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influenced the court and cannot logically be used to justify the court’s decision.  (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Appeal, § 142, p. 390; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 328, pp. 369-370 [matters not in record and not before trial court are not properly considered on appeal of judgment or order].)  

For similar reasons, I disagree with the majority’s view that consideration of defendant’s principal claim—that the trial court erred in refusing to appoint new counsel for argument—is properly deferred until possibly raised in a future petition for writ of habeas corpus.  The merits of defendant’s claim, as of any claim of trial court error, must be measured by the information available to the trial court when it made the challenged decision.  Posttrial declarations of counsel attempting to justify their waiver of argument may affect the analysis of an ineffective assistance of counsel claim, but can shed no light on the merits of a claim that the trial court erred, during trial, in denying defendant an attorney to argue for him at the penalty phase of trial.  The issue in this appeal is not whether this court can imagine a satisfactory explanation for counsel’s behavior, or whether one may be put forward in habeas corpus proceedings.  The issue is, rather, whether the trial court was given, or could have inferred from information before it, a satisfactory explanation.  On this question the appellate record is complete, and habeas corpus proceedings promise no greater insights.

I would hold simply that in the penalty phase of a capital case, when the defense has made no opening statement, called no witnesses, cross-examined none of the prosecution witnesses, presented no evidence in mitigation, and proposes to make no closing argument, the trial court should not accept counsel’s waiver of

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