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B.  Analysis

Defendant contends that the trial court, rather than accepting counsel’s waiver of penalty phase argument on defendant’s behalf, should have appointed new counsel for the purpose of making a penalty phase argument to the jury.  If additional time was needed, defendant argues, the court should have continued the penalty trial on its own motion, or, if that course was deemed impractical because of constraints on the jurors’ availability, declared a mistrial of the penalty phase.  The Attorney General, in response, surmises that defense counsel’s decision to present no penalty phase argument was a tactical one.  The trial court, the Attorney General argues, could not properly have appointed new counsel for purposes of argument merely out of disagreement with Miller’s and Maple’s sense of “appropriate strategy.”

The issue is both complex and troubling.  Troubling because, assuming a capital murder defendant going into the sentencing phase of his trial is determined that his life should be spared, it is difficult to imagine how a penalty phase in which counsel present no mitigating evidence, call no witnesses, refrain from cross-examining the prosecution’s witnesses, and make no argument to the jury on the defendant’s behalf, could ever produce a reliable penalty verdict.  On the other hand, this claim does not arise in a vacuum.  We have noted that defendant was previously convicted and sentenced to death on the instant charges.  We reversed the earlier judgment in People v. Snow, supra, 44 Cal.3d 216, because of the prosecutor’s misuse of peremptory challenges in jury selection.  Two penalty phases were conducted during the course of that first trial, at which Halvor Miller, defendant’s lead counsel in this trial, was also lead defense counsel.  The record

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