BROWN, J. I respectfully dissent.
Relying on this court’s recent decision in In re Avena (1996) 12 Cal.4th 694, 726-728 [49 Cal.Rptr.2d 413, 909 P.2d 1017], the majority concludes that notwithstanding the “multiple failings” of petitioner’s trial counsel, Roger Agajanian, this is not a case in which there was a total breakdown of the adversary process within the meaning of United States v. Cronic (1984) 466 U.S. 648 [80 L.Ed.2d 657, 104 S.Ct. 2039] (hereafter Cronic). (Maj. opn., ante, at pp. 352-353.) According to the majority, “[defendants have been relieved of the obligation to show prejudice only where counsel was either totally absent or was prevented from assisting the defendant at a critical stage.” (Id. at p. 353.) In my view, this reading of Cronic is inconsistent with both the express language of the high court’s opinion and the application of that opinion by other courts.
In Cronic, the United States Supreme Court observed that although courts ordinarily “presume that the lawyer is competent to provide the guiding hand that the defendant needs, . . . [t]here are . . . circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” (Cronic, supra, 466 U.S. at p. 658 [80 L.Ed.2d at p. 667].) The court offered examples of two such circumstances. The first circumstance was “the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” (Id. at p. 659 [80 L.Ed.2d at p. 668], fn. omitted.) In a footnote elaborating on this first circumstance, the court noted that it had “uniformly found constitutional [363]error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. [Citations.]” (Id. at p. 659, fn. 25 [80 L.Ed.2d at p. 668].) The court then identified a second circumstance in which a showing of prejudice is not required, stating that “[similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” (Id. at p. 659 [80 L.Ed.2d at p. 668].) It is apparent from even a cursory reading of Cronic that the footnote the majority now seizes on to limit the Cronic holding has nothing whatsoever to do with the circumstance in which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing . . . .” (Ibid.) Nor has “the actual application of Cronic been much more limited.” (Maj. opn., ante, at p. 353; see generally, In re Avena, supra, 12 Cal.4th at pp. 777-782 (dis. opn. of Mosk, J.) [federal and state cases applying Cronic].) As Justice Mosk previously recognized, “[t]he devil may often be in the details, but the rule of Cronic is not in its footnotes.” (Id. at p. 776 (dis. opn. of Mosk, J.).)
The rationale for requiring reversal when “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing” (Cronic, supra, 466 U.S. at p. 659 [80 L.Ed.2d at p. 668]) is one of institutional integrity. “ ‘[T]ruth,’ Lord Eldon said, ‘is best discovered by powerful statements on both sides of the question.’ This dictum describes the unique strength of our system of criminal justice. ‘The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’ Herring v. New York, 422 U.S. 853, 862 [45 L.Ed.2d 593, 600, 95 S.Ct. 2550] (1975). It is that ‘very premise’ that underlies and gives meaning to the Sixth Amendment. It ‘is meant to assure fairness in the adversary criminal process.’ United States v. Morrison, 449 U.S. 361, 364 [66 L.Ed.2d 564, 567-568, 101 S.Ct. 665] (1981). Unless the accused receives the effective assistance of counsel, ‘a serious risk of injustice infects the trial itself.’ Cuyler v. Sullivan, 446 U.S. [335,] 343 [(1980) (64 L.Ed.2d 333, 343, 100 S.Ct. 1708)]. [*][] Thus, the adversarial process protected by the Sixth Amendment requires that the accused have ‘counsel acting in the role of an advocate.’ Anders v. California, 386 U.S. 738, 743 [18 L.Ed.2d 493, 497-498, 87 S.Ct. 1396] (1967). The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted—even if defense counsel may have made demonstrable errors—the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. As Judge Wyzanski has [364]written: ‘While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators.’ United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (CA7), cert, denied sub nom. Sielaffv. Williams, 423 U.S. 876 (1975) [46 L.Ed.2d 109, 96 S.Ct. 148].” (Cronic, supra, at pp. 655-657 [80 L.Ed.2d at pp. 665-667], fns. omitted.)
The penalty phase proceedings against petitioner, the subject of this court’s order to show cause, are a textbook example of a process gone awry. Simply put, Agajanian failed petitioner at every stage of the proceedings. I offer several of many, many examples that could be given.
During his pretrial preparation, Agajanian “did not send for the police report [of the Cusack incident] or go through the prosecutor’s file to read it in advance of trial and thus was surprised and unprepared to face that [aggravating] evidence.” (Maj. opn., ante, at p. 340.) Likewise, he “failed to investigate and discover mitigating evidence as a result of his ignorance of the types of evidence a jury might consider mitigating.” (Id. at p. 353.)
During the penalty phase of the trial itself, Agajanian “failed to present readily available evidence that would have revealed to the jury the extent to which petitioner was subjected to psychological and physical abuse as a child, the impact the dysfunctional and peripatetic family life had on petitioner’s development, and the correlation between these events and petitioner’s resort to drugs.” (Maj. opn., ante, at p. 353.) Also during the penalty phase of the trial, Agajanian “delivered an unfocussed closing argument, during which he undercut his client’s own case by telling the jury that the evidence of petitioner’s mental and emotional problems was not mitigating.” (Ibid.)
During the direct appeal, “the sole act of any significance that [Agajanian] performed on behalf of [petitioner] over the course of almost seven years of representation before this court was the filing of a single thirty-page brief raising only two insubstantial penalty claims.” (People v. Visciotti (1992) 2 Cal.4th 1, 84, fn. 2 [5 Cal.Rptr.2d 495, 825 P.2d 388] (dis. opn. of Mosk, J.); see also maj. opn., ante, at p. 350, fn. 6.) Thankfully, at this stage, Agajanian was suspended from the practice of law; not surprisingly, this case had not been his only misstep. (Ibid.)
Even after Agajanian was replaced by new counsel, however, he continued to fail petitioner. During the evidentiary hearing on this petition, Agajanian was less than candid regarding his decision to rely on a family sympathy defense. (See maj. opn., ante, at pp. 336-337, fn. omitted [“[I]n [365]none of his self-described successful presentations of a family sympathy defense in prior cases was family sympathy evidence relevant to any issue in the case and in none could the effort be accurately described as ‘successful.’ ”]; id. at p. 337 [“Agajanian testified that he had no information about petitioner’s family when he made his decision on penalty phase tactics. That testimony was contradicted by his expert, Dr. Louis Broussard, who testified that Agajanian told him that there was some ‘brutality’ in the family.”].)
In the context of the penalty phase of the trial, it is clear that Agajanian “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” (Cronic, supra, 466 U.S. at p. 659 [80 L.Ed.2d at p. 668].) This court had it all wrong when, on direct appeal, it characterized Agajanian’s penalty phase closing argument as “a rambling discourse, not tied to particular evidence.” (People v. Visciotti, supra, 2 Cal.4th at p. 82, fn. 45.) In fact, during the course of the so-called “rambling discourse,” Agajanian systematically conceded nine of the eleven aggravating and mitigating factors set forth in Penal Code section 190.3 (section 190.3) to the prosecution.
Agajanian conceded “[t]he facts and circumstances of the case in my opinion do not have to be reviewed. [•][] There is no way to make light of those [videotapes of things just like there’s no way to make light of any kind of murder, whether or not there’s a robbery involved . . . .” (See § 190.3, factor (a).) He conceded “past violence” was a factor in aggravation. (See § 190.3, factor (b).) He conceded “[w]ith respect to the prior conviction for assault with a deadly weapon, there’s no way to make light of that either.” (See § 190.3, factor (c).) He conceded “[w]ith respect to emotional disturbance, there’s no evidence of that. That isn’t even a factor to be considered.” (See § 190.3, factor (d).) He conceded “[w]ith respect to the next one . . . victim participated or consented. That’s not applicable. There’s no evidence of that.” (See § 190.3, factor (e).) He conceded “same situation” with respect to justification. (See § 190.3, factor (f).) He conceded “[e]xtreme duress, there was no evidence of that either. Although defense lawyers would like to have that present, it’s not fair.” (See § 190.3, factor (g).) He conceded “with respect to diminished capacity, when you ladies and gentlemen returned this verdict of first degree murder and found special circumstances, you indicated to all of us that you did not find diminished capacity, [f] So if you did not find diminished capacity, how can I argue that as a factor of aggravation or mitigation? It just does not apply. It’s not there.”1 (See § 190.3, factor (h).) And he conceded “the indication here was that [petitioner] was not an accomplice or that his participation was minor— exactly the opposite. [Petitioner] is, as the People said, the trigger man.” (See § 190.3, factor (j).)
[366]Certainly, as the majority states, “[t]he aggravating factors were overwhelming” and the mitigating factors were “minimal in comparison.” (Maj. opn., ante, at pp. 355, 356.) Even in such a case, though, counsel must hold the prosecution to its heavy burden. (Cronic, supra, 466 U.S. at pp. 656-657, fn. 19 [80 L.Ed.2d at p. 666].) Agajanian did not rise to the occasion. Although his abortive attempts to construct a family sympathy defense exposed some of the mitigating evidence to the jury, Agajanian undermined its effectiveness by “conceding that the jury could find that all of the possibly aggravating factors were present, and none of the mitigating.” (People v. Visciotti, supra, 2 Cal.4th at p. 66, fn. 35.) Indeed, the referee specifically found, and the majority agrees, that Agajanian “had no intention of introducing any evidence in an attempt to draw sympathy to his client.” (Maj. opn., ante, at p. 346.)
“ ‘[W]ith respect to the process of sentencing from among that class [of defendants who have already been found eligible for the death penalty] those defendants who will actually be sentenced to death, “[w]hat is important . . . is an individualized determination on the basis of the character of the individual and the circumstances of the crime.[”] [Citation.] It is not simply a finding of facts which resolves the penalty decision, “ ‘but... the jury’s moral assessment of those facts as they reflect on whether the defendant should be put to death . . . [Citation.] Consideration of statutory aggravating and mitigating factors as part of the jury’s normative function of determining the appropriate punishment is, therefore, distinguishable from the factual determination made when the jury finds that a special circumstance allegation is true.” (People v. Visciotti, supra, 2 Cal.4th at p. 74.)
Agajanian’s abysmal across-the-board performance rendered the penalty phase of the trial a complete and utter farce. Under these circumstances, this court can have no confidence that the jury was actually able to perform its normative function of determining the appropriate punishment. “[T]here has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” (Cronic, supra, 466 U.S. at p. 659 [80 L.Ed.2d at p. 668], italics added.) Therefore, I would grant petitioner a new penalty phase trial without requiring a specific showing of prejudice.
Mosk, J., concurred.
Petitioner’s application for a rehearing was denied January 28, 1997, and the opinion was modified to read as printed above. Mosk, J., and Brown, J., were of the opinion that the application should be granted.
During the guilt phase of the trial, Agajanian had erroneously attempted to rely on diminished capacity, which had been abolished as a guilt phase defense over a year earlier in a widely publicized initiative measure. (People v. Visciotti, supra, 2 Cal.4th at p. 56 & fn. 23.)