A close reading of defendant’s supplemental brief reveals that his argument that his death judgment must be reversed on appeal rests on two alternative grounds. Defendant first contends that trial court error requires reversal on appeal. He argues that the court, by refusing to appoint new counsel to make a penalty phase argument after he had responded affirmatively to the court’s inquiry whether he would accept appointment of new counsel, thereby “failed to safeguard Mr. Snow’s rights to due process and a fair trial during the penalty phase, to assure the attainment of a fair and accurate penalty determination, and to assure that Mr. Snow was afforded assistance of counsel during the penalty phase.” Alternatively, defendant argues that reversal on appeal is also required as a result of Miller’s and Maple’s ineffective assistance of counsel at the penalty phase. The two grounds are closely intertwined.
Defendant recognizes that normally a claim of ineffective assistance of counsel is appropriately raised in a petition for habeas corpus (see, e.g., People v. Mendoza Tello, supra, 15 Cal.4th 264), where relevant facts and circumstances not reflected in the record on appeal, such as counsel’s reasons for pursuing or not pursuing a particular trial strategy, can be brought to light to inform the two-prong inquiry of whether counsel’s “representation fell below an objective standard of reasonableness,” and whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) But defendant nonetheless also argues that counsel’s performance at the penalty phase was so deficient that it must be deemed to have “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing” (United States v. Cronic (1984) 466 U.S. 648, 659 (Cronic)), thereby relieving appellate or habeas corpus counsel of the burden, which they would otherwise bear under Strickland v.