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defendant’s objection—was disapproved.  It is clear from the transcript of the July 18 proceedings that the trial court in this case mistakenly believed Deere I obligated Miller and Maple to present any available mitigating evidence even over defendant’s objections.31  And although it cannot be discerned with certainty from this record whether Miller, Maple, and Gerstein knew that the court was laboring under a mistaken understanding of the applicable law, we surmise from the transcript of the July 18 proceedings that the disparity between the court’s and counsel’s understanding of counsel’s obligation to present mitigating evidence even over defendant’s objection, was at the heart of the standoff between counsel and the court that led the court to suggest it might need the assistance of a member of the State Bar, and Miller and Maple to respond by securing the attendance of attorney Gerstein to explain to the court that counsel had their confidential reasons for refusing to present any mitigating evidence.

Although the record on appeal is less clear regarding Miller and Maple’s specific reasons for waiving penalty phase argument than it is regarding their reasons for failing to call any witnesses or present any mitigating evidence, the record rather clearly reflects that once the trial court was satisfied that Miller and Maple had their reasons for not presenting any mitigating evidence, the court was also inclined to accept that they had tactical or other sound reasons for waiving penalty phase argument, and to defer to their judgment in that regard as well.

Our dissenting colleagues conclude that “the court’s erroneous acceptance of counsel’s waiver of argument, following as it did their decision not to make any opening statement, present any mitigating evidence, or cross-examine

31 “The Court:  I’ve cited the Deere [I] case on the record.”  [¶] “Mr. Gerstein:  Yes.”  [¶] “The Court:  That requires them, as officers of the court, to present factors in mitigation, if any.”  [¶] “The Court [sic: Mr. Gerstein]:  Well, yes, your Honor.  That was precisely their—that was precisely their concern.”

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