Indeed, the trial court’s own comments, at the conclusion of the Gerstein discussion, show its decision to accept counsel’s waiver rested not on an intuition or inference regarding defendant’s wishes but on its acceptance of what the court took to be Gerstein’s assurance that appointed counsel had a tactical reason for their course of action, an assurance Gerstein never gave and that counsel steadfastly refused to give.
The court had earlier attempted to elicit from appointed counsel a statement that they had a tactical or strategic reason to waive argument. That attempt failed, as counsel simply refused to say anything about their reasons:
“The Court: . . . Does counsel for the defense wish to respond to the court’s inquiry?
“Mr. Maple: I do not, your Honor.
“The Court: Mr. Miller?
“Mr. Miller: No, Sir. [¶] . . . [¶]
“The Court: . . . Not one word is being argued in his behalf as to the penalty aspect of this trial before this jury. May I know why, counsel? Mr. Miller, have you any reply?
“Mr. Miller: No, sir. No, your Honor.
“The Court: Mr. Maple?
“Mr. Maple: No, your Honor. [¶] . . . [¶]
“The Court: Thank you. Is this pursuant to tactical reasons that you may have developed in the course of this trial?