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Unlike defendant and our colleagues in dissent, we are unwilling to repose uncritical confidence in defendant’s single answer “yes” to the court’s initial inquiry whether he would agree to a substitution of counsel for the purpose of making a penalty phase argument.29  Nor do we believe that defendant’s affirmation that he would accept the appointment of new counsel for the purpose of making a penalty phase argument necessarily reflects that Miller and Maple contravened defendant’s express wishes by themselves refusing to make such an argument, thereby rendering ineffective assistance of counsel.  Defendant’s affirmative answer to the court’s inquiry, if considered in isolation, might support an inference that he wanted a penalty phase argument made in his behalf, whether by Miller and Maple or, if they would not do so, then by newly appointed counsel. inconsistent with such an inference?  What would defendant have expected Miller and Maple to argue to the jury once he had thwarted their every effort to investigate and prepare a defense in his behalf for the penalty phase?  And what could defendant have reasonably expected newly appointed counsel to argue in his behalf, given the restraints he had placed on his own penalty trial?  It is perhaps just as likely that defendant answered “yes” to the court’s inquiry upon realizing that the appointment of new counsel at that late stage of trial might result in a lengthy delay or continuance, or perhaps even better, a mistrial.  But once again,

29 No less than six times in the concurring and dissenting opinion, defendant’s single answer “yes” to the court’s initial inquiry is characterized as a specific, express, and unambiguous request for the appointment of new counsel.  (See post, at pp. 2 [“indeed, he expressly requested—the presentation of an argument to the jury” (italics in original) and “expressly requested new counsel”], 3 [“defendant instead asked for another lawyer to be appointed to do what his current lawyers refused to do” with an “express and unambiguous statement on the record”], 5, fn. 2 [“defendant specifically and expressly stated that he did want argument presented on his behalf” (italics in original)], 13 [trial court accepted counsel’s waiver of argument “contrary to defendant’s expressed wishes”] (conc. & dis. opn. of Werdegar, J.).)

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