People v. Burgener

• Decision Date: 27 January 2003
• Docket Number: No. S024642.,S024642.
• Citation: 62 P.3d 1,129 Cal.Rptr.2d 747,29 Cal.4th 833
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Ray BURGENER, Defendant and Appellant.

129 Cal.Rptr.2d 747

29 Cal.4th 833

62 P.3d 1

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

No. S024642.

Supreme Court of California.

January 27, 2003.

Rehearing Denied April 9, 2003.

As Modified April 9, 2003.

Michael R. Totaro, Pacific Palisades, and Stephen S. Buckley, under appointments by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Frederick R. Millar, Jr., Raquel M. Gonzalez and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

BAXTER, J.

On Halloween morning 1980, defendant Michael Ray Burgener killed William Arias, a convenience store clerk, and emptied the store's cash register of approximately $50. In 1981, a jury convicted defendant of first degree murder by use of a firearm (Pen.Code, §§ 187, 189, 12022.5),¹ robbery by use of a firearm and with the infliction of great bodily injury (§§ 211, 12022.5, 12022.7), and being a felon in possession of a firearm (§ 12021). The jury also found true the special circumstance that defendant murdered Arias in the commission of the robbery (§ 190.2, former subd. (a)(17)(i) [now § 190.2, subd. (a)(17)(A)]) 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. (People v. Burgener (1986) 41 Cal.3d 505, 542-543, 224 Cal.Rptr. 112, 714 P.2d 1251.)

In 1988, a jury again sentenced defendant to death. However, the trial court acted under section 190.4, subdivision (e) to modify the verdict from death to life without the possibility of parole. The Court of Appeal reversed, finding the trial court had considered improper factors in modifying the 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, 272 Cal.Rptr. 830.)

Because the penalty retrial judge had retired, the case was reassigned. The substituted judge, after reading the entire penalty retrial transcript, denied the application to modify the verdict. This appeal is automatic. (§ 1239, subd. (b).)

Except for the standard of review applied by the substitute judge who heard the section 190.4, subdivision (e) application, we find no error and therefore vacate the judgment of death solely to permit the judge to reconsider the automatic application to modify the verdict under the correct standard.

Facts

The prosecution's case-in-chief at the penalty retrial included an abbreviated version of the guilt phase evidence describing the circumstances of the murder and robbery. We review those facts briefly. (See People v. Burgener, supra, 41 Cal.3d at pp. 512-515, 224 Cal.Rptr. 112, 714 P.2d 1251.)

Shortly after 4:00 a.m. on October 31, 1980, Christine Boyd stopped by the 7-Eleven on Rutland Avenue in Riverside for her morning cup of coffee on her way to work. From her car, she noticed the store's clerk, William Arias, was not behind the counter. A White male with shoulder-length, curly brown hair and wearing a cowboy hat left the store with a paper sack. Boyd entered the store to find Arias "all bloody." She called the police.

Riverside Police Officer Gregg Dunn arrived at 4:14 a.m. Arias told the officer, "He shot me. He shot me four or five times, in the face, in the stomach and in the back," then began to lose consciousness. Around $50 was missing from the cash register.

Arias died from loss of blood caused by bullet wounds. He had been shot five times with a .22-caliber weapon. Gunpowder residue on his face indicated he had been shot from a distance of about 12 inches. He had no offensive or defensive wounds.

When defendant was arrested approximately 12 hours later, he had long, curly brown hair and was wearing a cowboy hat that looked like the hat Boyd had seen on the man leaving the 7-Eleven store. He also had a .22-caliber handgun. According to the criminalist, expended bullets and bullet fragments recovered from the crime scene could have come from defendant's weapon. The sole of defendant's left shoe produced a weak positive under a Hemastix test, which is used as a presumptive test to detect the presence of blood. There was insufficient material to perform any other test to confirm the substance as blood.

A crumpled 7-Eleven paper bag with two $5 bills stuck in the wrinkles was found in the trash can at the apartment where defendant had spent the night. A small bag of .22-caliber ammunition was found in the common bathroom at the apartment complex four days later. This cache of bullets matched the bullet fragments recovered from Arias's body in their elemental composition and could have come from the same melt of lead.

Evidence Offered to Show Lingering Doubt

Defendant denied committing the murder and being present at the scene. The defense instead contended that prosecution witnesses Joseph DeYoung and Nola Jane England had framed defendant for Arias's murder. Although England was engaged to defendant, she had previously been romantically involved with DeYoung. DeYoung's interest in England persisted even though she tried to discourage him. Defendant suspected that DeYoung was jealous of him, and DeYoung admitted he was.

Defendant claimed he had been asleep at England's apartment at the time of the murder. A few hours before the murder, defendant and England had gone to the hospital to seek treatment for defendant's injured finger. Defendant's finger was bandaged and placed in a metal splint, and he was given some pain pills. When they arrived at England's apartment around 2:00 a.m., defendant took three or four Valium tablets, which put him to sleep. Defendant claimed he did not wake up until after 6:00 a.m.

England, however, testified that defendant woke her up around 5:00 a.m. He was fully dressed and emptied money out of a paper bag onto the bed. He said that he had robbed a convenience store because they needed money and that he had shot the clerk in self-defense.

Defendant and England each testified that they picked up DeYoung around 8:00 a.m. to arrange a purchase of methamphetamine and then went to Bob's Big Boy. Defendant left a short time later to meet with his parole officer,² while England and DeYoung remained at the restaurant. After defendant left, England told DeYoung that defendant had robbed and murdered a convenience store clerk. She said she wanted to exchange the gun, which she had bought from DeYoung earlier that month, so that defendant would not be caught with it. Although England did not say so, DeYoung assumed that England had been in the car during the robbery and murder. DeYoung said he would arrange a trade in the afternoon and excused himself from the table.

DeYoung went to a pay phone and called Detective Pete Harding. DeYoung had offered Harding information on previous occasions in exchange for reduction or dismissal of criminal charges. Although DeYoung was unable to get in touch with Harding at that point, he was later able to tell Harding about the crimes and arrange for Harding to make the arrest. The plan was for defendant and England to meet DeYoung near a liquor store to execute the gun exchange. The police would then show up instead of DeYoung.

Defendant said he had been unaware of any discussion about exchanging guns until the afternoon. He admitted England had earlier obtained a .22-caliber gun for his protection but said the gun was kept buried under a tree next to England's apartment because he was on parole and England did not have a license for it. He was surprised that morning when DeYoung handed him the weapon, since the last time he had seen it was when he buried it two weeks earlier. Defendant said he reburied the gun between 10:00 a.m. and noon, but England almost immediately dug it back up. She said DeYoung wanted it back and had offered to replace it with another weapon.

England disputed defendant's testimony on this point. She testified that defendant had the gun when he returned from the convenience store and had buried it under a tree next to her apartment before they even picked up DeYoung. DeYoung, too, denied ever borrowing the gun and denied handing the gun to defendant that morning.

In the afternoon, DeYoung telephoned England to arrange an exchange of guns. Defendant, who was carrying the .22-caliber handgun, and England arrived at the meeting place and were arrested. Defendant told Detective Harding, "I suppose you didn't see the guy I just bought it from. If you have been watching me, if you've been watching me for a few minutes . . . then you would have seen the guy I just bought it from. . ..[Y]ou should have been able to see the other guy. . .. You can't put that gun on me." When defendant was informed he was under arrest for the robbery murder, he denied any involvement and said Harding would be surprised when he found out that someone "familiar" to him was actually responsible. Defendant denied making these statements to Harding.

During her initial police interview, England denied any knowledge of the robbery or murder and said defendant had been with her the entire night. England even offered to take a polygraph so long as she did not have to answer questions about defendant's involvement. When the police threatened to charge her with perjury and take her children away, she eventually revealed what defendant had told her. England then regretted telling the police what defendant had said about the robbery and murder and tried to make amends by writing defendant a letter she hoped would be read by the sheriffs department. The letter said they should not "take the rap" for something DeYoung did.

Meanwhile, defendant told Sergeant Richard Zavetz of the Riverside County...