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Miller stated in his July 17 declaration, among other things, that “The defendant advised both counsel that he would not aid in their preparation for penalty trial.  He also advised counsel that he did not want any member of his family called as a witness at his penalty trial, and that he had instructed all family members not to cooperate with defense counsel or their investigators.  [¶] I submitted visiting passes at the Los Angeles County Men’s Central Jail, where the defendant is housed, on June 15, 19, 21, 22, 1990, and on July 11, 1990.  The defendant would not respond to any of the requests for a visit.  He advised the Sheriff that he was refusing, in each instance.  I have not spoken to the defendant

25 The documents are part of the record on appeal and are found in the confidential supplemental clerk’s transcript on appeal, in the confidential files maintained pursuant to section 987.9.  Given that they were submitted to the master calendar department pursuant to the confidential procedures outlined in section 987.9, they would normally not have been brought to the attention of the trial judge.  The parties were afforded notice that the court was considering referencing the declarations in connection with this claim.  Respondent has no objection to the unsealing of the documents.  Defendant has objected, noting he has had no opportunity to cross-examine the declarants, that the “untested and unsubstantiated information” in the declarations is “insufficient and inappropriate for use by this Court for purposes of direct appeal,” and that “[t]his subject is more properly relegated to habeas corpus proceedings.”

We conclude that confidentiality no longer requires that the declarations remain under seal, and they are hereby ordered unsealed.  We agree with defendant that the declarations are untested in that defendant as yet has had no opportunity to cross-examine the declarants regarding the contents of the declarations, and that although the documents are part of the record on appeal, they may not be considered by this court as conclusive evidence bearing on the merits of this issue in the automatic appeal.  However, although we do not treat the declarations as establishing the facts averred therein, we can and do consider them as raising a reasonable inference that counsel had reasons for performing as they did at the penalty phase of trial, reasons that are not fully reflected in the cold transcript of the penalty phase proceedings.  We agree with defendant that the “subject” of counsel’s performance at the penalty phase, and the matter of the veracity and reliability of their declarations, are “more properly relegated to habeas corpus proceedings.”

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