case.30 And we further recognize that, at least in the abstract, there can always be a bona fide argument made to the jury at the penalty phase of a capital murder trial that the defendant’s life should be spared. But as we explained in Lang, which was an automatic appeal from a judgment of death, “an attorney’s duty of loyalty to the client means the attorney should always remember that the decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client . . . .’ (ABA Model Code Prof. Responsibility, EC 7-8.)” (Lang, supra, 49 Cal.3d at p. 1031, italics added.)
If Miller and Maple, knowing their client had refused to permit them to conduct a meaningful investigation to build a case in mitigation of penalty, also knew, or reasonably believed, that defendant was likewise desirous that no argument be presented to the jury in his behalf, it might well be concluded that counsel were simply following what they believed were their client’s wishes in waiving penalty phase arguments, and such omission would not constitute ineffective assistance of counsel within the meaning of Strickland v. Washington, supra, 466 U.S. 668. Indeed, we might conclude on that same showing, that
30 Cronic involved an indictment of a defendant on multimillion dollar mail fraud charges. When the defendant’s retained counsel withdrew shortly before the start of trial, the district court appointed a young and relatively inexperienced real estate attorney who had never before participated in a jury trial to represent defendant, and afforded him only 25 days to prepare for trial. (Cronic, supra, 466 U.S. at pp. 649-650.) Nevertheless, the high court in Cronic on those facts held that the court of appeals had erred in finding a Sixth Amendment violation of the right to counsel that “was not supported by a determination that [defendant’s] trial counsel had made any specified errors, that his actual performance had prejudiced the defense, or that he failed to exercise ‘the skill, judgment, and diligence of a reasonably competent defense attorney’ . . . ,” but instead “rested on the premise that no such showing is necessary ‘when circumstances hamper a given lawyer’s preparation of a defendant’s case.’ ” (Cronic, supra, at p. 650.) Put differently, the high court in Cronic concluded that the court of appeals had erred in failing to require a showing of prejudice resulting from counsel’s deficient performance under the second prong of Strickland v. Washington, supra, 466 U.S. 668.