The opinion
MOSK, J.
I dissent.
I continue to adhere to the view that I set out in dissent in People v. Visciotti (1992) 2 Cal.4th 1 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ], and therefore reiterate it here.
At petitioner’s capital trial, at both guilt and penalty phases, his attorney Roger James Agajanian “provided [him] with ineffective assistance in violation of his rights under the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution.
“Agajanian’s deficiencies as trial counsel were pervasive and serious. The point is established by the record. . . . Examples of Agajanian’s failings are hard to select, each competing with the rest for egregiousness. By way of illustration only, I note the following. At the guilt phase, Agajanian relied on the defense of diminished capacity. Much to the surprise he expressed at trial, this defense had previously been abolished and rendered a nullity for all relevant purposes. At the penalty phase, Agajanian presented a summation asking the jury to spare [petitioner’s] life. The argument he made in support was worthless. . . .
“Agajanian’s deficiencies at trial compel this conclusion: his failings resulted in a breakdown of the adversarial process . . . ; that breakdown establishes a violation of [petitioner’s] federal and state constitutional right to the effective assistance of counsel; and that violation mandates [vacation] of the judgment even in the absence of a showing of specific prejudice. (See United States v. Cronic (1984) 466 U.S. 648, 653-662 [ 80 L.Ed.2d 657, 664-670 , 104 S.Ct. 2039 ] [speaking of the federal constitutional guaranty only]; People v. Ledesma (1987) 43 Cal.3d 171, 242-245 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ] (conc. opn. of Grodin, J.) [speaking of both the federal and state constitutional guaranties].)
*360 ‘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 (1975) 422 U.S. 853, 862 [ 45 L.Ed.2d 593, 600 , 95 S.Ct. 2550 ]; accord, United States v. Cronic, supra, 466 U.S. at p. 655 [ 80 L.Ed.2d at p. 665 ].) In other words, ‘The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness.’ (Polk County v. Dodson (1981) 454 U.S. 312, 318 [ 70 L.Ed.2d 509, 516 , 102 S.Ct. 445 ].) It follows that the system requires ‘meaningful adversarial testing.’ (United States v. Cronic, supra, 466 U.S. at p. 656 [ 80 L.Ed.2d at p. 666 ].) ‘When’ —as here—‘such testing is absent, the process breaks down and hence its result must be deemed unreliable as a matter of law.’ (People v. Bloom (1989) 48 Cal.3d 1194, 1237 [ 259 Cal.Rptr. 669 , 774 P.2d 698 ] (conc. & dis. opn. of Mosk, J.); see United States v. Cronic, supra, 466 U.S. at p. 659 [ 80 L.Ed.2d at p. 668 ]; see also Rose v. Clark (1986) 478 U.S. 570, 577-578 [ 92 L.Ed.2d 460, 470-471 , 106 S.Ct. 3101 ] [to similar effect].)” (People v. Visciotti, supra, 2 Cal.4th at pp. 84-85 (dis. opn. of Mosk, J.), fns. omitted.)
In attempting to justify their refusal to set aside the sentence of death— they do not explain their salvaging of the other parts of the judgment—the majority simply assert that Agajanian did not provide petitioner with ineffective assistance.
Insofar as it is the law that stands in their way, the majority choose to renounce its substance.
Thus it is with ineffective assistance of counsel under a theory of constructive denial of representation.
The majority follow In re Avena (1996) 12 Cal.4th 694 [ 49 Cal.Rptr.2d 413 , 909 P.2d 1017 ], over United States v. Cronic (1984) 466 U.S. 648 [ 80 L.Ed.2d 657 , 104 S.Ct. 2039 ]. Avena tried to deconstruct Cronic , but did not, and could not, succeed. (See In re Avena, supra, 12 Cal.4th at pp. 775-782 (dis. opn. of Mosk, J.).) Notwithstanding Avena.' s sophistry, Cronic declares that “[t]he right to the effective assistance of counsel” under the Sixth Amendment is “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.” (United States v. Cronic, supra, 466 U.S. at pp. 656-657 [ 80 L.Ed.2d at p. 666 ], fns. omitted.) It follows that, “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of *361 Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” (Id. at p. 659 [ 80 L.Ed.2d at p. 668 ].) In such a situation, “[n]o specific showing of prejudice [is] required . . . .” (Ibid.)
Insofar as it is the facts that stand in their way, the majority try to deny their force.
Thus it is with ineffective assistance of counsel under a theory of incompetent representation.
Such a theory, of course, entails deficient performance by counsel under an objective standard of professional reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [ 80 L.Ed.2d 674, 693 , 104 S.Ct. 2052 ] [under U.S. Const., Amend. VI only]; People v. Ledesma (1987) 43 Cal.3d 171, 216 [ 233 Cal.Rptr. 404 , 729 P.2d 839 ] [under both U.S. Const., Amend. VI, and Cal. Const., art. I, § 15].) It also entails prejudice arising from counsel’s deficient performance under a test of reasonable probability of a more favorable outcome. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 693-694 [80 L.Ed.2d at pp. 693, 697] [under U.S. Const., Amend. VI only]; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218 [under both U.S. Const., Amend. VI, and Cal. Const., art. I, § 15].) But, one must hasten to add, a “reasonable probability” is not a “more likely than not” probability, but simply “a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington, supra, 466 U.S. at pp. 693, 694 [80 L.Ed.2d at p. 697] [under U.S. Const., Amend. VI only]; see People v. Ledesma, supra, 43 Cal.3d at p. 218 [under both U.S. Const., Amend. VI, and Cal. Const., art. I, § 15].)
The majority do not seriously dispute that Agajanian’s performance—or better, nonperformance—at the penalty phase was deficient. Nor could they. Res ipsa loquitur.
Instead, the majority claim that from Agajanian’s deficient performance at the penalty phase no prejudice arose. The mitigating evidence of petitioner’s background and character, which was readily available but was not introduced at trial, was extensive and of substantial weight. The majority assert that this evidence would not have justified or excused his crimes. Obviously not. Even petitioner himself concedes the point. The fact remains, this evidence would have humanized him and hence would have helped explain how he was led to commit his crimes—and might well have gained him life imprisonment without possibility of parole instead of death. I do not overlook the aggravating evidence. Not at all. But I recognize, as the majority refuse to, that even substantial aggravating evidence does not compel the *362 ultimate sanction. (See, e.g., People v. Von Villas (1992) 11 Cal.App.4th 175 [ 15 Cal.Rptr.2d 112 ] [life imprisonment without possibility of parole for each of two police officers who conspired to commit, and did commit, a murder for hire]; People v. Scott (1991) 229 Cal.App.3d 707 [ 280 Cal.Rptr. 274 ] [life imprisonment without possibility of parole for a defendant who, with others, developed and carried out a plan to rob the residents of a house and leave no witnesses, resulting in four murders]; People v. Talamantez (1985) 169 Cal.App.3d 443 [ 215 Cal.Rptr. 542 ] [life imprisonment without possibility of parole for a defendant with several prior felony convictions who went “nigger hunting” and proceeded to kidnap, torture, and murder an African-American victim].)
For the reasons stated above, 1 1 would vacate the judgment in its entirety.
Which I am confident the United States District Court for the Central District of California will find persuasive when it considers petitioner’s soon-to-be-filed petition for writ of habeas corpus.