The opinion
MOSK, J.
I dissent.
It is now plain from proof dehors the record what was formerly only suggested—albeit unmistakably—by the record itself. In contravention of the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, petitioner suffered constructive denial of counsel bearing on the sentence of death. Various assertions by their apologists among the majority notwithstanding, trial counsel cannot easily be absolved. Their performance in preparation for, and during the course of, the penalty phase was not merely deficient; it was virtually nonexistent. Their failings “ ‘resulted in a breakdown of the adversarial process at trial; 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 [his death sentence] even in the absence of a showing of specific prejudice.’ ” (People v. Berryman (1993) 6 Cal.4th 1048, 1082, *216 fn. 11 [ 25 Cal.Rptr.2d 867 , 864 P.2d 40 ], quoting People v. Visciotti (1992) 2 Cal.4th 1, 84 [ 5 Cal.Rptr.2d 495 , 825 P.2d 388 ] (dis. opn. of Mosk, J.).) 1
Accordingly, I would set aside the sentence of death.
Separately and independently, petitioner’s sentence of death should be vacated as unreliable under the Eight Amendment to the United States Constitution and article I, section 17 of California Constitution because counsel introduced virtually none of the available evidence in mitigation. (See People v. Stansbury (1995) 9 Cal.4th 824, 835 [38 Cal.Rptr 2d 394, 889 P.2d 588 ] (con. & dis. opn. of Mosk, J.), reiterating People v. Stansbury (1993) 4 Cal.4th 1017 [ 17 Cal.Rptr.2d 174 , 846 P.2d 756 ] (conc. & dis. opn. of Mosk, J.) [implying that any sentence of death should be set aside as unreliable under the Eighth Amendment and article I, section 17 if defense counsel failed to introduce any available evidence in mitigation whatsoever], revd. sub nom. Stansbury v. California (1994) 511 U.S. _ [ 128 L.Ed.2d 293 , 114 S.Ct. 1526 ]; People v. Diaz (1992) 3 Cal.4th 495, 577 [ 11 Cal.Rptr.2d 353 , 834 P.2d 1171 ] (conc. & dis. opn. of Mosk, J.) [same]; see also People v. Howard (1992) 1 Cal.4th 1132, 1197 [ 5 Cal.Rptr.2d 268 , 824 P.2d 1315 ] (conc. & dis. opn. Mosk, J.) [finding a verdict of death unreliable under the Eighth Amendment and article I, section 17 when available mitigating evidence was not introduced]; People v. Sanders (1990) 51 Cal.3d 471, 531-533 [ 273 Cal.Rptr. 537 , 797 P.2d 561 ] (dis. opn. of Mosk, J.) [same]; People v. Lang (1989) 49 Cal.3d 991, 1059-1062 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ] (conc. & dis. opn. of Mosk, J.) [same]; People v. Williams (1988) 44 Cal.3d 1127, 1158-1161 [ 245 Cal.Rptr. 635 , 751 P.2d 901 ] (conc, & dis. opn. of Mosk, J.) [to similar effect under the Eighth Amendment]; People v. Deere (1985) 41 Cal.3d 353, 360-368 [ 222 Cal.Rptr. 13 , 710 P.2d 925 ].)