Filed 7/29/26 P. v. Sanford CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
THE PEOPLE, C102345
Plaintiff and Respondent,
(Super. Ct. No. P12CRF0180)
v.
ANDREW EVAN SANFORD,
Defendant and Appellant.
Defendant Andrew Evan Sanford appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1172.6 after the trial court issued an order to show
cause.1 His appellate counsel filed a brief raising no arguable issues under People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and asked that we exercise our discretion
to review the record for arguable issues on appeal.
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the
Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. Defendant filed his original petition
under former section 1170.95, but we will cite to the current section number throughout
this opinion.
1
This court notified defendant he had 30 days to file supplemental briefing raising
any argument he wanted us to consider. Defendant filed a supplemental brief raising
numerous contentions.2 We have independently reviewed the contentions defendant
raises in his supplemental brief in accordance with Delgadillo and conclude none of them
have merit. We will affirm.
I. BACKGROUND
Just as the trial court did in reviewing defendant’s section 1172.6 petition, we
derive our statement of facts from the evidence admitted during the 2015 trial.
A. The Murder and Initial Investigation
On August 14, 1980, the 16-year-old victim was working at a gas station from
midnight to 8:00 a.m. A co-worker saw him at the station at around 2:00 a.m., and a
customer paid an attendant at around 5:00 a.m. At around 6:00 a.m., another man saw
two neatly-dressed white males in their early 20s come out of the gas station’s office and
then go back inside; he left about five minutes later. About 10 to 15 minutes after that, a
different customer found no attendant when he tried to pay for gas.
Later that morning, the victim was found dead in the gas station’s office. The
victim’s face, hands, and midsection were bound with duct tape, with his head taped all
2 Defendant also seeks judicial notice of several documents, including some that are
already in the record and others that are not. We deny judicial notice of these materials.
(See Cal. Rules of Court, rule 8.252(a)(2)(B)-(C) [party seeking judicial notice must file a
motion stating “[w]hether the matter to be noticed was presented to the trial court and, if
so, whether judicial notice was taken by that court;” and “[i]f judicial notice of the matter
was not taken by the trial court, why the matter is subject to judicial notice under
Evidence Code section 451, 452, or 453”].) To the extent the request seeks judicial
notice of material unrelated to the issues on appeal, judicial notice is also denied based on
relevance grounds. (City of Hesperia v. Lake Arrowhead Community Services Dist.
(2023) 93 Cal.App.5th 489, 509 [appellate court may decline to take judicial notice of
matters not relevant to dispositive issues on appeal].)
2
the way around from his lower chin up to just below his eyes. There were bandages on
two of the victim’s fingers.
The office was in “disarray” with “quite a bit of blood” on the floor. The cash
register in the cashier booth was open, and about $760 was missing from the gas station.
In the gas station’s compressor room, which was adjacent to the office, a roll of
grey duct tape was on top of a first aid kit. On the floor there were also wood chips,
bloodstains, shoe prints, and a blood-stained roll of towels.
The duct tape was removed from the victim at the mortuary and collected as
evidence. Before removing the tape from the victim’s mouth and nose, the investigating
officer unsuccessfully tried to recover fingerprints.
The autopsy revealed that the victim died of asphyxiation due to suffocation. He
also had non-fatal lacerations on his scalp and near his eye. Based on the victim’s
condition, the examining physician opined that the victim had been alive when the duct
tape was put on his face. Assuming the tape blocked the victim’s nose and mouth, it
would have taken about three to four minutes for the victim to suffocate to death.
B. Circumstances Surrounding the Murder
Donald also worked at the gas station during the summer of 1980. The night of
the murder, he worked the shift right before the victim’s. The day after the murder,
Donald told an interviewing police officer that, prior to leaving his shift, he cleaned up
the lube room and put a roll of duct tape in the cabinet in the gas station’s lube area.
Donald and his twin brother, Ronald, knew defendant from high school.
Unemployed at the time, defendant would occasionally stop by the gas station to borrow
money or gasoline. Defendant also sometimes helped Donald work on Donald’s car at
the gas station. At one point, defendant needed a place to live and stayed temporarily
with Donald’s grandparents. The grandparents kicked defendant out when they suspected
him of stealing a truck from their business.
3
Timothy was also friendly with defendant the summer of the murder. He last saw
defendant a week before the murder. Defendant came to his house and invited him to go
“jockey boxing,” which meant stealing things out of cars.
Peggy knew defendant at the time of the murder. When interviewed by police in
1980, she said that, the day of or the day before the murder, she was in a parking lot near
the gas station. She noticed defendant, who was bigger than her, sitting in her parked car.
Fearing he was about to steal it, she ran toward her car. Defendant got out of her car,
grabbed her, and asked for money. She refused, explaining she only had two dollars.
Defendant “started getting crazy,” and said “ ‘[W]hat about the station? What about the
Shell station?’ ” It seemed like defendant “had to rush over there.”
C. Admissions to Jenna in 2010
Jenna dated defendant in 2010 and briefly lived with him. Soon after she moved
in, defendant asked her if she thought God forgave murders. When Jenna responded
“yes,” defendant explained that, when he was younger, he and some friends “did
something,” and he thought “somebody might have died.” Jenna let the statement go
because she needed a place to live.
D. 2010-2011 DNA Analysis
In 2010, a Department of Justice criminalist began analyzing the evidence for
DNA. The criminalist was able to exclude defendant as a contributor to the DNA found
on the duct tape from the victim’s midsection, and only the victim’s DNA was on the
tape from the victim’s head. However, the DNA from the side of the duct tape roll
contained a mixture of DNA from the victim and a second contributor, and defendant
could not be ruled out as the second contributor. In addition, defendant could not be
ruled out as a second contributor to the DNA found on the tape from the victim’s wrists
and hands. The chance that a random unrelated individual would be included as a
possible contributor to a DNA mixture was one in 240 million for African Americans,
4
one in a hundred million for Caucasians, and one in 67 million for Hispanics. Still, the
criminalist acknowledged, it was impossible to know when the DNA was deposited.
E. Defense
Defendant argued the murder investigation had been mishandled, and evidence
had been destroyed or contaminated. According to defendant, his DNA was at the scene
because he worked in the gas station garage and handled tools while working on
Donald’s car, and Jenna was simply not reliable.
F. Charges, Verdicts, and Sentencing
In 2014, defendant was charged with murder.3 (§ 187.) The information also
alleged: (1) the murder was premeditated and occurred in the perpetration of, or attempt
to perpetuate, a robbery and a burglary; and (2) the special circumstances that the murder
was committed while defendant was engaged in a robbery and in a burglary. (§§ 189,
190.2, subd. (a)(17)(A), (G).)
The jury found defendant guilty of first degree murder and found both special
circumstance allegations true. The trial court sentenced defendant to life without the
possibility of parole. On appeal, this court affirmed the judgment. (People v. Sanford
(Dec. 4, 2020, C078614) [nonpub. opn.].)4
G. Section 1172.6 Petition and Hearing
In 2022, defendant filed a petition for recall and resentencing under section
1172.6. The trial court appointed counsel, ordered briefing, and subsequently issued an
order to show cause.
3 The original complaint was filed in 2012.
4 We take judicial notice of this court’s prior opinion in case No. C078614. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a).)
5
During the evidentiary hearing, the trial court noted that it had considered the
parties’ briefing and the trial transcripts, including the jury instructions, jury verdicts, and
findings. Defendant argued that, since the case was tried in 2014, the People now had to
prove beyond a reasonable doubt that defendant was a substantial participant under the
new definition. The People argued the new standard was met, since defendant’s DNA
was found on the tape used to bind the victim, that defendant acted suspiciously before
the murder and appeared to want to rob the gas station, and that defendant had
acknowledged guilt to Jenna.
The DOJ criminalist who originally performed the 2010 and 2011 DNA analysis
acknowledged that there was one swab from the duct tape roll that might have had a third
DNA contributor. Some other pieces of tape had three to four DNA contributors.
A forensic DNA consultant expressed concern that the original crime scene
technician’s collection of evidence “could have led to transfer of DNA,” especially since
the technician handled multiple and different items of evidence while wearing the same
gloves. Touching items with the same gloves can lead to DNA transfer, including when
moving the victim’s body. She opined it was possible that the DNA from the side of the
roll of tape was transferred to the sticky side of the tape. It was also possible that
defendant’s DNA would have been present in the gas station’s garage simply because he
had been there working on Donald’s car before the murder. The consultant was also
concerned that, even though defendant had been excluded from some samples of the tape,
there had been no testing to determine the identity of the other contributors.
H. Trial Court’s Denial of Defendant’s Section 1172.6 Petition
Citing People v. Strong (2022) 13 Cal.5th 698 (Strong), the trial court found that
where, as here, a jury made felony murder special circumstance findings before People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark),
those findings cannot be used to determine that a defendant is ineligible for resentencing
6
under section 1172.6. The trial court then made several findings under Banks and Clark
as follows:
Turning to the Banks factors, the trial court found that defendant had a role in
planning the crime that led to the victim’s death because there was no evidence that
anyone else was involved in planning the burglary of the gas station. In addition,
Peggy’s statements to police established that, when defendant failed to get money from
her, he started asking about the gas station.
As to supplying the lethal weapon, the autopsy showed that the cause of death was
asphyxiation due to the tape over the victim’s nose and mouth. It was impossible to
exclude the defendant as a contributor to the DNA on the duct tape binding the victim,
and the likelihood of this being a false positive was miniscule. Although there had been
evidence that defendant worked on Donald’s car in the gas station’s garage, no one
testified that they had ever seen him using or handling duct tape at the gas station,
making it likely that defendant handled the tape during the murder.
The evidence also indicated that defendant was aware of the danger posed by the
nature of the crime or the weapons used. The tape had been wrapped around the victim’s
nose and mouth in such a way that it “completely seal[ed] off his nose and mouth.” It
would have been “obvious that he would be unable to breathe and he would suffocate.”
As to defendant’s past experience with other participants, the evidence was
unclear as to whether there were other participants, or who they were. Someone saw two
men leaving the gas station office at around 6:00 a.m., but it was unclear if they had any
connection to the crime.
Regarding whether defendant was present at the scene of the killing or in a
position to prevent the killing, the defendant could not be excluded as a contributor to the
DNA found on the tape that bound the victim. This strongly suggested he was present
and bound the victim. Even if defendant was not the sole participant in the crime, he was
7
in a position to either prevent a co-participant from taping over the victim’s nose and
mouth, or to remove the tape and prevent the victim’s suffocation.
It was unclear what defendant did after the lethal force was used. However,
defendant did not remove the tape from the victim’s nose or mouth.
Turning to the Clark factors, the trial court noted that, as to the lethal weapon,
there was DNA evidence indicating defendant bound the victim. A jury could reasonably
infer that defendant also wrapped the victim’s head and face with duct tape. Regarding
physical presence at the crime and opportunities to restrain the crime or aid the victim,
the court again noted that the DNA evidence indicated defendant was present and either
bound the victim or failed to help the victim by removing the duct tape. With respect to
the duration of the felony, it must have taken a long time to restrain the victim and then
carefully bind his face and head.
As to defendant’s knowledge of any co-participant’s likelihood of killing, it was
unclear that there were other participants, or who they were. Defendant’s statements to
Jenna that, when he was young, he and some friends might have done something to
someone did not “credibl[y]” establish that other people were involved.
Regarding defendant’s efforts to minimize the risk of violence during the felony,
nothing in the record suggested defendant “did anything” to minimize the risk of violence
during the crime. Even if defendant only restrained the victim, that “significantly”
increased the risk of harm because it prevented the victim from defending himself.
The court stated that defendant had presented “nothing new” during the hearing,
especially as to defendant’s efforts to discredit the DNA evidence. Instead, the evidence
established “beyond a reasonable doubt” that either defendant was the actual killer, or
that, under Banks/Clark, defendant was a major participant and acted in reckless
indifference to human life. As such, defendant was ineligible for relief under section
1172.6.
Defendant timely appealed.
8
II. DISCUSSION
Despite defendant’s apparent request for an independent review of the record, we
need only evaluate the specific arguments presented in his supplemental brief.
(Delgadillo, supra, 14 Cal.5th at pp. 231-232.)
A. Sufficient Evidence Supports the Trial Court’s Denial of Relief
1. Legal Background: Senate Bill 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) amended the
felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, “to ensure that murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) Senate Bill 1437 achieved these goals by amending section 188 to require that
a principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch.
1015, § 2), and by amending section 189 to state that a person can be liable for felony
murder only if: (1) the “person was the actual killer;” (2) the person, with an intent to
kill, was an aider or abettor in the commission of murder in the first degree; or (3) the
“person was a major participant in the underlying felony and acted with reckless
indifference to human life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)
Where, like here, the trial court issues an order to show cause and holds an
evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable
doubt, that the petitioner is guilty of murder under California law as amended by the
changes to section 188 or 189 made effective by Senate Bill 1437. (§ 1172.6, subd.
(d)(3).) The parties may offer evidence from a prior trial, or new or additional evidence
at the hearing. (Ibid.)
We review the denial of a section 1172.6 petition following an evidentiary hearing
for substantial evidence. (People v. Guiffreda (2023) 87 Cal.App.5th 112, 125.) “Our
job on review is different from the trial judge’s job in deciding the petition. While the
9
trial judge must review all the relevant evidence, evaluate and resolve contradictions, and
make determinations as to credibility, all under the reasonable doubt standard, our job is
to determine whether there is any substantial evidence, contradicted or uncontradicted, to
support a rational fact finder’s findings beyond a reasonable doubt.” (People v. Clements
(2022) 75 Cal.App.5th 276, 298.) We examine “ ‘the entire record in the light most
favorable to the judgment to determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value that would support a rational trier
of fact in finding [the defendant guilty] beyond a reasonable doubt.’ ” (People v. San
Nicolas (2004) 34 Cal.4th 614, 657-658.) “We do not reweigh the evidence or revisit
credibility issues, but rather presume in support of the judgment the existence of every
fact that could reasonably be deduced from the evidence.” (People v. Pham (2009)
180 Cal.App.4th 919, 924-925.) “The same standard applies when the conviction rests
primarily on circumstantial evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
“An appellate court must accept logical inferences that the [trier of fact] might have
drawn from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
2. Legal Background: Banks/Clarks Factors
When “Senate Bill 1437 amended … section 189 to incorporate major
participation and reckless indifference requirements, it codified the understanding of
those requirements elucidated in Banks and Clark.” (Strong, supra, 13 Cal.5th at p. 710.)
Although technically courts have stated separately the major participation and reckless
indifference requirements, “ ‘they often overlap’ ” and cannot be uncoupled. (Clark,
supra, 63 Cal.4th. at p. 615.) Generally, “ ‘the greater the defendant’s participation in the
felony murder, the more likely that he acted with reckless indifference to human life.’ ”
(Ibid.) Accordingly, evidence of major participation “ ‘often provide[s] significant
support’ ” of reckless indifference. (Ibid.)
Banks considered “under what circumstances an accomplice who lacks the intent
to kill may qualify as a major participant.” (Banks, supra, 61 Cal.4th at p. 794.) The
10
high court identified various factors that should be considered in making the
determination, including: “What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did the defendant have in supplying
or using lethal weapons? What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past experience or conduct of other
participants? Was the defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after lethal force was used?” (Id.
at p. 803, fn. omitted.)
The Banks court recognized that “[n]o one of these considerations is necessary,
nor is any one of them necessarily sufficient.” (Banks, supra, 61 Cal.4th at p. 803.)
Instead, all of the factors “may be weighed in determining the ultimate question, whether
the defendant’s participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major.’ ” (Ibid.)
Applying these factors, the Banks court found the evidence was insufficient to
show the defendant there—a getaway driver for an armed robbery of a medical marijuana
dispensary—was a major participant, where there was no evidence establishing his role in
planning the robbery or procuring weapons, and no evidence he was present for the
robbery or could have done anything to stop the shooting or render assistance. (Banks,
supra, 61 Cal.4th at pp. 794-795, 804-805, 807.)
Our Supreme Court considered the “reckless indifference” element in Clark.
(Clark, supra, 63 Cal.4th at pp. 614-623.) Reckless indifference to human life is
“ ‘implicit in knowingly engaging in criminal activities known to carry a grave risk of
death.’ ” (Id. at p. 616.) It “encompasses a willingness to kill (or to assist another in
killing) to achieve a distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.” (Id. at p. 617.) Recklessness has both a subjective
and an objective component. (Ibid.) Subjectively, the defendant must consciously
11
disregard risks known to him. (Ibid.) Objectively, recklessness is determined by “what
‘a law-abiding person would observe in the actor’s situation,’ ” that is, whether the
defendant’s conduct “ ‘involved a gross deviation from the standard of conduct that a
law-abiding person in the actor’s situation would observe.’ ” (Ibid.) The fact that a
robbery carried a risk of death is insufficient, by itself, to support a finding of reckless
indifference. (Id. at pp. 617-618.)
Similar to Banks, the Clark court identified various factors to be considered in
determining whether the defendant acted with reckless indifference. (Clark, supra,
63 Cal.4th at pp. 618-623; see also In re Scoggins (2020) 9 Cal.5th 667, 677 [courts must
analyze the “totality of the circumstances” when considering reckless indifference].)
These include: “Did the defendant use or know that a [lethal weapon] would be used
during the felony? How many weapons were ultimately used? Was the defendant
physically present at the crime? Did he or she have the opportunity to restrain the crime
or aid the victim? What was the duration of the interaction between the perpetrators of
the felony and the victims? What was the defendant’s knowledge of his or her
confederate’s propensity for violence or likelihood of using lethal force? What efforts
did the defendant make to minimize the risks of violence during the felony?” (Scoggins,
supra, at p. 677 [listing factors set forth in Clark, supra, at pp. 618-623].) As courts have
explained, youth may also be a relevant factor in considering reckless indifference.
(People v. Keel (2022) 84 Cal.App.5th 546, 558-559.)
Applying these factors, the Clark court found the evidence was insufficient to
show the defendant acted with reckless indifference to human life in the armed robbery of
a computer store, where he planned the robbery but was not armed or physically present
in the store when the victim was shot, did not have the intent to kill, and attempted to
minimize the likelihood of violence by timing the robbery for a time when fewer people
would be present and using an unloaded gun. (Clark, supra, 63 Cal.4th at pp. 611, 613,
618-623.)
12
3. Analysis
Defendant argues the trial court erred in denying his resentencing petition because
there was not substantial evidence to support the trial court’s finding that he was a major
participant who acted with reckless indifference to human life. We disagree.
As the trial court did, we turn first to the Banks factors. Peggy’s statement to
police that defendant got “crazy” and asked about the gas station when she refused his
intimidating requests for money supports the trial court’s finding that defendant planned
the robbery.5 In addition, the DNA evidence established, at a minimum, that defendant
was present at the scene and helped bind the victim, which prevented the victim from
defending himself while tape was bound over his mouth and nose. Defendant must have
been aware that closing off the victim’s airways would have suffocated him, yet there is
no evidence that defendant did anything to stop any compatriots or otherwise help the
victim.
Turning to the Clark factors, we conclude the record contains sufficient evidence
from which the trial court could conclude beyond a reasonable doubt that defendant acted
with reckless indifference to the victim’s life. We agree with the trial court that it was
unclear whether other participants were involved. However, given the DNA evidence, it
was reasonable for the trial court to infer that, at a minimum, defendant was present and
used the duct tape to bind and restrain the victim, leaving the victim in a very vulnerable
position. Defendant appears to have made no efforts to minimize the risk to the victim or
render any aid, even though: (1) the victim was alive when the tape was placed over his
5 To the extent defendant challenges the accuracy or reliability of Peggy’s statements,
Jenna’s statements, or the DNA evidence (including based on the differing evidence
collection standards in 1980 or chain of custody issues), we note these issues were before
the trial court. We decline defendant’s invitation to reweigh the credibility of this
evidence. (People v. Pham, supra, 180 Cal.App.4th at pp. 924-925 [reviewing courts do
not reweigh the evidence or revisit credibility issues].)
13
nose and mouth; and (2) it took about three to four minutes for the victim to suffocate to
death.
Accordingly, we conclude from the totality of the evidence and reasonable
inferences from the evidence that substantial evidence supports the trial court’s findings
that defendant was a major participant who acted with reckless indifference to human
life.
B. Additional Arguments
Defendant next contends the trial court failed to properly evaluate the entire
record, arguing the court did not consider “exculpatory inferences,” and “[r]eliability
issues were not resolved.” Pointing to a one-page list of transcript page cites for the
general location of the testimony from each of the 14 witnesses from the preliminary
hearing, defendant argues the trial court erred in failing to consider preliminary hearing
transcripts. We decline to find error because defendant has failed to explain how this
alleged error prejudiced him, especially since defendant’s evidentiary hearing briefs
never argued that such evidence was relevant. (People v. Garza (2005) 35 Cal.4th 866,
881 [on appeal, a judgment of the trial court is presumed correct, and a party attacking
the judgment must affirmatively demonstrate prejudicial error].)
For similar reasons, we find meritless defendant’s claim that the trial court erred in
failing to consider “subpoenaed” evidence, especially since nothing in the record
indicates defendant or the prosecution sought to have this new “subpoenaed” evidence
(which is not in the record on appeal) admitted during the evidentiary hearing. We also
reject defendant’s invitation to infer that his attorney was prevented or “hamstrung” from
presenting any relevant new evidence such as the “subpoenaed” evidence, given that
defendant had the opportunity to submit briefing and oral argument. In addition, because
the trial court ultimately scheduled closing argument based on defense counsel’s request,
we find no merit in defendant’s argument that the trial court erred in denying his
14
counsel’s request to delay closing argument.6 (People v. Garza, supra, 35 Cal.4th at
p. 881 [a party attacking the judgment on appeal must affirmatively demonstrate
prejudicial error].)
Defendant next argues the trial court “got the facts wrong,” including describing
Peggy as saying defendant “demanded money,” when (according to defendant) the police
report said defendant only asked Peggy to “l[oan] him some money.” Although the
record on appeal does not contain a copy of this police report, it does contain a copy of
excerpts from the transcript of Peggy’s actual police interview. The transcript does not
use the word “demand,” but it does indicate that defendant, who was bigger than Peggy,
grabbed her, asked for money, and “was trying to get [her] purse.” We find no error in
the trial court describing this interaction as defendant demanding money from Peggy.
We similarly find no error in the way the trial court described the stipulation
regarding the customer who said he saw two young men walking out of the gas station
office at around 6:00 a.m. the day of the murder. We also decline defendant’s apparent
invitation to assume that the trial court misunderstood the evidence, including the
timeline of the various witnesses who stopped by the gas station the day of the murder, or
failed to properly consider defendant’s age and state of mind at the time of the murder.
(See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-1533 [we presume
the absence of error from a silent record].)
6 During the evidentiary hearing, both parties said they had presented all their evidence
just before lunchtime. Defense counsel asked to delay closing argument until the
following morning, explaining he needed more time because there were “some legal
arguments that [he] need[ed] to follow up on.” The court responded that the law had not
changed significantly since defense counsel was appointed, and, if this were a trial, it
would “expect closing argument this afternoon.” Defense counsel asked to return at 2:30
p.m. The court explained it needed to do other court business, asked how much time
each party needed, and then asked defense counsel when he wanted to return. Defense
counsel responded, “2:30,” and the trial court asked the parties to return at 2:30 p.m.
15
Additionally, defendant argues the state “[c]onstructively [d]enied [him]
[a]ssistance of [c]ounsel” by not allowing him to sit at the table with his attorney. He
also appears to argue his counsel was ineffective for failing to ask that defendant be
moved to the defense table. We reject both arguments, since there is nothing in the
record indicating that defendant was not present and able to engage with his counsel
during the evidentiary hearing. (Null v. City of Los Angeles, supra, 206 Cal.App.3d at
pp. 1532-1533 [we presume the absence of error from a silent record].) For similar
reasons, we decline to consider defendant’s apparent argument that the reporter’s
transcript of the evidentiary hearing is incomplete and inaccurate.
Finally, defendant claims the cumulative effect of errors require reversal. As we
have found no error, this argument necessarily fails.
III. DISPOSITION
The order denying the section 1172.6 petition is affirmed.
/S/
RENNER, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
BOULWARE EURIE, J.
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