CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.
While I concur in the court’s affirmance of defendant’s murder conviction and the special circumstance findings, I dissent from the court’s affirmance of the death penalty in this case. In my view, the trial court’s error in failing to provide defendant an attorney to argue for his life requires reversal of the judgment as to penalty. This being so, I do not address any claim of ineffective assistance of counsel.
As the majority acknowledges, the course of this penalty trial was highly unusual and troubling. Defense counsel, having rested without making an opening statement, presenting any evidence, or cross-examining any witnesses, announced their intent to submit the case without any argument as well. Counsel then refused not only to give a reason for this decision, but even to indicate in a general way what type of reason (e.g., strategic, ethical, client direction) they had. Nor would counsel say why no reason could be given. Essentially, counsel stonewalled the court. The court asked defendant whether he wanted a different attorney appointed to argue for him; defendant replied that he did. The court nonetheless failed to appoint a new attorney. Rather, on the assurance of another attorney that appointed counsel had some still undisclosed reason not to argue for their client’s life, the court ultimately accepted counsel’s waiver of argument.
Argument to the jury is, of course, a critical stage of trial, at which assistance of counsel is vital. (See Herring v. New York (1975) 422 U.S. 853, 858