handing defendant a technical victory when, in actuality, defendant may have received precisely the kind of penalty phase representation he desired and sought below. We therefore reject defendant’s claim that the trial court’s failure to appoint new counsel to make a penalty phase argument violated his Sixth Amendment right to counsel. The Sixth Amendment claim is more appropriately addressed in the context of the claim of ineffective assistance of counsel, which must be presented in a habeas corpus petition in conjunction with this appeal.
We caution that our conclusion in this regard must not be understood as an endorsement of the wholesale abdication of all meaningful representation of a client by counsel at the penalty phase of a capital murder trial. This penalty phase had none of the hallmarks of a capital sentencing proceeding whereby the defense makes a determined effort to convince the jury to spare the defendant’s life. But the question posed is not whether a penalty phase in which there is no defense opening statement, no cross-examination of the prosecution’s witnesses, and no presentation of defense evidence or argument in mitigation of penalty, can ever, as a matter of sound trial tactics, lead to a reliable penalty verdict. Rather, the question left open for decision on habeas corpus is whether counsel’s failure to present a penalty phase argument did or did not fall within an objectively reasonable standard of penalty phase representation (Strickland v. Washington, supra, 466 U.S. at pp. 688, 694) in light of the totality of circumstances which counsel faced at the penalty trial below. If, on a fully developed factual record on habeas corpus, counsel’s decision to refrain from making a penalty phase argument is shown to have fallen within that standard, then defendant may be estopped at the threshold from claiming ineffective assistance of counsel (Lang, supra, 49 Cal.3d at pp. 1030-1031), and as a consequence of his refusal to cooperate and reasonably communicate with counsel and their defense investigator, defendant would bear the ultimate responsibility for