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A man who killed a convenience store clerk more than 22 years ago got his second reprieve from the death penalty Monday. The California Supreme Court vacated the death sentence for Michael Burgener and ordered Riverside County Superior Court Judge Ronald Heumann to re-examine the evidence jurors relied on in imposing the death penalty. “The record here contains no indication that the judge understood his duty to independently reweigh the evidence and make an independent determination whether the evidence supported the verdict of death,” Justice Marvin Baxter wrote for a unanimous court. “Indeed, the court’s statements betray reliance on a lesser standard of review.” The ruling marks the second time Burgener has been spared the death sentence. After jurors sentenced him to death in 1981, Riverside County Superior Court Judge J. William Mortland — relying on the dictates of Penal Code � 190.4 — modified the sentence to life without parole, after finding that the evidence did not support death. The appeal court reversed and sent the issue back for rehearing. Mortland had retired so Judge Heumann got the case and reinstated the death sentence in 1991. On Monday, the high court said Heumann had applied the wrong standard of review and did not seem to understand that he was required to exercise independent judgment in determining whether the evidence supported the jury’s death verdict. “At no point did the court indicate that it had undertaken an independent review of the evidence or balancing of the aggravating and mitigating circumstances,” Justice Baxter wrote. “Rather, the court consistently deferred to the jury’s implied findings.” Justice Joyce Kennard issued a separate concurring opinion in which she criticized the majority for not taking a strong stand on what kind of test should be considered in determining the proper percentage of minority representation on juries. Burgener was convicted of murdering William Arias, a clerk at a 7-Eleven store in Riverside, on Halloween morning of 1980. He took about $50 from the store’s cash register and was captured about 12 hours later based on a description provided by a customer who saw Burgener running from the store. Burgener’s lawyer, Michael Totaro, a partner in Pacific Palisades’ Totaro & Shanahan, didn’t return a call seeking comment. But San Diego Deputy Attorney General Lilia Garcia, who prosecuted the case, expressed disappointment. “I respectfully disagree with the Supreme Court,” she said. “I do think the trial judge in this case was aware of his duties.” Garcia said she believes there’s a good chance Burgener won’t escape the death penalty. While the Supreme Court indicated Heumann should have done more to articulate his reasons for finding there was sufficient evidence to support the death sentence, she felt he had done so very well in the first place — and thinks he will reach the same conclusion when the case lands back in front of him. “It’s just unfortunate,” she said, “that this case is going to go back for a third modification hearing.” The case is People v. Burgener, 02 C.D.O.S. 813.

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