Burgener

This is the fourth published opinion on appeal arising from defendant Michael Ray Burgener’s murder of a convenience store clerk on Halloween morning 1980, and it may not be the last.

In 1981, a jury convicted defendant of the first degree murder of William Arias by use of a firearm, robbery by use of a firearm and with the infliction of great bodily injury, and being a felon in possession of a firearm. The jury also found true the special circumstance that defendant murdered Arias in the commission of the robbery, and sentenced defendant to death. In 1986, we affirmed the guilt judgment but reversed the penalty because defense counsel, at defendant’s instruction, had not presented any mitigating evidence or argument at the penalty trial. (People v. Burgener (1986) 41 Cal.3d 505 [ 224 Cal.Rptr. 112 , 714 P.2d 1251 ].)

In 1988, a jury again sentenced defendant to death. However, the trial court granted defendant’s application under Penal Code section 190.4, subdivision (e) (section 190.4(e)) to modify the verdict from death to life imprisonment without the possibility of parole. The Court of Appeal reversed, finding the trial court had considered improper factors in…