.Rptr. 112

41 Cal.3d 505, 714 P.2d 1251, 54 USLW 2534

The PEOPLE, Plaintiff and Respondent, v. Michael Ray BURGENER, Defendant and Appellant.

Crim. 22219.

Supreme Court of California In Bank.

March 27, 1986.

Rehearing Denied May 22, 1986.

[714 P.2d 1254] Quin Denvir and Frank O. Bell, Jr., State Public Defenders, James A. Uyeda and Michael Tanaka, Deputy State Public Defenders, Los Angeles, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Jay M. Bloom and J. Richard Haden, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

GRODIN, Justice.

Defendant Michael Ray Burgener was convicted on one count of murder (Pen.Code, § 187) ¹ with use of a firearm ( § 12022.5), one count of robbery ( § 211) with use of a firearm ( § 12022.5) and infliction of great bodily injury ( § 12022.7), and one count of being an ex-felon in possession of a firearm ( § 12021).

The jury fixed the degree of murder at first degree, found that it was committed during a robbery, and found that it was committed with express malice aforethought and with deliberation and premeditation. Under the 1978 death penalty law, a special circumstance that the murder was committed during a robbery ( § 190.2, subd. (a)(17)(i)) was found true, and defendant was sentenced to death. This appeal is automatic.

Defendant raises several claims of error at the guilt and special circumstance phase of his trial. We find merit in defendant's contention that the trial judge erred in failing to conduct an inquiry to determine whether one of the jurors was intoxicated during deliberations. However, we conclude that under the circumstances of this case this error does not warrant reversal. At this point, any claim of jury misconduct defendant wishes to make would be more appropriately raised in a petition for habeas corpus. None of defendant's other claims of error is sufficient to reverse his conviction. We will therefore affirm the guilt and special circumstance findings.

Defendant declined to participate in the penalty phase of his trial and insisted that his counsel present no mitigating evidence, though such evidence was available. Defense counsel acquiesced. For that reason (see People v. Deere (1985) 41 Cal.3d 353, 222 Cal.Rptr. 13, 710 P.2d 925), and because under the circumstances the jury may have been misled as to the nature of its sentencing task (see People v. Brown (1985) 40 Cal.3d 512, 540-541, 220 Cal.Rptr. 637, 709 P.2d 440), we will conclude that the penalty judgment must be reversed.

I. PROCEEDINGS BELOW

Early in the morning on October 31, 1980, William Arias, a clerk in a 7-Eleven store in Riverside, was shot and mortally wounded during a robbery. Arias died later the same morning. Acting on an informant's tip, the police arrested defendant Michael Ray Burgener and his girlfriend, Nola England, the same afternoon. At the time of his arrest, Burgener was in possession of a handgun.

A. People's Case

Nola England testified that she had first met defendant in the summer of 1980. ² By October they had become lovers and defendant sometimes spent the night at her apartment. Prior to the night of October 30, 1980, defendant had been unsuccessful in trying to find a job and had talked about committing a robbery. Nola told him they did not need money that badly.

Nola had purchased a revolver from Joe DeYoung. She had known DeYoung for about six years and had lived with him for two and a half years. She had never used the gun, but defendant had used it for target practice. At defendant's suggestion, they kept the gun buried in a flower bed outside the apartment. The bullets were kept in a marble bag under the bathroom sink. Defendant knew where the bullets were kept.

About midnight on October 30, defendant injured a finger on his left hand while moving furniture in Nola's apartment. They went to Riverside General Hospital to have his finger treated and got home about 2 a.m. Nola had taken Valium pills that afternoon and evening and testified that she was "loaded" by the time she got home from the hospital. She went to sleep.

Christine Boyd testified that on October 31, 1980, about 4:10 a.m., she stopped by the 7-Eleven store on Rutland in Riverside for her regular morning cup of coffee. From her car, she saw a white male carrying a paper sack leaving the store. She did not see his face, but believed he was white because she could see his hand illuminated by her headlights as she pulled into the parking lot. The man was wearing a cowboy hat and had shoulder length curly hair.

When Boyd entered the 7-Eleven, the clerk, William Arias, came out of the back room with blood running out of his mouth and told her to call the police because he had been robbed. She called the police and asked for an ambulance.

Riverside Police Officer Greg Dunn responded to the call at 4:14 a.m. Arias told the officer, "He shot me, he shot me in the face, in the back, in the stomach," then Arias began to lose consciousness. He died in surgery at 8:52 a.m. the same morning. The autopsy revealed he suffered bullet wounds in the face, shoulder, side, back, and buttock. He suffered neither defensive nor offensive marks and was healthy prior to the shooting. He died from loss of blood. The marks on his face indicated that he had been shot from a distance of less than 18 inches.

The assistant manager of the 7-Eleven arrived at the store about 4:30 a.m. She observed that the cash register had no money in it. Reconciliation of the register tape led her to believe that about $54 was missing.

Police officers located a bullet fragment in the back room. There were bloody footprints, all made by Arias. There was no indication of a struggle.

Nola England testified that sometime during the early morning hours of October 31, 1980, she was awakened by defendant who was sitting on the edge of her bed. He emptied a paper sack full of money onto the bed. Nola thought he said something about shooting at someone in self-defense. He also mentioned something about robbery and mentioned "one of those little stores" like Circle K or 7-Eleven.

Nola then went back to sleep. When she awoke again, sometime before 8 a.m., she and defendant went in defendant's car to visit Nola's methadone clinic and to pick up Joe DeYoung to get some speed.

The three went to Bob's Big Boy restaurant and defendant left for an appointment with his parole officer. While they were alone, Nola told DeYoung that the gun she had bought from him had been used in a crime and she wanted to exchange it for another one.

DeYoung testified that Nola told him that defendant had used the gun in a 7-Eleven robbery the night before and had killed someone. ³ DeYoung also said that Nola told him she had been at the store, but had not gone inside. DeYoung agreed to exchange the gun for Nola, but secretly telephoned the police from the restaurant.

DeYoung had previously worked as a police informant. About 2 p.m., he went to the police department and told Nola's story to Detective Harding. On Harding's instructions, DeYoung arranged to meet defendant and Nola at 4 p.m. to exchange the guns.

Nola and defendant were arrested at the appointed meeting place, at First and Main about 4:15 p.m. on October 31. Defendant had a revolver stuck in his waistband. This was the revolver Nola had bought from DeYoung. At the time of his arrest, defendant was wearing a cowboy hat which Boyd testified at trial looked like the hat she had seen on the man leaving the 7-Eleven store. At the time of his arrest, defendant's hair was "long." He was carrying a wallet containing $72.

The shoes defendant was wearing when arrested were subjected to a screening test for the presence of blood. The test was positive, although, in addition to human blood, the substances which test positive include animal blood, enzymes found in cabbage and horseradish, and some fecal material. There was an insufficient quantity of whatever was on the shoes to permit further testing. Screening tests on defendant's clothing were not positive for blood and none of the bloody footprints made at the 7-Eleven were from defendant's shoes.

The evening of the arrest, investigating officers searched Nola's apartment. In the trash under the kitchen sink, they found a brown paper sack with the 7-Eleven emblem on it. The sack had two $5 bills stuck inside a fold.

On November 4, 1981, a neighbor cleaning Nola's bathroom, located in the apartment's Expert analysis and comparison of these bullets with the bullet fragments from Arias's body led to the expert opinion that both could have come from the same melt of lead. ⁴

                community hallway, found a marble bag containing thirty [41 Cal.3d 515]      .22 caliber soft-nosed copper washed bullets commonly known as "stingers."   Other residents of the building had access to this bathroom
                

Ballistics tests run on the fragments taken from Arias's body and a bullet test fired from the gun recovered from defendant were inconclusive, but indicated that the fragments could have come from that gun.

Evidence of defendant's extrajudicial statements included the testimony of his parole officer, who said that on the morning of October 31, defendant told him he had been at the hospital until 4 a.m. In fact, it was stipulated that defendant was released from the hospital at 12:56 a.m., had picked up a prescription and then left.

Deputy Sheriff Richard Zavetz of the Riverside County jail testified that he spoke with defendant on November 5, 1980. At that time, defendant stated that he and DeYoung had committed the robbery together; that he had driven DeYoung to the store, where DeYoung got out and went inside. Defendant said he saw a man come out from behind the counter and go into the back of the store with DeYoung. He then heard four to six shots and DeYoung came out carrying a paper bag. He and DeYoung split the money. Defendant said that the gun DeYoung had used was the one DeYoung had sold to Nola. Defendant...