Washington, supra, 466 U.S. 668, of showing that specific deficiencies in trial counsel’s performance prejudicially affected the penalty trial.
Since counsel’s assertedly deficient performance is at the root of this claim, we address it first before turning to the closely related question whether the trial court itself committed reversible error by failing to appoint new counsel to make a penalty phase argument in defendant’s behalf.
1. Ineffective assistance of counsel
It is settled that the failure to present any mitigating evidence on behalf of the defendant at the penalty phase of a capital murder trial does not, in and of itself, render a judgment of death constitutionally unreliable. (People v. Lang (1989) 49 Cal.3d 991, 1029-1033 (Lang); People v. Bloom (1989) 48 Cal.3d 1194, 1228.) As we observed in Lang, “To require defense counsel to present mitigating evidence over the defendant’s objection would be inconsistent with an attorney’s paramount duty of loyalty to the client and would undermine the trust, essential for effective representation, existing between attorney and client.” (Lang, supra, at p. 1031.)
Here, counsel’s confidential declarations in the record on appeal raise a reasonable inference that defendant did not desire, and indeed would not permit, defense counsel to investigate or present any family background evidence in mitigation of penalty. According to counsel’s declarations, defendant had instructed his family members not to cooperate with the defense, thereby eliminating them as potential witnesses in his behalf. Defendant had also agreed that, as a matter of trial strategy, evidence of his good conduct while in custody should not be presented to the jury because it would open the door to impeachment with evidence of his recent involvement in an altercation with sheriff’s deputies in the Central Jail. On this state of the record, it may also be