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colloquy with attorney Robert Gerstein (who appeared to argue for retention of appointed counsel Miller and Maple) shed no additional light on defendant’s wishes, as Gerstein expressly stated he had no information to provide on that subject:

“Mr. Gerstein:  I’ve—I understand—what I do want to say, your Honor, is that they are representing the client’s best interests in their professional judgment.  Now, I did not mean to—

“The Court:  That’s all I want to hear.  

“Mr. Gerstein:  —I did not mean to say by that that this was not the defendant’s judgment or that it was the defendant’s judgment, that that was not taken into account.”  (Italics added.)

Thus the court, attempting to determine whether defendant wanted an attorney to argue for him at the penalty trial, first heard appointed counsel Miller refuse to answer the question, then heard defendant answer that he did want an attorney to argue for him, and finally heard Miller and Maple’s attorney, Gerstein, say that he did not mean to say anything on the subject.  The court, I submit, could not rationally conclude from this information that defendant wished to waive representation at the argument phase or to waive argument itself.34

34The majority’s reliance on People v. Lang (1989) 49 Cal.3d 991, 1029-1033 (maj. opn., ante, at p. 89) is thus misplaced.  Lang involved the defense’s decision to forgo a particular piece of mitigating evidence, not to waive argument to the jury.  The claim was ineffective assistance of counsel, not trial court error in failing to appoint counsel.  Most important, in Lang, the defendant’s desire not to have the evidence presented appeared in the record (Lang, supra, at p. 1029); here, in contrast, defendant specifically and expressly stated that he did want argument presented on his behalf.  The last fact crucially distinguishes Lang and similar decisions, which simply recognize that counsel has no obligation to pursue penalty phase strategies contrary to the expressed wishes of the client.  (See, e.g., People v. Howard (1992) 1 Cal.4th 1132, 1183-1186; People v. Deere (1991) 53 Cal.3d 705, 713-717.)

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