My opinion prepared for the court addresses only defendant’s contention that his trial counsel, Arnold Lieman, provided him ineffective assistance of counsel by failing to competently investigate a potential intoxication defense. However, Lieman’s incompetence reached far beyond his investigatory shortcomings. Counsel continued to disregard petitioner’s interests as the course of his purported representation unfolded, until the sum of accumulated failings amounted to such an abandonment of *188petitioner’s cause as to constitute the constructive denial of assistance altogether. In the absence of this foundational component of the adversarial process, prejudice can be conclusively presumed. (People v. Ledesma (1987) 43 Cal.3d 171, 217 [233 Cal.Rptr. 404, 729 P.2d 839].)
I.
In addition to forsaking his responsibility to competently investigate a potential intoxication defense, Lieman defaulted, inter alia, in the following respects:
A. Counsel’s failure to object to the introduction of petitioner’s postarrest statement
The referee determined that Lieman ineffectively assisted petitioner by failing to object to the introduction, in its entirety, of his taped statement to the police. Included in the admitted tape was a statement by the interrogating detective that the judge who signed the arrest warrant was convinced petitioner killed the victim, inadmissible on both hearsay and relevancy grounds (Evid. Code, § 1200, subd. (a); § 702, subd. (a)); another statement by the detective that “we knew we had a murderer on our hands,” irrelevant and inadmissible under Evidence Code section 702, subdivision (a); a third statement by the detective indicating that petitioner had been arrested previously for the theft of gasoline, irrelevant and inadmissible under Evidence Code section 788; and petitioner’s exercise of his right to remain silent when asked to describe “what provoked or what started the incident with Mr. Barajas,” inadmissible under Griffin v. California (1965) 380 U.S. 609, 614-615 [14 L.Ed.2d 106, 110, 85 S.Ct. 1229].1
The introduction of a judicial officer’s preliminary evaluation of petitioner’s guilt, or petitioner’s exercise of his right to remain silent, could not possibly have related to a competent defense strategy, particularly “since an objection to the . . . evidence would have been adjudicated outside the presence of the jury . . . .” (People v. Nation (1980) 26 Cal.3d 169, 179 [161 Cal.Rptr. 299, 604 P.2d 1051].) The inadequacy of Lieman’s conduct in this regard is manifest. (People v. Ellers (1980) 108 Cal.App.3d 943, 951 [166 Cal.Rptr. 888].)
*189B. Counsel’s failure to research and argue defenses of law
Adequate representation requires an attorney to research “ ‘carefully all defenses of. . . law that may be available to the defendant. . . .’’’(People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1], quoting In re Williams (1969) 1 Cal.3d 168, 175 [81 Cal.Rptr. 784, 460 P.2d 984].) As this court noted in People v. Sedeno (1974) 10 Cal.3d 703, 717, footnote 7 [112 Cal.Rptr. 1, 518 P.2d 913], counsel’s duty “includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which his defense rests.” The referee found that Lieman violated this duty by requesting an invalid jury instruction on intoxication and diminished capacity (CALJIC No. 8.41 (1979 rev.)), withdrawn approximately one year prior to trial after the Legislature abolished the diminished capacity defense. (Pen. Code, § 28.) As a consequence of this error, the jury received no instructions whatever on intoxication. Counsel compounded the error by seriously misstating the law applicable to an intoxication defense in his closing argument.
Lieman conceded at the reference hearing that he believed the abolished diminished capacity defense remained available at the time of petitioner’s trial, evincing an astounding ignorance of the basic legal principles relevant to the defense of his client. The Attorney General says nothing with respect to the incompetence suggested by this admission, as well as the evident deficiency of counsel’s related request for an invalid and superseded CAL-JIC instruction on the legal significance of petitioner’s intoxication.
The Attorney General focuses rather on the overarching legal strategy that purportedly informed Lieman’s conduct of the defense. He argues that Lieman made a tactical decision to reject a defense based on intoxication and the absence of actual malice or intent, in light of petitioner’s statement that he knew what he was doing, and chose instead to press for a voluntary manslaughter verdict based on petitioner’s “alcohol-aided anger and passion,” an apparent variant of the statutory heat of passion defense.2 He argues that this reasonable strategic decision explains Lieman’s failure to *190request a valid CALJIC instruction on intoxication, since the instructions remaining after the repeal of the diminished capacity defense discussed intoxication only in relation to the negation of intent.3
The Attorney General’s portrait of a thoughtful legal strategy is belied by Lieman’s testimony at the reference hearing. When asked if there was “any practical reason, or any reason at all, why you did not submit [the CALJIC instruction on intoxication and specific intent],” Lieman said nothing about its incompatibility with his theory of the defense. He replied only, “Doesn’t it have to be given sua sponte? .... Well, I didn’t ask for that instruction.” The Attorney General’s characterization of counsel’s defense is rendered even less credible by Lieman’s own description of his strategy at trial: “As I saw it, Judge, I had one defense; that the defendant was intoxicated and high, and he was.”
If one were to assume arguendo that Lieman’s “alcohol-aided anger and passion” argument was a variant of the statutory defense of heat of passion rather than an inelegant attempt to assert the abolished defense of diminished capacity, counsel was required to show that “malice [was] lacking because the killing occurred under circumstances of sufficient provocation such as to rouse the reasonable man to heat of passion or sudden quarrel.” (People v. Graham (1969) 71 Cal.2d 303, 315, fn. 2 [78 Cal.Rptr. 217, 455 P.2d 153]; Pen. Code, § 192, subd. (a).) “‘[T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ ” (People v. Wickersham (1982) 32 Cal.3d 307, 326 [185 Cal.Rptr. 436, 650 P.2d 311], quoting People v. Valentine (1946) 28 Cal.2d 121, 139 [169 P.2d 1].) The Attorney General fails to explain how Lieman could have competently argued that the victim’s “provocation” was sufficient to rouse a reasonable man to kill, while evidently suggesting that petitioner’s violent response was the peculiar product of his own drunkenness. Exceptional subjective conditions, such as intoxication or mental depression, by definition will not be experienced by the ordinarily reasonable man and are therefore plainly incompatible with *191the statutory defense. (In re Thomas C. (1986) 183 Cal.App.3d 786, 798 [228 Cal.Rptr. 430].)
If Lieman intended to argue the defense of heat of passion, he did so incompetently by emphasizing petitioner’s intoxication and making almost no mention of provocation on the part of the victim.4 If he intended to argue a defense based on petitioner’s voluntary intoxication, requiring proof of the absence of specific intent, premeditation, or malice aforethought under Penal Code section 22, subdivision (b), he did so incompetently by suggesting a diminished capacity standard in closing argument and by requesting a jury instruction withdrawn well before trial. (Pen. Code, §§ 22, subd. (b), 28, subd. (a).)
C. Counsel’s failure to introduce evidence of the ownership of the bullet found in the trunk of petitioner’s car
Lieman failed to call petitioner’s brother-in-law, Charlie Hinojosa, to establish his ownership of a bullet found in petitioner’s trunk. In the absence of Hinojosa’s testimony, the prosecutor drew a number of negative inferences from the unrefuted connection of ammunition to petitioner.
The prosecutor noted in closing argument that the bullet was of a caliber different from the one that killed the victim. He then said, “Maybe it’s a good luck charm, maybe he has two guns, maybe he found that bullet someplace to try to load it into his gun and discovered it wouldn’t fit. [fl] And the other thing is, . . . remember that Mr. Cordero told Detective Athan, you heard it on the tape recording, that he’s never had a gun in his car. So what is the bullet doing there, then?”
Petitioner’s counsel at the hearing inquired whether Lieman had “any information that Hinojosa could have said something in his testimony that would have been to the detriment of your client.” Lieman replied, “no, I had no information.” While “the choice of which, and how many, of potential witnesses [will be called to testify] is precisely the type of choice which should not be subject to review” (People v. Floyd (1970) 1 Cal.3d 694, 709 [83 Cal.Rptr. 608, 464 P.2d 64]), the failure to present the only available *192exculpatory testimony on a significant issue, absent a perceived risk, is evidently deficient.
II.
As this court observed in Ledesma, “In certain contexts, prejudice is conclusively presumed. For example, ‘Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. . . .’” (Ledesma, supra, 43 Cal.3d at p. 217, quoting Strickland v. Washington, supra, 466 U.S. at p. 692 [80 L.Ed.2d at p. 696].) In view of the totality of Lieman’s failings in this case, I am compelled to conclude that his deficient performance—or, perhaps more accurately, his essential nonperformance—amounted to the “constructive denial of the assistance of counsel altogether.” Such constructive denial is present when “the process loses its character as a confrontation between adversaries .... [I]f 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.” (United States v. Cronic (1984) 466 U.S. 648, 656-659 [80 L.Ed.2d 657, 666-668, 104 S.Ct. 2039].)
In a concurring opinion in Ledesma, Justice Grodin, joined by then-Justice Lucas and Justice Panelli, concluded that the broadly deficient performance of the defendant’s trial counsel constituted the constructive denial of assistance. They predicated their conclusion on the following litany of failings: “Counsel’s failure to investigate defenses that should have been apparent to him; his failure to utilize available evidence and objections; his admission that his trial preparation and performance were essentially nil . . . coupled with the other omissions identified by [the] referee preclude any confidence in the verdict of first degree murder .... [^[] In circumstances in which it is established that although counsel has been afforded a defendant, he is unable to discharge his duties, it is unnecessary to identify specific prejudice. . . . [Defendant] has established that counsel’s performance was so deficient as to bring about a breakdown of the adversarial process . . . .” (Ledesma, supra, 43 Cal.3d at p. 245 (cone. opn. of Grodin, J.).)
Lieman conducted no factual investigation of petitioner’s sole defense of intoxication, a deficiency that led inexorably to its virtual withdrawal at trial; he called no witnesses nor utilized any available exculpatory evidence; he made no pretrial motions, offered no opening statement, and failed repeatedly to object to the prosecutor’s introduction of clearly inadmissible evidence; and he conducted his entire defense under an inexcusable misapprehension of the law applicable to the charge against his client. Counsel for Ledesma, while grossly incompetent, did more: he moved before trial for *193the appointment of an expert to evaluate a potential diminished capacity defense, he called witnesses at trial, and he introduced exculpatory evidence. (Ledesma, supra, 43 Cal.3d at pp. 178-191.) If, as Justices Grodin, Lucas, and Panelli concluded, Ledesma was constructively denied the assistance of counsel, it follows a fortiori that petitioner was also.
In sum, the words of the Frierson court are strikingly applicable to the facts here: “[Counsel’s diminished capacity defense] was doomed to failure in the absence of any competent evidence supporting it. By his inaction, deliberate or otherwise, counsel deprived himself of the reasonable bases upon which to reach informed tactical and strategic trial decisions. Most importantly, the defense of diminished capacity was certainly crucial, for it represented defendant’s sole defense to the serious, indeed ultimate, crimes with which he was charged. The situation thus became comparable to that presented in People v. Corona, wherein defense counsel called no witnesses and presented no defense at trial other than to cross-examine prosecution witnesses . . . . ‘To give up the mental incapacity defense in this situation was tantamount to a total withdrawal of any legal defense, a complete abandonment of the interest of the accused.’ ” (People v. Frierson (1979) 25 Cal.3d 142, 163 [158 Cal.Rptr. 281, 599 P.2d 587], quoting People v. Corona (1978) 80 Cal.App.3d 684, 719 [145 Cal.Rptr. 894], citation omitted, italics in original.)
Broussard, J., concurred.
The Griffin rule “prohibits reference to a defendant’s failure to take the stand in his own defense” (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213]), and applies with equal force to a defendant’s refusal to answer questions during a postarrest interrogation (Boyer v. Patton (3d Cir. 1978) 579 F.2d 284).
The Attorney General evidently refers to Lieman’s closing argument when he speaks of counsel’s “alcohol-aided anger and passion” defense. In closing, Lieman stated that “We know Mr. Cordero, in his statement, had been drinking. He says he was high, feeling the effect. He said he was swerving in the statement he gave to the police, mentioned being high or being under the influence several times. [][] The law does not require someone to be, in the words of the prosecutor, ‘blind drunk.’ That is not the law. The law is just, someone has to be so moved by heat of passion—and, of course, heat of passion is a term of art, you know, in the legal word [sic], which the judge is going to define to you, the sudden quarrel or heat of passion overcomes one’s reasoning, and that is what leaves the reduction of a murder to a man-
CALJIC No. 4.21 (1981 rev.) reads: “In the crime of_of which the defendant is accused [in Count_of the information], a necessary element is the existence in the mind of the defendant of the [specific intent to_] [mental state of-]. [Ü] If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if defendant had such [specific intent] [mental state], [j|] If from all the evidence you have a reasonable doubt whether defendant formed such [specific intent] [mental state], you must give the defendant the benefit of that doubt and find that he did not have such [specific intent] [mental state].”
The only portion of Lieman’s closing argument that could possibly be construed as a discussion of the victim’s provocation stated: “The victim must have gone over to the trunk for a purpose. Perhaps he wanted to get some kind of revenge, perhaps he wanted to strike Mr. Cordero, perhaps because of the hour, where he was at, his state of mind, he had had a few beers, too, apparently, the calling Mr. Cordero was doing, he went over to the trunk for some reason.” Referring to “the calling Mr. Cordero was doing” appears to concede that petitioner himself acted provocatively; but this would preclude a heat of passion defense, because “the provocation must [come] from the victim.” (In re Thomas C, supra, 183 Cal.App.3d at p. 798; see People v. Spurlin (1984) 156 Cal.App.3d 119, 125-126 [202 Cal.Rptr. 663].)