## Facts

- In 1980, Michael Ray Burgener killed a convenience store clerk during a robbery in Riverside, California.
- In 1981, a jury convicted Burgener of first degree murder and related offenses, found a robbery-murder special circumstance true, and imposed a death sentence.
- In 1986, the California Supreme Court affirmed the guilt judgment but reversed the penalty judgment because defense counsel, following Burgener’s instruction, presented no mitigating evidence or argument.
- In 1988, at a penalty retrial, a jury again returned a death verdict; the trial court modified the verdict to life without the possibility of parole under Penal Code § 190.4(e).
- In 1990, the Court of Appeal reversed the modification order because the trial court relied on improper factors and remanded with directions to reconsider the motion using only the factors in Penal Code §§ 190.4(e) and 190.3.
- After remand, the original judge had retired; a substitute judge reviewed the penalty retrial transcript and denied the § 190.4(e) application to modify the death verdict.
- Burgener’s appeal to the California Supreme Court followed automatically, limited to issues arising from the § 190.4(e) modification proceedings.

## Issues

1. Whether the substitute judge, ruling on a Penal Code § 190.4(e) application after remand, properly exercised independent judgment by personally weighing aggravating and mitigating evidence under Penal Code § 190.3 rather than deferring to the jury’s death verdict.

## Decision

- The California Supreme Court held the substitute judge did not apply the correct standard under Penal Code § 190.4(e) because the record showed a failure to exercise independent judgment.
- The Court found no other reversible error affecting the modification proceedings.
- The Court vacated the death judgment solely to permit the trial court to reconsider and rule on the § 190.4(e) application under the correct standard.
- The Court limited any subsequent appeal to issues related to the modification application.

## Legal Principles

- Penal Code § 190.4(e) requires the trial court, after a death verdict, to personally review the evidence, weigh aggravating and mitigating circumstances, and determine in the court’s independent judgment whether the verdict is contrary to law or the evidence.
- The trial court’s § 190.4(e) function is not satisfied by a deferential or “substantial evidence” type review of the jury’s determination.
- On remand, the trial court must confine its analysis to the statutory sentencing factors in Penal Code § 190.3 and the review obligations in § 190.4(e), and may not rely on nonstatutory considerations.
- A substitute judge may rule on a § 190.4(e) application based on the record, but must still perform the same independent reweighing required of the original judge.

## Conclusion

The California Supreme Court vacated the death judgment because the substitute judge did not independently reweigh aggravating and mitigating evidence as Penal Code § 190.4(e) requires, and remanded for a new ruling limited to the proper statutory framework.


People v. Burgener, 29 Cal. 4th 833 (Cal. 2003)