PEOPLE v. BURGENER (MICHAEL RAY)

Appellant’s Opening Brief

Cal.March 22, 2012

SUPREN”: COPYNo. 8179181 Dh W ics Jf IN THE SUPREME COURT OF THE STATE OF CALIFORNIA surED MAR 9 2 2012 PEOPLE OF THE STATE OF CALIFORNIA, ‘ Frederick K. Ohilrich Clerk Plaintiff and Respondent, woe ~~ Deputy V. (Riverside County Superior Court No. CR 18088) MICHAEL RAY BURGENER, Defendant and Appellant. N e O A O O O O O A S S S APPELLANT’S OPENING BRIEF Appeal from the Judgmentofthe Superior Court of the State of California for the County of Riverside HONORABLECRAIG G. RIEMER, JUDGE MICHAEL J. HERSEK State Public Defender HARRY GRUBER State Bar No. 71053 Senior Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, California 94105 , Telephone: (415) 904-5600 # Attorneys for Appellant DEATH PENALTY TABLE OF CONTENTS Page APPELLANT’S OPENING BRIEF ....... 0. 6c cence eee ees 1 STATEMENT OF THE CASE ...... 0.00 eeeeee nena 1 STATEMENT OF APPEALABILITY ...... 0... ccc eee ene 3 STATEMENT OF FACTS 2.0...cccene4 A. Introduction 2.0... ceceeee ene es 4 B. The Various Hearings On Appellant’s Motion To Modify The Verdict 2.0.0... ccc cece eee eee 5 1. Preliminary Proceedings .............0eeeeuuee 5 2. Appellant’s Request For Self-Representation ...... 5 3. Judge Riemer’s Denial Of The Automatic Motion To Modify The Jury Verdict ............. 6 I THE DEATH JUDGMENT MUST BE REVERSED BECAUSE JUDGE RIEMER ERRED IN ALLOWING APPELLANT TO REPRESENT HIMSELF AT THE PENAL CODE SECTION 190.4, SUBDIVISION(e), PROCEEDINGS..... 0... cc cece eeetenets 11 A. Introduction ...... 000 0cceeeeeeeeeeeeee tees eens lb B. Proceedings Below ...... cece eee eens .. 1 C. The Sixth Amendment Did Not Compel Judge Riemer To Grant Appellant’s Request For Self- Representation ... 0.teeee ees 16 D. The Record Demonstrates That Appellant’s Request For Self-Representation Was Equivocal And Made Out Of Frustration And Resignation ......... 21 TABLE OF CONTENTS E. The Record Does Not Reflect That Appellant Received Adequate Warning Of ThePitfalls Of Self-Representation 2.0.0.0... cece cee ee 27 F, The Error Requires Automatic Reversal ............... 31 G. Conclusion 2.6.0... eee eee tenes 34 Y JUDGE RIEMER’S DETERMINATION THAT,IN CONDUCTING HIS INDEPENDENT REVIEW OF THE EVIDENCE AT THE AUTOMATIC MOTION TO MODIFY THE JURY’S DEATH VERDICT, HE WAS PRECLUDED FROM CONSIDERING THE PREVIOUS SECTION 190.4, SUBDIVISION (e) FACTUAL FINDINGS OF THE JUDGE WHO PRESIDED AT THE PENALTY RETRIAL CONCERNING THE CREDIBILITY OF THE WITNESSES, WAS REVERSIBLE ERROR ............0545 35 A. Proceedings Below ......... cece cece een eee eens 35 B. The Applicable Law 2.2... ccc ec eee eens 38 C. Consideration Of Judge Mortland’s Findings Would Not Have BeenInconsistent With Judge Riemer’s Duty To Conduct An Independent Review ..... 40 D. The Error Was Prejudicial .... 0... cc eee eee ee eee 44 CONCLUSION ......... 0. eee ee eee eee teen tees 48 CERTIFICATE OF COUNSEL 2.0... ccceens 49 ii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Abdul-Kabir v. Quarterman | (2007) 550 U.S, 233 weccescesecstecsseseeseceeecceciesereneerereieeeesennasenseeasseesensswee 21 Adamsv. United States ex rel. McCann (1942) 317 U.S. 269 oo cecccccececeeeerecececteeneereersessseseesressseseessneessrscseeseaeeaneenees 27 Chapman v. California (1967) 386 U.S. 18 vcecceeecreceeneerecteeseeeseseersseesearsseessesseseeesseseas 32, 33, 39 Cordova v. Baca . (9th Cir. 2003) 346 F.3d 924 oi ccccceeeeeereene steers ssessrseeeseeseensesssseeeeeeeeees 33 Faretta v. California (1975) 422 U.S. 806 oe ececceeeeeteeeeeneetesserneseeectessessesseessenenennessesseeeneas passim Furman v. Georgia (1972) 408 U.S. 238 .occececcescceceseeeeeeseseseesseseesesessnensessesasensessesneeeeseeeseess 21 Gideon v. Wainwright (1963) 372 U.S. 335 wcccccccessccscecseceeeeeeesecneseseeeseessessessessessreesseeeseesnseeneeess 33 Godinez v. Moran (1993) 509 U.S. 389 oceeeeseereeeeetee rest eeeseeeeeyseaeeneeaeeaaeeestaetenceseesaseaeeas 28 Gregg v. Georgia (1976) 428 U.S. 153 Lo cecccececseesseecseeseeteseeerereneenesiesieussesesseenressaeenseeetessnes 18 Hitchcock v. Dugger (1987) 481 U.S. 393 iccccceeceteeseeteeneseerserieerssesessestssssasersseecaeessecneeassanens 21 Iowa v. Tovar . (2004) 541 U.S. 77 ce cecsecesesensenseenesereeenesees siecesseesaeesseeesenesneeasnnensseen 27 Jackson v. Ylst Q (9th Cir. 1990) 921 F.2d 882 oieeeeeeeeteeeneesceseeeaeeseeesaeesesesseseaeersasees 23 ili TABLE OF AUTHORITIES Page(s) Johnson v. Mississippi (1988) 486 U.S. 578 wocccccccccsceccecsecssececseeeeeeeeseeeesseseneesssesesseassassnesessessneseee 20 Martinez v. Court ofAppeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152 weeeeceecceeeeeserereereeeeeenteedcesserenseesereneeees 16, 17, 18, 34 Massie v. Sumner (9th Cir. 1980) 624 F.2d 72 wo.dees cecaecaecaecenecueesaeeseesaeeseeeseeseararsesentes 18 McKaskle v. Wiggins (1984) 465 U.S. 168 vice ccccecscsecceceesreeesteteeeceeneeneeeseccsusasceeassessaseaeseesseents 16 Mills v. Maryland (1988) 486 U.S. 367 ccscccsetcesseeeeeeeeeeeneeeseesseresenesserseseeenecseneeesseessseeegs 21 Oregon v. Kennedy (1982) 456 U.S. 667 iccccecccssesecsecseeneeseceeeerseeneeeeveeenscesesessseesenseseseseseeegs 40 Pattersonv.Illinois (1988) 487 U.S. 285 ceccscesesseteenseneesseeseeeessesssessscsecseseanessnsesenteceennesatens 30 Penson v. Ohio (1988) 488 U.S. 75 wcecccceccscccsecnseeneeeenseseeeeeeeessteneesenesecsssentesesseenesaeenseneees 33 Proffitt v. Florida (1976) 428 U.S. 242 voceccccccscessecseccetseenserereeesesaneseesssnssssusssessesseesesseenenens 18 Pulley v. Harris (1984) 465 U.S. 37 weevaecaseeesaeeecsesaesaesesaesaessesderaeeeceeeaenas 18, 21, 24, 42 Rose v. Clark (1986) 478 U.S. 570 vceecccccsseseeeseeeeeneeneeseseectessesisessurausesensseseseseseseeeneees1. 33 _ Sell v. United States : a :(2003) 539 U.S. 166 cceccsccscscssssssssesssseeseseseeneeees “esepeestesseseterseeseseseseeees 18 iv TABLE OF AUTHORITIES Page(s) Singer v. United States (1965) 380 U.S. 24 vicesesessestsesscscesesesseeasessssseesesecareenesseseereeneeneenees 24 United States v. Crawford (8th Cir. 2007) 487 F.3d L101eeseecsseseeesseeneneseeecenesseesssseseresteetes 32 United States v. Cronic (1984) 466 U.S. 648 ooo cccecccseeeeceeeeteseneeecnressseeessscecsectenessesessneseesaeens 24, 33 United States v. Hayes (9th Cir. 2000) 231 F.3d 1132 Leeeseseteeeeeetenseerseeeteeterteneeerseeneres 30 Williams v. Bartlett (2d Cir. 1994) 44 F.3d 95 ieccssseeteteeseeeeeseesstenesteeteerreensensenensereces 23 STATE CASES Commonwealth v. McKenna (Pa. 1978) 383 A.2d 174 we eescssecsesssssseecnessseseneseeneneeteeseesenseseeeseseseeteaes 20 In re Barnett (2003) 31 Cal.4th 466 weceesneeereessecusaecaneneeauecaeeueeeeneenetesereeavenes 17, 18 MichaelU. v. Jamie B. (1985) 39 Cal.3d 787 o.eecessssctsescseesseeeeresseseseeseneees senceevaceacensaeeneneneteanene® 40 Peoplev. Allison (1989) 48 Cal.3d 879 wee eieeessesesessesseseseenscsessseeecaseeeenesteneneeraeees 21, 41, 43 People v. Avila (1994) 24 Cal.App.4th 1455 vice essessscseesessssrsnsssessneseecsesnersenentegs 4 People v. Bloom (1989) 48 Cal.3d 1194 occcseeesscsssscsesssereneesseesensessesenesreeeaees 18, 19, 20 People v. Burgener (1986) 41 Cal.3d 505 oe eieesctsecsereseteecteneseeseetensesneeeewee 2, 17, 26, 36 TABLE OF AUTHORITIES _ . Page(s) People v. Burgener (1990) 223 Cal.App.3d 427 ooo cicenessseresseereseeesesseneesirenreneeenectiens passim People v. Burgener (2003) 29 Cal4th 833 eeeeecccceeccssessnesssseseteesessseeesseeeseeeeeneeesenees passim People v. Burgener (2009) 46 Cal.4th 231ccccescsecseeesersererenesesseesssseseensesseseneseessaeseeees passim eople v. Carisi | (2008) 44 Cal.4th 1263 ou“cueuaceaecsueaueaecaeeecevseessesseesaaeesasansneeneenens 29 People v. Chadd | (1981) 28 Cal.3d 739 occ cceseesesseeseessseseeneesesseaseseseeesesseeseresseseessegs 18, 20 People v. Clark (1992) 3 Cal.4th 41 wo.aecaeceuesaeeatensesnenceseseneeaecaeeeeeeneeesssesesaeeuseeaeens 19 People v. Crayton (2002) 28 Cal.4th 346 oeceecsesesesssceecscsestetsecsessssrsereseesestesieseseseeranees 32 People v. Crew (1991) 1 CabApp.4th 1591 oceessesseesessssessereeseeneensseeeseteas39, 43, 47 People v. Crew (2003) 31 Cal.4th 822 occieececsseseseesesessessessessestesseeesseseesseesrerressenes 36, 38 People v. Dent (2003) 30 Cal.4th 213 oo eeeeeeesseessereteereneeesVeaeeeaceenecearecneeenersaeeneseteats 22 People v. Diaz (1992) 3 Cal.4th 495 oo. eeseecssssseseseesstscssessssecssnessssessesenscsnecsnersaneseneeeansees 18 People v. Fabricant (1979) 91 Cal.App.3d 706 oo. ceccecssecscssreeeeesve cecunceseuaceaeeeseesaeeseusasensaes 28 vi TABLE OF AUTHORITIES Page(s) People y. Frierson (1979) 25 Cal.3d 142eceeeeceneteeeeeeeeeneesesieseesenenessessereateesenentns 18, 20 People v. Gay (2008) 42 Cal.4th 1195 ceecneecereeeeeseceseesseesssseesseessnsessessressesesees 44 People v. Hamilton (1988) 45 Cal.3d 351 icecccseseeseesecseterseresseseeenseseseesensesesseseesesceenesres 19 People v. Heishman (1988) 45 Cal.3d 147 cccccscscscenectecseeaesseeserenersessseseeessersceeeerecnecnrestes 39 People v. Hernandez (1988) 47 Cal.3d 315 wo.pevesenecsecaeesaeseeseceesaesaesteeneeaeeeiesesesaenneeeaentaeeegs 39 People v. Hill (1992) 3 Cal.4th 959 wo.coeeeneeeneeestecueeeaseenneraeesneeeateneescesassesseseneaveseney 29 People v. Johnson (2012) 53 Cal.4th 519 cceeesssccenecseeeeteeneceesseeseseresecseecusseseessesseneesates 19 People v. Koontz (2002) 27 Cal.4th 1041 ooo ceeccceeeseeeeteeseeeresssssesscseeeserssessesseessereneesnens 27 People v. Lang (1989) 49 Cal.3d 991 oiiccseneeeceeeeeseseeeesesesecsessesseessseceessecsseaeeaesssesaeaes 38 People v. Lewis (1990) 50 Cal.3d 262 wiccccccscsceserecereeseesesererecsnevsesestseneeseneeenees 38, 47 People v. Lewis (2004) 33 Cal.4th 214 occcceseseesceereneseneesesseectsrsseesessessressraseesees passim People v. Marshall . . (1997) 15 Cal.4th 1cesecsseesesteereereneeeeenesserseenessescnneeess1,21, 22, 23 vil TABLE OF AUTHORITIES Page(s) People v. Massie (1998) 19 Cal.4th 550 oo cecccscceceeseeesserseseessssesssesssseeasesessseasnesseseessneneeges 21 People v. Moreda (2004) 118 Cal.App.4th 507 oeeeceesseeserseessersenssssensenseseeseeesrenensesees 37 People v. Partida . (2005) 37 Cal.4th 428 oecscesenecseesensessesseseesscnecsessessensenessesseseeseaneneens 40 People v. Riel (2000) 22 Cal.4th 1153 ..cccccseeseecscsensseseceeneeneseesseressresenersesseseseseesees 29 People v. Redriguez (1986) 42 Cal.3d 730 wceceseceseseeecersesnscsecsscsssenscsscerssesenesseessesesseeseey 21, 24 People v. Solomon (2010) 49 Cal.4th 792 oieeieesccsecseesssseeeeseesceesenessseessenessesnererareresenenees 40 People v. Stanley (2006) 39 Cal.4th 913 oeeeecesesecssesesesssesecseseesenseseserssenseaseeeeaes 11, 22, 23 People v. Stanworth (1969) 71 Cal.2d 820 ooeeeccssseesseeessessesesessssssesessscnsneesssereeesiecerseeenneseeeeenes 21 People v. Taylor | (2009) 47 Cal.4th 850 oo. csscssseecesesesessessecsessesessesessesssssersersensaraeearens 21 People v. Teron (1979) 23 Cal.3d 103 .oceccessseeseteenseneseersscsseseessessecseesusesssrsseesseeenesseeees 21 People v. Terry . (1964) 61 Cal.2d 137 cieccccccccsccscseccnceceesneeseesecneeceesenseeseaseasessaesseeseessessesegs 44 People v. Wader . (1993) 5 Cal.4th 610 cecessesereseessnseaseeenesseeesecsceenneeeeteaeteneeneeenes 47 viii: TABLE OF AUTHORITIES Page(s) People v. Windham (1977) 19 Cal.3d 121 ic eccccccsesseseececceseceueetiecrseessessirevasceeseeeeiiesenaes 19 Roby v. McKesson Corp. (2009) 47 Cal.4th 686 oo. ccccccccsscseesseecssscseeesssesseessessseessaeeseesiessssaeeessaes 43 STATE COURT RULES Cal. Rule of Court, rule 8.630(b)(2) .oveeeeeecsscessesssssestssssesseseeeee veeeeee 49 STATUTES Evid. Code, §§ A451, SUD. (f) oo. ceccceetectneceneeeeneeeteetneeetseneetaes 38 452, SUD. () o...ecceseecccesesteeeceaeeteeeeeeetsenserens 38 452, SUDA. (G) cessscsscssssseseescseeseseseesesseseeteeeseseees 38 452, subd. (A) occ eeceeceeeeeeseeeenssateccueesenaeessuaes 38 ASD isecceesteceteeeesaeeenensaeeveseseaseeesesoneesaeeessaneees 38 Pen. Code, §§ LB7 coececcceccccessesseccssssesseeessneeseceeesseeeeananeeeseeeees 1 190.2, subd. (a)(17)(i) ...cececcscetsesceseeeeeseeeneeesees 1 190.3 iccecsccceseesesessnesssesseecseeseeeeseeceneesesaeeenaaes 38 190.3, factor (8) .....ceceecccceseeecesteeeseetessaeesenseneens 8 190.3, factor (D) .....cecsecsccscesesteereaeeessneererseeees 8 190.3, factor (C) ...csescescssesstscetseeneedsneeeseaeeees 8 190.3, factor (d) ......ecccscecssteeessreetteessssteeeeesees 8 190.3, factor (€) ....cccsesscccsssserecseteeeeeseeesratentens 9 190.3, factor (f) ......ccceesscccssesscsstecsteeeeeseesssenenes 9 190.3, factor (2) .cceeccescecesseeeeeesreteeerseeeereeeees 9 190.3, factor (A) ......ccecececccsserecesstereeressssneeees 9 190.3, factor (1) .....ecceeesecssccessseestesssntseeeseenees 9 190.3, factor (J) eccecccccsceeesteteesetseeestreseeeaes 9 190.3, factor (K) .....cccecceecseseeesssessreessstnesessennens 9 190.4 iceecccccsseseessreesresseceesesenseseseseatentneeseneees 11 190.4, SUD. (€) .o...eeeceescessereeseneeeesetertenes passim QL eececseesseesesssecesetecseseeesarestsneesieeseneenaeeeners 1 G86. ..ecescccsssssressssscseesseesseecsnacccaeeeneetsaeeessanens 21 1239, SUDA. (D) ....eeeeccettssssessseetatetteeseteeessneeenes 3 ix TABLE OF AUTHORITIES Page(s) Pen. Code, §§ cont’d 12021 vieceeeeccsccecsssccceesseescsesecsneceeeeeesseseetesneeererees 1 12022.5 oiiecccccteessteccsteeeeeeeeeeereeaeenneneesatensceaneees 1 12022.7 icceccsecccccecceseessecstceeeeeeeeeteeeneeeeeseneneens 1 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA Defendant and Appellant. ) PEOPLE OF THE STATE OF CALIFORNIA, ) ) No. 8179181 Plaintiff and Respondent, ) ) (Riverside County ) Super. Ct. No. Vv. ) “CR 18088) ) MICHAEL RAY BURGENER, ) ) ) ) APPELLANT’S OPENINGBRIEF STATEMENT OF THE CASE In 1981, appellant Michael Ray Burgener was convicted of one count of murder under Penal Code section 187! 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 ofa firearm (§ 12021). The jury fixed the degree of murderatfirst degree, found that it was committed during a robbery, and that the murder was committed with express malice aforethought and with deliberation and premeditation. Under the 1978 death penalty law, a robbery-murder special circumstance (§ 190.2, subd. (a)(17)(i)) was found ‘' All further statutory references areto the Penal Code unless otherwise indicated. true, and appellant was sentenced to death. On March 27, 1986, this Court affirmed the guilt judgmentin its entirety, but reversed the penalty judgment. (People v. Burgener (1986) 41 Cal.3d 505, 511-512 (Burgener L’.) | On penalty retrial, the jury returned a verdict of death. Appellant’s motion to modify the verdict from death to life imprisonment without possibility of parole pursuantto section 190.4, subdivision (e), was granted by Judge William Mortland, and the People appealed. On appeal, the court of appeal reversed and remandedwith directions that Judge Mortland reconsider and rule on the motion to modify the penalty verdict in accordance with the views expressed in its opinion. (People v. Burgener (1990) 223 Cal.App.3d 427, 435-436 (“Burgener II’).) Because Judge Mortland was unavailable, the case was reassigned to Judge Ronald R. Heumann, who denied the application to modify the penalty verdict. Appellant was again sentencedto death, whereuponhis automatic appeal followed. On April 9, 2003, this Court found no error in the penalty phase retrial. However, it found that Judge Heumann had committed reversible error in ruling on the section 190.4, subdivision (e), application for modification and vacated the judgment of death solely to permit Judge Heumannto reconsider the automatic application to modify the verdict underthe correct legal standard. (People v. Burgener (2003) 29 Cal.4th 833, 893 (“Burgener IIT’).) Following this Court’s remand, Judge Heumanngranted appellant’s motion for self-representation under Faretta v. Califonia (1975) 422 U.S. 806 (“Faretta’”’). On November7, 2003, Judge Heumann again denied _ appellant’s section 190.4, subdivision (e), application, and sentenced 2 appellant to death. Appellant’s automatic appeal followed. On May7, 2009, this Court found that Judge Heumann committed reversible Faretta : error. (People v. Burgener (2009) 46 Cal.4th 231, 243-245 (“Burgener IV’).) The judgmentof death was vacated, and the matter remanded “for reconsideration of defendant’s request to represent himself (unless defendant withdrawshis request in the interim) and the automatic application for modification of the death verdict.” (/d. at p. 245.) Noting that Judge Heumann hadpassed away, the remandorder also specified that the matter was to be heard by another judge of the same court. Following this latest remand, on July 30, 2009, appellant’s case was assigned to Judge Craig G. Riemer for all purposes and, over appellant’s objection, a hearing date for August 28, 2009, was set. (1 CT 31; 1 RT 12- 14.” On August 28, 2009, Judge Riemer heard and granted appellant’s oral motion for self-representation under Faretta. (1 CT 32-33; 1 RT 15-22.) On December11, 2009, Judge Riemer denied appellant’s section 190.4, subdivision (e), application, and sentenced appellant todeath. (1 CT 83-92; 1 RT 41-46.) STATEMENT OF APPEALABILITY This is an automatic appeal from a judgment of death. (§ 1239, subd. (b).) The appeal is taken from a judgment which disposes ofall issues betweenthe parties. By this Court’s opinion of May 7, 2009,this appeal“shall be limited to issues related to the modification application.” (Burgener IV, supra, 46 Cal.4th at p. 246.) * “CT”refers to the clerk’s transcript and “RT”refers to the reporter’s transcript. STATEMENT OF FACTS A. Introduction In 1988, following the retrial of the penalty phase of this capital case, a jury returned a death verdict against appellant. In the following 23 years, three different trial judges have reweighedthe evidencea total of four times in order to determine whether,in their independent judgment, the evidence supported the jurors’ death verdict. (See § 190.4, subd. (e).) The first two such judges — Judges Mortland and Heumann — arrived at different conclusions, and each jurist’s decision was reversed on appeal for misapplication of the statute imposing a duty on thetrial judge to independently review the evidence considered by the jury in a capital case. This appeal now comesbefore this Court as the latest chapter in the history ofthe trial court’s attempts to properly exercise its statutory duty, a history this Court has aptly described as “long and unhappy.” (Burgener IV, supra, 46 Cal.4th at p. 235.) Because the issues raised in this appeal are in large part procedural, a detailed recital of the underlying facts developedat the penalty phaseretrial in 1988 is unnecessary. (People v. Avila (1994) 24 Cal.App.4th 1455, 1457.) As such, the summary offacts set forth in this Court’s 2009 opinion, describing the evidence producedat the 1988 penalty retrial, is sufficient: The facts of the crimeare set out in our prior opinion. [] For purposesofthis 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 weaponat 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 attemptedto rob andkill a clerk > Judge Heumann ruled on the modification motion twice. 4 at a liquor store located a block and a half away from the 7—-Eleven where Arias was murdered. In 1977, just over two monthsafter being released from prison, defendant robbed a pawnshopclerk.[] The People also presented evidence of defendant’s violent conduct against correctional officers and fellow inmates. Defendant presented evidencethat he did not kill Arias, that he had not even been presentat the scene, and that he had been framed by twoofthe prosecution witnesses. The defense also offered evidence that he had been abused as a child and suffered from adjustment and personality disorders. . (Burgener IV, supra, 46 Cal.4th at pp. 234-235, citation and footnote omitted.) B. The Various Hearings On Appellant’s Motion To Modify The Verdict 1. Preliminary Proceedings Followingthis Court’s latest order, remanding the matter to the superior court for reconsideration of appellant’s motionsforself- representation and to modify the jury’s death verdict, appellant first appeared with counsel in the superior court on July 24, 2009. (1 CT 29; 1 RT 9-11.) On July 30, 2009, the presiding judge assigned the matter to Judge Riemerfor all purposes, calendaring the first hearing for August 28, 2009. Counsel for appellant objected to such a lengthy delay, noting that appellant wished to represent himself and have the proceedings move along as quickly as possible. The presiding judge overruled counsel’s objection, noting that it needed to proceed with care because this wasa capital case, and foundgood causeto continue the proceedings. (1 RT 12-14.) 2.. Appellant’s Request for Self-Representation On August 28, 2009, appellant, represented by Riverside County : Deputy Public Defender Michael Kersse, appeared before Judge Riemer. (r RT 15.) Appellant informedthetrial court that he wished to represent 5 himself at the hearing on the section 190.4, subdivision (e), automatic motion for modification of the jury’s death verdict. (1 RT 16.) Judge Riemer engaged appellant in a colloquy in orderto satisfy himself that appellant understood theperils andpitfalls of self-representation. (1 RT 16- | 21.) Based upon appellant’s responses, Judge Riemer observed that | appellant was aware of the dangers ofself-representation, appeared competent to make the decision to represent himself, and thereforethetrial court was preparedto grant his request notwithstanding its advice to appellant to proceed with counsel. (1 RT 21.) Judge Riemersolicited and received input from Kersse as well as the prosecutor, and ultimately found that appellant’s decision to represent himself was knowing and voluntary, with a full understanding ofthe risks and consequences. He thereupon granted appellant’s request and relieved Kersse of any further obligation to represent appellant. (1 RT 21-22, 29.) 3. Judge Riemer’s Denial Of The Automatic Motion To Modify The Jury Verdict At a hearing on November6, 2009, Judge Riemerissued an order for additionalbriefing. (1 CT 57-61.) By way of explanation, he observedthat to ensure that the ruling in this matter not be reversed fifth time, he wishedthe parties to consider a numberof questions.* The prosecutor was * Judge Riemer was concerned with (1) the scope ofhis authority in ruling on the section 190.4, subdivision (e), motion in light of language describing the trial court’s task in BurgenerII, supra, 29 Cal.4th at page 891; (2) whether there was a presumption that the jury’s verdict was _ consistent or contrary to the law and evidence; (3) which standard ofproof he was to employ in conducting his independent evaluation of the evidence; (4) whether he was boundby factual findings madein rulings on previous section 190.4, subdivision (e), applications; (5) how to correctly apply (continued...) orderedto file a supplementalbrief, and appellant was invited to do so. (1 RT 35-40.) Only the prosecutorfiled a written response, on November25, 2009. (1 CT 65-78.) At the December 11, 2009, hearing, Judge Riemer provided the parties with a written tentative ruling on the section 190.4, subdivision (e), motion and invited argument. (1 RT 41-46, 1 CT 85-92.) Appellant declined further comment, and the prosecutor noted his agreement with the intended ruling. (1 RT 41.) Adopting his tentative ruling, Judge Riemer denied the motion. (1 RT 42-44.) In his ruling denying the section 190.4, subdivion (e), motion, Judge Riemerdescribed the portions of the record and the written arguments of the parties he had considered, as well as those he had rejected as irrelevant. (1 CT 86.) He then summarized the task before him as follows: . In short, the Court’s job when confronted with a 190.4(e) application is to independently determine the credibility and probative value of the evidence, but not to independently decide whatthe penalty should be. Instead, the Court decides only whether the evidence, weighed in accordancewith the Court’s own evaluation ofits strength, supports the jury’s verdict as to the penalty. Ifso, the application to modify the verdict must be denied, even if equally credible evidence also supports a different conclusion favored by the Court. (1 CT 87.) Becausehe hadnot presided at the penalty retrial, he found that “necessity requires the replacementjudge to evaluate the credibility of the witnesses as best he or she can from the written record.” (1 CT 88, quoting 4 (continued) “lingering doubt” as a mitigating factor; and (6) how he should approach credibility evaluations of the witnesses when he had notpresided overthe penalty retrial. (1 CT 58-61.) from People v. Lewis (2004) 33 Cal.4th 214, 226.) However, he declinedto be boundby, or even consider, factual findings made at a relevant prior section 190.4, subdivision (e), application, reasoning that any attempt to do so would be inconsistent with his duty to conduct an independentreview. (1 CT 88.) Turningto the evaluation of the statutory aggravating factors, Judge Riemer found the circumstances of the crime (§ 190.3, factor (a)) — the “utterly unjustified” murderof a store clerk during a robbery — strongly. aggravating. He found aggravating, on balance, the presence or absence of criminal activity by appellant which involved force or violence (§ 190.3, factor (b)), noting an undisputed long history of violent activity from 1969 to 1977 during periods when appellant was not incarcerated, as well as violent behavior directed at correctional officers and inmates when appellant was incarcerated at San Quentin from 1973 to 1975. On the other hand, Judge Riemer deemedcredible the evidence that an extraordinarily hostile relationship between correctional staff and inmates in San Quentin existed at this time, and that appellant may have felt the necessity to protect himself from violence emanating from other inmatesor correctional officers. Judge Riemer found appellant’s two prior felony convictions (§ 190.3, factor (c)) strongly aggravating, noting that appellant had served prison termsafter each such conviction and had re-offended within months of his release from prison. (1 CT 88-89.) _As for the statutory mitigating factors, Judge Riemer found “somewhat mitigating” that the offense was committed while appellant was under the influence of extreme mental or emotional disturbance (§ 190.3, factor (d)). In that regard, Judge Riemer found credible the psychiatric evidence that appellant had been diagnosed with psychiatric problems at an 8 early age, but had never received adequate treatment despite recommendationsfor such treatment. However,it did not appear to Judge Riemerthat appellant’s mental or emotional problems were extreme, and'he found “too speculative” the defense psychiatrist’s opinion that appellant’s psychological condition was a significant cause of his criminal behavior, or that he had committed the capital homicide in order to “punish himself.” Likewise, Judge Riemer found somewhat mitigating that appellant’s capacity to conform his conduct to the law was impaired (§ 190.3, factor (h)), noting there was credible evidence that appellant’s psychological condition impaired his capacity to conform his conduct to the law. As for the remaining statutory mitigating factors, Judge Riemer found there was no evidence to suggest that the victim had participated in, or consentedto, the homicide (§ 190.3, factor (e)), that appellant reasonably believed his conduct was morally justified or extenuated (§ 190.3, factor (f), that he acted under extreme duress (§ 190.3, factor (g)), that he was anything other than the sole principal in the commission of the homicide (§ 190.3, factor (j)), or that any other circumstance existed which extenuated the gravity of the crime (§ 190.3, factor (k)). Consequently, these factors were not deemed to be mitigating in appellant’s case, nor was appellant’s age deemed mitigating (§ 190.3, factor (i)). (1 CT 90-91.) Finally, Judge Riemer addressed three additional factors he considered as falling outside the statutory scheme. Thefirst of these factors waslingering doubt as to appellant’s guilt. In his review of the defense _ case for lingering doubtat the penalty retrial, Judge Riemer gave credence to evidence that demonstrated(a) that the significance of forensic testingof appellant’s shoes for blood linking him to the crime “‘was greatly overstated,” and (b) that appellant’s girlfriend, Nora England, was not a | credible witness against him. Onthe other hand, Judge Riemer foundthat the weight of the evidence did not support the defense’s position that Joseph deYoung, an informant and the prosecution’s other star witness, “had the motive and opportunity to, and did in fact, frame [appellant] for the crime.” As Judge Riemerputit: To the contrary, the evidence of guilt, although circumstantial, is compelling. While thereis a possibility that the defendant was framed,it is not a realistic possibility. The Court does not find any doubt in the defendant’s guilt is strong enough to mitigate against a death penalty. (1 CT 92.) Second, Judge Riemer reviewed the evidence that appellant had a traumatic childhood in a dysfunctional family, and found such evidence to be credible. “That fact tends to mitigate against a death sentence.” (1 CT 92.) Third, Judge Riemer found that evidence of appellant’s religious conversion in the months immediately before the capital crime wasless than credible, and did “not significantly mitigate against a death sentence.” Ultimately, Judge Riemer foundthat the jury’s death verdict was supported by the law andthe evidence and “[a]ccordingly, the 190.4(e) application to modify the verdict mustbe, and is, denied.” (1 CT 92.) Appellant was thereupon sentenced to death. (1 Supp CT 54-55; 1 RT 50- 52.) HI 10 I THE DEATH JUDGMENT MUST BE REVERSED BECAUSE JUDGE RIEMER ERRED IN ALLOWING APPELLANT TO REPRESENT HIMSELF AT THE PENAL CODE SECTION190.4, SUBDIVISION(e), PROCEEDINGS A. Introduction Before granting appellant’s request for self-representation, Judge Riemer conducted an extended inquiry. However, neither his order granting appellant’s request nor his finding that appellant’s waiver of counsel was knowing and voluntary, with full knowledge ofthepitfalls of self-representation, can be reconciled with the record evidence in this case, which demonstrates that appellant’s request was equivocal, and that he had not been sufficiently apprised of the dangersof self-representation. Because appellant had no constitutional or statutory right to represent himself at the section 190.4, subdivision (e), hearing, and he did nottruly wishto representhimself at that hearing but instead sought to dispense with the assistance of counsel simply out of frustration, Judge Riemererred in granting appellant’’s request for self-representation. (People v. Stanley (2006) 39 Cal.4th 913 (“Stanley”); People v. Marshall (1997) 15 Cal.4th 1 (“Marshall’).) This error requires that appellant’s death sentence be | vacated yet again. B. Proceedings Below Once Judge Riemer was informed of appellant’s request to represent himself, he commenced an inquiry into appellant’s understanding of the law and the proceedings, as well as the pitfalls of self-representation. Judge Riemerlearned that appellant had never studied law before, or represented himself in a criminal case other than the previoussection 190.4, subdivision 11 (e), proceedings before Judge Heumann in 2003. (1 RT 16.) Judge Riemer then asked appellant if he understood the issues involved in the section 190.4, subdivision (e), application. When appellant replied affirmatively, the trial court asked him whatthose issues were. The following colloquy ensued: THE DEFENDANT:I’m downhere for the automatic motion to modify the penalty from death tolife. THE COURT:Right. But what are the legal issues that are to be decided in whether I grant that motion or whetherI deny that motion? Do you understandthat? THE DEFENDANT: You’re to weigh the mitigating, aggravating circumstances againsteach other and determine whether the jury’s findings were enough to give me death. THE COURT: Okay. THE DEFENDANT: Orwhether you should overturn it to life without. (1 RT 16-17.) | Judge Riemerthen shifted his inquiry to appellant’s understanding of the pitfalls of self-representation. Appellant was told, and acknowledged he understood, that he would be opposed by a highly experienced prosecutor and that the court could not provide him with help or assistance. When Judge Riemerasked if he understood that he would not receive any “slack” because he wasrepresenting himself, appellant replied, “I realize that whetherI 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.” Judge Riemer asked appellant to explain this remark, and appellant fatalistically replied that “the limited scope of what 12 you’re to determineis going to be determined the same waythatit’s been determinedall along.” (1 RT 17.) | When Judge Riemer remarkedthat the section 190.4, subdivision (e), application had been decided differently by two other judges, appellant explained that the judge who had granted the application (Judge Mortland) wasthe judge whoactually presided at the penalty retrial and observed the witnesses, whereas the judge who had decided the application by reviewing the transcripts (Judge Heumann) had denied the application. Thus, according to appellant, Judge Riemer would also be unable to make the determination made by Judge Mortland. (1 RT 17-18.) After repeating and explaining the adage that a person who represents himself has a fool for a client, Judge Riemer summarized appellant’s mindset: “[W]hatI hear you sayingis it’s not going to make any difference. I’m confident whatthe ruling is goingto be,therefore,I prefer to represent myself.” (1 RT 18.) When he then asked appellant what he believed to be the disadvantage of proceeding with experienced counsel if appellant believed the court’s decision would be the same regardless of whorepresented him, appellant’s reply was particularly revealing: THE DEFENDANT:The downsideis the length of time that it’s going to take. My case has been in the State courts for — well, you know the numberofyearsit’s been in the State court. I can’t sit here before you or anybodyelse or let anybody — I’ve had no say in what’s happened here throughoutthis 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 let an attorney do thethings that they doto try to mitigate a sentence of death? To me, a sentence oflife without is worse than death, actually, to me right now where mycase. is in the courts. I wantto get this hearing over with, and, you know,get my 13 case in through the courts before I die of old age. (1 RT 18-19,italics added.) While expressing understanding for appellant’s impatience andhis sense of powerlessnessin the face of counsel’s decisions overthe history of his case, Judge Riemer asked appellant if he understoodthat no ruling on the section 190.4, subdivision (e), application would be madethat day, regardless ofwho represented him because of the necessity to review the voluminous record. Appellant replied that he understoodthis, but did not believe it should take the court very long to do so. (1 RT 19.) Appellant reiterated that while he understood the motion would not be decided that day, his desire to represent himself was grounded onhis belief that he could accomplish just as muchoraslittle for himself as any attorney could given the limited scopeofthe section 190.4, subdivision (e), hearing. (1 RT 19- 20.) Judge Riemer cautioned appellant that his decision would be irrevocable, that no attorney would be waiting in the wings tostep in if he changed his mind, and that should the 190.4, subdivision (e), application be denied and appealed, appellant would not be heard to complain that he received the ineffective assistance of counsel. Appellant indicated that he understoodall of this. (1 RT 20.) Judge Riemer assured appellantthat he had nostakein the case, having only reviewed this Court’s latest opinion in his case. Judge Riemer advised appellant to continue to accept representation by Deputy Public Defender Kersse, noting that Kersse was an excellent lawyer and that he was in “‘an excellent position”to see that no stone wasleft unturned in advocatingon appellant’s behalf. Furthermore, notwithstanding appellant’s belief that any effort to persuade the court to grant the application was futile, there was a difference between what 14 appellant believed was possible and what an experience capital-case . litigator like Kersse might believe. As Judge Riemerputit, “(lightening does strike.” (1 RT 21.) | . Judge Riemer then granted appellant’s request for self- representation, finding that he understoodthe risks of foregoing the benefits of representation by counsel, and that appellant was competent to make his decision. However, Judge Riemer again advised appellant against representing himself. Appellant’s response was again highly revealing: THE DEFENDANT: Your Honor,let me just say this. The very best that can comeofthis hearing that I’m down hereforis that I be given life without possibility of parole. To me, that’s the very worst thing that can happen,therefore, I do wish to represent myself.” (1 RT 21.) Judge Riemer requested and received input from Kersse and the prosecutor. Kersse said that he had conversedat length with appellant regardinghis position on the section 190.4, subdivision (e), application and wassatisfied that appellant was aware ofthe legal principles involved,the scope ofthe hearing, and the duties and obligations ofthe trial court. (1 RT 21-22.) The prosecutor observed that appellant seemed “bright,”“lucid,” and “rather intelligent,” and in no way appeared “strange” during his colloquy with the court. (1 RT 22.) Judge Riemerreaffirmed that he was granting appellant’s request to represent himself, observing that appellant appeared to have thought abouthis decision in a careful and rational | manner. Judge Riemer concluded that appellant’s choice was knowing, | voluntary, and with a full understanding ofthe risks and consequences. al RT 22.) io 15 C. The Sixth Amendment Did Not Compel Judge Riemer To Grant Appellant’s Request For Self- Representation Preliminarily, it must be notedthat it is by no meansclearthat a right to self-representation extends to a section 190.4, subdivision (e), hearing such as the one here, where appellant wasinitially represented by counselat the guilt phase, penalty phase, and penalty retrial. While this Court’s order in Burgener IV, supra, 46 Cal.4th at page 245, remanding the matter to the superior court for “reconsideration of defendant’s request to represent himself” could be read as an implied recognition of appellant’s rightto self- representation at such a hearing, the reasoning of the United States Supreme Court in Martinez v. Court ofAppeal ofCal., Fourth Appellate Dist. (2000) 528 U.S. 152 (“Martinez”) casts substantial doubt on that proposition. In Martinez, the high court explained that “[oJur conclusion in Faretta extended only to a defendant’s ‘constitutional right to conducthis own defense.’ /d., at 836, 95 S.Ct. 2525. Accordingly, our specific holding was confined to the right to defend oneselfattrial.” (Martinez, supra, 528 USS. at p. 154.) Morespecifically, the high court stated that “[t]he Sixth Amendmentidentifies the basic rights that the accused shall enjoy in ‘all criminal prosecutions.’ They are presentedstrictly as rights that are available in preparation fortrial and atthetrial itself’ (Id. at pp. 159-160, italics added.) In this regard, the Martinez court was not writing on a clean slate. “[T]he defendant’s right to proceed pro se exists in the larger context of the criminal trial designed to determine whetheror not a defendantis guilty of the offense with which he is charged.” (McKaskle v. Wiggins (1984) 465 U.S. 168, 177-178, fn. 8, italics added.) Even within that context, the right of self-representation is not absolute. “Even atthetrial | level .. . the government’s interest in ensuring the integrity and efficiency 16 of thetrial at times outweighs the defendant’s interest in acting as his own lawyer.” (Martinez, supra, 528 U.S. at p. 162.) “The right ofself- representation is not a license to abuse the dignity of the courtroom. _ Neither is it a license not to comply with relevant rules of procedural and substantive law.” (Faretta, supra, 422 U.S.at p. 834,fn. 46) Accordingly, this Court in Jn re Barnett (2003) 31 Cal.4th 466 explained that Martinez placed limit on the right of self-representation following conviction: As the United States Supreme Court recently explained, the sole constitutional right to self-representation derives from the Sixth Amendment, whichpertainsstrictly to the basicrights that an accused enjoys in defending against a criminal prosecution and does not extend beyond the point of conviction. (Martinez, supra, 528 U.S. at pp. 154, 160-161, 120 S.Ct. 684.) Emphasizing that the change in one’s position from “defendant” to “appellant” is a significant one, the high court found that the balance between acriminal defendant’s interest in acting as his or her own lawyer and a state’s interest in ensuring the fair and efficient administration ofjustice “surely tips in favor of the [s]tate” once the defendantis no longer presumed innocent but found guilty beyond a reasonable doubt. (/d. at p. 162, 120 S.Ct. 684.) (In re Barnett, supra, 31 Cal.4th at p. 473.) Here, it is clear that appellant’s guilt for the capital crime was adjudicated long ago, at a trial in which he was represented by counsel and in which the guilt judgment was affirmed by this Court in Burgener I, supra, 41 Cal.3d 505, more than a quarter century before he requested self- representation in the present case. Even the penalty retrial followingthis Court’s decision in Burgener J, at which appellant wasalso represented by _ counsel, took place in the distant past and thetrial court’s denial of : appellant’s motion for a new penalty trial in 1991 was affirmed bythis 17 Court nine years ago in BurgenerIII, supra, 29 Cal.4th at page 893. Thus, when appellant most recently appeared before Judge Riemer for the section 190.4, subdivision (e), proceedings, his position wasthat of a person convicted long ago, and more akin to an “appellant” within the meaning of Martinez than that of a defendant facing any kind oftrial at which he could present a defense. At such a proceeding, whichis “gutomatic” and not triggered by the defendant’s choice, and where thetrial court’s findings serve the significant function of safeguarding careful appellate review in capital cases (see, e.g., People v. Diaz (1992) 3 Cal.4th 495, 571,575 & fn. 34; People v. Frierson (1979) 25 Cal.3d 142, 179), as well as acting as one of the key “checks on arbitrariness”in California’s death penalty scheme (see Pulley v. Harris (1984) 465 U.S. 37, 51-53 [citing the role of § 190.4, subdivision(e), in ensuring that California’s statutory death penalty scheme complies with the Eighth and Fourteenth Amendment]; Gregg v. Georgia (1976) 428 U.S. 153, 195; Proffitt v. Florida (1976) 428 U.S. 242, 259-260), the state’s strong interest in the accuracy and fairness ofits criminal proceedingsis at its apex. (Sell v. United States (2003) 539 U.S. 166, 180; Massie v. Sumner (9th Cir. 1980) 624 F.2d 72, 74; People v. Chadd (1981) 28 Cal.3d 739, 751-55.) As such, the Sixth Amendmentdid not compel, muchless permit, Judge Riemer to grant appellant’s Faretta motion. (Martinez, supra, 528 U.S. at p. 154; In re Barnett, supra, 31 Cal.4th at p. 473; cf. People v. Bloom (1989) 48 Cal.3d 1194, 1219-1220 [finding a discretionary non-constitutional basis for the grant of a midtrial request for self-representation compatible with Faretta notwithstanding defendant’s express intent to utilize self- representation in seeking the death penalty].) This Court has recently held that a criminal defendant has no 18 constitutionalor statutory right to self-representation under California law. (People v. Johnson (2012) 53 Cal.4th 519, 526.) Thus, California retains the right to refuse self-representation in every situation whereit is not absolutely demanded by Faretta. Accordingly, the Johnson court counseled that “California courts should give effect to this California law whenit can.” (People v. Johnson, supra, 53 Cal.4th 519 at p. 526.) Here, it can and should do so by finding that Judge Riemererred by granting appellant's request for self-representation. To the extent that Judge Riemer possessed any discretion to allow appellant to represent himself, that discretion was abused onthis record. (Cf. People v. Bloom, supra, 48 Cal.3d at pp. 1219-1220; People v. Hamilton (1988) 45 Cal.3d 351, 369; People v. Windham (1977) 19 Cal.3d 121, 129.) Clearly, Judge Riemer thought that appellant’s choice was a foolish one, especially as appellant madeit clear he had nointention of “defending” himself. (See, e.g., People v. Clark (1992) 3 Cal.4th 41, 113- 116 [upholdingtrial court’s decision to revoke defendant’s Faretta status when he announcedhis intention, mid-trial, to stand mute, reasoning thatit was obliged “to interpret Faretta in a reasonable fashion’”’].) Ironically, when Judge Riemerrepeatedhis desire to decide the section 190.4, subdivision (e), application correctly, and to thereby avoid the multiplicity of reversible errors committed in previous proceedings, he did so while persuading appellant to consent to a continuancein order that the court receive legal guidance only from the People “with their considerable resources.” (1 RT 35.) “[T]he rightof self-representationis nota license to subvert the very adversary process of which it is but ond _ part.” (People v. Bloom, supra, 48 Cal.3d at p. 1240 (dis. opn. of Mosk, J.).) Judge Riemer was madeexplicitly aware that appellant wished the 19 proceedings beforethe court to end with his death sentenceintact; he expressly informed Judge Riemer twice that the very worst thing that could happen to him wasto receive a sentenceoflife imprisonment without possibility of parole. As this Court noted in People v. Chadd, supra, 28 Cal.3d 739, “‘the waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence. Especially is this so where, as here, to do so would result in state aided suicide.’” (People v. Chadd, supra, 28 Cal.3d at p. 753 & fn. 9, quoting Commonwealth vy. McKenna (Pa. 1978) 383 A.2d 174, 181 (italics in original).) Judge Riemer was not compelled to grant appellant’s request under the Sixth Amendment, and his decision to do so cannot be upheld as a proper exercise of any discretion. This is not a case like People v. Bloom, supra, 48 Cal.3d 1194, where this Court concludedthat the trial court had not abusedits discretion in granting a defendant’s request for self-representation made midtrial between the guilt and penalty phases, even though the defendant sought self-representation in order to obtain a death sentence. Unlike Bloom, appellant had no “strategy” to presentat trial to a jury to ensure a death verdict. Moreover, Judge Riemerlacked authority to decide appellant’s punishmentaccording to his predilections so as to thwart such a “strategy” directed at him. (People v. Frierson, supra, 25 Cal.3d 142, 193, fn. 7 (conc. opn. of Mosk,J.).) Moresignificantly, and unlike Bloom,it is the trial court’s job — not the jury’s — to independently evaluate the death penalty verdict to ensure that it comports with constitutional standards. | The United States Supreme Court has frequently stated that the Eighth Amendmentand evolving standards of societal decency impose a high requirementofreliability on the determination that death is the 20 appropriate penalty in a particular case. (Abdul-Kabir v. Quarterman (2007) 550 U.S. 233, 246;Johnson v. Mississippi (1988) 486 U.S. 578, 584; _ Mills v. Maryland (1988) 486 U.S. 367, 377; Hitchcock v. Dugger(1987) 481 U.S. 393; Furman v. Georgia (1972) 408 U.S. 238.) Self- representation at a proceeding whose purposeis to ensure such reliability is incompatible with the Eighth Amendment. The section 190.4, subdivision (e), hearing is such a proceeding. (Pulley v. Harris, supra, 465 U.S.at pp. 51-53; see also People v. Rodriguez (1986) 42 Cal.3d 730, 793-794 [automatic review of a death verdict under section 190.4, subdivision (e), must be construed as requiring independent review to precludefinding of federal unconstitutionality}; accord People v. Allison (1989) 48 Cal.3d 879, 913-916.) In this regard, the section 190.4, subdivision (e), proceedings serve the same purposesas the automatic appeal following a death judgment, which cannot be waived and whereself-representation is not permitted. (People v. Stanworth (1969) 71 Cal.2d 820; People v. Massie (1998) 19 Cal.4th 550). California has an independent interest in the accuracy of penalty determinations in capital cases (People v. Teron (1979) 23 Cal.3d 103, 115 & fn. 7), an interest that cannot be contravened by privateagreement (People v. Stanworth, supra, 71Cal.2d at p. 834), where its death penalty schemerequires the assistance of counselat every stage of "a capitaltrial. (People v. Taylor (2009) 47 Cal.4th 850, 872 & fn. 9; Pen. Code, § 686.1.) D. The Record Demonstrates That Appellant’s Request For Self-Representation Was Equivocal And Made OutOfFrustration And Resignation Even if appellant had a Sixth Amendmentright to represent himself ; -at the section 190.4, subdivision (e), hearing, Judge Riemererred in finding that his invocation of that right was unequivocal. In Marshall, supra, 15 2] Cal.4th 1, this Court noted the tension between a criminal defendant’s constitutional right to counselandthe right of self-representation; both guaranteed by the Sixth Amendment: A defendant in a criminal case possesses two constitutional rights with respect to representation that are mutually exclusive. A defendant hasthe right to be represented by counselat all critical stages of a criminal prosecution. [Citations.] At the sametime, the United States Supreme Court has held that because the Sixth Amendment grants to the accused personally the right to present a defense, a defendantpossesses theright to represent himselfor herself. (Faretta v. California, supra, 422 U.S. 806, 819 [95 S.Ct. 2525, 2533] (Faretta).) (Marshall, supra, 15 Cal.4th at p. 20.) Appellant’s case graphically | demonstrates both Judge Riemer’s dilemmain reconciling those rights in the unique contextof fulfilling his duties under section 190.4, subdivision (e), and his erroneous choicein allowing appellant to represent himself. _ In determining whetherappellant actually and properly invoked the right to self-representation, this Court examinesthe entire record de novo. (Stanley, supra, 39 Cal.4th at p. 932; People v. Dent (2003) 30 Cal.4th 213, 217-218.) As this Court pointed out in Marshall, “[t]he United States Supreme Court has concluded in numerouscases and a variety of contexts that the federal Constitution requires assiduousprotection ofthe right to counsel” while “not extend[ing] the same kind ofprotection to the right of self-representation.” (Marshall, supra, 15 Cal.4th at p. 20.) Whereas the right to be represented by counselis self-executing, the right to represent oneself must be asserted unequivocally and in a timely fashion in order to enforce the strong presumption against a waiver of the right to counsel. (/d. at pp. 20-21; Faretta, supra, 422 U.S.at p. 835.) . The Sixth Amendmentright of self-representation may properly be 22 denied when a defendant’s request to proceed pro se is made out ofa temporary whim, annoyanceorfrustration, as sucha requestis not unequivocal. (Stanley, supra, 39 Cal.4th at p. 932; Marshall, supra, 15 Cal.4th at p. 21.) As this Court noted in Stanley, “[e]quivocation, which sometimes refers only to speech, is broader in the context of the Sixth Amendment, and takes into account conduct as well as other expressions of intent.” (Stanley, supra, 39 Cal.4th a p. 932, quoting Williams v. Bartlett (2d Cir. 1994) 44 F.3d 95, 100.) This Court has also observed that the high court’s emphasis in Faretta “on the defendant’s knowing,voluntary, unequivocal, and competent invocation ofthe right suggests that an insincere request or one made under the cloud of emotion may be denied.” (Marshall, supra, 15 Cal.4th at p. 21.) This Court has endorsed the proposition “that in order to protect the fundamental constitutional right to counsel, one ofthetrial court’s tasks when confronted with a motion for self-representation is to determine whether the defendanttruly desires to represent himself or herself.” (Marshall, supra, 15 Cal.4th at p. 23; citing Jackson v. Yist (9th Cir. 1990) 921 F.2d 882, 889.) The court faced with a motion forself-representation should evaluate not only whether the defendant has stated the motion clearly, but also the defendant’s conductand other words. Because the court should draw every reasonable inference against waiverof the right to counsel, the defendant’s conduct or wordsreflecting ambivalence aboutself-representation may support the court’s decision to deny the defendant’s motion. A motion for self-representation made in passing angeror frustration, an ambivalent motion, or one madefor the purposeofdelay orto frustrate the orderly administration ofjustice may be denied. | (Marshall, supra, 15 Cal.4th at p. 23.) 23 Here, the record clearly shows that appellant sought self- representation not for the purpose of making his “defense” at the section 190.4, subdivision (e), hearing, but instead to expedite the proceedings and to stand mute before the court to ensure that the automatic motion to modify the jury’s death verdict would be denied. As such, appellant’s frustration with the legal process unfolding in thetrial court was manifest, including his mistaken perceptions that any advocacy on his behalf seeking to change the jury’s verdict from death to life imprisonment without possibility of parole was futile as well as inimical to his claim of innocence. Moresignificantly, appellant made it unmistakably clear that he did not wish the proceedings before the trial court to conclude with a modification of the jury’s death verdict; to use appellant’s own words, | “that’s the very worst thing that can happen,therefore, I do wish to represent myself.” (i RT 21.) Given that the trial court’s task at a section 190.4, subdivision (e), hearing is to make an independent determination as to whether the weight of the evidence supports the jury’s death verdict, appellant’s request for self-representation here was clearly madeto frustrate the orderly administration ofjustice by making the proceedings non- adversarial. (Faretta, supra, 422 U.S.at p. 834, fn. 46; United Statesv. Cronic (1984) 466 U.S. 648, 655; Singer v. United States (1965) 380 U.S. 24, 36;.see Pulley v. Harris, supra, 465 U.S. at pp. 51-53; People v. Rodriguez, supra, 42 Cal.3d at pp. 793-794.) The record quite clearly demonstrates appellant’s frustrations andhis desire to end the proceedings asrapidly as possible with a ruling leaving the jury’s death verdict intact. First, appellant made abundantlyclearhis belief that counsel could do nothing for him. Indeed, as appellant phrased it, if he wereto be represented by the best criminal defense attorney in the world, 24 the result would be the sameasif appellant represented himself. (1 RT 17.) | It may well be the case that appellant’s fatalistic attitude in this regard was based upon an uncorrected misunderstandingofthe trial court’s role in a section 190.4, subdivision (e), proceeding; his description of the legal issues to be decided by thetrial court in such a proceeding seemsnot to comprehendthatthe trial court must independently evaluate the aggravating and mitigating evidence as opposed to determining whetherthe jury’s findings were “enough”for a death sentence — the precise misunderstanding which caused this Court to vacate and remand appellant’s death sentence in 2003 in Burgener I, supra, 29 Cal.4th 833, at pages 890-892. (1 RT 16- 17.) Moresignificantly, Judge Riemer’s acknowledgmentof appellant’s fatalistic attitude toward the proceedings led him to ask a very logical and probative question, revealing a second layer of appellant’s true thinking whenit cameto self-representation. When asked what he believed was the “downside” of representation by counsel if the outcome ofthe section 190.4, subdivision (e), hearing could not be influenced one wayorthe other by who wasrepresenting him, appellant immediately referred to the length of time it would take for counsel to prepare the case. (1 RT 18-19.) From this false premise (as Judge Riemer explained, he could not decide the case forthwith in any event, because he had to read the voluminous record first and a few months were required to do so), appellant revealed a third aspect of his frustration,i.e., that if counsel remained in the case, his argumentin support of granting the section 190.4, subdivision (e), application would be contrary to the result appellant wanted. He complainedthat his case had been in the state courts for many years and he “had no say” in what had | - been happening throughouthiscase, always deferring to what his lawyers : 25 wanted. As an example, he stated that his claim of innocence foreclosed him from “in good conscience” attempting to argue for mitigation. In fact, as appellant putit, “To me, a sentence of life without is worse than death, actually, to me right now where mycaseis in the courts. I wantto get this hearing over with, and, you know,get my case in through the courts before I die of old age.” (1 RT 19.) In making this statement, appellant maintained a position he took as early as at the penalty phaseofhis originaltrial, where he had declined to participate, had instructed counselto not present a case in mitigation, and had counsel read appellant’s own statement to the jury requesting a death verdict. (See BurgenerI, supra, 41 Cal.3d at pp. 540-541.) There, because “(djefense counsel andhis client ‘threw in the towel’ at the penalty phase, inviting the jury to impose the death penalty,”this Court reversed the death judgment, setting the stage for the penalty retrial and the ancillary proceedings now underreview in this appeal. (/d. at p. 543.) At the section 190.4, subdivision (e), hearing in 2003, when appellant was erroneously permitted to represent himself, his “defense” was, as this Court aptly describedit, “very brief. ‘The only thing I haveto say is I maintain my innocence; therefore, I cannot argue mitigation. That’s all ] haveto say.’.” - (Burgener IV, supra, 46 Cal.4th at p. 240.) In its latest iteration before Judge Riemer, appellant’s “defense” was even more succinct. When Judge Riemer asked appellant if he had anything to say in responseto the court’s tentative ruling, appellant replied, “No, not me,sir.” (1 RT 41.) Appellant’s case has now comefull circle, and his death sentence must again be vacated because his request to represent himself was ambivalent and made for the purposeoffrustrating the orderly administration ofjustice. // 26 E. The Record Does Not Reflect That Appellant Received Adequate Warning Of ThePitfalls Of Self-Representation Asstated earlier, in Faretta, supra, 422 U.S. at pp. 812-835, the high court held that, under the Sixth and Fourteenth Amendments, a defendant in a state criminaltrial has a right to the assistance of counsel as well as a correspondingrightto self-representation. However, a defendant who elects self-representation may do so only after knowingly,intelligently, and voluntarily choosing to fargo the assistance of counsel. Before trial court may permit self-representation, it must fulfill a dual duty: first, to ascertain that a defendant who seeksto exercise his right to self-representation has knowingly andintelligently foregonethe traditional benefits associated with the right to counsel: and second, to ensure that the record establishes that the defendant knows whatheis doing, i.¢., that his choice is made with eyes open. (Faretta, supra, 422 U.S. at p. 835; Adams v. United States exrel. McCann(1942) 317 U.S. 269, 279.) This Court has held that “no particular form of wordsis required in admonishing a defendant whoseeks to waive counselandelect self- representation,” and that “the test is whether the record as a whole demonstrates that defendant understood the disadvantagesofself- representation, including the risks and complexities of the particular case.” (People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Furthermore, the scope of a proper advisement of the right to counsel dependson the particular | facts and circumstancesof the case as well as the stage of the proceedings. (lowa v. Tovar (2004) 541 U.S. 77, 88; Burgener IV, supra, 46 Cal.4th at p. 242.) However, at a minimum, a waiver of the right to counsel cannot : ~ withstand constitutional scrutiny under the Sixth and Fourteenth 27 Amendments unlessit is preceded by an inquiry and findingsbythetrial court that the defendant was both competent to standtrial and thathis decision to forgo the assistance of counsel was both knowingand voluntary. (Godinez v. Moran (1993) 509 U.S. 389, 400-401.) Faretta mandates that the trial court must make a defendant seeking to represent himselfor herself “aware of the dangers and disadvantages of self-representation.” (Faretta, supra, 422 U.S. at p. 835.) “Although the cases differ on the extent of the admonishments which Faretta requires,all are agreed that the court must in some manner indicate to the defendantthat self-representation is in most instances a hazardous course ofaction.” (People v. Fabricant (1979) 91 Cal.App.3d 706, 712.) Here, appellant was generally advised ofthe pitfalis of self- representation, e.g., (1) that he would be opposed by a highly experienced adversary; (2) that the court would not accord him any special dispensations on accountofhis status; (3) that his decision would be irrevocable and no attorney would be waiting in the wings should he change his mind; (4) that if the section 190.4, subdivision (e), application was denied and he was sentenced to death, on any appeal from such a judgmenthe could not claim that he had received the ineffective assistance of counsel; and (5) his current counsel’s experience in capital cases meant he would leave no stone unturned in attempting to persuade the court that the section 190.4, subdivision (e), application should be granted. (1 RT 16-21.) However, Judge Riemer neglected to advise appellant of a highly significantpitfall of self-representation underthe particular circumstances facing appellant at the section 190.4, subdivision(e), hearing, i.e., foregoing defense counsel’s superior knowledge of the complexrules of procedureat a section 190.4, subdivision (e), hearing, including the necessity of objecting when 28 appropriate, could result in a waiver of any claim oferror in this highly technical area ofthe law. The complexity of section 190.4, subdivision (e), hearings and the importance of having the defendant represented by defense counsel is well- illustrated by the history of appellant’s case. For example, in BurgenerII, supra, 223 Cal.App.3d 427, the People succeeded in obtaining reversal of the granting of appellant’s section 190.4, subdivision (e), application because Judge Mortland had improperly considered evidence not heard by the jurors. In Burgener III, supra, 29 Cal.4th 833, the denial of appellant’s section 190.4, subdivision (e), application was reversed because Judge Heumann had utilizedan improper standard in ruling on the application. Significantly, this Court’s jurisprudence in reviewing claimsof error alleged to have occurred at section 190.4, subdivision (e), hearings conducted afterits decision in People v. Hill (1992) 3 Cal.4th 959, 1013, becamefinal in 1992 makesit clear that in order to preserve such claims of error for appeal, an appellant must first object at the modification hearing. (See, e.g., People v. Carisi (2008) 44 Cal.4th 1263, 82 Cal.Rptr.2d 265, 309; People v. Riel (2000) 22 Cal.4th 1153, 1220.) The import of this tightening ofthe rules is graphically illustrated in the procedural history of this case. Had the “contemporaneousobjection” rule announced in People v. Riel, supra, 22 Cal.4th at page 1220 been applicable to the People’s | appeal in BurgenerIJ, supra, 223 Cal.App.3d 427, the court of appeal would have been compelled to find that the People’s claims of error were waived, and the court would have affirmed Judge Mortland’s judgment _ granting the section 190.4, subdivision (e), application. : The high court has madeit clear that foregoing counsel’s superior. _ knowledge of the complex rules of procedure and evidence at court 29 proceedings, including the necessity of objecting when appropriate,is amongthe dangers ofself-representation that are part andparcel ofthetrial court’s “searching or formal inquiry before permitting an accused to waive his right to counselattrial.” (Patterson v. Illinois (1988) 487 U.S. 285, 299-300, and fn. 13.) The federal courts have echoed this sentiment. (See, e.g., United States v. Hayes (9th Cir. 2000) 231 F.3d 1132, 1138-1139 [suggesting that the trial court advise a defendant seekingself- representation status that, unlike his adversary, he will be exposed to the dangers and disadvantages of not knowing the complexities of procedural and evidentiary rules to permit him to makepost-trial motions and protect his rights on appeal].) For a numberofreasons,it is telling that Judge Riemer never once referred to this forfeiture rule for failing to object as a potential pitfall of appellant’s decision to proceed prose. First, Judge Riemer’s colloquy with appellant revealed that appellant had no experiencein self-representation. Second, having read this Court’s opinion in BurgenerIV, supra, 46 Cal.4th 231, Judge Riemer would have necessarily been awarethat “[appellant’s] formal education after the age of 11 or 12 was rather erratic, that he had spent most of his adultlife in prison, and that he suffered from adjustment and personality disorders” (Burgener IV, supra, 46 Cal.4th at p. 429) and wasthus unlikely to have been awareof,or appreciated, the danger confronting him as a result of his ignoranceof the forfeiture rule. Third, Judge Riemer had been told by appellant that he wasnot going to participate in the adversarial process at the section 190.4, subdivision (€), hearing becausehebelieved the result was preordained, and his participation as an advocate for a sentence less than death was inconsistent with his claim of innocence. Fourth, Judge Riemer explicitly sought only 30 - the People’s advice so that his decision in this case would be insulated from yet another reversal, knowing full well that appellant was incapable of assisting him in fulfilling his task. Finally, by failing to warn appellant that his failure to object to any errors committed at the section 190.4, subdivision (e), hearing would preclude appellate review, Judge Riemer significantly increased the oddsthat his decision on the automatic motion for modification of the jury’s death verdict would be upheld by this Court on appeal. | In sum, Judge Riemer was well-aware that appellant believed that maintaining his innocence somehowprecluded him from the ability to “argue mitigation” at the section 190.4, subdivision (e), hearing. Likewise, Judge Riemer was awarethat this was the identical misconception that appellant had articulated in 2003 when his Faretta motion was improperly granted by Judge Heumann. This circumstance affirmatively demonstrates that appellant was, and remained, essentially clueless about the nature of the proceedings and the role appointed defense counsel hadto play there, notwithstanding any opinion to the contrary by Deputy Public Defender Kersse. Given that appellant had signaled his intent notto participate in adversarial proceedings, Judge Riemer’s admonitions aboutthe perils of self-representation, while surely an improvementover those given in 2003 by Judge Heumann,were nonetheless insufficient under Faretta to ensure that appellant’s choice was made with eyes wide open. F, The Error Requires Automatic Reversal . In Burgener IV, supra, 46 Cal.4th 231, this Court vacated appellant’s death judgment and remanded for further proceedings because Judge Heumann had committed Faretta error in granting appellant’s request for _ . self-representation at a section 190.4, subdivision (e), hearing in 2003. It 31 therefore had occasion to address whether prejudice need be shown,andif so, by which standardit was to be assessed. (Burgener IV, supra, 46 Cal.4th at pp. 243-245.) Noting that the United States Supreme Court had not decided whether such error was reversible per se or subject to harmless-error analysis, and that its own pronouncementin People v. Crayton (2002) 28 Cal.4th 346 that such error was reversible per se under article VI, section 13 of the state Constitution was merely dicta, this Court examined how the issue of prejudice had beentreated in the lowercourts of California as well as in the federalcircuits. There, it found a roughly even split in the state courts of appeal, but a virtual consensusin the federal circuits that such error wasreversible per se, with only the Eight Circuit holding (in United States v. Crawford (8th Cir. 2007) 487 F.3d 1101, 1108) that the Chapman (Chapman v. California (1967) 386 U.S. 18) standard could beappliedto a defective Faretta waiver at sentencing in the unique circumstance wherethe sentencing court lacked the authority to impose a more lenient sentence than the one the self-represented defendantactually received. (BurgenerIV, supra, 46 Cal.4th at pp. 243-245.) Ultimately, this Court found it unnecessary to decide which standard of prejudice applies, because appellant wasentitled to relief regardless. (Burgener IV, supra, 46 Cal.4th at p. 245.) Even under the Chapman standard, this Court noted that (1) appellant had not previously represented himself in this case or any other criminal proceeding; (2) there was no evidence that he had sought to abuse his Faretta right; (3) there was no evidence he had been offered counsel subsequentto his waiver and had refusedit; (4) appellant’s formal education after the age of 11 or 12 was substandard,he had spent mostofhis adult life in prison, and suffered from 32 adjustmentand personality disorders; (4) it could not be said beyond a reasonable doubt that appellant 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 ofthe risks of self-representation; and (5) it could not be shown beyonda reasonable doubtthat the resolution of the section 190.4, subdivision (e), application would have been the same had appellant been represented by counsel. (Ibid.) Appellant maintains, as he did in Burgener IV, supra, 46 Cal.4th 231, that the trial court’s error in improperly permitting him to represent himself at the section 190.4, subdivision (e), hearing, is reversible per se. That view is compelled by a series of rulings of the United States Supreme Court recognizing that “some errors necessarily rendera trial fundamentally unfair” and the denialofthe right to counsel is one such error. (Rose v. Clark (1986) 478 U.S. 570, 577, citing Gideon v. Wainwright (1963) 372 U.S. 335; Penson v. Ohio (1988) 488 U.S. 75, 88 [denial of counsel on _appeal presumptively prejudicial]; United States v. Cronic, supra, 466 U.S. at p. 659 [holding that “a trial is unfair if the accused is denied counsel at a critical stage of his trial”]; Chapman v. California, supra, 386 U.S. at p. 23 [recognizing that the right to counsel is “so basic to a fairtrial that [its] infraction can neverbetreated as harmless error”]; see also Cordovav. Baca (9th Cir. 2003) 346 F.3d 924, 930 [holding “that if a criminal defendantis put on trial without counsel, and his right to counsel has not been effectively waived,he is entitled to an automatic reversal of the conviction”].) | ; 7 | 2 = Even if harmless-error analysis is applied, many of the same factors - noted by this Court in Burgener IV, supra, 46 Cal.4th at page 245 are 33 present in this case. The only differences are that Judge Riemerdid not actively encourage appellant to choose self-representation and did a better job ofsetting forth someofthepitfalls of self-representation in comparison with the earlier proceedings in 2003. These differences do not, however, suffice to save Judge Riemer’s ruling under the rigorous Chapman standard. G. Conclusion Under the compulsion of the Sixth Amendment and Faretta, reversal of the death judgmentis required, because appellant’s constitutional right to self-representation did not extend to the narrow and unique circumstances presented in the section 190.4, subdivision (e) hearing, and Judge Riemer abused any discretion he may. have possessedin allowing appellant to represent himself. Even if the federal Constitution afforded appellant the right of self-representation at such a hearing, the instant record does not reflect that appellant made an unequivocalinvocation of that right nor does it show that he understood the disadvantagesofself-representation, including the risks and complexities ofthe particular case. Under these circumstances, appellant did not voluntarily, knowingly, and intelligently waive his right to counsel. Consequently, appellant’s right to counsel, due process of law, and a reliable penalty determination as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, were all violated byJudge Riemer’s error, requiring reversal of the death judgment and a remandto the superior court for the purposes of another hearing on appellant’s section 190.4, subdivision (e), application for modification of the death verdict. (Martinez, supra, 528 U.S.at p. 154, 159-160; Faretta, supra, 422 U.S. at p. 835.) | | H 34 Il JUDGE RIEMER’S DETERMINATION THAT,IN CONDUCTING HIS INDEPENDENT REVIEW OF THE EVIDENCE AT THE AUTOMATIC MOTION TO MODIFY THE JURY’S DEATH VERDICT, HE WAS PRECLUDED FROM CONSIDERING THE PREVIOUS SECTION190.4, SUBDIVISION (e) FACTUAL FINDINGS OF THE JUDGE WHO PRESIDED AT THE PENALTY RETRIAL CONCERNING THE CREDIBILITY OF THE WITNESSES, WAS REVERSIBLE ERROR A. Proceedings Below Becauseofthe self-described “unfortunate procedural circumstances” in which Judge Riemer found himself when called upon to fulfill his duties undersection 190.4, subdivision(e), he directed the People to file a brief addressing several questions that were of concern to him.° Amongthose questions, Judge Riemer wanted to know (1) whether he was boundbyanyprior rulings on previous section 190.4, subdivision (e), applications; and (2) how he wasto evaluate the credibility ofthe trial witnesses on a cold record. (1 CT 58-61.) Asto thefirst question, Judge Riemer specifically referred to a pleading filed by the People in 1991, at an earlier section 190.4, subdivision (e), proceeding before Judge Heumann,in which it was suggested that Judge Heumann could consider factual findings madeat the very first section 190.4, subdivision (e), hearing in this case, before Judge McFarland. Judge Riemerasked if the People still maintained that position, andif so, > Appellant was invited by Judge Riemerto file a response, but as: _ appellant addressedin ArgumentI, ante, Judge Riemer was aware that appellant had expressedno interest in doing so, and no such response was ~ ever filed. 35 under whatauthority.° (1 RT 59-60.) As to the second question, Judge Riemer notedthat as part ofhis duty in conducting an independent review of the strength of the evidence, he was obliged to evaluate the credibility of the witnesses whotestified at appellant’s penalty retrial, a task usually left to a finder of fact who “has actually heard and seen the witnessestestify.” (1 CT 61.) Because he had not seen or heard the witnesses, and was now being asked to makethat evaluation on the cold written record of witness testimony from over 20 years ago, Judge Riemer was concerned whether and in what waythat circumstance changedor affected his duty to independently evaluate the credibility of the witnesses. (/bid.) In its written response to the first question, the People, citing People v. Crew (2003) 31 Cal.4th 822, asserted that Judge Riemer was not bound by trial courts’ rulings on previous section 190.4, subdivision (e), applications. In explaining the position it took in the 1991 proceedings before Judge Heumann,the People argued that it was a logical response to the position taken by appellant before Judge Heumann, where he had argued that the court was boundby the previous factual findings of Judge Mortland. “The point wasthat if defendant’s reasoning held true,then the trial court would not merely be bound by findings by the judge who erroneously granted an application, but also by the judge who erroneously denied an earlier application.” (1 CT 69-70.) ® Judge McFarland presided over the original guilt and penalty trial. In People v. Burgener (1986) 41 Cal.3d 505 (“Burgener I’), this Court reversed the penalty judgment because defense counsel had failed to present any mitigating evidence in the penalty phase in obedienceto his client’s request. (41 Cal.3d at p. 542.) 36 As to the second question, how Judge Riemer wasto evaluate the credibility of the trial witnesses on a cold record, the People’s answer was that the fact that Judge Riemerhad not seen or heard the witnessesat the penalty retrial did not change or affect his duty under the law. Citing People v. Lewis (2004) 33 Cal.4th 214, and People v. Moreda (2004) 118 Cal.App.4th 507, the People argued that necessity required that Judge Riemeronly do the best he could to evaluate witness credibility from a written record, and that a judge does not have to have been presentattrial to determine whether the jury resolved credibility disputes. (1 CT 71-72.) In his ruling denying the instant section 190.4, subdivision (e), application, Judge Riemerruled that in a case, like appellant’s, where the _ judge whopresided at the penalty phaseretrial is unavailable to reconsider the section 190.4, subdivision (e), application on remand, the governing rule is that ‘necessity requires the replacement judge to evaluate the credibility of the witnesses as best he or she can from the written record.” (People v. Lewis, supra, 33 Cal.4th at p. 226.).” (1 CT 88.) Judge Riemer then rejected an argumentheattributed to appellant’s defense counsel in 1991, i.e., that the trial court was “bound in part” by the factual findings made by Judge Mortland and Judge McFarland in previous section 190.4, subdivision (e), applications.’ Citing language from this Court’s opinion in 7 Judge Riemer wasreferring to pleadings filed in 1991 when the section 190.4, subdivision (e), proceedings were heard by Judge Heumann. However, it appears that Judge Riemer conflated a position taken by appellant at that time with the People’s response thereto. In its pleadings, the defense had argued that Judge Heumann wasobliged to defer to Judge - Mortland’s findings (Vol. 1-A CT re: Modification Motion (2nd Death © ~~ Verdict) 21-37), whereas it was the People who argued in responsethat the court was only bound to defer to Judge McFarland’s findings (1-A CT re: (continued...) 37 People v. Crew, supra, 31 Cal.4th 822, 859, Judge Riemer held he was not required to consider the implicitly vacated findings of the judges who had earlier ruled on the application. Furthermore, he found that “any attempt to do so would be inconsistent with this Court’s duty to conductits own independentreview of the evidence.” (1 CT 88.) B. The ApplicableLaw For the purposeofresolving the issues presented here, this Court’s summary. of the relevant legal principles in People v. Burgener (2003) 29 Cal.4th 833 (“Burgener III’) generally covers muchofthe ground: The task of a judge under section 190.4, subdivision (e) is to review the evidence and, guided by the aggravating and mitigating circumstancesset forth in section 190.3, make a determination whetherthe jury’s decision that the aggravating circumstances outweigh the mitigating circumstancesis contrary to law or the evidence presented. The evidence presented, of course, refers to “the evidence presented to the jury.” (People v. Lewis (1990) 50 Cal.3d 262, 287, 266 Cal.Rptr. 834, 786 P.2d 892 [improper to consider probation report]; People v. Lang (1989) 49 Cal.3d 991, 1044, 264 Cal.Rptr. 386, 782 P.2d 627 [“thetrial court is prohibited by 7 (...continued) Modification Motion (2nd Death Verdict) 38-44). Appellant requests that this Court take judicial notice of these pleadings, which are part of the record in People v. Burgener (2003) 29 Cal.4th 833 (“BurgenerIII”). (Evid. Code, §§ 451, subd. (f); 452, subd. (d), (g) and (h); 459.) Judge Mortland’s findings will be discussed at greater length in subsection (C) of this argument, post. In brief, as they were described in the opinion of the court of appeal in People v. Burgener (1990) 223 Cal.App.3d 427 (“Burgener IT’), Judge Mortland characterized the evidence of appellant’s guilt as “somewhat equivocal” and the testimony of the prosecution’s two “prime witnesses” (Nora England and Joseph DeYoung) “crucial . . . to [appellant’s] conviction,” but sufficiently suspect to support a lingering doubt of appellant’s guilt. (Burgener II, supra, 223 Cal.App.3d at pp. 430- 432.) 38 statute from considering, when ruling on the modification motion, any evidence not presented to the jury during the trial”; People v. Burgener, supra, 223 Cal.App.3d at p. 435, fn. 3, 272 Cal.Rptr. 830.) (Burgener IIT, supra, 29 Cal.4th at pp. 888-889, fn. omitted.) Judge Riemercorrectly identified this Court’s decision in People v. Lewis, supra, 33 Cal.4th 214, as stating the law applicable to the jurist placed in the difficult position in which he wasthrust, i.e., necessity required that such a jurist determine witness credibility “as best he... can from the written record.” (People v. Lewis, supra, 33 Cal.4th at p. 226.) However,in fulfilling its obligation to make ruling after reweighing the evidence and making an independent determination whether the weight of the evidence supported the death verdict, the trial court is not bound to adopt the views“on subsidiary issues” of the judge who previously heard the section 190.4, subdivision (e), application, whether expressedat the initial hearing or at any time thereafter. (Burgener III, supra, 29 Cal.4th at p. 889.) | Finally, this Court assessestrial court error in the improper consideration of evidenceat a section 190.4, subdivision (e), proceeding in which the automatic motion for modification of the death verdict is denied underthe “reasonable possibility”test, i.e., is there a reasonable possibility the error affected thetrial court’s decision. (People v. Hernandez (1988) 47 Cal.3d 315, 373-374; People v. Heishman (1988) 45 Cal.3d 147, 201; see People v. Crew (1991) 1 Cal.App.4th 1591, 1605-1606.) Thistest is a variation of the Chapman (Chapmanv. California (1967) 386 U.S. 18) ~ harmless-beyond-a-reasonable-doubt test. (People v. Crew, supra, | Cal.App.4th at pp. 1605-1606.) // 39 C. Consideration Of Judge Mortland’s Findings Would Not Have Been Inconsistent With Judge Riemer’s Duty To Conduct An Independent Review While Judge Riemer was not boundby the factual findings made by Judge Mortland, the judge whofirst ruled on the relevant section 190.4, subdivision (e), application in this case, 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. In virtually every other context or setting where a reviewing court is called upon to make a decision heavily based on witness credibility and demeanor, such reviewing courts accord great deference to the fact-finder who was“on the scene” (see Oregon v. Kennedy (1982) 456 U.S. 667, 676, fn. 7) and thus able to see and hearthe witnesses’ live testimony. Ata minimum, such reviewing courts forthrightly recognize how ill-suited they are to conduct “independent review”of credibility determinations. (See, e.g., People v. Solomon (2010) 49 Cal.4th 792, 835 [“Thetrial court and counsel are in a far superior position to evaluate a prospective juror’s demeanorand its significance. A speculative argument, made yearsafter the fact, and based solely on a cold record, is merely an exercise in revisionist history”); Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 798 [trial court “is in the best position to assess the credibility of the witnesses”]; accord, People v. Partida (2005) 37 Cal.4th 428, 447 (conc. & dis. opn., Baxter, J., and cases collected therein).) Indeed, for Eighth Amendmentreliability purposes, the singular importance ofthe ability of the judge who presided at the penalty phase of a capital trial to evaluate the correctness ofa jury’s death verdict on the basis of his or her independent evaluation of the weight of the evidence has been recognized by this Court: 40 Onits face, section 190.4(e) plainly gives the determination of an application for modification of the verdict of death to the trialjudge andthe trialjudge alone — not to any judge and certainly not to an appellate justice or an appellate court. The reason forthis is evident: the Constitution imposes a requirement of heightenedreliability for a verdict of death; only thetrial judge has had the opportunity to observe the defendant and the demeanorofthe witnesses; therefore, it is only that judge who can make a constitutionally adequate determination as to whether the defendant should be sentenced to death in accordance with the verdict. (People v. Allison (1989) 48 Cal.3d 879, 917-918 (conc. & dis. opn., Mosk, J.), originalitalics.) As appellant will demonstrate, while Judge Riemer wasright to forego the People’s invitation to consider Judge McFarland’s findings, he was wrong in failing to consider Judge Mortland’s findings. It borders on the facetious to continue to maintain the position, as did the People below, that Judge McFarland’s factual findings could be considered,“tit for tat,” in the event that Judge Riemer decided to consider Judge Mortland’s findings. The critical difference between those twosets of findings is that Judge McFarland’s findings were madeat a section 190.4, subdivision (e), hearing following the jury’s original death verdict in this case. That verdict followed a completely different penalty trial than the one under review by Judge Riemer. Judge Riemer was tasked with _reviewing the penalty retrial over which Judge Mortland had presided and where Judge Mortland’s findings had been made; not the proceedings before Judge McFarland. On the other hand, sound reasons existed for Judge Riemerto consider Judge Mortland’s findings. In People v. Lewis, supra, 33 Cal.4th 214, this Court held that necessity required that a substitute section 190.4, 4] subdivision (e), judge evaluate witness credibility from the written record “as best he or she can.” (People v. Lewis, supra, 33 Cal.4th at p. 226.) It would be anomalous indeed to deprive the judge, asked to perform such a daunting task, of a readily available tool such as the written findingsofthe trial judge who wasideally situated to maketherulinginthe first instance, and especially so where section 190.4, subdivision (e), acts as one ofthe key “checks on arbitrariness” in California’s death penalty scheme. (See Pulley v. Harris (1984) 465 U.S. 37, 51-53.) The irony would be great if the zealto protect appellant’s right to independent review bythe substitute judge in this case resulted in less, rather than more,reliability, especially where appellant bears no fault for the circumstances which made Judge Mortland unavailable to hear the section 190.4, subdivision (e), application following the People’s successful appeal in Burgener II, supra, 223 Cal.App.3d 427. Justice Werdegar’s observations in a civil case are particularly relevant here: Our assessmentof reprehensibility in this contextis undertaken de novo,or independently, in that we do not defer to findings implied from the jury’s award. [Citation.] Makingsuch culpability assessments independently on the basis of a detailed factual record is, to say the least, an unusualtask for an appellate court. While appellate judges commonly use their own judgments of comparative culpability to formulate general rules for categories of factual situations, their appraisal of the facts in a particular caseis usually directed at deciding whether the evidence supports a finding made by the jury or thetrial court. Moreover, an — appellate court, relying on a cold record rather than hearing the testimony live, is not as well situated as the jury ortrial court to make a fine-tuned culpability judgment about conduct that has been the subject ofa trial. While some form of independent assessment is necessary to the constitutional 42 review weare required to conduct,therefore, it should be performed modestly and with caution. . (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 720-721 (conc. & dis. opn., Werdegar, J.).) There can be no disagreementthat Judge Mortland was the judge best suited to hear the section 190.4, subdivision (e), application, assuming his availability. (Burgener IT, supra, 223 Cal.App.3d at p. 436; People v. Crew, supra, | Cal.App.4th at p. 1608, fn. 13.) Indeed, although this Court has declined to accept his view,in People v. Allison, supra, 48 Cal.3d 879, Justice Moskposited that only the trial judge who presided overthe penalty phaseis constitutionally entitled to rehear a section 190.4, subdivision (¢), application, and in the eventof that judge’s unavailability, the only permissible remedy is a reduction of the death sentence to life imprisonment without possibility of parole or a full penalty retrial - remedies the Allison majority did not consider. (People v. Allison, supra, 48 Cal.3d at pp. 917- 918 (conc. & dis. opn., Mosk, J.).) Proceeding with modesty and caution, as Justice Werdegar counseled, would suggest that it was appropriate and indeed advisable for Judge Riemerto at least consider Judge Mortland’s factual findings. In no meaningful way would such consideration be incompatible or inconsistent with Judge Riemer’s ultimate responsibility to conduct an independent review. After all, as this Court’s jurisprudence dictates, the last call was Judge Riemer’s to make, but no good reason appears to deprive him ofthe eyes and ears of Judge Mortland, who waspresent at the critical time of trial. To the contrary, to the extent that Judge Riemer wasable to avail . himself of those findings, the accuracy of his determination waslikely tobe enhanced. That check on arbitrariness, after all, was the underlying purpose 43 of the section 190.4, subdivision (e), proceedingitself. Consequently, Judge Riemer went too far when he unnecessarily precluded himself from even considering Judge Mortland’s findings. D. The Error Was Prejudicial The error was prejudicial under the applicable “reasonable possibility”test. Judge Riemer acknowledged that the focus of the defense at the penalty retrial was “on evidence that was offered to suggest the possibility that the defendant wasnot guilty of the crime.” (1 CT 92.) As this Court has recognized, such a theory of lingering doubt may have special resonanceas a mitigating factor in deciding which punishmentis appropriate: Indeed, the nature of the jury’s function in fixing punishment underscores the importance of permitting to the - defendant theopportunity of presenting his claim of innocence. The jury’s task, like the historian’s, must be to discover and evaluate events that have faded into the past, and no human mind can perform that function with certainty. Judges and juries must time and again reach decisionsthat are not free from doubt; only the most fatuous would claim the adjudication of guilt to be infallible. The lingering doubts of jurors in the guilt phase may well cast their shadowsintothe penalty phase and in some measureaffect the nature of the punishment. (People v. Terry (1964) 61 Cal.2d 137, 146.) Thisis all the more so ina case in which the jury which decided the penalty was not the same jury that had found appellant guilty. (People v. Gay (2008) 42 Cal.4th 1195, 1218- 19.) In his findings, Judge Riemer gave credence to the defense made at the penalty retrial — that Nola England wasnota credible witness and that the significance of a presumptive blood test on appellant’s shoes “was 44 < greatly overstated.” On the other hand, while acknowledging the possibility that appellant was framed by Joseph DeYoung, Judge Riemerdid notfind that the weight of the evidence supported that possibility as beingrealistic. He found the evidence of guilt, while circumstantial, compelling and any lingering doubt of appellant’s guilt insufficient to mitigate against a death sentence. (1 CT 92.) In Burgener II, supra, 29 Cal.4th 833, this Court set forth in detail the evidence presented at the penalty retrial. A fair reading of that evidence highlights the essential role the testimony of England and DeYoungplayed in establishing that it was appellant who wastheprincipalin killing Arias. DeYoung, who competed with appellant for England’s affections, had been told by England that appellant had robbed and killed Arias with a gun previously owned by DeYoung. DeYoung, a drug addict and habitual informant, conveyed this information to Detective Harding, and they formulated a plan for DeYoung to meet with appellant and Englandto get his gun back. When appellant and Englandarrived for the meeting, they weregreeted by the police instead of DeYoung and appellant was arrested in possession of DeYoung’s gun. (BurgenerLI, supra, 29 Cal.4th at pp. 848-851.) Onthe other hand, the circumstantial evidence connecting appellant to the crime was described in mostly equivocal terms. For example, the : witness who saw a lone person leaving the 7-Eleven store where Arias was shot described him as a white male with shoulder-length, curly brownhair and wearing a cowboy hat. Whenarrested approximately 12 hoursafter the crime, appellant had “long, curly brown hair” and was wearing a cowboy hat“that looked like the hat” seen by the witness. (Burgener III, supra, 29, Cal.4th at pp. 847-848.) Arias had been shot with a .22-caliber weapon, and 45 whenarrested, appellant was in possession of a .22-caliber handgun. Forensic testing of expended bullets and bullet fragments allowedthat these items “could have come from” the handgun found in appellant’s possession. (Id. at p. 848.) Thesole of appellant’s left shoe produced a weak presumptive test result for the presence ofblood, but there was “insufficient material to perform any othertest to confirm the substance as blood.” (Ibid.) A crumpled 7-Eleven bag with two $5 bills stuck in the wrinkles was found in England’s apartment where appellant had spentthe night. (Ibid.) Four dayslater, a small bag of .22-caliber bullets was foundat a common bathroom at the apartment complex where Englandlived; these bullets “matched the bullet fragments recovered from Arias’s bodyin their elemental composition and could have come from the same melt of lead.” (Ibid.) In light of the above,it is difficult to reconcile Judge Riemer’s conclusion that the evidence of guilt was compelling with Judge Mortland’s findings that the same evidence was somewhat equivocal (Burgener LI, supra, 223 Cal.App.3d at page 430). With respect to England and DeYoung, Judge Mortland observed: “I'm not thrilled with the prosecution witnesses.” (5 CT 1424.)® The record amply supports Judge Mortland’s distrust of the evidence given by England and DeYoung. It cannot be denied that there was substantial evidence that DeYoung had both a motive and the opportunity to frame appellant. DeYoung admittedthat he was jealous of appellant’s relationship with England, the gun connectedto Arias’s killing had belonged to DeYoung, DeYoung was a drug user and an ® The citation is to Volume 5 of the Clerk’s Transcript in Burgener ITI, supra, 29 Cal.4th 833. In footnote 7, ante, appellant requestedthatthis Court take judicial notice of the record in Burgener il. 46 informant who was constantly in trouble with the law and had provided information to the police on previous occasions to barter his way out of legal trouble, and he received $10, 000 from the company which owned the 7-Eleven store where Arias had been killed. (Burgener III, supra, 29 Cal.4th at pp. 848-851.) Onthe basis of the foregoing evidence, it cannotbe said that had Judge Riemertaken into account Judge Mortland’s “on the scene” assessmentofthe credibility of the twowitnesses essential to a conclusion that appellant was guilty of the capital crime, there is no reasonable possibility his decision would have changed. Thisis all the more so because Judge Riemer found other mitigating evidence credible under section 190.3, factors (d) and (h), as well as what he considered to be the non-statutory mitigating factor that appellant experienced a traumatic childhood in a dysfunctional family in which he was often scapegoated and unjustly punished byhis siblings and parents. (1 CT 90-92.) Forthis reason, the death judgment mustbe reversed and the matter returned to the superior court for reconsideration of the section 190.4, subdivision (¢), application. (People v. Lewis (1990) 50 Cal.3d 262, 287; cf. People v. Wader (1993) 5 Cal.4th 610, 666-667; see also People v. Crew, supra, | Cal.App.4th at pp. 1605-1606; Burgener LI, supra, 223 Cal.App.3d at p. 435.) // 47 CONCLUSION Because appellant was erroneously permitted to represent himselfat the section 190.4, subdivision (e), proceedings, and becausethe trial court believed itself unauthorized to consider the previous credibility findings of the judge whopresidedat the penalty retrial, the death judgment must be reversed and the matter remanded for proceedings undersection 190.4, subdivision (e). Respectfully submitted, MICHAEL J. HERSEK State Public Defender CfOACS HARRY GRUBER Senior Deputy State Public Defender Attorneys for Appellant 48 _ CERTIFICATE OF COUNSEL (CAL. RULES OF COURT, RULE 8.630(b)(2)) I, Harry Gruber, am the Senior Deputy State Public Defender assigned to represent appellant, Michael Ray Burgener,in this automatic appeal. I directed a memberofourstaff to conduct a word countofthis brief using our office’s computer software. On the basis of that computer- generated word countI certify that this brief is 13,832 wordsin length, excluding the tables and certificate. Dated: March 22, 2012 Mbbk. Harry Gruber 49 DECLARATION OF SERVICE Re: People v. Burgener No. $179181 I, Neva Wandersee, declare that I am over 18 years of age, and not a party to the within cause; that my business address is 221 Main Street, 10th Floor, San Francisco, California, 94105; that I served a true copy of the attached: APPELLANT’S OPENING BRIEF on each of the following, by placing same in an envelope addressed respectively asfollows: Office of the Attorney General Riverside Co. District Attorney Attn: Lilia Garcia, DAG 3960 Orange Street P.O. Box 85266 Riverside, CA 92501 110 W. “A”Street, Ste. 1100 San Diego, CA 92186-5266 Hon. Craig G. Riemer Michael Ray Burgener Riverside County Superior Court (Appellant) 4100 Main Street, Dept. 45 Riverside, CA 92501 Each said envelope was then, on March 22, 2012, sealed and deposited in the United States mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare under penalty of perjury that the foregoing is true and correct. . Signed on March 22, 2012,at San Francisco, California. DECLARANT “~OREME COURT COP COPY AMENDED DECLARATION OF SERVICE Re: People v. Burgener No. $179181 I, Neva Wandersee, declare that I am over 18 years of age, and not party to the within cause; that my business address is 221 Main Street, 10th Floor, San Francisco, California, 94105; that I served a true copy ofthe attached: APPELLANT’S OPENING BRIEF on each ofthe following, by placing same in an envelope addressedres cri follows: SUFREME GOURT FILED Michael RayBurgener MAR 2 2 2012 P.O. Box B-26952 San Quentin State Prison San Quentin, CA 94974 Erederick K. Ohirich Cierk ~~Beputy Each said envelope wasthen, on March 22, 2012, sealed and deposited in the United States mail at San Francisco, California, the county in which I am employed, with the postage thereon fully prepaid. I declare underpenalty of perjury that the foregoing is true and correct. Signed on March 22, 2012, at San Fran¢isco, California. DECLARANT