PEOPLE v. BURGENER (MICHAEL RAY)Respondent’s BriefCal.July 18, 2012 _ SUPREME COURT COPY Jn the Supreme Court of the State of California ‘THE PEOPLE OF THE STATE OF CAPITAL CASE CALIFORNIA, | Case No. $179181__ Plaintiff and Respondent, EILED Vv. MICHAEL RAY BURGENER, JUL 18 2012 Defendant and Appellant. Frank A. McGuire Clerk i, . ; Deputy Riverside County Superior Court Case No. CR18088 Honorable Craig G. Riemer, Judge RESPONDENT?’S BRIEF KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L, GARLAND. Senior Assistant Attorney General HOLLY D. WILKENS Supervising Deputy Attorney General ROBIN URBANSKI Deputy Attorney General State Bar No. 228485 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 San Diego, CA 92186-5266 Telephone: (619) 645-2230 Fax: (619) 645-2271 Email: Robin.Urbanski@doj.ca.gov Attorneys for Plaintiffand Respondent DEATH PENALTY TABLE OF CONTENTS | Page Statement of the Case...cesseeesereeereeteeeens seeceeeeesaeeeceseecetesenstesateesenss l Statement Of Facts .....cccccccsssesscscsesssececscseseteneeseecseseneesessaciecseeeeeeesereneneeenenee 3 ATQUMENL 00. ee eseseeseteteenetetetecseaeteeeeeesenenerereeeeensersesseneneteeseenesanseereneseeeesriey 5 I. As Burgener knowingly and intelligently waived his right to counsel after a thorough advisementof the risks inherent with self-representation, the trial court properly granted his request to represent himself at the section 190.4, subdivision (€) hearing ..........ccecseeeeeseeeneeees 5 A, The Sixth Amendmentright to self- representation extends to Penal Codesection 190.4, subdivision (e) proceedings ...........cceeeeeeeteenes 6 B. Burgener’s waiver of counsel was unequivocal....... 1] C. Burgener waivedhis right to counsel following thorough advisement from thetrial court regarding the risks associated with his decision....... 16 D. Anyalleged deficiencies in the warning regarding the dangers of self-representation are subject to harmless error analysis and not TeVErSIDle PEL SC... secesescseseeseteteeseseerseeereesessreseeeeeees 21 Il. In denying the automatic motion to modify the death judgment, thetrial court properly reviewed the penalty . phaseretrial evidence and wasnot required to consider theprior factual findings of the judge whoruled on a PTEVIOUS MOTION 0.00... cceecesssceesecceseeeseeceseeesseeeeseesensesensaees 23 ' A. Burgenerhasforfeited his claim; thetrial court was not required to consider the factual findings of any judge whohad previously ruled on the motion to modify the death judgment........0........08 26 B, There is no reasonable probability that had Judge Riemer considered Judge Mortland’s prior factual findings he would have granted the motion to modify the death verdict...ccc 34 Conclusion bestuceeseceeceaususesusceuscauucuscessssecesccesesesseueeasacauausuausaaensueseseseceesescsceece 39 TABLE OF AUTHORITIES Page CASES Chapman vy, California (1967) 386 US. 18 386 U.S. 824 17 L.Ed.2d 705ceeeesectseneeeecneseeeeeeeesLasenseeseesseeseeenevacenseesaeraeenseees21 Farettavy, California (1975) 422 U.S.806 45 L.Ed.2d 562 95 S.Ct. 2525 Leececcesseeceneneesseeesneesnetevsneeennersracecsieeesateeseeeeenees passim Gideon v. Wainwright, (1963) 372 US. 335 oeeseeeseseertenerterseseseeeseseesseseaesseeseesrensenseens 21 Martinez v. Court ofAppeal of California, Fourth Appellate District” (2000) 528 U.S. 152 : . 120 S.Ct. 684 145 L.Ed.2d 597 ooo. ceccccceseeseeseenseseenecseeeseceeecaeeneeseesaesenesaeereeeniensi 8 McKaskle v. Wiggins (1984) 465 U.S. 168 104 S.Ct. 944 79 L.Ed.2d 122 oe iiecesceescsesseseesecneeseseeessecnseneeessseessersecnscneseesserses 10 Patterson v. Illinois (1988) 487 U.S. 285 vo ceccccccsecssecssecsscsseseteessesceeeecseecsreesnresteeteaeeaes 19 People v. Beeler 1995) 9 Cal.4th 953 ooo ssceeseeseseesereseeeeeteceneesenterseetinesseessneeneeees 30( People v. Blair (2005) 36 Cal4th 686.00.cseceecteersseeseensesseseteeeeseeenees 7, 8,9 People v. Bloom (1989) 48 Cal.3d 1194.ceccssecseecteccneeseeesseesseesseeeraeesinessseetseeeses 13 li People v. Bradford (1997) 15 Cal.4th 1229ieccssesnecseesseenaeenrersesseenssecaeeneeeeeatens 7, 14 Peoplev. Brown (1993) 6 Cal.4th 322ccceeecsenecneseceeseeeseesessesenesscenesesiensseees 30 People v. Burgener (1986) 41 Cal.3d 505 vcevsecesssssvesssessssesvessssssseseueseassseveeessessssenesssen 1, 33 People v. Burgener (1990) 223 Cal.App.3d 427 o.iccesecccsescesssesseeneesneecessereeetevarenteees 1,37 People v. Burgene (“BurgenerIII”) (2003) 29 Cal.4th 833... ccceesesesessetetesererecetsessseseerssenssenseesens passim People v. Burgener (“Burgener IV’) (2009) 46 Cal.4th 231...eecee eeeeeeeseeesenessesenenesesenenesenenss passim People v. Carasi (2008) 44 Cal.4th 1263cc ccccccesscsccsesesesseseeeeneecsesneenecenecneeieseeessns 26 People v. Crew (2003) 31 Cal.4th 822.........Seeveeseneeetneeestaeeessdaneevnneeeseeeenseetneees 25, 27, 28 People v. Danks (2004) 32 Cal.4th 269.0... cceccescccsseseesseecssceesseessrserseessaeeens 11, 12,15 People v. Edwards (1991) 54 Cal.3d 787 oo. ceccccessseencessecsseceseeesecceseseseserscsseevsessneseeeeens 30 People v. Elliott (2012) 53 Cal4th 535 oo icccccsccsecessessessseesecnsecsesseesseceeessessecseseeeesaeenes 7 People vy. Frierson (1979) 25 Cal.3d 142ecccceeesecseeetecnsecseesseesesessesecsenseseeneens wa LO People v. Halvorson. (2007) 42 Cal.4th 379... cccccceesesereneesdesecueeaeeseuseeaeecarsaeeseeseeneeeas 19 People v. Koontz (2002) 27 Cal4th 104] ooeccecssssseseesesnsessssessessessesstesecaseres 19, 20 People.v, Lewis (2004) 33 Cal.4th 214...cecereneeersreeseecsnessseenesseneescaens. passim ili People v. Marsden (1970) 2 Cal.3d 118.0...seneaetesesesesesesesssesssesesessasseseseseaesesenateeeeaeass 12 People v. Marshall (1997) 15 Cal. 4th Loeeeeenesseeecessessevseeeecseeaeeeessessansatensensens 10 People v. Mayfield (1997) 14 Cal.4th 688 ooo ecccsessceecnseeceeeesseesessecnessseeeeseeeseraeenes 7 People v. Ramirez (1990) 50 Cal.3d 1158ceeccccesssscetessssseessecescsessessseenecsneseneeeatens 34 People v. Riggs (2008) 44 Cal.4th 248oeccccccesseseesseseeeeeeessesesescnecsateseessesneteeneeees 6 People v. Sheldon (1994) 7 Cal.4th 1136... eccscseenceesterseeeeseneceeecieeaeeneeenesteeneeees 33 People v. Stanley (2006) 39 Cal.4th 913occecsseessesecseteesseceesessectesesteeseeeenrenes 11 People v. Taylor (2009) 47 Cal.4th 850.ecececsessestseeceeeseeteeseeneensensaneeseeennersateene 13 People v. Whitt . (1990) 51 Cal.3d 620... ccceccescesessecsesesestecseecersseeceeeaecsseeeaeebaeeneens 34 Pulley v. Harris (1984) 465 U.S. 37 79 L.Ed.2d 29 104 S.Ct. 871eeeceeeeecneessesecneceeneeraeteseteneneeeasveevaneeenaeesseeteateeaes 9 Rushen v. Spain (1983) 464 U.S. 114 104 S.Ct. 453 78 L.Ed.2d 267 .occccccccccccccccsesscssscsceccussesssssssscesccescalesceseesseceseseeeeesea 21 iV STATUTES Penal Code § 187 ieeesecsseccsterssseesseecsseeessseecssesesssesseneeessetersteesdeeeeeseeeeseseeeeesnneeesags 1 § 189eeeccseccsssccsseesseeceseecessceesseecesecessseeseesseteceeseeseeeeeseessaeeesetessaes 1 § 190.2 ieee ccccssccsseessseesseecessecceseeessetesseeeeseesesseseseeesseeetnaesssesesteeeennees I § 190.3, SUD. (8)... eesccsseccsscecesecessreessaeseseeesstesesseessneetsessnsesseeeersnes 35 § 190.3, SUD. (dG) ne cceesccsssessecsteecsseetecceseessesssecceessersesucesesesesereenes 35 § 190.3, SUDA. (€) occ eeescccsssecceseeessnecetsesenseeesecsesseesensesssssesseessseetenes 35 § 190.3, SUD. (2)... cccceseceetstecsneeeneetsaetseeesseevsesceeesieeeeneesnesireseeenes 35. § 190.3, subd. (I)... ececcccesseesssecesseecsseeeesseccseeeesseesessesstueseseeesteseeness 36 § 190.3, SUD. (1)... cececessccesseccesseccsssecseeeensaeseseeceseeessseeesresetseecsieensase 36 $190.3, SUDA. (j) occ eecsccsseccessecesseecsseesscecesseesssscesseseeseeecsseseateesaeeenas 36 § 190.4, Subd. (€) oo. ceeecessccessecceseccessecesaeeesseeceseeceseeessseeetsesensesens passim SQL icccccescsscscsscsesnsavsvsecscsvessesscsvscsocsvsesesecsvsseresvssssveveusassesaeaveseeeees 1 § 1239, SU. (b) oo... cece cecsscccssseessseecsseeeessesesssesseececseeecateessseseseeesseeeeses 1 § 1368 veecesecsecstecssecssecssseterseesavessssesssesssesseesseesasessseesserssesasernecens 12 SLQO21eeeeccscsessecsssesseeeeesseccsseecsssessssesenscesesteecenescsaeeessteceteesisesenstes 1 § 120225 ie ecccccsceceeseccssseeeesnseeceeesnseeecesacecsesseceeersesseateeeeeatessesateseees 1 § 2022.7 oe eeccccesseccsscceessecerscssseseersneesesbeeueeeeeeesaeeessseesaeeeseesseeeeteeeeses 1 CONSTITUTIONAL PROVISIONS United State Constitution Sixth Amendment.....cccccccsscsssseceessessesseceesstsesesseeseeereaeenseeseeees passim Eighth Amendment..0.......ccceeccssessessesseessesseeeessecasesseeaeensteaeensevseesees 33 STATEMENTOF THE CASE On August 18, 1981, a Riverside County jury convicted Michael Ray Burgeneroffirst degree murder by use of a firearm (Pen. Code, §§ 187, 189, 12022.5), robbery by use of a firearm and with the infliction of great bodily injury (Pen. Code §§ 211, 12022.5, 12022.7), and being a felon in possession of a firearm (Pen. Code, § 12021). The jury also found true the special circumstance that Burgener committed the murder during the course of a robbery. (Pen. Code, § 190.2, former subd. (a)(17)@) [now § 190.2, subd(a)(17)(A)].) (1981 CT 190-196, 200-205.) On August 24, 1981, the jury returned a death verdict (1981 CT 314, 315), and thetrial court sentenced Burgenerto death on September4, 1981 (1981 CT 341- 343). Burgener’s automatic appeal followed. (Pen. Code, §1239, subd. (b).) . On March 27, 1986, this Court affirmed the guilt and special circumstance verdicts, but reversed the penalty judgmenton the grounds that trial counsel, pursuant to Burgener’s instructions, presented no mitigating evidence or argument at the penalty phase. (People v, Burgener (1986) 41 Cal.3d 505, 542-543.) The case was remandedto the superior -court for a second penalty phasetrial. (Jbid.) In 1988, the jury at the penalty phase retrial again returned a verdict of death. (1988 4CT 1061; 1988; 59 RT 7615.) However,thetrial judge granted Burgener’s motion to modify the verdict under Penal Code section 190.4, subdivision (e), and sentenced Burgenerto life without the possibilityof parole. (1988 SCT 1424; 60 RT 7734, 7752-7753.) The Court of Appeal reversed, finding thetrial court had considered improper. factors in reducing the death verdict and remandedthe case to allow the trial court “to reconsider and rule upon the motion in accordance with the factors listed in Penal Code section 190.4, subdivision (e), and 190.3 and no others.” (People v. Burgener (1990) 223 Cal.App.3d 427, 430, 435.) On remandthe case wasreassigned to Judge Heumann becausethe trial judge who had presided overthe penalty phase retrial, Judge Mortland, had retired. (People v. Burgener (2003) 29 Cal.4th 833, 886 (“Burgener HP’).) On March 29, 1991, Judge Heumann denied Burgener’s motion to modify the jury's death verdict. (/bid.) On January 3, 1992, Judge Heumann imposed a sentence of death, and denied Burgener’s motion for a new trial. (1992 SCT 262, 267-268; SRT 76, 99, 102.) On January 27, 2003, this Court vacated the penalty verdict based on its finding that the trial court had applied the wrong standard of review in ruling on the modification motion under Penal Code section 190.4, subdivision (e). (Burgener III, supra, 29 Cal.4th at p. 893.) This Court remandedthe case for a new hearingto allow thetrial judge to reconsider the motion to modify the verdict under the correct standard of review. ([bid.) On remand, Judge Heumann granted Burgener’s request to represent himself on the motion to modifythe death verdict. (Peoplev. Burgener (2009) 46 Cal.4th 231, 235 (“Burgener IV’.) On November7, 2003, the trial court denied the motion. (bid.) | Following this denial of the automatic motion to modify the verdict, this Court found that the record was insufficient to determine that Burgener had knowinglyandintelligently waived his right to counsel asthetrial | court’s explanation ofthe risks of self-representation was deficient. (BurgenerIV, supra, 46 Cal.4th at pp. 234, 243.) On May 7, 2009,this Court vacated the judgmentof death and remanded the matter to thetrial court for reconsideration of Burgener’s request for self-representation and the automatic motion to modify the death verdict. (Ud. at pp. 245-246.) On this latest remand, Judge Craig G. Riemer again granted Burgener’s request to represent himself on August 28, 2009 (1 RT 21-22), and denied the automatic motion tomodify the death verdict pursuant to Penal Code section 190.4, subdivision (e) on December.11, 2009 (1 RT 42, 44; 1 CT 83-92.) Burgener’s instant appeal is “limited to issues related to the modification application.” (Burgener IV, supra, 46 Cal.4th at p. 231.) STATEMENT OF FACTS The automatic motion to modify the death verdict required thetrial court to consider and evaluate evidence presented at Burgener’s penalty phaseretrial. At the retrial, the prosecutor’s case-in-chief included an abbreviated version of the guilt phase evidence describing the circumstances of the murder and robbery. This Court summarized the penalty retrial evidence in BurgenerIIT: Shortly after 4:00 a.m. on October 31, 1980, Christine Boyd stopped by the 7-Eleven on Rutland Avenue in Riverside for her morning cup of coffee on her way to work. From hercar, she noticed the store’s clerk, William Arias, was not behind the counter. A White male with shoulder length, curly brown hair and wearing a cowboyhatleft the store with a paper sack. Boyd entered the store to find Arias “all bloody.” She called the police. Riverside Police Officer Gregg Dunn arrived at 4:14 a.m. Arias told the officer, “He shot me. He shot me fourorfive times, in the face, in the stomachandin the back,” then began to lose consciousness. Around $50 was missing from the cash register. Arias died from loss of blood caused by bullet wounds. He had been shot five times with a .22-caliberweapon. Gunpowder residue on his face indicated he had been shot from a distance of about 12 inches. He had no offensive or defensive wounds. When [Burgener] was arrested approximately 12 hourslater, he had long, curly brown hair and was wearing a cowboyhatthat looked like the hat Boyd had seen on the manleaving the 7- Eleven store. He also had a .22-caliber handgun. According to the criminalist, expended bullets and bullet fragments recovered from the crime scene could have come from [Burgener’s] weapon. Thesole of [Burgener’s] left shoe produced a weak positive under a hemastix test, which is used- as a presumptive test to detect the presence of blood. There was insufficient material to perform anyother test to confirm the substance as blood. A crumpled 7-Eleven paper bag with two $5 bills stuck in the wrinkles was foundin the trash can at the apartment where [Burgener] had spent the night.. A small bag of .22 caliber ammunition was found in the commonbathroom at the apartment complex four days later. This cache ofbullets. matched the bullet fragments recovered from Arias’s body in their elemental composition and could have come from the same melt oflead. (BurgenerITT, supra, 29 Cal.4th at pp. 847-848.) The prosecution also presented evidence of Burgener’s prior convictions for robbery, attempted grandtheft, attempted murder, and battery on a correctional officer. (Burgener ITT, supra, 29 Cal.4th at pp. 851-852.) In addition, the prosecution introduced evidence of prior criminal acts involving force or violence committed by Burgener while in prison. (/bid.) Burgenerpresented evidencein an effort to establish lingering doubt. He denied committing the crimes and claimed that his former girlfriend, Nola England, and prosecution witness Joseph DeYoung had framed him for Arias’s murder. (Burgener IIT, supra, 29 Cal.4th at pp. 848- 851.) Other mitigating evidence presented by Burgener included evidence of his family backgroundand childhood,consisting of physical abuse, ‘alcoholism, and financial hardship. (/d. at pp. 853-855.) Burgener spent mostof his adult life in prison. Less than three months after being released from prison, he committed the instant crimes. .(/d. at p. 854.) At age 10, Burgener was placed in a homefor boys and received | psychiatric care. Accordingly to psychiatrist Lorna Forbes, Burgener suffered from attention deficit disorder and at age 7 wasreferred to a mental health center. Dr..Forbes further opined that Burgener was suffering from an adjustment disorder with depressed moodandantisocial personality disorder, characterized as “extreme” becauseofsevere abuse he - suffered as a child and his multiple incarcerations. She also believed, that as a result of his experiences, Burgener haddeveloped a paranoid viewof the world. Burgener expressed remorse to Dr. Forbesfor the crimeshe committed, but claimed he had been “set up” for the current offenses. (Burgener IIT, supra, 29 Cal.4th at pp. 853-855.) ARGUMENT I ASBURGENER KNOWINGLY AND INTELLIGENTLY WAIVED HIS RIGHT TO COUNSEL AFTER A THOROUGH ADVISEMENT OF THE RISKS INHERENT WITH SELF-REPRESENTATION,THE TRIAL COURT PROPERLY GRANTED HIS REQUEST TO REPRESENT HIMSELF.AT THE SECTION190.4, SUBDIVISION (E) HEARING Burgener contendsthatthe trial court erred in granting his request to represent himself at the Penal Code section 190.4, subdivision (e) . proceedings because his request wasallegedly equivocal and purportedly his decision was made withoutbeingsufficiently advised of the dangers associated with self-representation. He further suggests that the court improperly granted him pro se status as he had nostatutory or constitutional right to self-representation at the hearing on the automatic motion to modify the death verdict, and because he supposedly made the decision out of “frustration” rather than an actual desire to waive his right to counsel. (AOB at 11.) Contrary to Burgener’s contentions,thetrial court properly granted him the constitutional right of self-representation at the section 190.4, subdivision (e) hearing. The record clearly demonstrates that Burgener accepted the responsibility knowingly andintelligently, following a thorough colloquy withthe trial court regarding the risks of exercising that right. A criminal defendant has a Sixth Amendmentright underthe United States Constitution to act as his own counsel and conduct his own defense so long as he knowingly and intelligently waives his right to the assistance of counsel. (Faretta v. California (1975) 422 U.S. 806, 835-936 [45 _ L.Ed.2d 562, 95 S.Ct. 2525] (Faretta);Burgener IV, supra, 46 Cal.4th at pp. 240-241.) A trial court has a duty to advise a criminal defendant of the dangersand disadvantages of self-representation such that the record makes clear “ * “he knows whatheis doing andhis choice is made with eyes open.” [Citation.]’” (Burgener IV, supra, 46 Cal.4th at p. 241, quoting Faretta, supra, 422 U.S. at p. 835.) There are no particular wordsor warningsa trial court must provide when faced with a defendant seeking self-representation. (Burgener IV, supra, 46 Cal.4th at p. 241, citing People v. Koontz (2002) 27 Cal.4th 1041, 1070.) Rather, the standard for a valid waiver of counsel is “whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of a particular case.” (BurgenerIV, supra, 46 Cal.4th at p. 241; People v. Riggs (2008) 44 Cal.4th 248, 276.) _ Onappeal, this Court must independently examine the proceedings below to determine whether Burgener knowingly andintelligently waived his right to counsel. (BurgenerIV, supra, 46 Cal.4th at p. 241, citing People v, Doolin (2009) 45 Cal.4th 390, 453.) A. The Sixth Amendment Right To Self-Representation Extends To Penal Code Section 190.4, Subdivision (e) Proceedings Burgeneralleges there is no constitutional or statutory right to self- representation at a hearing on an automatic motion to modify a death verdict pursuant to section 190.4, subdivision (e). He complains that without such a right, the trial court’s grant of self-representation was ani improper exercise of discretion. (AOBat 16-21.) Burgener’s contention is contrary to numerousdecisions by this Court, including this Court’s decision in BurgenerIV, recognizing the right to self-representation post- penalty verdict. ‘This Court has impliedly recognized the right to self-representation post-penalty verdict in several decisions. Most recently, in People v. Elliott (2012) 53 Cal.4th 535, 592, 593, this Court upheld the trial court’s granting the defendant pro se status where the defendant had been represented by counsel throughoutthe guilt and penalty phases, and wished to represent himself at the sentencing hearing. Additionally, in People v. Mayfield (1997) 14 Cal.4th 688, 810, this Court discussed the timeliness of a request for self-representation madeafter the jury had rendered'a death verdict, thus impliedly recognizing that such a right exists at that stage of a capital proceeding. Most importantly, this Court in this case impliedly approved the right to represent oneself at a section 190.4, subdivision (e) hearing, whenit reversed the death judgment basedon the inadequacyofthetrial court’s admonition regarding Burgener’s waiverofthe right to counsel. (Burgener IV, supra, 46 Cal.4th at pp. 241-242.) | Moreover,this Court addressed a similar argument in People v. Blair . (2005) 36 Cal.4th 686, where the defendant complainedthat the trial court violated his Sixth Amendment right to counsel by allowing him to represent himself at the penalty phase of his capitaltrial. (/d. at pp. 736-737.) After noting its consistent holdings that the Sixth Amendmentright of self- representation extends to the penalty phase (Id. at p. 737, citing People v. Koontz, supra, 27 Cal.4th at pp. 1073-1074; People v. Bradford (1997) 15 Cal.4th 1229, 1364- 1365) this Court explained that “the penalty phase of a capital case is merely a Stage in a unitary capital trial.” (People v. Blair, . supra, 36 Cal.4th at p. 737, internal quotation marks omitted.) A defendant’s autonomyinterests are no less compelling at the penalty phase oftrial than at the guilt phase. (Ud. at p. 738.) Likewise, a defendant’s autonomyinterest is no less compelling at the motion to modify the verdict renderedat the penalty phase. Like the defendantin Blair, Burgenerrelies on Martinez v. Courtof Appeal of California, Fourth Appellate District (2000) 528 U.S. 152 [120 S.Ct. 684; 145 L.Ed.2d 597] (Martinez), and claimsit showsthat the Sixth Amendmentright of self-representation does not extend to post-penalty verdict proceedings. (AOBat 16-17; see People v. Blair, supra, 36 Cal.4th at p. 737.) In Martinez, the United States Supreme Court held thatthe right to represent oneself is applicable only to the right to defend oneself attrial, and does not permit self-representation for purposes of appeal. (Martinez, supra, 528 U.S. at p. 154.) In so holding, the Court observed that the Sixth Amendmentitself speaksto trials, and does not include any right to appeal. (id. at pp. 159-160.) Accordingly, the ability to appeal is a statutory © creation. (/d. at p. 160.) And, at the appellate stage of criminal . proceedings the defendant’s status has “dramatically” changed. Cd.at p. 162.) He is no longer presumptively innocent, but rather has been convicted of a crime beyond a reasonable doubt. (/bid.) “[A]ppellate proceedings are simply not a case of ‘haling a personinto its criminal courts.’” (d. at p. 163, quoting Faretta, supra, 422 U.S. at p. 807; see also People v. Blair, supra, 36 Cal.4th at p. 737.) Burgenerclaims that based on the United States Supreme Court’s reasoning in Martinez, a criminal defendant’s Sixth Amendmentright to self-representation ceases at the moment the jury renders its death verdict and does not extend to section 190.4; subdivision (e) proceedings. He suggests that because a motion to modify the penalty verdict is “automatic,” | and becauseatthat stage the defendantis no longer facing a trial at which he can present a defense, the proceedings are more akin to an appeal where there is no right of.self-representation. (AOBat 18.) Finally, he contends that because the provisions of section 190.4 subdivision (e) act “as an additional safeguard against arbitrary and capricious imposition of the death penalty in California” (People v. Lewis (2004) 33 Cal.4th 214, 226, citing People v. Frierson (1979) 25 Cal.3d 142, 179; Pulley v. Harris (1984) 465 U.S. 37, 51-53 [79 L.Ed.2d 29, 104 S.Ct. 871]), the state’s interest in the accuracy and fairness of the proceedingsis at its highest and thus the benefits of representation would also be at their highest. (AOB at 18.) | Contrary to Burgener’s contentions, the motion to modify the death verdict should be viewed,just as the penalty phaseis, as “merely a stage in a unitary capital trial.” (People v. Blair, supra, 36 Cal.4th at p. 737.) Itisa necessary part of the capital trial, and thus the Sixth Amendmentright of self-representation applies to it as well regardless of whetherit is a statutory or constitutional creation. (/d. at p. 738.) Where a defendantis granted the right to self-representation pre-trial in a capital proceeding, certainly he maintains that right through the motion to modify the verdict as it is part and parcelof the capitaltrial. It would be illogical that his right of self- representation would terminate the momentthe jury returned a penalty verdict. Further, as this Court noted in Blair, although the decision in Martinez speaks of the diminution of a defendant’s autonomyinterests after conviction and on appeal, Martinez does not address the level of autonomyinterest enjoyed by a defendant during sentencing ... The defendant at sentencingis still in the position of being “haled into court” by the state (see Faretta, supra, 422 U.S.at p. 807), and thusstill has an interest in personally presenting his or her defense. (See id. at p. 819.) (People v. Blair, supra, 36 Cal.4th at p. 738.) The autonomyinterest a defendant possesses at a section 190.4 subdivision (e) hearing is significantly greater than on appeal. At the hearing, the defendantretains the ability to convince thetrial court to impose a sentence less than death based on the court’s independent review of the penalty phase evidence. Furthermore, the entire purpose of requiring a trial court to state reasonsfor . Its decision at a section 190.4 proceeding is to facilitate “thoughtful and effective appellate review.” (People v. Frierson, supra, 25 Cal.3dat p. 179.) Accordingly, Burgener’s attempt to analogize the section 190.4, subdivision (e) proceeding to appellate proceedings fails because the automatic motion to modify the death judgment is reviewed aspart of the automatic appeal process — as the proceduralhistory ofthis case aptly illustrates. . | Moreover, parsing out the section 190.4, subdivision (e) proceedings | from the remainderofthe capital trial for purposes of the Sixth Amendment right of self-representation would be contrary to the principles established in Faretta. There, despite its clear concerns with an unskilled defendant representing himself at a criminaltrial, the Court resolved the conflict between the benefit of representation and theright of self-representation in favorof self-representation where the request was made weeksbefore the commencementoftrial at time when the benefit of counsel was itits highest. (Faretta, 422 U.S. at pp. 834-836.) Resolving the same conflict in the setting of a section 190.4, subdivision (e) hearing, the benefits of representation by counsel could hardly be lower. The proceedingis limited to the review of evidencethat has already been presentedattrial. Accordingly,it is clear that the need for counsel is not any where nearthat which wasrejected by the United States Supreme Court in Faretta. Further, even assumingthe right of self-representation does not extend to capital sentencing,or specifically, the motion to modify the verdict, Burgener’s argumentthat the trial court improperly extendedthis right to him is immaterial. As the United States Supreme Court has observed,the right to self-representation “exists to affirm the accused’s individual dignity and autonomy.” (McKaskle v. Wiggins (1984) 465 US. 168, 178 [104 S.Ct. 944, 79 L.Ed.2d 122]; People v. Marshall (1997) 15 10 Cal. 4th 1, 46.) Thus, at most, if the trial court extendedthe rightofself- representation to a capital sentencing hearing at which Burgener wasnot entitled to the right, then the trial court afforded him a level of dignity and autonomy to which he wasnotentitled. Burgener must show morethan he wasgranted a request to which he had no right. In order for the granting of his request for self-representation to be significant, Burgener must show that the court categorically lacked the authority to grant his request. In other words, he must show that the court had a duty to deny his request — a curious proposition for which Burgeneroffers no support. B. Burgener’s Waiver Of Counsel Was Unequivocal Burgenercontends that, assuming he had a constitutional right to represent himself at the section 190.4, subdivision (e) hearing, the trial court erred in granting him pro sestatus as his request was equivocal and based on no more than frustration. Specifically, he argues that the record showshe had noactual desire to represent himself, but rather sought to do so to expedite the proceedings and ensure that jury’s death judgment would remain unmodified. (AOB 21-26.) Contrary to Burgener’s contention, the record reflects his genuine, unequivocal request to represent himself for purposes of the motion to modify the verdict. Unlike the right to representation by counsel, the right to self- representation is waived unless a defendant articulately and unmistakably demands to proceed pro se. (People v. Danks (2004) 32 Cal.4th 269, 295 (Danks).) A motion for self-representation “made out of temporary whim, or out of annoyanceorfrustration, is not unequivocal.” (People v. Stanley (2006) 39 Cal.4th 913, 932.) “Faretta’s emphasis ‘on the defendant’s knowing, voluntary, unequivocal, and competent invocation ofthe right suggests that an insincere request or one made underthe cloud of emotion 1] may be denied.’” (People v. Danks, supra, 32 Cal.4th at p. 295, quoting People v. Marshall, supra, 25 Cal.4th at p. 32.) Cases in which requests for self-representation have been found to be equivocal involve impulsive decisions based upon the circumstances confronting the defendant at that moment. Forinstance, in Danks counsel procured several continuancesof the capital defendant’s trial over the defendant’s objection. (People v. Danks, supra, 32 Cal.4th at pp. 290-295.) ~ Outofclear frustration at a discovery hearing, the defendantraised a | motionpursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and defense counsel countered by questioning the defendant’s competence and requesting that he be examined pursuant to Penal Code section 1368: (Ud. at p. 292.) During the Marsden hearing, the defendant not only complained about the numberof continuances defense counsel had sought, butalso his treatmentin prison, and additionally made evidenthis desire to avoid further psychiatric evaluations. (/d. at pp. 292-295.) It was apparentto the trial court, and this Court on appeal, that the defendant neverseriously sought to represent himself. (Ud at p. 296.) To the contrary, the defendant would simply ask “what about going pro per,” following a series of complaints, thus showing that his request was not unequivocal, but rather out of dissatisfaction with the way the proceedings were unfolding. (/bid.) Not so here. The procedural history of this case evidencesthat Burgener had years to considerhis desire to represent himself, and thus his wasnot a decision madeout of temporary whim, annoyance,or frustration. It was in 2006 that he first waived his right to counsel, and this Court reversed the trial court’s decision permitting him to do so in 2009. (Burgener IV, supra, 46 Cal.4th 231.) When he appearedin thetrial court for his new section 190.4, subdivision (e) hearing in 2009, he waivedhis right to counsel once again. Thus, his desire had not changed over the 12 course of three years, suggesting that it was not madeout of whim, annoyance, or frustration. | Burgenerinterprets the record as showing that he choseself- representation solely to expedite the process and then made no effort to advance an argumentin support of the motion to modify thedeath verdict to ensure that the motion would be denied. (AOBat 24-26.) In support of this argument, Burgenerpoints to his informingthe trial court that-he was _ confident the judge would deny the motion because the judge would simply be reading the record of the penalty phaseretrial and would not have the opportunity to observe the demeanorof the witnesses. Hestated, “I realize that whether I have the top criminal defense attorney in the world or myself ... whatis going to happen is going to happen regardless.” (1 RT 16-17.) Hefurther explainedif the ruling was going to be the sameifhe proceeded with or without counsel, then the benefit of proceeding without counsel, in his mind, wasthat it would take less time to procure a ruling. (1 RT 18- 19.) Finally, Burgener informed the court that he believed a sentence oflife: would be worse than a sentence of death. (1 RT 19.) | These facts do not demonstrate a decision made out of temporary emotion. To the contrary, they demonstrate that Burgener had carefully considered the request and sincerely desired to represent himself. Wishing the matter to proceed forwardin a timely manner does not indicate a decision madeout offrustration, nor does Burgener’s preference for the death penalty. A defendant convicted of a capital crime maylegitimately choose a strategy of obtaining a death sentence as some individuals may rationally prefer death to a sentence oflife without the possibility of parole. _ (People v. Taylor (2009) 47 Cal.4th 850, 865; People v. Bloom (1989) 48 Cal.3d 1194, 1222-1224, reversedon other grounds, Bloom v. Calderon (9th Cir. 1997) 132 F.3d 1267.) “The defendanthasthe right to present no defense andto take the stand and both confess guilt and request imposition 13 of the death penalty.” Accordingly, a defendant’s announcedintention to seek a death verdict does not compel the denial of a motion for self- representation. (People v. Bradford (1997) 15 Cal.4th 1229, 1364-1365, 1371-1372.) . Additionally, Burgener’s contention that his “fatalistic attitude” was based on his misconception of the decision to be madebythetrial court at the section 190.4, subdivision (e) proceeding finds no support in the record. He asserts that he misunderstoodthe trial court’s duty to independently review the evidence and determine whether the jury’s death verdict was contrary to that evidenceor the law, and instead believed the trial court simply had to determine whether there was sufficient evidence to support the verdict. (AOB25, citing 1 RT 16-17.) First, Burgener’s description of the purpose of the hearing was much more thorough than he represents on appeal. When asked whatlegal issues were to be decidedat the section 190.4, subdivision (e) proceeding, Burgener responded,“You're to reweigh the mitigating, aggravating circumstances against each other and determine whether the jury’s findings were enough to give me death... or whether | you should overturn to life without.” (1 RT 16-17.) Thus, Burgener did understand the independent review to be undertakenbythetrial court. Second, Burgener’s “fatalistic attitude” was not based on any misconception of the hearing, but rather based on his opinionthat the trial court would not be able to assess witness credibility based upon a cold _ record and,therefore, he believed thetrial court would deny the motion. (1 RT 16-17.) In no way does Burgener’sbelief that the trial court would deny his motion with or without counsel suggest a rash, impulsive decision. Rather, the record evidencesthat he had considered his decision and firmly believed that given the limited scope of the section 190.4, subdivision (e) hearing, he could accomplish just as much as any attorney could accomplish on his behalf. (1 RT 17, 20.) 14 Further, to the extent Burgener now suggests that he made the request for self-representation solely to expedite the proceedings (AOB 24- 25), the record again belies his claim. Thetrial court specifically informed him that it would take some timeto rule on the motion regardless of whether he wasrepresented by counsel because the court would have to read all of the penalty phaseretrial transcripts. The court wanted the record to be clear that Burgener was not seeking self-representation based on an assumption the court would issue a ruling that day. (1 RT 19.) Burgener stated that he understood, and explainedit was not the speed of the - proceedings that was driving his decision, but rather his belief that he could perform as well as any attorney could given the limited scope of the motion before the court. (1 RT 20.) Finally, the defense attorney who had been appointed torepresent Burgener remained present in the courtroom during the discussion regarding self-representation. He informedthe court that he had had lengthy conversations with Burgener regarding his request, had spoken with appellate attorneys regarding the request, and after having done so, spoke with Burgener again. The attorney wassatisfied that Burgener was well-_ aware ofthe legal principles involved, the scope of the hearing at hand, and he expressly “acknowledge[d] [Burgener’s] constitutional right to represent himself.” (1 RT 21.). | | Accordingly, the record reveals Burgenerarticulately, unmistakably, and unequivocally demandedto exercisehis right ofself-representation (See People v. Danks, supra, 32 Cal.4th at p. 295.) As his request was sincere and not the product of whim, emotion, or frustration, the trial court properly granted the motion. ae) C. Burgener Waived His Right To Counsel Following Thorough Advisement From The Trial Court Regarding The Risks Associated With His Decision Burgeneralleges that his waiver of counsel was not knowing and intelligent in that the trial court did not adequately advise him of the dangersofself-representation. (AOBat 27-31.) While he acknowledges that the trial court did advise him ofthepitfalls of self-representation generally, he complainsthat the trial court did not advise him that “foregoing defense counsel’s superior knowledge of the complex rules of procedure at a section 190.4, subdivision (e) hearing, including the necessity of objecting when appropriate, could result in a waiver of any claim oferror in this highly technical area of the law.” (AOBat 28-29.) | Contrary to Burgener’s assertion, the trial court had no duty to advise him of the risks of self-representation in the contextofthis particular hearing. Rather, the trial court fulfilled its obligation to create a record showing Burgener understood the dangers of waiving counsel, and madehis choice with eyes open. In Burgener IV, this Court vacated the death judgment on the groundsthat while the record indicated that the trial court was awareofits obligation to advise Burgener of the risks associated with self- representation, the record wasunclearthat the trial court actually advised him of those risks or that Burgener understood them whenhe waived his right to counsel. (Burgener IV, supra, 46 Cal.4th at pp. 241-242.) In so ruling, this Court summarized whatis required ofa trial court in warning a defendant of the consequencesofself-representation: A defendantseeking to represent himself ‘should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows whatheis doing and his choice is made with eyes open.” [Citation].’ (Faretta, supra, 422 U.S. at p. 835.) ‘No particular form of. words is required in admonishing a defendant who seeks to 16 waive counsel andelect self-representation.’ (People v. Koontz (2002) 27 Cal.4th 1041, 1070 [119 Cal. Rptr. 2d 859, 46 P.3d 335].) Rather, ‘the test is whether-the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.’ ([bid.; accord, People v. Lawley (2002) 27 Cal.4th 102, 140 [115 Cal. Rptr. 2d 614, 38 P.3d 461]; People v. Marshall (1997) 15 Cal.4th 1, 24 [61 Cal. Rptr. 2d 84, 931 P.2d 262].)” (People v. Blair (2005) 36 Cal.4th 686, 708 [31 Cal. Rptr. 3d 485, 115 P.3d 1145].) Thus, “[a]s long as the record as a whole showsthat the defendant understood the dangers ofself-representation, no particular form of warningis required.” (People v. Pinholster (1992) 1 Cal.4th 865, 928-929 [4 Cal. Rptr. 2d 765, 824 P.2d 571]; accord, U.S. v. Lopez- Osuna (9th Cir. 2001) 242 F.3d 1191, 1199 [“the focus should be on what the defendant understood, rather than on what the court said or understood”|.) (Burgener IV, supra, 46 Cal.4th at p. 241.) For purposes of appellate review, this Court “independently examine[s] the entire record to determine whether the defendant knowingly and intelligently waived the right to counsel.” (/bid., citing People v. Doolin (2009) 45 Cal.4th 390, 453.) In Burgener IV, this Court delineated those items missing from the trial court’s advisement during the 2006 proceedings: . On this record, wherethe trial court not only failed to advise defendantthat the district attorney would be both experienced - and prepared, that defendant would receive no special consideration or assistance from the court and would be treated like any other attorney, that he would have noright to standby or advisory counsel, or that he would be barred from challenging on appeal the adequacy ofhis representation, but instead actively encouraged defendant to represent himself, we cannot concludethat defendant’s waiver of counsel was — knowing andintelligent. (Burgener IV, supra, 46 Cal.4th at p. 243.) In contrast to the situation presented in Burgener IV, here,thetrial court’s colloquy with Burgenerfully satisfied the requirements for a knowing and voluntary waiverofthe right to counsel. The judge asked 17 whether Burgener understoodthe issues before the court and Burgener responded that he was there for the “automatic motion to modify the penalty from death to life.” (1 RT 16.) When asked whatlegal issues would be decidedat the hearing; Burgener responded, “You’re toweigh the mitigating, aggravating circumstances against each other and determine whether the jury’s findings were enough to give me death . . . or whether you should overturn it to life without.” (1 RT 16-17.) The court warned Burgener that he would be opposing one of the most experienced prosecutors in Riverside County; Burgener stated he understood. The court warned it could not give Burgener any advice; Burgener understood. (1 RT 17.) The court warnedthatit would not provide Burgener with any special treatment simply because he had noattorney; again, Burgener understood. (1 RT 17.) Thecourt informed Burgener that he would not be able to change his mind and request counsel midway through the proceedings. Additionally, the court advised that Burgener would notbe able to raise any claim of ineffective assistance of counsel following his conviction. Burgener understood these consequencesofself-representation as well. (1 RT 20.) Further, instead of encouraging self-representation the trial court made clear that proceeding with counsel was the better option. The court . encouraged Burgenerto proceed with the attorney who had been appointed to represent him; Burgener declined. (1 RT 20-21.) Ultimately, the court stated, Burgener had thought throughthe issue in a careful andrational - manner, and although he was makinga bad choice,it was a rational one. (1 - RT 22.) The record amply demonstrates that the trial court granted Burgener’s request to represent himself based on a knowing and voluntary waiverof the right to counsel with full appreciation of the risks and consequences involved. He had previously been represented by counselat the initial trial as well as at the penalty phaseretrial and at previous section 18 190.4, subdivision (e) proceedings. He represented himself at the section 190.4, subdivision (e) proceedingprior to the instant one. At the . proceeding that is the subject of this appeal, Burgenerindicated he understood what self-representation involved, and the trial court made him fully aware ofhis right to proceed with the attorney that had been appointed to represent him. As noted previously, that attorney affirmed that Burgener understood the nature of the proceedings and wasequippedto represent - himself at the limited hearing. Thetrial court did not encourage Burgener to represent himself, and to the contrary, advised him that his choice was unwise. Given that Burgener wasall too familiar with the nature of the section 190.4, subdivision (e) proceedingsin light of the procedural history of this case, and had experienced those hearings both with representation by counsel and without,thetrial court thoroughly advised him ofthe perils of self-representation. Nothing more was required. | Burgener’s central complaint about the trial court’s advisement seemsto be that the court did not specifically warn him ofthe risks involved with foregoing experienced defense counsel’s knowledgeat a ~ “complex”section 190.4, subdivision (e) hearing, including the necessity of objecting to preserve appellate issues. (AOBat 28-30.) There is simply no authority requiring the.trial court to advise a defendant seekingself- representation that doing so may waive appellate claims should he fail to object. Contrary to Burgener’s contention (AOB 30), this is not part of the trial court’s “ | waivehis right to counsel... .” (Patterson v. Illinois (1988) 487 U.S. 285, searching or formal inquiry before permitting an accused to 299-300.) Conversely, no particular form of warning is necessary . (Burgner IV, supra, 46 Cal4th at p. 241; People v. Koontz, supra, 27 Cal.4th at p. 1070) and, in fact, a defendant’s technical legal knowledgeis irrelevant to the inquiry (People v. Halvorson (2007) 42 Cal.4th 379, 433). Moreover,there is nothing particular complex about a section 190.4, 19 subdivision (e) hearing, particularly as compared to defending oneself at trial, and even moreparticularly in this case given the numberof such hearings Burgenerhad previously experienced. Similarly, the forfeiture rule does not apply uniquely in the context of section 190.4, subdivision (e) proceedings, but rather throughoutthe entirety of criminaltrial proceedings, and yet there is no authority requiring a trial court advise a defendant seeking self-representation of his obligation to object even when he makesthe requestpretrial. The focus of the Faretta warningsis on the defendant’s understanding of the importance of counsel and the function counsel canperform on the defendant’s behalf, not on the defendant’s knowledge of substantive or procedural law. Here,the trial court’s warning that it would not provide Burgener any advice and would not “cut him any | slack” simply becausehe had no counsel, along with its warningthat Burgener would be opposing a very experiencedprosecutor, sufficed to put Burgeneron notice of the court’s expectation that he would have to follow the rules of law and procedure. (1 RT 17; see People v. Koontz, supra, 2’7 Cal.4th at p. 1072 [court’s general warning that defendant would be requiredto follow the law wassufficient absent specificwarning that this requirement applied to motions, objections, evidence, voir dire, and argument].) The foregoing demonstrates that the.trial court carefully admonished Burgener about the dangers of proceeding without counsel, and Burgener. madehis choice to represent himself with eyes open. (See BurgenerIV, supra, 26 Cal.4th at p. 241.) Accordingly, Burgener’s waiverofthe right to counsel was voluntary, knowing,andintelligent. 20 D. Any Alleged Deficiencies In The Warning Regarding The Dangersof Self-Representation Are Subject to Harmless Error Analysis And Not Reversible Per Se In discussing whether a defective Faretta waiveris reversible per se, this Court noted in Burgener IV that the United States Supreme Court “has stated somewhatcryptically that the right to be presented by counsel, ‘as with most constitutional rights, [is] subject to harmless-error analysis... unless the deprivation, by its very nature, cannot be harmless. See,e.g., Gideon v. Wainwright, 372 U.S. 335 (1963.)’” (BurgenerIV, supra, 46 Cal.4th at p. 244, quoting Rushen v. Spain (1983) 464 U.S. 114, 119, fn.2 [104 S.Ct. 453, 78 L.Ed.2d 267] (per curiam).) Courts in this state and across the country remain deeply divided on the issue of whether a defective Faretta warning can be subjectto harmless error analysis. (Burgener IV, supra, 46 Cal.4th at pp. 244-245.) Here, after multiple section 190.4, subdivision (e) proceedings, and Burgener’s election to represent himself after obtaining a reversal based on inadequate advisement regarding the pitfalls of self-representation at such a hearing, the facts of this case provide a goodillustration as to whyerrors in administering Faretta warnings should be subject to harmless error analysis under ‘Chapmanv. California (1967) 386 U.S. 18, 24 [386 U.S. 824; 17 L.Ed.2d 705].) The record in this case permits this Court to determine beyond a reasonable doubtthat any alleged error in the trial court’s recitation of the dangers and consequencesofself-representation did not contribute to the section 190.4, subdivision (e) ruling. In BurgenerIV, this Court reversed the death judgment finding that the trial court had not adequately advised Burgenerofthe pitfalls of self- . representation. (Burgener IV, supra, 46 Cal.4th at p. 245.) After years in which to reconsider his decision, and with the benefit of the prior reversal, upon remand, Burgernerreceived a proper and thorough warning and 21 waived his right to counsel onceagain. (1 RT 16-22.) In the instant appeal, the only deficiency Burgener complainsofin the trial court’s advisement was that the court did not inform him that his failure to object at the hearing would forfeit claims of error for appellate purposes. (AOB at 28-29.) He otherwise concedesthat the trial court properly advised him, in general, regarding the dangersofself-representation. (AOB 28, 34.) Here,it can be said without any doubt that had Burgener been warnedof his obligation to object, it would not have impacted his decision to proceed without counsel. The record makesclear that under any circumstance, and thetrial court _ thoroughly discussed those circumstances, Burgener wished to represent himself. In the midst of discussing the dangers of self-representation, the trial court urged Burgenerto accept the assistance of the attorney who had been assigned to his matter; Burgenerrefused. (1 RT 20-21.) Burgener firmly believed that no defense attorney could do any morethan he could representing himself for the limited purpose of the motion to modify the verdict. (1 RT 17, 20.) Moreover,if failing to object to the mannerin whichthe court conducted the 190.4, subdivision (e) proceeding is the principal harm Burgenerbelieves he suffered from the trial court’s allegedly deficient Faretta warning, then if it is shown beyond a reasonable doubt that even had Burgener objected he would not have achieved a more favorable result at the hearing, then the complained-ofdeficiency is one susceptible to harmless error analysis and not one that should be automatically reversed. As ArgumentII demonstrates, Burgener’s claim that the trial court improperly declined to consider inadmissible information at the section 190.4, subdivision (e) hearing is meritless, and thus any deficiency in the Faretta warning was harmless beyond a reasonable doubt.! ' In the same sense, even had Burgener proceeded with counsel, (continued...) . 22 Il. INDENYINGTHE AUTOMATIC MOTION TO MODIFY THE DEATH JUDGMENT, THE TRIAL COURT PROPERLY REVIEWED THE PENALTY PHASE RETRIAL EVIDENCE AND WAS NOT REQUIRED TO CONSIDER THE PRIOR FACTUAL FINDINGS OF THE JUDGE WHO RULED ON A PREVIOUS MOTION Burgener contendsthatthe trial court prejudicially erred in declining to consider the factual findings of the judge who presided overthe penalty phaseretrial and ruled on a prior section 190.4, subdivision (e) motion. He suggests that since the judge who was actually presentat the penalty phase retrial could make credibility determinations of witnesses based upon more than a cold record, the judge ruling on the instant motion should have considered those determinations, and having declinedto do so,his ruling on the motion was inaccurate and unreliable. (AOB 35-44.) Burgener further contendsthat had the current judge considered the prior factual findings,it is reasonably probable that he would have modified the judgmenttolife without the possibility of parole. (AOB at 44-47.) Asa preliminary matter, _ Burgenerhasforfeited his contention by failing to object below on the grounds he nowraises for the first time on appeal. In any event, the trial judge considered the proper information in rendering his denial of the automatic motion to modify the verdict. Penal Code section 190.4, subdivision (e) requires the court to consider the penalty phase evidence independently, and accordingly there is no requirementthat the court consider the prior findings of any judge whoruled on any previous motion. After the jury at Burgener’s penalty phase retrial returned a verdict of death, the trial judge, Judge J. William Mortland, granted the motion to (...continued) based on the court’s thorough analysis as discussed in ArgumentI], it can be said beyond a reasonable doubtthat the court would have denied the motion to modify the verdict nonetheless. 23 modify the verdict pursuant to section 190.4, subdivision (e), and sentenced Burgenerto life without the possibility of parole. (BurgenerIII, supra, 29 Cal.4th at pp. 885-886.) The Court of Appeal reversed that ruling however, finding that Judge Mortland had considered improper factors and remanded the matter to the trial court for reconsideration of the motion to modify the verdict. (/d. at p. 886.) At the time the Court of Appeal issued its opinion, Judge Mortland hadsinceretired, and accordingly, the matter was reassigned to Judge Ronald R. Heumann. (Ibid.) Judge Heumann reviewed the evidence and arguments from the penalty phaseretrial and denied Burgener’s motion to modify the verdict. (ibid.) This Court reversed that ruling, finding that the record did not indicate that Judge Heumann understood his obligation to: independently weigh the penalty phase evidence and independently determine whether that evidence supportedthe death verdict, as opposed to deferring to the jury’s implied findings. (/d. at pp. 891-892.) On remand, Judge Heumann again denied Burgener’s motion to - modify the verdict. (Burgener IV, supra, 46 Cal.4th at p. 234.) This Court reversed again, finding that Judge Heumann had improperly permitted Burgenerto represent himself without advising him of the dangers and consequences of doing so. (/bid.) Recognizing that Judge Heumann had passed awaypriorto the issuance of the opinion, this Court noted that on remand the motion would be heard by another judge of the same court. (/d. at p. 245.) Most recently, the section 190.4, subdivision (e) proceedings were reassigned to Judge Craig G. Riemer. (1 RT 12.) Judge Riemer, in an effort to avoid yet another reversal, prepared a list of written questions as to how to proceed on the automatic motion to modify the verdict, asked the prosecutor to respondto those questions, and offered Burgener the 24 opportunity to address the prosecutor’s response. (1 RT 35-37, 40.) One of the questions Judge Riemer posed wasthe following: In the People’s memorandumofpoints and authorities filed February 8, 1991, the People suggested that this Court is bound in part by the factual findings made by Judge McFarland when he ruled on the application for modification of verdict concerning the original penalty phase verdict. (CT 59.”) The court asked whether that was an accurate interpretation of the prosecutor’s position and,if so, whether it remained so and what authority supported it. (CT 60.) An additional question posed by the court asked: oS In conducting its independent review ofthe strength of the evidence, the Court must evaluate the credibility of the witnesses. Generally, credibility evaluations are left to the — ' finders of fact who haveactually heard and seen the witnesses testify. In this case, by contrast, because of the unfortunate procedural circumstances in which wefindourselves, the Court is asked to makethat evaluation without hearing or seeing any of the witnesses, but merely from the cold writtenrecord of their testimony from over 20 years ago... . Does that in any way changeor affect the Court’s duty to independently evaluate the credibility of the witnesses? If so, in what way? (CT 61.) In response to the first question, the prosecutor arguedthat the trial court was not boundbythe factual findings of any judge who had previously ruled on motions to modify the judgment. (CT 69, citing People v. Crew (2003) 31 Cal.4th 822, 859 (Crew); BurgenerIII, supra, 29 Cal.4th at pp. 888-889.) The prosecutor then clarified that the position taken in 1991 was refuting the defense argumentthat thetrial court was bound by the factual findings of Judge Mortland, whose ruling was reversed by the * Judge McFarland presided over Burgener’s original guilt and penalty trial. 25 Court of Appeal. The prosecution’s argumentwasthatif the trial court was bound by Judge Mortland’s factual findings, then it was likewise, and more appropniately, bound by Judge McFarland’s factual findings. “The point wasthat if [Burgener’s] reasoning held true, then thetrial court would not merely be boundbyfindings of the judge who erroneously granted an application, but also by the judge who erroneously denied an earlier application.” (CT 69.) Thus, the prosecutorarticulated, that his position remained unchangedas section 190.4, subdivision (e) required the court to review the evidence andnotthe prior judges’ findings. (CT 69.) | Asto the second question, the prosecutor respondedthat this Court’s decisionin People v. Lewis (2004) 33 Cal.4th 214,226 (Lewis), required the court to review the cold record andevaluate the credibility of the witnesses as best as the court could. (CT 71.) Burgenerdid not respondto the court’s written questions. A. Burgener Has Forfeited His Claim; The Trial Court Was Not Required To Consider The Factual Findings Of Any Judge Who Had Previously Ruled On The Motion To Modify The Death Judgment _Asa preliminary matter, Burgener forfeited his contention that Judge Riemer improperly declined to consider Judge Mortland’s factual findings whenhefailed to raise an objection on these groundsat the time of the most recent section 190.4, subdivision (e) hearing. (People v. Carasi (2008) 44 Cal.4th 1263, 1316.) Judge Riemer gave both parties the opportunity to provide input as to whether he should consider those prior findings. (1 RT 35.) While initially Burgener stated he saw no benefit to responding to the prosecutor’s brief on the matter (1 RT 37), he subsequently secured an order from the court permitting him to research the issue in custody (1 RT 40). Ultimately, Burgenerfailed to raise the issue he raises now forthe first time on appeal in writing or in open court. Thus, he has forfeited his contention. 26 Should this Court reach the merits of the contention, there is no authority for Burgener’s proposition that the trial court erred by not considering the factual findings of the judge whoobserved the witnesses at the penalty phaseretrial. In fact, the authority dictates the contrary. Section 190.4, subdivision (e), requires that the judge ruling on the motion “shall review the evidence” and “shall make a determination as to whether ~ the jury’s findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented.” Accordingly, the plain languageof the section itself makes evident the lack of an obligation to consider priorfindings by a judge or judges who ruled on the previous motions. - The procedural history of Crew is strikingly similar to the instant matter. In Crew, the judge who presided over the defendant’s trial in which the jury returned a verdict of death granted an automatic motion to modify that judgment pursuant to section 190.4, subdivision (e), thus reducing the penalty to life withoutthe possibility of parole. (People v. Crew, supra, 31 Cal.4th at p. 858.) The Court of Appeal reversed that ruling and ordered a limited remand for purposes of reconsidering the motion to modify the judgment. (/bid.) The judge who had presidedoverthetrial and issued the ruling was unavailable, and the matter was reassignedto a different judge. (Ibid.) The new judge reviewed the transcripts, the Court of Appeal’s opinion, and the arguments of counsel; the judge did not consider the previous judge’s factual findings. (/d. at pp. 858-859.) Followingthetrial court’s denial of the section 190.4, subdivision (e) motion in Crew, this Court found noerrorin thetrial court’s decision not to take into consideration the previous judge’s findings. (Peoplev. Crew, supra, 31 Cal.4th at p. 859.) This Court reasoned that “[s]ection 190.4, subdivision (e) requires the judge ruling onthe motion to review the evidence and to take into account and be guided bythe statutory 27 aggravating and mitigating evidence,” which is precisely what the judge in Crew did. (Ibid., emphasis added.) | | The matter before this Court is indistinguishable from Crew. Here, the trial court’s ruling on the section 190.4, subdivision (e) motion states . that it consideredall of the testimony, exhibits, and arguments presented to the jury at Burgener’s penalty phaseretrial. (CT 85-86.°) The court also considered the written arguments filed by the prosecution in 2009 and the defense in 1991 related to the motion. (CT 86.) The court thoroughly and accurately discussed the question it was to answerin the proceeding (CT 86-88), and summarized: | In short, the Court’s job when confronted with a 190.4(e) applicationis to independently determine the credibility and probative value of the evidence, but not to independently decide what the penalty should be. Instead, the Court decides only whetherthe evidence, weighed in accordance with 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. , (CT 87.) The court’s ruling also specifically stated that it declined to _ consider the factual findings previously made by Judges McFarland and Mortland because doing so would interfere with the court’s duty to independently review the evidence. Additionally, the court observed that Judge McFarland’s findings in support of his ruling had been implicitly vacated whenthe original penalty phase wasreversed, and Judge Mortland’s findings in support of his ruling were implicitly reversed by the Court of Appeal. (CT 88.) Ultimately, after reviewing all of the statutory aggravating and mitigating evidence (CT 88-92), thetrial court found “that * While the court’s ruling is labeled as a tentative ruling (CT 85), the court adopted the tentative ruling as its final one. (1 RT 44.) 28 the jury’s verdict of death and the jury’s implicit finding that the aggravating circumstances outweigh the mitigating circumstances,is supported by thelaw and the evidence presentedat the retrial of the penalty phase,” and accordingly denied the motion to modify the verdict. (CT 92.) Burgener concedes that Judge Riemer was not boundbythe factual findings made by Judge Mortland, but argues thatit waserror notatleast to considerthose findings. (AOB 40.) Burgener’s true complaintis with this Court’s refusal to find that only the trial judge who presided over a penalty phaseis constitutionally entitled to rehear a motion pursuant to section 190.4, subdivision (e), and in the event that judge becomes unavailable for any reason, then the defendantis entitled to have his death sentence reduced to a sentence of life without possibility of parole. (See AOB 43.) Recognizing that this Court has rejected such a rule, Burgenertries to reach the windfall inherent in the rule that this Court has rejected by urging, at a minimum, wherethe judge who presided over the penalty phase is no longer available, this Court should require the judge hearing the section 190.4 subdivision (e) motion to consider the previous judge’s factual findings and credibility determinations. (AOB 43.) The lengthy procedural history of this case already has affordedthis Court the opportunity to consider and reject a similar contention raised in BurgenerIII. There, Burgener complained that when Judge Heumann was assigned the motion to modify the death verdict, he failed to give weight to Judge Mortland’s declaration stating that even following reversal by the Court of Appeal, he maintained the motion should be granted and the sentence modified to life without the possibility of parole. (Burgener IIT, supra, 29 Cal.4th at p. 888.) Judge Heumann stated that the declaration had no bearing as to the propriety ofthe jury’s verdict, and this Court ruled that was correct: 29 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] ["the trial court is prohibited by 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. 3dat p. 435, fn. 3.) (Ud. at pp. 888-889.) This analysis applies equally to any factual findings made by any judge whopreviously ruled on Burgener’s section 190.4, subdivision (e) motion. The statutory language and this Court’s prior decisions makeclear that a section 190.4, subdivision (e) proceeding “is limited to review of the evidencethat was before the jury... .” (People v, Lewis (2004) 33 Cal.4th 214, 224, citing People v. Sakarias (2000) 22 Cal.4th 596, 648; People v. Beeler (1995) 9 Cal.4th 953, 1005-1006; People y, Brown (1993) 6 Cal.4th 322, 336; People v. Edwards (1991) 54 Cal.3d 787, 847.) A prior judge’s factual findings are not evidence that was before the jury. “Judge Mortland’s views as to defendant’s character or the circumstancesof the offense, gleaned solely from the penalty retrial, are not themselves evidence bearing on those points.” (BurgenerITI, supra, 29 Cal.4th at p. 889, original emphasis.) Moreover, while Burgenerarguesthat there is no good reason to deprive themost recent judge of the factual findings of a judge whowaspresent at the penalty phase, a good reasonis readily apparent: the most recent judge mustbe able to fulfill the requirements of section 190.4, subdivision (e) of making an independent determination as to whetherthe Jury’s penalty findings are contrary to the law or evidence unencumbered 30 by the influence of a former judge. Requiring trial judge ruling ona section 190.4, subdivision (e) application to consider the findings of a previous judge would require this Court to ignore. the directive of the code section requiring an “independent” determination by the new judge. Asthis Courtstated with regard to the proceedings before Judge Heumann: The judge hearing the application for modification wasstill obligated to reweigh the evidence and make an independent determination whether the weight of the evidence supported the verdict of death. [Citation.] In making that ruling, Judge Huemmanwasnot bound to adopt Judge Mortland’s views on subsidiary issues, whether expressedat the initial hearing or through a declaration following his retirement. [Citation.] (Burgener IL, supra, 29 Cal.4th 833, original emphasis.) Burgener makes no effort to explain why this Court’s analysis rejecting his previous complaint that the trial court should have considered information other than ‘evidence before the jury does not equally apply to hiscurrent, virtually identical complaint. . Additionally, while Burgener disagrees with the prosecutor’s position that if Judge Riemer wereto consider the factual findings of Judge Mortland, then he would also be required to consider the conflicting findings of Judge McFarland, his argumentis inconsistent with the very position he advances. (AOBat 43.) If section 190.4, subdivision (e) provides an additional safeguard against the arbitrary and capricious imposition of the death penalty, then it would beillogical to not consider the factual findings of the judge whopresided overthe original guilt phase . to the extent that he observed the same witnesses and testimony as the judge who presided over the penalty phaseretrial. Burgener’s primary complaint seemsto be that Judge Mortland had observed the testimony of witnesses Nola England and Joseph DeYoung who were important witnessesin the prosecution’s guilt presentation; he asserts this credibility. determination is imperative to his penaltyretrial defense of lingering 31 doubt.* (AOB 46-47.) Judge Mortland found both witnesses to be less than credible. But as the prosecutor noted in the 1991 points and authorities referenced by Judge Riemer’s written questions, the judge who hadthe best opportunity to make a credibility determination regarding England and DeYoung was Judge McFarland who observed themtestify at length during the guilt phase, and not Judge Mortland who only observedlimited testimonyat the penalty phase retrial when they were called as defense witnesses in an attempt to impeach their ownprior testimony. (1 CT 42 -(1991).°) Accordingly, under Burgener’s own reasoning, to the extent Judge Riemer wasable to avail himself of findings of two judgeswho observed these witnesses at different phases ofhis capitaltrial, the accuracy of the determination was likely to be all the more enhanced by considering the findings of two judges who observed the same witnesses, and not simply the judge whoruled most favorably for him. (See AOBat 43-44.) Additionally, this Court rejected the defendant’s argument in Lewis that where the judge whopresided overthe penalty phase trial was no longer available to hear a section 190.4, subdivision (e) motion upon remand, he should be permitted to present live testimony such that the new judge would be able to make credibility determinations on more than a cold record, (People v. Lewis, supra, 33 Cal.4th at pp. 224, 225.) This Court rejected that notion, stating “‘re-representation of evidenceis not the evidence presented.” (/d. at p. 224, internal quotation marks omitted.) This Court simultaneously acknowledged, however, that in rendering a ruling on * This Court thoroughly detailed the lingering doubt evidence offered by the defense at the penalty phaseretrial in Burgener Il, supra, 29 Cal.4th at pp. 848-851. > As Burgener notes (AOBat38,fn.7), these points andauthorities are part of the record in Burgener II, supra, 29 Cal.4th 833. The pleading wasfiled by the prosecution on February 8, 1991. (1991 1CT 38-43.) 32 the motion to modify the death verdict, judges are necessarily called upon to assess the credibility of witnesses. (/d. at p. 225, citing People v. Rodriguez (1986) 42 Cal.3d 730, 793.) In recognizing that where the original judge is replaced for purposes of a modification hearing the new judge would be limited to the penalty phase record in making these assessments, this Court noted that there was no reason whya trial court could not considerthetrial transcript and make the independent determination required by section 190.4, subdivision (e). (People v. Lewis, supra, 33 Cal.4th at pp. 224-226.) The purpose of a motion to modify the death verdict is quite limited. “(T]he trial court's obligation was not to substitute its view as to penalty in place ofthe jury's verdict, but to reweigh the evidence and make an independent determination whetherthe weight of the evidence supports that verdict.” (People v. Sheldon (1994) 7 Cal.4th 1136, 1142-1143.) This obligation can be accomplished by doing precisely what Judge Riemer did here — independently reviewing the transcripts, evidence, and arguments withoutthe influence of another judge’s factual findings. | Further, this Court rejected in Lewis a similar contention raised by Burgenerthat by not considering thepriorjudge’s factual findings, he was deprived of a reliable penalty determination in violation of the Eighth Amendment. (AOBat 40-41.) This Court held, “when the original trial judge is unavailable, necessity requires the replacement judge to evaluate the credibility of the witnesses as best he or she can from the written record. Wefind no constitutional obligation to provide more.” (People v. Lewis, supra, 33 Cal.4th at p. 226.) | Thus, the thorough, independentreview of the penalty phase evidence by Judge Riemer afforded Burgenerthe additional safeguard — provided by a section 190.4, subdivision (e) motion, ensured that the jury’s death verdict was supported by the law and the evidence, and protected 33 against the arbitrary and capricious imposition of the death sentence. As the trial court was neither bound by, nor required to consider, anything other than the evidence before the jury— and the prior factual determinations of other judges were not before the jury — its denial of the automatic motion to modify the death verdict was proper. B. There Is No Reasonable Probability ThatHad Judge Riemer Considered Judge Mortland’s Prior Factual Findings He Would Have Granted The Motion To Modify The Death Verdict At the outset, while Burgener contends that it was prejudicial error for Judge Riemerto decline to consider Judge Mortland’s previous factual findings, his discussion of the applicable harmless error standard evidences the absenceoferrorin the first instance. This Court has previously applied _ a harmlesserror analysis in situations where the trial court improperly considered evidence notpresented to thejury at a section 190.4, subdivision (e) hearing. Indoing so, this Court has asked whetherthere is a reasonable probability that consideration of improper information affected the trial court’s ruling on the motion. (People v. Whitt (1990) 51 Cal.3d 620, 661 [no reasonable probability that the trial court’s improper consideration of a probation report affected its section 190.4 decision]; People v, Ramirez (1990) 50 Cal.3d 1158, 1202 [same].) Judge Mortland’s findings, like a probation report, were not evidence presentedto the jury, and thusit cannotbe said that there was any error, muchless prejudicial error, in Judge Riemer’s decision not to considerthose factualfindings. In any event, it cannot be said that had Judge Riemer considered the previous findings, there is a reasonable probability he would have modified the death verdict. Here, Judge Riemerin a written ruling clearly and correctly set forth his duty under section 190.4, subdivision (e) to independently review the penalty phaseretrial evidence and to determine 34 whetherthe jury’s verdict, indicating that the aggravating circumstances outweighed the mitigating circumstances, was contrary to thelaw or evidence presented. (1 CT 86-88.) Judge Riemer proceeded to addressthe statutory aggravating and mitigating factors based on his review of the record. As to the circumstances of the crime (Pen. Code, § 190.3, subd. (a)), the court found the murderin the course of the robbery “utterly unjustified” and unnecessary to accomplish the robbery. (1 CT 88-89.) As ~ to Burgener’s prior history of criminal acts involving force or violence (Pen. Code, § 190.3, subd. (a)), the court found Burgener’s history to be violent and lengthy, including a prior attempted murderin the course of a robbery in 1977 and numerousacts of violence in prison between 1973 and 1975, including assaults and stabbings of correctional officers. The court found credible, however, evidence in mitigation showing that in his more recent custodial commitments, Burgenerhad not been violent, but rather had been a “calming influence on younger, more violent inmates.” (1 CT 89.) As to Burgener’s prior felony convictions, the court noted that he had two prior convictions for which he was sentenced to prison, and re- | offended both times within monthsofhis release. (1 CT 89.) As to whether Burgener was under extreme mental or emotional disturbanceat the time he committed the murder (Pen. Code, § 190.3, subd. (d)), the court found credible psychiatric evidence that Burgener had untreated mental health issues, but further found that the evidence did not demonstrate those issuesroseto the level of extreme mental or emotional problems. The court found no evidence to suggest that the victim in any wayparticipated in the homicidal act (Pen. Code, § 190.3, subd.(e)), that Burgener committed the murder underthe belief that it was justified in some manner, or that Burgener acted under extreme duress (Pen. Code, § 190.3, subd. (g)). (1 CT 90.) As to whether Burgener’s capacity to appreciate the criminality of his conduct was impaired by mental disease, 35 defect, or intoxication (Pen. Code, § 190.3, subd.(h)), the court found that although the evidence demonstrated he had taken Valium several hours before the murder, there was no evidence that Burgener’s mental capacity was impaired by any substance. (1 CT 90-91.) However, the court found credible evidence that the defendant’s psychological condition was a © | “significant cause” of his crimes, and that he committed the instant crime to punish himself. The court believed that credible evidence supported the conclusion that his psychological condition may have impacted Burgener’s capacity to conform his conductto the law, and thus found this factor to be “somewhat mitigating.” (1 CT 91.) The court considered Burgener’s age not to be a mitigating factor (Pen. Code, § 190.3, subd. (1)). Additionally, the court found the only credible evidence supported that Burgener was the sole perpetrator of the murder and he wasnot merely an accomplice (Pen. Code, § 190.3, subd. G)). (1 CT 91.) Finally, the court noted as to Penal Code section 190.3, subdivision (k):: There is no evidence, credible or not, that establishes, or even suggests, the existence of any extenuating circumstancesthat tend to partially justify or excuse the crime, or that could have been reasonably believed to justify or excuse the crime. Therefore, this factor does not mitigate against a death sentence. (1 CT 91.) Thetrial court expressly considered non-statutory factors as well, and found credible the mitigating evidence that Burgener had a traumatic childhood in a dysfunctional family, but found incredible that he had had a religious conversion in the months immediately preceding the murder. In particular, the court considered the defense penalty phaseretrial presentation of lingering doubt evidence: Muchof the emphasis by the defense during the penalty phase retrial was on evidence that was offered to suggest the 36 possibility that the defendant was not guilty of the crime. In particular, the defense presented evidence (1) that the significance of a positive reaction to a hemastix test of the defendant’s shoes during the guilt phase was greatly overstated, (2) that Nola England was not a credible witness, and (3) that Joseph DeYoung had the motive and opportunity to, and did in fact frame the defendant for the crime. While the courtagrees with the first two contentions,it does not agree that the weight of the evidence supports the third. To the contrary, the evidence of guilt, although ° circumstantial, is compelling. While there is a possibility that the defendant was framed,it is not a realistic possibility. The Court does not find that any doubt in the defendant’s guilt is strong enoughto mitigate against the death penalty. ° (1 CT 92.) The foregoing shows that Judge Riemersatisfied the statutory requirements in this case and provided thorough reasoning in support ofhis denial of the motion to modify the verdict. After carefully reviewing each - of the applicable factors and considering the evidence relevant to each factor, Judge Riemer concluded the circumstances in aggravation outweighed those in mitigation and determined that the jury’s death verdict wasnot contrary to the law or evidence. Even had Judge Riemer considered the prior factual findings of Judge Mortland, there is no probability Judge Riemer would have modified the verdict. Burgenerarguesthatit is this issue of lingering doubt uponwhich the factual findings of Judge Mortland would have had the greatest impact, particularly Judge Mortland’s opinion that both witnesses England and DeYoung wereof suspect credibility (People v. Burgener, supra, 223 Cal.App.3d 427, 432). (AOB at 46-47.) With regard to England, Judge Riemer reached the sameconclusion as Judge Mortland, finding she was not a credible witness. (CT 92.) Therefore, even had Judge Riemer considered Judge Mortland’s finding as to England, the decision would 37 remain the same. With regard to DeYoung,although the judges reached different conclusions, Burgenerhas provided no support, nor could he possibly, that had Judge Riemer considered Judge Mortland’s opinionasto his credibility, Judge Riemer would have modified the penaltyto life without the possibility of parole. From a coldrecord, a judge is amply equipped to evaluate the entirety of the evidence and assess whetherthereis a lingering doubtas to guilt. More importantly, it does not matter whether any judge personally would have entertained a lingering doubtas to guilt. Rather the question section 190.4, subdivision (e) asks is whether the lingering doubt evidence combined with the other mitigation evidence was such that the law and evidence did not support the jury’sfinding that the factors in aggravation outweighed those in mitigation. Thatis precisely the analysis that Judge Riemer employed here. He was not persuadedthat Burgener had been “framed” for the murder, and he waspersuadedafter independently weighingall of the evidence at the penalty phaseretrial, that the jury’s finding was supported by the law and the evidence. (1 CT 92.) Thus, even had he considered Judge Mortland’s prior factual finding as to De Young, Judge Riemerobviously disagreed with it, and accordingly, there is no reasonable probability he would have granted the section 190.4, subdivision (e) motion. 38 CONCLUSION Accordingly, respondentrespectfully requests that the judgment be affirmed. Dated: July 17, 2012 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General JULIE L. GARLAND Senior Assistant Attorney General HOLLy D. WILKENS Supervising Deputy Attorney General Rabun Upoarrice ROBIN URBANSKI Deputy Attorney General Attorneysfor Plaintiffand Responden $D2010700081 70597039.doc 39 CERTIFICATE OF COMPLIANCE I certify that the attached RESPONDENT’S BRIEF uses a 13 point Times New Romanfont and contains 11,920 words. Dated: July 17, 2012 KAMALA D. HARRIS Attorney General of California rb Unpaarie ROBIN URBANSKI Deputy Attorney General Attorneys for Plaintiff and Respondent “DECLARATION OF SERVICE BYU.S. MAIL - Case Name: People v. Michael Ray Burgener Case No.: $179181 . I declare: I am employedin the Office of the Attorney General, whichis the office of a member of the California State Bar, at which member's direction this service is made. I’am 18 years . of age or older and not a party to this matter. | am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the UnitedStates Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On July 17, 2012, I served the attached RESPONDENT’S BRIEFbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266, addressed as follows: Michael J. Hersek Hon. Craig G. Riemer State Public Defender . Riverside County Superior Court Harry Gruber ~ 4100 Main Street, Dept. 45 Senior Deputy Attorney Public Defender Riverside, CA 92501 Office of the State Public Defender . 221 Main Street, 1Oth Floor - California Appellate Project San Francisco, California 94105 101 SecondStreet, Suite 600 Attorneysfor Appellant San Francisco, CA 94105-3672 (2 Copies) — Riverside County DistrictAttorney's Office 3960 Orange Street Riverside, CA 92501 I declare under penalty of perjury underthe laws of the State of California the foregoing is true and correct and that this declaration was executed on July 17, 2012, at San Diego, California. J. Yost -Declarant C | _/ Signature $D2010700081 70597063.doc
