any of the People’s witnesses, resulted in what may be described either as a ‘complete denial of counsel’ (United States v. Cronic, supra, 466 U.S. at p. 659) at the critical stage of jury argument or as a complete failure of the defense to subject the prosecution’s penalty phase case ‘to meaningful adversarial testing’ (ibid.). Either way, ‘there has been a denial of Sixth Amendment rights that makes the adversarial process itself presumptively unreliable.’ (Ibid.)” (Post, at pp. 10-11, italics added (conc. & dis. opn. of Werdegar, J.).) As the italicized language above reveals, although the dissent purports to argue that trial court error alone requires reversal on appeal, in actuality the dissent has concluded that the trial court’s refusal to appoint new counsel to make a penalty phase argument, in the face of counsel’s omissions and ineffective representation leading up to that determination, together resulted in a violation of defendant’s Sixth Amendment right to counsel. The problem with this reasoning is that our precedents normally do not permit us to conclude that counsel’s performance fell below an objectively reasonable standard of representation on a cold record on appeal. (People v. Mendoza Tello, supra, 15 Cal.4th 264.) The circumstances related in Miller’s, Maple’s, and investigator Sickler’s confidential declarations serve as a good example of the reason for the rule.
We conclude that if, on an appropriately expanded factual record on habeas corpus, Miller and Maple are shown to have acted within an objectively reasonable standard of representation (Strickland v. Washington, supra, 466 U.S. at pp. 688, 694) in refraining from presenting any argument to the jury consistent with what they reasonably believed were their client’s wishes, it would be anomalous, in the face of such an informed finding, to fault the trial court for ultimately deferring to counsel’s judgment and determining not to substitute new counsel in the eleventh hour of this trial. To reverse the judgment on appeal for trial court error without garnering all the relevant facts would be tantamount to