Burgener

In 1981, Michael Ray Burgener was convicted of murdering William Arias during a convenience store robbery and sentenced to death. We affirmed the guilt judgment but reversed the penalty verdict because defense counsel at Burgener’s request “deliberately refrained from introducing any evidence in support of a lesser penalty than death, though such evidence was available.” (People v. Burgener (1986) 41 Cal.3d 505, 542 [ 224 Cal.Rptr. 112 , 714 P.2d 1251 ] (Burgener I), disapproved on another ground in People v. Reyes (1998) 19 Cal.4th 743 [ 80 Cal.Rptr.2d 734 , 968 P.2d 445 ]; but see People v. Bloom (1989) 48 Cal.3d 1194, 1228, fn. 9 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ] (Bloom) [disapproving the rule that “failure to present mitigating evidence in and of itself is sufficient to make a death judgment unreliable”].)

At the penalty retrial, a jury again sentenced Burgener to death, but the trial court modified the sentence from death to life imprisonment without the possibility of parole. (See Pen. Code, § 190.4, subd. (e) (hereafter section 190.4(e)); all undesignated statutory references are to the Penal Code.) The Court of Appeal reversed on the ground that the trial…