I dissent.
Defendant had a right under the Sixth Amendment to the United States Constitution to the assistance of counsel who is not burdened by a conflict of interests. The right was violated. To be sure, the violation appears without bad faith. But it appears nonetheless. Reversal is required.
I
This was a notorious case in Mendocino County. As the Mendocino County Superior Court stated in granting defendant’s motion for change of venue:
“On July 19, 1985, the Ukiah Daily Journal reported that a young woman’s body had been discovered in a creek bed in Ukiah, that she appeared beaten to death, and that defendant had been taken in for questioning.
“Later stories: Identified the victim as Rosie Grover, 15, a lifelong Ukiah resident, and identified the defendant as a 21 year old drifter; reported that the victim was strangled, stabbed in the back with a screwdriver, and bludgeoned beyond recognition with a length of pipe encrusted with concrete; reported that the defendant was in custody with bail set at $250,000, that he had been arraigned on a charge of murder and had pleaded Not Guilty, and that the magistrate had ordered the prosecution and the defense not to discuss the case with the press; and reported that other inmates at the County Jail in Ukiah, including another accused [capital] murderer, had started a collection to aid the victim’s family. [It appears that, as a result of threats by other inmates, including capital defendants, defendant was moved for his own protection from the jail’s maximum security section first to its protective custody unit, then to an isolation cell, and finally to the State Prison at San Quentin.]
“On July 26, . . . it was reported that close to 300 friends and family mourned at the victim’s funeral before she was buried in the cemetery across the street from the high school where she would have been a sophomore in September.
*1043“On August 8, it was reported that the District Attorney had amended the complaint to add a charge of rape and to allege a death penalty murder, and that the defendant had given a confession to the police.
“On August 22, based on defendant’s preliminary examination, it was reported that the victim had phoned the California Highway Patrol about 4:30 A.M. the morning she was killed and had requested a short ride home, which was refused. In the same story, it was reported that every bone in the victim’s face was broken by up to 19 blows, that she had been stabbed nine times, and that there was physical evidence that she was raped.
“The next day, the Journal ran a story about the victim’s call to the CHP and the CHP’s policy refusing transportation. In a sidebar, the transcript of the phone call was printed . . . ,[1]
“Subsequent stories reported claims filed against the CHP and the Ukiah Police Department by the victim’s parents.
“The day after the defendant’s preliminary examination ended, the Journal reported a detective’s testimony that the defendant had made a detailed confession, in which he admitted that he had killed the victim to prevent her from falsely accusing him of rape.
“Although the heaviest press coverage was in The Ukiah Daily Journal, other papers circulating in the county, including The Willits News and . . .
*1044The Santa Rosa Press Democrat, also ran stories. There was also extensive coverage on local radio. Early news and radio stories were about the killing and the defendant’s court appearances. Later coverage has emphasized the victim’s phone call to the CHP and the CHP’s refusal to provide transportation, and has included editorial comment in the local paper and on the radio. A number of letters to the editor have been published in the local paper.
“In November, the Assemblyman for the Second Assembly District, which includes Mendocino County, mailed each voter in the district a letter decrying this case and requesting support for his legislation which would instruct the CHP to offer rides to citizens who call for help believing they are in danger.”
II
The law that applies to the facts disclosed by the record is as follows.
“Under ... the Sixth Amendment to the United States Constitution as applied to the states through the due process clause of the Fourteenth Amendment. . . , a defendant in a criminal case has a right to the assistance of counsel. [CJ[] The constitutional guaranty ‘entitles the defendant not to some bare assistance but rather to effective assistance.’ ” (People v. Bonin (1989) 47 Cal.3d 808, 833 [254 Cal.Rptr. 298, 765 P.2d 460], italics in original.) “[T]his right is ‘fundamental’ [citation] and ‘is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” ’ ” (Id. at p. 834.)
“Included in the right to the effective assistance of counsel is ‘a correlative right to representation that is free from conflicts of interest.’ ” (People v. Bonin, supra, 47 Cal.3d at p. 834.) “Conflicts of interest broadly embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or by his own interests.” (Id. at p. 835.)
“In order to safeguard a criminal defendant’s constitutional right to the assistance of conflict-free counsel and thereby keep criminal proceedings untainted by conflicted representation, the United States Supreme Court has laid down certain essentially prophylactic rules in this area.
“When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter. [Citations.] It is immaterial how the court learns, or is put on notice, of the possible conflict....
*1045“The trial court is obligated not merely to inquire but also to act in response to what its inquiry discovers. ... In discharging its duty, it must act ‘ . . with a caution increasing in degree as the offenses dealt with increase in gravity.” ’ ” (People v. Bonin, supra, 47 Cal.3d at pp. 836-837.)
“When in violation of its duty the trial court fails to inquire into the possibility of a conflict of interest or fails to adequately act in response to what its inquiry discovers, it commits error under Wood v. Georgia [(1981)] 450 U.S. 261. [Citation.]
“To obtain reversal for Wood error, the defendant need not demonstrate specific, outcome-determinative prejudice. [Citation.] But he must show that an actual conflict of interest existed and that that conflict adversely affected counsel’s performance.” (People v. Bonin, supra, 47 Cal.3d at pp. 837-838.) As to the former, he must establish that “his counsel actively represented conflicting interests . . . .” (Cuyler v. Sullivan (1980) 446 U.S. 335, 350 [64 L.Ed.2d 333, 347, 100 S.Ct. 1708].) As to the latter, he must demonstrate that “counsel ‘pulled his punches,’ i.e., failed to represent defendant as vigorously as he might have had there been no conflict.” (People v. Easley (1988) 46 Cal.3d 712, 725 [250 Cal.Rptr. 855, 759 P.2d 490].)
Ill
I now turn to the case at bar. The first question is this: Did the Mendocino County Superior Court commit Wood error? The answer is affirmative.
Early on, the superior court came to know of the possibility of a conflict of interest on the part of defense counsel Susan Massini. At arraignment on September 6, 1985, it appointed Massini, who was then the Public Defender of Mendocino County, as defense counsel. Until June 1986, she would personally represent defendant (together with Joseph D. Allen, who was later appointed to assist her) in several important matters, including a suppression motion. In defendant’s motion for change of venue, which was filed on October 30,1985, she stated that the “District Attorney . . . will be running for re-election in the June primary”—and added cryptically that “present indications are that the race for District Attorney will be hotly contested.” In granting the motion on December 20, 1985, the superior court noted that “[l]ocal newspaper and radio publicity during the past two weeks has been about” topics including the “probability that one of defendant’s two attorneys,” namely, Massini, “will run against the District Attorney . . . .” By that date, the possibility of a conflict of interest was manifest: Massini remained defendant’s defender; at the same time, she had expressed her desire to become his prosecutor. The superior court was required to make *1046inquiry into the matter. It failed to do so. On June 3, 1986, Massini was elected District Attorney. Finally, on July 21, the District Attorney’s Office was recused. Subsequently, transfer of the case was effected to the Santa Clara County Superior Court.
The second question is this: Is the Wood error reversible? Here too, the answer is affirmative.
Defendant has shown an actual conflict of interest burdening counsel. Massini actively represented his interest in avoiding conviction or at least a sentence of death by, inter alia, making and opposing various motions. At the same time, she actively represented her own interest in becoming District Attorney by campaigning for the position. These interests were conflicting. Indeed, it would strain credulity to claim otherwise. If Massini presented a vigorous defense on behalf of defendant, who was unpopular even among other capital defendants, she would run a strong risk of becoming unpopular herself.
Defendant has also shown an adverse effect on counsel’s performance.
In the suppression motion mentioned above, Massini sought to exclude certain highly inculpatory evidence, including a sample of blood drawn from defendant without a warrant at the direction of Detectives Fred Kelley and Ed Gall of the Ukiah Police Department. She was unsuccessful.
It is long- and well-settled that the prosecution bears the burden of proving that a warrantless search or seizure is nonetheless reasonable under the Fourth Amendment. (E.g., Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23].) It is similarly settled that the drawing of blood without a warrant is reasonable only if supported by both probable cause and exigent circumstances. (See, e.g., Schmerber v. California (1966) 384 U.S. 757, 766-772 [16 L.Ed.2d 908, 917-921, 86 S.Ct. 1826].)
At an evidentiary hearing on the suppression motion, Detective Kelley all but expressly admitted that there was neither probable cause nor exigent circumstances. He testified that defendant’s blood was drawn pursuant to a “basic policy for all felonies” for “[Routine blood typing” and “[d]rug scans.”
Inexplicably, even after this testimony Massini did not attack the action of Detectives Kelley and Gall as based solely on the Ukiah Police Department’s underlying “policy.” On this crucial point, she “pulled her punches.” She *1047failed to bar unarguably inadmissible evidence.2 The mere failure to attempt to bar “arguably inadmissible evidence” has been found a sufficient default for present purposes. (Cuyler v. Sullivan, supra, 446 U.S. at p. 349 [64 L.Ed.2d at p. 347].) Her failure, of course, is more grievous. There is no way to reasonably explain her omission other than as a shying away from criticism of an organization with which she would work closely if she were elected district attorney. Perhaps we should be “hesitant to assume that counsel succumbed to the allure of [personal] interest where [her] decisions could also be justified as tactically best for defendant.” (2 LaFave & Israel, Criminal Procedure (1984) § 11.9(d), p. 93.) Massini’s “decision” is not. such. So far as defendant is concerned, her omission promised no benefit and threatened only cost.
It is true that there is no evidence that Massini acted other than in good faith. The presence of bad faith, however, is not required. Similarly, the absence of bad faith is not material.
IV
Because of my conclusion that defendant’s Sixth Amendment right to the assistance of conflict-free counsel was violated, I need not proceed further. One additional issue, however, deserves comment.
The question arises whether, in a certain instance, defense counsel provided ineffective assistance under the Sixth Amendment.
In the Santa Clara County Superior Court, Joseph D. Allen and Ronald W. Brown, who were then defendant’s attorneys, filed a motion in limine to exclude various confessions and admissions. They called Peter Glen May-land, M.D., a psychiatrist, to testify at the hearing. They believed that his testimony would possibly be helpful on the questions there considered. But they knew that that same testimony would necessarily be detrimental on the issues of guilt and penalty. Nevertheless, they put him on the witness stand *1048without obtaining an order barring the introduction at trial of whatever testimony he might give at the hearing. Subsequently, Dr. Mayland testified to statements by defendant including the following: in his encounter with Rosie Grover he was “mean acting”; he demanded, “Why don’t you show me some tit, bitch”; and he ordered, “Suck my dick.” At neither the guilt nor penalty phase of trial was any of these statements admitted for its truth. But at both phases, the prosecutor repeatedly and emphatically used all of them as though they had been.
To establish ineffective assistance of counsel under the Sixth Amendment, a defendant must show deficient performance under an objective standard of professional reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694, 104 S.Ct. 2052].) He must also show prejudice under a test of reasonable probability of an adverse effect on the outcome. (Id. at pp. 687, 691-694 [80 L.Ed.2d at pp. 693, 695-697].) A “reasonable probability” is not a probability that the failing “more likely than not altered the outcome of the case” (id. at p. 693 [80 L.Ed.2d at p. 697]), but simply a “probability sufficient to undermine confidence in the outcome” (id. at p. 694 [80 L.Ed.2d at pp. 697-698]).
In this case, defendant has shown deficient performance. It was professionally unreasonable for defense counsel to call Dr. Mayland at the hearing without obtaining an order barring the introduction at trial of whatever testimony he might give. Allen subsequently admitted that the failing was “inexcusably sloppy.” That is the most charitable characterization of the omission.
Defendant has also shown prejudice.
Whether there is a reasonable probability of an adverse effect on the outcome of the guilt phase is a close question. It is at least arguable that the jury’s guilt verdicts and its special circumstance and other findings were not tainted by defense counsel’s failing. The focus of the guilt phase were the various charges and allegations. Defendant’s statements to Dr. Mayland did not bear as heavily on the elements of the offenses and enhancements as on his own character. The inculpatory evidence was very strong, and the exculpatory evidence was very weak. Moreover, the superior court admonished the jurors that they could not consider defendant’s statements for their truth.
By contrast, it is not a close question whether there is a reasonable probability of an adverse effect on the outcome of the penalty phase. It appears that the jury’s verdict of death was in fact tainted by defense *1049counsel’s failing. Certainly, confidence in the result is undermined. The focus of the penalty phase was in large part defendant’s character. Defendant’s statements to Dr. Mayland bore heavily on that issue. The aggravating evidence, which was limited to guilt-phase evidence relating solely to the crime itself, was indeed substantial. But substantial too was the mitigating evidence, which painted a sympathetic picture of defendant. The superior court did not admonish the jurors that they could not consider defendant’s statements for their truth. We cannot reasonably presume that the jurors would have applied the admonition that the court had delivered at the guilt phase. Indeed, we should rather presume the opposite. A reasonable juror would have believed that since he was obligated to make a moral assessment of defendant’s character in determining penalty, he was required or at least entitled to take into account defendant’s statements, through which he displayed his character for all to see.
V
For the reasons stated above, I am of the view that defendant’s Sixth Amendment right to the assistance of conflict-free counsel was violated. Accordingly, I would reverse the judgment.
Appellant’s petition for a rehearing was denied October 27, 1993. Mosk, J., was of the opinion that the petition should be granted.
“CHP: Highway patrol.
“RG: Yes. I wanted to know if somebody could come get me because I don’t have a way home and I just got off the bus.
“CHP: We don’t provide transport at all. Where do you have to go?
“RG: I just have to get down the street a little ways and I don’t want to walk by myself because Pm really afraid.
“CHP: Are you at the Greyhound bus depot?
“RG: No, because I walked, I walked some ways by Foster Freeze.
“CHP: OK. You should call the police department. I don’t know if they provide transport, the highway patrol doesn’t, not in the city limits anyway.
“RG: Oh. Well, how am I supposed to get home?
“CHP: Well, why don’t you have somebody waiting for you there?
“RG: Well, because she said (garbled) just to call the cab or something. They don’t run this late, (garbled) didn’t figure we’d be this late.
“CHP: Well, you’re going to have to try the police department because we don’t transport any units, and most police agencies can’t transport anybody in their units. So try the police department.
“RG: The police department? OK. Will I get into trouble for curfew even though it’s not my fault?
“CHP: I don’t know. It would be your parents that would get in trouble, not you.
“RG: Oh, yeah, OK. Thank you.
“CHP: OK. Good-by.”
The majority attempt to avoid inadmissibility through the theory of “inevitable discovery.” It should be observed at the outset that the theory was not raised by either the People or defendant in either the superior court or this court. In my view, “inevitable discovery” may not properly be invoked. In attacking or defending a ruling on a suppression motion on appeal, the parties are not allowed to go beyond the arguments they presented regarding the motion below. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 640 [108 Cal.Rptr. 585, 511 P.2d 33].) As noted, neither the People nor defendant raised the theory in the superior court. They would not be permitted to raise it in this court. I am not persuaded that we may do what they may not. In any event, “inevitable discovery” simply does not work. What would have been “inevitably discovered” is not the blood drawn from defendant without a warrant, but blood different from that sample in various ways by reason of the process of metabolization. The majority effectively concede the point.