defendant, by his own actions, is estopped at the threshold from claiming ineffective assistance based on counsel’s acquiescence in his wishes. (See discussion, post, at p. 89; see Lang, supra, 49 Cal.3d at pp. 1030-1031.) But once again, until counsel are afforded an opportunity to fully explain their reasons for refraining from making a penalty phase argument below, reasons that are not fully amplified in the record on appeal, there is neither an adequate factual or legal basis upon which to predicate a reversal of the death judgment on grounds of ineffective assistance of counsel.
Nor does the high court’s recent decision in Bell v. Cone (2002) 535 U.S. 685 (Cone) [122 S.Ct. 1843] lend any further support to defendant’s claim that his death judgment must be reversed on appeal, under the holding of Cronic, because counsel rendered ineffective assistance in waiving penalty phase arguments. In Cone, the defendant was convicted of, and sentenced to death for, the murder of an elderly couple in Memphis, Tennessee. (Id. at p. ___ [122 S.Ct. at p. 1847].) The defense conceded that the defendant had committed the murders, but sought to prove he was not guilty by reason of insanity. In furtherance of that effort, the defense presented evidence that the defendant “suffered from substance abuse and posttraumatic stress disorders related to his military service in Viet Nam.” (Id. at p. ___ [122 S.Ct. at p. 1848].) The jury rejected his insanity defense and found him guilty of two counts of first degree murder. The capital sentencing hearing took place the next day and lasted approximately three hours. (Ibid.) At that hearing, defense counsel made an opening statement in which he called the jury’s attention to the mitigating evidence already before them and suggested that the defendant “was under the influence of extreme mental disturbance or duress, that he was an addict whose drug and other problems stemmed from the stress of his military services, and that he felt remorse.” (Ibid.) After both sides rested, the junior prosecuting attorney