of the first penalty phase proceeding26 reflects that defendant adamantly refused to cooperate with any defense strategy designed to spare his life, and indeed, was determined to receive the death penalty.
Defendant stated on the record at the first penalty trial that he had “directed Mr. Miller not to offer any mitigating circumstances or any mitigating evidence to oppose the prosecution’s case of aggravating circumstances. I don’t feel that there are any. . . . [¶] . . . [I]f I am guilty of murder, I do not want to go to prison for the rest of my life and I would prefer—and I would explain that to the jury that I would prefer that the jury sentence me to death.” When pressed by the trial court as to whether they objected to defendant’s proposed course, Miller and his cocounsel ultimately stated they took no position in light of his right to testify. The matter proceeded accordingly, with defendant taking the stand and testifying that in his opinion there were no factors in mitigation, that he had instructed his attorneys not to present any argument for life imprisonment, and that he did not
26 By earlier order of this court, the parties were afforded notice that the court was considering taking judicial notice of the public records of the first penalty phase proceeding of defendant’s first trial, portions of which we now judicially notice and make reference to herein. (Evid. Code, §§ 452, 459, subd. (b).) We note that defendant took the position during the briefing stage of this appeal that the record on appeal should be augmented to include the entire record of his first trial on these charges. Now, however, defendant objects to the court taking judicial notice of a portion of the same materials, urging that, “At the first penalty trial [defendant] expressed the sentiment that he wanted no effort expended on his behalf and that he preferred to die rather than spend the rest of his life in prison. This is irrelevant for purposes of resolving the instant appeal, especially since the instant record does not reflect that [defendant] expressed any similar sentiment.”
Although we agree with defendant that evidence of his sentiments at his first trial cannot be imputed to his state of mind at this trial, we are not considering the portions of the transcript of the first penalty trial for that purpose, but are instead considering the events that transpired at the first penalty trial as they bear upon lead counsel Miller’s state of mind, knowledge, and reasons for his acts and omissions in his representation of defendant at this penalty trial.