I concur in the judgment. After review, I have found no reversible error or other defect.
I write separately, however, because I cannot concur in the majority opinion’s discussion, or lack of discussion, of three troubling issues.
The first is defendant’s claim of ineffective assistance under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, based on trial counsels’ opposition to his penalty phase motion to exercise his Sixth Amendment right of self-representation under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562, 95 S.Ct. 2525]. The majority’s analysis leads ineluctably to a determination of no prejudice, based on the assertion that “ ‘the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome *1025unfavorable to the defendant.’ ” (Maj. opn., ante, at p. 1009, quoting McKaskle v. Wiggins (1984) 465 U.S. 168, 177, fn. 8 [79 L.Ed.2d 122, 133, 104 S.Ct. 944].) But it is settled that a violation of this right by the trial court “is not amenable to ‘harmless error’ analysis” and for that reason “cannot be harmless . . . .” (McKaskle v. Wiggins, supra, 465 U.S. at p. 177, fn. 8 [79 L.Ed.2d at p. 133].) Is it true, as the majority imply, that a violation of this same right by the defendant’s own attorney is virtually harmless per se? It may be that “defendant waived his [absolute] constitutional right of self-representation by failing to assert it within a reasonable time before trial.” (Maj. opn., ante, at p. 1011.) But he still retained at least a qualified constitutional right of self-representation. The record reveals that he would most likely have been allowed to proceed pro se had not his attorneys expressed opposition.
The second troubling issue is defendant’s claim that the trial court erred by refusing the jury’s request during penalty deliberations for a definition of the crucial instructional terms “aggravating” and “mitigating.” The majority’s response is insufficient. It is true that “[t]his court has previously determined that ‘aggravating’ and ‘mitigating’ are commonly understood terms that the trial court need not define for the jury.” (Maj. opn., ante, at p. 1018.) That determination is perhaps sound when the jury does not express any lack of such “common understanding.” The matter is otherwise when —as here—it does. The cases cited by the majority cover the situation in which the jury does not make an expression of this sort. They do not extend further.
The third troubling issue is defendant’s claim that Penal Code section 190.3, which governs the penalty phase of a capital trial, violates the guaranty of equal protection of the laws contained in the Fourteenth Amendment to the United States Constitution and article I, section 7 of the California Constitution by “allowing] proof of threats of violence as an aggravating circumstance where such threats are made over the telephone but not where they are otherwise communicated. In effect this creates two classifications of persons: one subject to aggravation at the death penalty trial because threats of violence were made over the telephone, and one not subject to aggravation based on violent threats made by some other means.” “[W]hen reviewing legislative classifications under the equal protection clauses of the California and United States Constitutions, the legislation under examination is generally clothed in a presumption of constitutionality. However, once it is determined that the classification scheme affects a fundamental interest or right [or involves a suspect classification] the burden shifts; thereafter the state must first establish that it has a compelling interest *1026which justifies the law and then demonstrate that the distinctions drawn by the law are necessary to further that purpose.” (People v. Olivas (1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375], italics in original.) Obviously, the classification between “telephonic” and “nontelephonic” threats and threateners affects life itself. And life, of course, is the most fundamental of fundamental interests. (See ibid.) “[C]an the challenged sentencing scheme withstand application of the strict scrutiny standard?” (Ibid.) The majority do not even address the question.
But, with all that said, neither in these matters nor in any other can I find grounds for reversal. Hence, although I do not concur in the majority opinion, I do concur in the judgment.
Appellant’s petition for a rehearing was denied August 11, 1994, and the opinion was modified to read as printed above.