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must have known or believed that defendant did not want them to argue to the jury to spare his life.  But unless and until we know with certainty all the reasons for counsel’s actions and omissions at the penalty phase, specifically, counsel’s determination to waive penalty phase arguments, we cannot make a fully informed judgment as to whether Miller and Maple rendered ineffective assistance of counsel at that phase of trial based on the record on appeal.  (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)  Although Miller and Maple, reasonably or unreasonably, obviously believed that confidentiality or attorney-client privilege prohibited them from revealing to the court their reasons for forgoing the presentation of any mitigating evidence, it is less clear from the record what motivated counsel to refrain from making any penalty phase argument.  Similarly, although counsel may have reasonably believed that to make a penalty phase argument to the jury to spare defendant’s life would contravene defendant’s wishes, given all of his efforts to thwart the investigation or preparation of a case in mitigation of penalty, to so conclude on this record would likewise require speculation.

It is clear that the court ultimately determined to defer to Miller and Maple’s reasoned judgment, once the court became convinced, after hearing attorney Gerstein state that “they are representing the client’s best interests in their professional judgment,” that Miller and Maple were acting consistently with their client’s desires or interests.  What remains unclear from the record on appeal is precisely what reasons in fact led counsel to conclude that penalty phase arguments should be waived.

The Attorney General “surmises that defense counsel sought to preserve an inadequacy of counsel issue for appeal.”  As the argument goes, one can imagine no valid strategic reason for competent defense counsel to waive penalty phase arguments on behalf of the defendant in the face of his express wishes to

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