I concur in affirming the judgment of guilt but dissent from reversal of the special circumstance findings and the penalty judgment.
As a court member who heard the original Frierson appeal (People v. Frierson (1979) 25 Cal.3d 142 [158 Cal.Rptr. 281, 599 P.2d 587]) I get an uneasy feeling of déjá vu. At that time the primary issue was the failure of counsel to present evidence of defendant’s diminished capacity. Six years later we have before us the same Frierson on a second appeal after retrial, and a similar claim regarding diminished capacity.
However, there is a significant distinction between the two proceedings. In Frierson I counsel failed to develop or offer any evidence of diminished capacity, even though Justice Richardson, writing for the plurality, observed that “diminished capacity appears to be the sole potentially meritorious defense” (id., at p. 164, italics in original). In the retrial, counsel did obtain expert testimony on this question for presentation to the jury. The issue, therefore, was not whether diminished capacity evidence was to be offered, but when, i.e., at what point in the trial.
*819I can understand that a total failure to present a potentially meritorious defense is ground to impugn the competency of counsel and to reverse a conviction, as in Frierson I. However, when the issue is simply the timing of that presentation, I do not believe we should second-guess counsel’s trial strategy, even when it conflicts with the views of the defendant.
Here counsel determined the better strategy was to save his diminished capacity evidence for the penalty phase. He chose this course knowingly and deliberately, even to the extent of permitting his reluctant client to discuss the matter with the trial judge. If he had achieved a verdict other than death, counsel would have been a hero. That he did not ultimately prevail in his tactic does not justify a reviewing court in declaring it improper.
We have held on many occasions that although counsel may not withdraw a valid defense, he may conduct the strategy of the defense in accord with his best professional judgment and without being subjected to review “with the clarity of hindsight.” (People v. Fain (1969) 70 Cal.2d 588, 600 [75 Cal.Rptr. 633, 451 P.2d 65]; see also People v. Murphy (1972) 8 Cal.3d 349, 365-367 [105 Cal.Rptr. 138, 503 P.2d 594]; People v. Williams (1970) 2 Cal.3d 894, 905 [88 Cal.Rptr. 208, 471 P.2d 1008]; People v. Hill (1967) 67 Cal.2d 105, 114-115 [60 Cal.Rptr. 234, 429 P.2d 586].) The circumstances of People v. Reeves (1966) 64 Cal.2d 766 [51 Cal.Rptr. 691, 415 P.2d 35], are similar to the present case. There, “In the face of strong prosecution evidence in the form of the surviving eyewitness’ testimony that defendant without provocation shot down from behind a robbery victim from whom he had taken a mere 70 cents, it was not unreasonable for defendant and his counsel to choose, as they inferably did, to admit the facts and throw defendant on the mercy of the court. The fact that the strategy was unsuccessful on this occasion, of course, is no ground for concluding that the counsel who conceived it was incompetent.” (Fn. omitted, id. at p. 773.) In the matter before us, counsel in the face of a surviving eyewitness’ testimony and overwhelming proof of defendant’s guilt, did more than plead for mercy: in the penalty phase he introduced evidence of diminished capacity. That upon reflection, and with the benefit of knowing the ultimate result, he might have been persuaded to present such evidence at an earlier phase of the trial—and that defendant would have preferred to do so—does not justify inferentially rebuking this attorney for an improper defense.
In this respect People v. Ramos (1982) 30 Cal.3d 553, 584-585 [180 Cal.Rptr. 266, 639 P.2d 908], is controlling. As Justice Tobriner wrote: “Since the prosecution’s first degree murder case was presented to the jury on a felony-murder theory as well as a premeditation theory, additional evidence of diminished capacity would have been largely irrelevant. Coun*820sel could have properly concluded that such psychiatric evidence as was available should be saved for the penalty phase in an effort to persuade the jury that appellant was an inappropriate candidate for the death penalty. Under these circumstances, we will not proceed to second-guess trial counsel’s choice of tactics.” (Id. at p. 585; see also People v. Jackson (1980) 28 Cal.3d 264, 290 [168 Cal.Rptr. 603, 618 P.2d 149].)
This defendant has been tried twice, by two different juries. Both heard the overwhelming evidence of his guilt, and both returned identical verdicts. I do not believe there has been a miscarriage of justice within the proscription of the Constitution (Cal. Const., art. VI, § 13) to justify requiring a partial third trial on the same charges more than seven years after the crimes were committed. I would affirm the judgment in its entirety.
Grodin, J., concurred.