In my view a fair reading of the record demonstrates that defendant was denied constitutionally adequate assistance of counsel at the penalty phase of his trial, and hence that the judgment of death imposed on him cannot stand.
I
It is now settled that the constitutional right of a criminal defendant to the “assistance of counsel” (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) requires that he be afforded reasonably competent representation by an attorney acting as his diligent, conscientious advocate. (People v. Pope (1979) 23 Cal.3d 412, 423 (maj. opn.), 438 [152 Cal.Rptr. 732, 590 P.2d 859] (dis. opn. of Mosk, J.); accord, People v. Frierson (1979) 25 Cal.3d 142, 160 [158 Cal.Rptr. 281, 599 P.2d 587] (opn. of Richardson, J., Clark, J., and Manuel, J.); People v. Cooper (1979) 94 Cal.App.3d 672, 681 [156 Cal.Rptr. 646]; People v. Farley (1979) 90 Cal.App.3d 851, 859 [153 Cal.Rptr. 695].) “Reviewing courts should avoid second-guessing counsel’s informed choice among tactical alternatives, but a defense attorney’s freedom to make such de*320cisions is not without limits. Every person accused of a criminal offense is entitled to constitutionally adequate legal assistance. [Citation.] That right is denied if trial counsel makes a critical tactical decision which would not be made by diligent, ordinarily prudent lawyers in criminal cases. This is true even if the decision were not made from ignorance of the law or a fact.” (Pope, 23 Cal.3d at p. 424.)
Among the “basic duties” counsel must perform in order to provide reasonably competent assistance are diligent preparation of the client’s case and a careful investigation of all defenses of fact and law that may be available. (Id. at pp. 424-425.) If counsel’s failure to discharge these duties results in the withdrawal of a crucial or potentially meritorious defense, the defendant has been denied his constitutional right. (Id. at p. 425.) Absolute certainty, however, is not required: “A crucial defense is not necessarily one which, if presented, ‘would result inexorably in a defendant’s acquittal.’” (Id. at p. 425, fn. 15.)
In applying this rule to the penalty phase of a murder trial, of course, it is inappropriate to speak of “defenses” in the sense in which the word is used in the guilt phase: once it is found that the defendant committed the crime, there is no longer a “charge” pending against him to which he may interpose a “defense.” Rather, the penalty phase is in essence a sentencing hearing at which additional information about the defendant is adduced, in order to permit a rational decision concerning the proper punishment to be imposed. To this end, the statute governing the trial herein provided that “In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence,” including, but not limited to, such facts as the nature and circumstances of the offense, the existence or lack of prior criminal activity by the defendant involving the use or threat of force, and “the defendant’s character, background, history, mental condition and physical condition.” (Italics added.) (Former Pen. Code, § 190.3, 1st par., added by Stats. 1977, eh. 316, § 11, p. 1258.) The broad scope of the defendant’s right to introduce evidence in mitigation is underscored by the further provision that in reaching its decision the jury shall take into account not only certain listed factors (e.g., the defendant’s age, mental state, and degree of participation in the offense) but also “Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” (Id., 5th par., subd. (j).)
*321The crucial importance of such mitigating evidence is demonstrated by the fact that the statutory provisions for its introduction are not merely matters of legislative policy—they are constitutionally compelled: the Eighth and Fourteenth Amendments require that the sentencer “not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Fn. omitted.) (Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 990, 98 S.Ct. 2954] (plur. opn. of Burger, C. J.).) There are two reasons for this rule. First, because of the drastic nature of the penalty it is critical that the sentencing authority have full, accurate, and reliable information about the person to be punished: “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Fn. omitted.) (Woodson v. North Carolina (1976) 428 U.S. 280, 305 [49 L.Ed. 2d 944, 961, 96 S.Ct. 2978] (plur. opn. of Stewart, J., Powell, J., and Stevens, J.).) In a noncapital case “where sentencing discretion is granted, it generally has been agreed that the sentencing judge’s ‘possession of the fullest information possible concerning the defendant’s life and characteristics’ is ‘[h]ighly relevant—if not essential—[to the] selection of an appropriate sentence. . . .’” (Lockett, 438 U.S. at pp. 602-603 [57 L.Ed.2d at p. 988].) Yet “If an experienced trial judge, who daily faces the difficult task of imposingsentences, has a vital need for accurate information about a defendant' and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.” (Italics added.) (Gregg v. Georgia (1976) 428 U.S. 153, 190 [49 L.Ed. 2d 859, 884, 96 S.Ct. 2909] (plur. opn. of Stewart, J., Powell, J., and Stevens, J.).)
Secondly, and even more fundamentally, “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” (Trop v. Dulles (1958) 356 U.S. 86, 100 [2 L.Ed.2d 630, 642, 78 S.Ct. 590] (plur. opn. of Warren, C. J.); accord, People v. Anderson (1972) 6 Cal.3d 628, 650 [100 Cal.Rptr. 152, 493 P.2d 880].) To impose a sen*322tence of death in ignorance of “the defendant’s character, background, [and] history” is to deny that dignity and treat the defendant as something less than a human being: “A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.” (Woodson, 428 U.S. at p. 304 [49 L.Ed.2d at p. 961].) It follows that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment, [citation], requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” (Italics added; ibid.) (Accord, Lockett, 438 U.S. at p. 605 [57 L.Ed.2d at p. 990]; Rockwell v. Superior Court (1976) 18 Cal.3d 420, 428 [134 Cal.Rptr. 650, 556 P.2d 1101].)
It is self-evident that in most trials the jury will be unable to give any “consideration” whatever to such mitigating factors without the assistance of defense counsel. Unless counsel undertakes a timely investigation to develop this evidence, marshals the v/itnesses or documents needed to present it, and introduces it at the penalty phase, the jury risks condemning the defendant without the individualized treatment contemplated by the statute and, under Gregg and its progeny, mandated by the Constitution. For this reason, defense counsel’s basic duty to diligently prepare his client’s case and carefully investigate all defenses that may be available (Pope, at pp. 424-425 of 23 Cal.3d) includes, in capital cases, the foregoing additional responsibilities. If he fails to so act, and if the failure results in withholding crucial extenuating evidence from the jury, the defendant has not had the representation to which he is constitutionally entitled under the Pope rule. As in Pope, of course, the defendant need not prove that the evidence in question would “inexorably” have produced a sentence less than death. (Id. at p. 425, fn. 15.)
II
Applying this rule to the case at bar I find that the record, when fairly read, supports the defendant’s contention that he was denied constitutionally adequate representation at the penalty phase.
*323To begin with, it is beyond dispute that counsel had more than ample timé to prepare for that phase of the proceedings. Despite the strong public policy in favor of a speedy trial in all criminal cases (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Pen. Code, §§ 686, 1050; People v. Johnson (1980) 26 Cal.3d 557, 562-563 [162 Cal.Rptr. 431, 606 P.2d 738]), and the implementing statutory mandate that in the absence of good cause or consent a defendant charged with felony must be brought to trial within 60 days after the filing of the information (Pen. Code, § 1382, subd. 2), in the case at bar the trial did not begin until 415 days after the first information was filed. During all that time defendant was held in the local jail, and for the last 365 days of the period he was represented by the attorney of whom he now complains.1
After seven days of jury selection, the People put on a substantial case in chief at the guilt phase: the prosecution called twenty-nine witnesses, and their testimony consumed some eight days of trial.2 By contrast, defense counsel offered no evidence whatever on defendant’s behalf.
In even greater contrast was the testimonial portion of the penalty phase, held on January 9, 1979. While the corresponding portion of the guilt phase lasted more than a week, the entire hearing of testimony on the issue of penalty took less than 45 minutes: two prosecution witnesses were questioned briefly about the location and appearance of the bottle apparently used to sexually assault the victim Ott; defense counsel cross-examined one but not the other; and counsel again declined to offer any evidence whatever on defendant’s behalf.
Counsel’s failure to present any extenuating evidence, moreover, was repeatedly called to the jury’s attention in oral argument. First, the *324prosecutor structured his presentation on the list of aggravating and mitigating factors that the statute directed the jury to take into account in fixing the penalty. (Former Pen. Code, § 190.3.) Reviewing each of those factors, he found none favorable to defendant except his age at the time of the crime; all the others, he urged, constituted circumstances in aggravation.3 He then asked the jury, “Is there anything that you have heard during the days of testimony and the offering of evidence to you that in any way diminished the gravity of the crime, the beating of Mrs. Ott? Anything? Obviously not.” Again paraphrasing the statutory language, the prosecutor next told the jury: “Then we come down to the last [factor], and that is the defendant’s character, his background, his history, his mental and physical condition. Well, we don’t know too much of the defendant, do we? But what we do know, I would submit to you, is sufficient for you to make a determination of the character of this man, Mr. Jackson.” (Italics added.) The prosecutor addressed two of those factors, stressing defendant’s evident physical strength and arguing that the circumstances of the crime showed his “mental condition” to be that of a cool, vicious, and pitiless killer. Summing up the point, the prosecutor then emphasized, “So what about the defendant’s character, his background, his history, his mental and physical condition? Any factors of mitigation in that regards? Obviously none.”
In turn, defense counsel’s argument was wholly inconsistent on this topic. Although he made frequent appeals to the jury to consider “where this young man is coming from,” he apparently realized that except as to age he had not produced any affirmative evidence of defendant’s character, background or history—and like the prosecutor, he persisted in reminding the jury of that omission. Thus he admitted, “you never really got a chance to know [defendant] or see him or talk to him,” and could only argue negatively that during the trial “we heard nothing about the things that... I was used to when I was his age... like some type of security.” Again, defense counsel urged that “to be fair. . .we must look into the background of the individual. Now, you say, Well, I don’t know much about him. I don’t know much about him. All I see is this black—black man over here. He looks young.” (Italics added.) Indeed, defense counsel doggedly adhered to this technique even in arguing his automatic motion for modification of the *325verdict (former Pen. Code, § 190.4, subd. (e)): while pressing the court to consider “where he is coming from,” counsel acknowledged the prosecution’s adverse evidence on defendant’s character and could only remark elliptically that “the Court will never know this individual as, say, I know the individual.. .. ”4
The ignorance of the court and jury on these matters was of counsel’s own making. For the reasons explained above (part I, ante) it was .counsel’s duty to present his evidence on the issue of defendant’s background and history, rather than asking the court and jury to blindly rely on his unexplained allusions as to “where this young man is coming from.” Nor are we required to speculate on what such evidence might have included: the record contains significant material on this issue that counsel could have put before the jury by appropriate witnesses.
The most obvious is the factual information appearing in the probation report—information elicited by the probation officer from sources that were equally accessible to counsel. According to that report, defendant was born in 1957 in Arkansas, the only child of Alfred Jackson and Hollie Walker. When he was four years old his parents separated and his mother took him to California. She subsequently began living with a Mr. Hackworth and had a child by him, now residing with her at an unknown location. Defendant was raised primarily by his paternal grandmother, Mattie Jackson, staying with her in the Long Beach area until he was 17. He was then sent to Oakland to live with his father, who was unemployed and subsisted on welfare and disability payments.
At least one relevant picture of defendant’s background and history appeared when the probation officer interviewed defendant’s grandmother, Mrs. Jackson. According to the probation report, the latter “states that she raised defendant because his mother did not want him. When defendant was nine he lived with his mother and stepfather for a while and the latter beat him when defendant did not do what he was supposed to do and beat him when he did what he was not supposed to do. Mrs. Jackson also believes that witnesses lied about defendant’s part in the crimes, particularly her granddaughter, Debra Hall. Mrs. Jackson describes defendant as being a good kid who came down here in *3261977 to care for her when she was sick.” Summing up, the probation officer states in his own evaluation of the case that “Defendant was reared in a home where there was no adult male supervision until he was nine years of age. He was rejected by both parents and then subjected to indiscriminate physical punishment by a stepfather whom he scarcely knew.”
None of this information, however, was communicated to the jury. Yet defense counsel well knew of Mrs. Jackson and her support of defendant throughout the trial. First, during the voir dire proceedings on the guilt phase, the judge, defense counsel, and prosecutor held a brief discussion in chambers regarding the latter’s complaint that Mrs. Jackson, who was sitting in the courtroom, spoke to the jurors when they passed her on the aisle. The prosecutor expressed concern about the propriety of such contacts, particularly if defense counsel intended to call her as a witness in the penalty phase. Defense counsel stated that Mrs. Jackson was about 90 years old and in his opinion was “very senile”; nevertheless he offered to warn her against talking with jurors. The prosecutor responded, “I would agree that she is elderly. Whether she is senile or not—I don’t get that impression, but be that as it may, does counsel intend to call her as a witness in any phase of the trial?” Counsel replied that he did not know yet, but that he might call her ‘“cause I don’t have much going for me and I have to use everything I have got.” The judge agreed that he was very reluctant to exclude Mrs. Jackson from the courtroom, adding the poignant remark that “in the strange world in which the defendant now finds himself, his only ally is his lawyer, who is white, and his grandmother, who is black,...”
The prosecutor then explained that Mrs. Jackson told him she was just saying hello to the jurors, and that she seemed to answer his questions responsively; it was for this reason that he believed she was not senile. Defense counsel subsequently moderated his view and said, “I have talked to her a little bit. I think she is a little senile.” He readily admitted, however, that she had personal knowledge of defendant’s background and history: “She raised the boy and... he really doesn’t have anybody—I checked that out—other than her,...” And counsel acknowledged that Mrs. Jackson strongly supported her grandson: commenting that “you can’t reason with her” on the question of defendant’s guilt, he concluded: “She doesn’t want anything to happen to the boy and she knows it is the death penalty and she thinks the boy is innocent,...”
*327Again, at the end of the trial and in the course of his argument for modification of the verdict, counsel told the court that “At no time have I ever heard from” either defendant’s mother or father,5 and “the only one that I have ever heard from or has ever given any interest is his grandmother on his father’s side, who has faithfully always been in court” during the trial proceedings. (Italics added.) This observation was corroborated by the prosecution witness Johnson, who pointed out Mrs. Jackson sitting in the courtroom during his cross-examination. Indeed, Mr. Johnson’s own testimony suggests that he too was a potential witness for the defendant at the penalty phase. He testified that he had known defendant for at least four or five years, during which time he saw him about once a week when defendant visited the teenage boys of the woman with whom Johnson was living; that defendant was “welcomed” in the woman’s house; and that Johnson persuaded defendant to surrender to the police because he was “worried about his safety.”
In addition, the declarations filed in support of defendant’s petition for habeas corpus contain evidence of counsel’s failure to develop and present relevant proof of defendant’s mental condition, another factor expressly made admissible by the statute. As noted above, the prosecutor argued to the jury that the circumstances of the crimes showed defendant’s mental condition to be that of a calculating and deliberate killer. Having failed to introduce any mitigating evidence, defense counsel had nothing with which to counter this argument. Yet it appears that such evidence might well have been developed. Prior to trial, counsel arranged to have defendant examined by psychiatrists on two occasions for the purpose of determining whether there were grounds for interposing a diminished capacity defense at the guilt phase; he did not ask, however, that defendant be examined for any of the factors admissible in mitigation at the penalty phase. In a declaration under penalty of perjury, Steven Hough, head deputy in the Long Beach office of the Los Angeles County Public Defender and a certified criminal law specialist with 14 years’ experience, states that a reasonably competent attorney defending a client charged with a capital crime would not have declined to introduce evidence of any mitigating factors without first obtaining expert advice on the presence or absence of all such fac*328tors, particularly with regard to the defendant’s psychological condition. In corroboration of this view, defendant also submitted a declaration in which John M. Stalberg, M.D., a diplómate of the American Board of Psychiatry and Neurology specializing in forensic psychiatry, recites that he has read the psychiatric and police reports in this case and concludes, inter alia, “It is my opinion as a forensic psychiatrist that Mr. Jackson should have been, as a matter of course, given psychological testing, specifically directed to intelligence. Dr. Bailey, in his report, noted that Mr. Jackson is ‘illiterate’ and the psychiatric materials and transcribed confession would indicate that Mr. Jackson has possibly borderline mental retardation or, at best, below-normal intelligence.”
On this showing the issue of adequacy of counsel is controlled by People v. Frierson (1979) supra, 25 Cal.3d 142, 164-166.6 In a companion petition for habeas corpus filed with his appeal, Frierson submitted declarations of experienced criminal lawyers who expressed the opinion that a reasonably competent defense in a capital case would include presentation of mitigating evidence through lay or expert witnesses. He also offered “several declarations from relatives, friends and acquaintances of defendant containing material which conceivably might have mitigated his conduct. For example, defendant’s mother reviewed certain explanatory circumstances surrounding his youth and family difficulties, and an adult friend declared that he had never seen defendant exhibit any signs of violence or hostility.” (Id. at p. 165.) Such material is essentially indistinguishable from the mitigating evidence that could have been introduced in the case at bar.7
I conclude, as we did in Frierson (ibid.), that although these materials in mitigation “are of doubtful legal significance, they do demonstrate the possibility that at least someone might have been called to testify on defendant’s behalf and to urge that his life be spared. [1Í]... *329It seems highly unlikely that trial counsel, by the exercise of reasonable diligence, would have been unable to locate a single witness willing to present some mitigating testimony invited by [former section 190.3].” I refuse to believe that on this planet there lives a human being who is utterly without a single redeeming quality.
Ill
Under Pope, the inquiry shifts at this point to a consideration of the question whether “the record contains any explanation for the challenged aspect of representation.” (23 Cal.3d at p. 425.) In Frierson such an explanation was offered by the People in the form of a declaration of defendant’s trial counsel submitted with the return. We summarized its contents as follows: “counsel asserts that he had unsuccessfully attempted to locate ‘friendly’ witnesses who might testify on behalf of defendant at the penalty phase. According to counsel, such witnesses would have been subject to intense cross-examination and impeachment, and would have been required to reveal any adverse facts they knew regarding defendant’s character. In addition, trial counsel concludes that ‘Tactically I determined that no evidence of mitigating factors would be presented at the penalty phase so as to minimize the People’s case and to impress the jury with the weight of the prosecution’s burden.' (Italics added.) Moreover, defendant himself was not called because of counsel’s opinion that ‘he would make a poor witness.’” (25 Cal.3d at p. 165.)
We found the proffered explanation totally unpersuasive. We ignored counsel’s speculative fears of the effect of cross-examination on character witnesses for Frierson, as well as counsel’s personal opinion that Frierson would make a poor witness for himself. And we rejected as legally erroneous counsel’s “tactic” of withholding mitigating evidence so as to emphasize the prosecution’s “burden.” We reasoned {ibid.) that if counsel believed “the prosecution had the burden of proving to the jury the appropriateness of the death penalty, counsel seriously misunderstood the law.” The statute expresses no preference for either penalty —death or life imprisonment without possibility of parole—but leaves the choice to the jury’s discretion in the light of the aggravating and mitigating circumstances introduced. We concluded (at p. 166) that “The People took full advantage of their right to introduce aggravating evidence,” while “Trial counsel’s conduct, rather than emphasizing the People’s ‘burden,’ simply underscored the absence of any mitigating circumstances in this case, greatly enhancing the likelihood that a verdict *330of death would be returned. Moreover, such a result, in our view, was reasonably foreseeable.”
On this issue too the case at bar closely resembles Frierson. By a supplemental return, the People have submitted a declaration of defendant’s trial counsel containing his explanations for his conduct of the penalty phase. Insofar as relevant here he asserts that he did not call defendant to testify in his own behalf because in counsel’s opinion “he would make a very poor witness.” Counsel also states he did not use the reports of the examining psychiatrists at the trial because they contained “damaging statements” by defendant, and did not call the psychiatrists themselves “because based upon telephone conversations with them, I believed that their testimony would not have been favorable.” The latter excuses, of course, are not only self-serving and wholly conclusory but fail to refute Dr. Stalberg’s expert opinion that defendant should have been given routine psychological testing in view of his possible “borderline mental retardation.”
Lastly, defense counsel divulges two specific reasons why “I purposely did not call any witnesses to the stand at the penalty phase. . . . ” As with the trial tactic in Frierson, each of these reasons is legally erroneous.
The first reason is that counsel “wanted to create doubt in the minds of the jury relative to whether their limited knowledge of Mr. Jackson’s personal involvement merited the death penalty. ...” Two misconceptions are reflected in this statement. It is true that in the guilt phase it is a valid defense tactic to “create doubt in the minds of the jury,” because the prosecution has the burden of proving the defendant guilty beyond a reasonable doubt. But in the penalty phase, as we observed in Frierson, the prosecution has no such burden; to imply that raising a “doubt” would somehow foreclose application of the death penalty therefore suggests that here too “counsel seriously misunderstood the law.” Furthermore, counsel’s plan to restrict the jury to only a “limited knowledge” of his client and his involvement in the events is contrary , to the whole purpose of penalty proceedings: as explained above (part I, ante), under the governing decisions of the United States Supreme Court those proceedings are constitutionally necessary to provide the sentencing authority with reliable information about the person before it and to insure that he or she be treated as a uniquely individual human being under the Eighth Amendment. (Woodson v. North Carolina, supra, at pp. 304-305 of 428 U.S. [49 L.Ed.2d at p. 961].) Those pur*331poses are obviously nullified when counsel deliberately refrains from presenting any mitigating evidence whatever at the penalty phase. Again, such a “tactic” can only be explained as the result of counsel’s serious misunderstanding of the relevant statutory and constitutional law.
The second reason offered by counsel for withholding extenuating evidence is that “The prosecutor had only introduced minimal evidence at the penalty phase but had other very damaging evidence of other vicious attacks on people by Mr. Jackson which it [jic] did not introduce but which could possibly have been admissible in rebuttal if a defense relative to mitigating factors had been presented.” The assertion is both factually and legally untenable.
To begin with, one may question counsel’s characterization of the renewed testimony describing in detail the bloody bottle used to sexually assault the elderly woman victim Ott as “only. . . minimal evidence in aggravation.” Even less persuasive is counsel’s claim that the prosecutor had additional “very damaging evidence of other vicious attacks on people” by defendant that was not introduced. According to the record, while the jury was deliberating on guilt the prosecutor announced that if the penalty phase were reached he intended to offer evidence of certain other criminal activity of defendant as a circumstance in aggravation. The prosecutor’s first hurdle, however, was the clear prohibition of the statute that at the penalty phase “no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the expressed or implied threat to use force or violence.” (Former § 190.3, 2d par.) The first item the prosecutor proposed to introduce was evidence of a burglary in which defendant took some shirts from an apartment. In an effort to meet the statutory requirement of violence, the prosecutor stated that defendant broke the apartment window with a rock. The trial court rejected the offer, observing that burglary is “more a crime of stealth” than of violence. This reading of the statute is plainly correct. The “force or violence” referred to in former section 190.3 meant force or violence against the person. The purpose of this limitation was to place a reasonable restraint of relevance on the number and kind of prior unlawful acts of a defendant that the prosecution should be permitted to introduce at the penalty phase. To extend the statute to include the many offenses involving at least some degree of force against property would defeat that purpose. Thus the Legislature cannot have intended that the jury base its decision as to whether the *332defendant should live or die on evidence, for example, that he used “force” to break a bicycle lock in order to steal a second-hand bicycle —or, as here, to break a window in order to slip inside an apartment and steal some shirts.8
The remaining incidents that the prosecutor intended to prove were a purse-snatching and an instance in which defendant became involved in an altercation with other teenage boys and girls and struck them with his fist. Admittedly these are offenses involving some “force or violence” within the meaning of the statute; but compared with the double murder of which defendant had just been convicted by the jury, they scarcely amount to “very damaging” evidence of other “vicious attacks.”9
More importantly, counsel was mistaken in believing that the foregoing evidence could have been admitted if he had introduced any mitigating circumstances on defendant’s behalf. The prosecutor’s second statutory hurdle was the equally clear prohibition that except for evidence of the charged crime and special circumstances found by the jury at the guilt phase, “no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time, as determined by the court, prior to the trial.” (Former § 190.3, 4th par.) Because the prosecutor herein failed to give such notice as to the proposed evidence of the purse-snatching and assault and battery, the trial court correctly ruled that “it comes too late”; the court advised the prosecutor that such evidence would be excluded if he offered it at the penalty phase, and the prosecutor therefore declined to do so.
It does not follow, however, that the admissibility of this evidence would somehow have revived if defendant had introduced any evidence *333of his own. The statute also contained an exception {ibid.) providing that evidence in aggravation “may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.” (Italics added.) The emphasized phrase, of course, has a settled meaning in both code and case law: it is improper for the prosecution to deliberately withhold part of its case in chief until the rebuttal; the latter is restricted to evidence that is made necessary by the defendant’s case, i.e., is responsive to proof introduced by the defendant that is not implicit in his denial of guilt. (Pen. Code, § 1093, subd. 4; People v. Carter (1957) 48 Cal.2d 737, 753-754 [312 P.2d 665]; accord, People v. Mosher (1969) 1 Cal.3d 379, 399 [82 Cal.Rptr. 379, 461 P.2d 659]; People v. Golden (1961) 55 Cal.2d 358, 371-372 [11 Cal.Rptr. 80, 359 P.2d 448].)
This rule applies no less to the penalty phase than the guilt phase. First, its general purpose is equally salutary in both proceedings.10 Second, the rule serves the specific purpose of the notice requirement of former section 190.3, i.e., to ensure full and fair presentation of information bearing on sentencing by giving the defendant a meaningful opportunity to be heard on the evidence that the prosecution intends to introduce in aggravation. That goal would manifestly be defeated if the prosecution were allowed to keep its aggravating evidence secret until the defendant made any showing in mitigation, however slight—and then to introduce it in the guise of “rebuttal.” Such a construction would not only render nugatory the defendant’s statutory right to timely notice, it would chill the exercise of his more fundamental right —both statutory and constitutional—to prove extenuating circumstances in an effort to save his own life.
For these reasons the statutory exception to the notice requirement must be limited to evidence that truly “rebuts” the defendant’s case in mitigation within the meaning of the foregoing general rule. On the record before us the prosecutor had no such evidence. Proof that defendant committed a purse-snatching and struck some fellow teenagers in a fist fight could indeed have been introduced by the prosecutor as part of his case in chief in the penalty phase if he had given defendant the required *334notice; yet in no way would that proof have refuted or even been inconsistent with such mitigating evidence as testimony by defendant’s grandmother describing the conditions of his childhood or his solicitude towards her, or testimony by a psychologist showing defendant’s limited mental capability. Accordingly, the prosecutor’s proposed evidence would not have been admissible “in rebuttal to” such testimony, and defense counsel erred in believing the contrary and refusing to call any witnesses for that reason.11
IV
Finally, in Frierson we distinguished People v. Durham (1969) 70 Cal.2d 171, 191-192 [74 Cal.Rptr. 262, 449 P.2d 198], on multiple grounds: in that case the record showed no specific mitigating evidence that counsel might have offered, and counsel “marshalled ‘a spirited and able defense’ at the guilt phase,” and “conducted substantial cross-examination of the People’s witnesses and presented a well-reasoned argument to the jury at the penalty phase” (25 Cal.3d at p. 166). The same facts distinguish Durham from the case at bar.
As shown above (part II, ante), the record establishes that counsel failed to develop and present specific mitigating evidence on defendant’s behalf, offered no defense whatever at the guilt phase, and cross-examined only briefly on the penalty phase. Moreover, rather than being “well-reasoned,” counsel’s argument to the jury was a rambling pseudo-*335sociological discourse that purported to ask the jurors to put aside their feelings of racial hatred and fear but unwittingly invoked those very emotions against his client. Thus counsel repeatedly emphasized, in language that would have done credit to the district attorney, that defendant had committed two terrible crimes;12 but instead of attempting to extenuate this conduct by eliciting sympathy for defendant as a fellow human being caught in the toils of a troubled personal history and a limited mental capability, counsel thoroughly dehumanized him by treating defendant as merely one of the “members of a faceless, undifferentiated mass” of young black criminals assertedly preying on the public today. From this premise counsel drew the dubious argument that the jury should show mercy to “them” so that “they” will learn to show mercy to “us”;13 and counsel repeatedly warned that if the jury fails to spare defendant’s life, others just like him will inevitably come forward to take his place and no one will be safe.14
*336As defendant correctly observes, on this record he would probably have had a better chance of receiving a sentence of life imprisonment without possibility of parole if his counsel had made no.argument at all. Here as in Frierson, therefore, counsel’s tactic “simply underscored the absence of mitigating circumstances in this case, greatly enhancing the likelihood that a verdict of death would be returned. Moreover, such a result, in our view, was reasonably foreseeable.” (Italics omitted; 25 Cal. 3d at p. 166.)
For all these reasons, Frierson rather than Durham is controlling in the case at bar. To hold that this defendant had constitutionally adequate assistance of counsel but Frierson did not, I submit, would be arbitrary and fundamentally unfair. I would therefore reverse the judgment as to penalty in Crim. 20910 and grant the writ of habeas corpus in Crim. 21285.
V
Because in my opinion a reversal of the judgment as to penalty is required, it is not necessary to reach the issue of the constitutionality of the 1977 death penalty legislation. (People v. Green (1980) 27 Cal.3d 1, 49-50 [164 Cal.Rptr. 1, 609 P.2d 468].) However, since all my colleagues have spoken on the subject, I shall briefly add my conclusions.
In my separate opinion in Frierson (25 Cal.3d at p. 188), I recognized that the validity of the death penalty under the California Constitution can no longer be questioned. (Id., p. 189.) And although I did not then find the penalty to be “clearly, positively and unmistakably” invalid under the United States Constitution, I deemed it prudent to withhold a determination of whether the 1977 act can be construed constitutional on its face. (Id., p. 195.) The reason for such prudence was that we were not there presented with “an otherwise unimpeachable judgment of death.” (Ibid.) Nevertheless, I did ventilate many of the issues addressed in the present majority opinion and the dissent of the Chief Justice: I refer particularly to the discussion at pages 192 to 193 of my Frierson concurrence, and to the points raised in footnote 8 thereof {id., p. 193).
Upon further analysis, I now conclude that the 1977 legislation suffers from some, but not all, of the infirmities itemized by the Chief Justice in her dissenting opinion herein.
*337First, our statute does not require the sentencing authority to find that at least one of the statutory aggravating factors is proved beyond a reasonable doubt, as in Georgia (Gregg v. Georgia (1976) supra, 428 U.S. 153, 166, fn. 9 [49 L.Ed.2d 859, 870] (plur. opn.)). The jury is told that both guilt and special circumstances must be proved beyond a reasonable doubt, but not aggravation. This creates the risk that the awesome question of whether the defendant should live or die will be decided by “a mere preponderance of the evidence, i.e., ‘under the same standard of proof applicable to run-of-the-mill automobile negligence actions.’” (People v. Burnick (1975) 14 Cal.3d 306, 310 [121 Cal.Rptr. 488, 535 P.2d 352].)
Second, there is no requirement that the jury be unanimous in finding the statutory aggravating factor or factors upon which it bases its decision on penalty. Again, an instruction on jury unanimity must be given as to guilt and special circumstances, but not as to aggravation. This suggests the very real possibility that the jury may condemn the defendant to die without even being able to agree on which aggravating factors were proved—some jurors basing their verdict on one factor, other jurors on another.
Third, there is no requirement that the authority with primary responsibility for fixing the penalty (the jury here,15 as in Georgia and Texas; the court in Florida), specify in writing the particular statutory aggravating factor or factors upon which it relies in order to reach a sentence of death. Yet this step is essential for a rational review both by the trial court on various post-trial motions and by this court on appeal. “Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.” (Gregg, at p. 195 of 428 U.S. [49 L.Ed.2d at pp. 886-887]; accord, Proffitt v. Florida (1976) 428 U.S. 242, 251 [49 L.Ed.2d 913, 922, 96 S.Ct. 2960] (plur. opn.).)
Fourth, there is no requirement that the jury find the aggravating factors outweigh the mitigating factors, as in Florida (Proffitt, at p. 250 of 428 U.S. [49 L.Ed.2d at pp. 921-922]), nor is the jury instructed that such finding must be unanimous and beyond a reasonable doubt, nor is there any direction as to how much, if at all, the aggrava*338tion must outweigh the mitigation: i.e., by a slight or mere preponderance, or substantially, or overwhelmingly. Surely these safeguards are also necessary to prevent infliction of the death penalty in the arbitrary and random manner denounced by the United States Supreme Court.
Although the majority purport to find at least some of the foregoing constitutional requirements already in the statute, they do so largely by the device of rewriting the legislation under the guise of construing it. Indeed, in his concurring opinion Justice Newman explicitly claims it would be proper for this court to read into the death penalty statute all present and future constitutional requirements omitted by the Legislature, no matter how fundamental. This technique, of course, violates not only the basic principle of the separation of powers (Cal. Const., art. III, § 3), but also an express ruling of this court in our unanimous decision in Rockwell v. Superior Court (1976) 18 Cal.3d 420, 444-445 [134 Cal.Rptr. 650, 556 P.2d 1101]. We there rejected an identical suggestion by the People, reasoning (at p. 445) that “They ask us not to interpret, but to rewrite the law.... Decisions as to which criminal defendants shall suffer the death penalty, whether these decisions shall be made by judge or jury, whether and to what extent a jury determination is reviewable by the trial court and/or the reviewing court, and the scope of responsibility to be given this court to safeguard against arbitrary imposition of the death penalty are matters of legislative concern. Were this court to attempt to devise the necessary procedures and criteria we would not only invade the legislative province, but would also be in the position of having to pass objectively on the constitutionality of procedures of our own design.” Even the concurring opinion of Justices Clark and McComb in Rockwell concluded (id. at pp. 448-449) that “Because our Legislature so clearly intended to enact a constitutional death penalty statute, and because its failure to do so was so clearly caused by the Furman court’s failure to provide intelligible guidelines for legislation, one is tempted to accept the Attorney General’s frank invitation to save the law by rewriting it under the guise of interpretation. However, the courts must not, in this case or any other, act as a super-legislature.” (Italics added.)
Because the 1977 death penalty legislation contains none of the four fundamental requirements identified herein, I join my dissenting colleagues in finding the act infirm on its face under the Eighth and Fourteenth Amendments to the United States Constitution as construed in Furman and Gregg.
*339For all the foregoing reasons I would reverse the judgment as to penalty.
Tobriner, J., concurred.
The crimes were committed on August 29 and September 7, 1977. On September 17 defendant surrendered to the police and was immediately jailed. On October 19 the first information was filed, charging him with both murders. After obtaining 12 continuances, the public defender declared a conflict and a private attorney was appointed as defendant’s counsel on December 8, 1977. After at least 20 more continuances—one lasting 3-1/2 months and most ordered at the second defense attorney’s request—jury selection finally began exactly one year later on December 8, 1978. Indeed, between the arrest and the judgment (Mar. 19, 1979) defendant was held in jail for a total of one and one-half years.
The prosecution made its opening statement on December 19, 1978, and its witnesses testified on December 20, 21, 26, 27, 28, and 29, 1978, and January 2 and 3, 1979.
Because of the wide disparity in age between defendant and the victim Ott, the prosecutor eventually argued that even defendant’s youth was an aggravating circumstance.
Taking defense counsel at his word, the court found no additional extenuating circumstances and denied the motion. The court noted that in weighing the matter it “considered and evaluated only such evidence as was presented to the jury,” and concluded “There is on this record but one mitigating factor, and that is the defendant’s age.”
The implication that defense counsel had simply waited for defendant’s parents to come forward of their own accord is not rebutted, for example, by any indication in the record that he made diligent efforts to reach them before trial and persuade them to testify on their son’s behalf. On the contrary, according to the time log that defense counsel submitted in support of his application for attorney’s fees, the first and only time he contacted defendant’s father was in a telephone “interview” held three days after the jury returned its verdict of death.
Although the cited portion of Frierson appears in the plurality opinion of Richardson, J., Clark, J., and Manuel, J., the court was unanimous in reversing the judgment on this ground. (See id. at pp. 188 (conc. opn. of Mosk, J., and Newman, J.), 196 (conc. opn. of Bird, C. J.), and 199 (conc. opn. of Tobriner, J.).)
It is irrelevant that some of that evidence—the explanation of defendant’s cruelly neglectful childhood given by Mrs. Jackson and the favorable appraisal of his character offered by her and implied by the witness Johnson—appears in the record on appeal rather than in declarations filed with the petition for habeas corpus. There is no magic in the latter declarations. Our decision in Pope (23 Cal.3d at pp. 425-426) fully authorizes reliance on the appellate record to support a contention of ineffective counsel; and that source, of course, is generally more reliable than ex parte declarations prepared after the fact—often by counsel rather than the affiant—to justify the claims raised in a petition for habeas corpus.
The relatively minor nature of that incident is underscored by the probation report herein. According to that report, defendant had only one prior conviction—another potential circumstance in mitigation not revealed to the jury—and it was for breaking and entering a certain apartment and taking some shirts. Defendant explained to the probation officer that he did it to spite the owner for spreading a rumor that he was a homosexual. The punishment, moreover, was commensurate with the offense: defendant was allowed to plead guilty to second degree burglary, proceedings were suspended, and he was placed on probation.
By contrast, in the penalty phase of Frierson the prosecutor introduced proof that shortly before the murder the defendant had committed several robberies while armed with a deadly weapon, and at the age of only 15 had shot and killed another boy and joked about it afterwards.
“The purpose of the restriction in [§ 1093, subd. 4] is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponent’s case is suddenly confronted at the end of trial with an additional piece of crucial evidence.” (People v. Carter, supra, at p. 753 of 48 Cal.2d.)
Defense counsel does not claim in his declaration that he decided against calling Mrs. Jackson as a witness because of her alleged “senility.” Nor would such a claim have excused his failure to put on any mitigating evidence whatever. To begin with, the inconsistency of his above-quoted statements that Mrs. Jackson was both “very senile” and “a little senile" underscores the fact that his view on the subject was not an expert medical opinion, but simply a layman’s guess after having “talked to her a little bit.” The prosecutor, as noted, drew the opposite conclusion from his own questioning of Mrs. Jackson. More importantly, jurors are fully capable of making allowances for the natural infirmities of age in appraising the testimony of an elderly witness, just as they know how to accommodate the testimony of young children, distraught witnesses, or foreigners not conversant with our language or customs. After the trial the probation officer had no difficulty in understanding Mrs. Jackson’s explanation of defendant’s personal history and kindness towards her; there is no showing why defense counsel could not have asked her to give the same information to the jury. Indeed, even her advanced age could have worked in defendant’s favor, countering any implication of the prosecution that defendant was a youth who was habitually cruel to elderly persons. As counsel acknowledged, she was one of the few potential witnesses that he had on the penalty phase, and she had voiced strong support for her grandson. In these circumstances, Mrs. Jackson was “at least someone [who] might have been called to testify on defendant’s behalf and to urge that his life be spared” (Frierson, at p. 165 of 25 Cal.3d).
The argument abounds with such remarks as “you have heard testimony, terrible testimony, gruesome testimony.... It is a terrible crime on both ladies,... [W]e are not talking about civilized acts. We are talking about uncivilized acts on two old ladies, ... [This is a] situation where a young man commits this terrible crime....”
For example, counsel told the jury that “These young individuals' have hate in them also. That hate is engendered by things that are all our responsibility and are going to continue our responsibility unless we show the right considerations at the right time and. . .we don't raise the specter again, because of fear of our neighbors, fear of our friends, fear of where security is. . .and we start doing the same thing to them that they may potentially do to us.”
Thus counsel argued that “it isn’t going to stop with Earl Jackson and you have to recognize that. No matter what you decide here in this particular jury, it isn’t going to stop with Earl Jackson. It isn’t going to stop with Earl Jackson because there is a lot of Earl Jacksons coming, more and more and more. And you and all of us, hiding behind a fence, with a barrier, a little guardhouse up on the hill, isn’t going to stop it. It is going to keep cornin’....” Counsel then went so far as to assert that “what is important here is that you recognize that in this society we have created certain monsters and also in this society we have created certain situations that—we really don’t deal with.. .too well.” (Italics added.) Elaborating on his theme, counsel reiterated that “He exists, this Jackson and a lot of other Jacksons. What are we going to do with them? What are we going to do with these young blacks? Is this the answer right here, the way this trial went down. . . ? When it comes out, we will kill them whenever we can. What are we going to do with these young blacks? One thing for sure. One thing for sure is you are not going to take them all out and you are not going to shoot them. If you think like that, you are crazy. [11] Another thing for sure, you are not going to take them out and put them on a boat and ship them back to Africa, that is for sure. That ain’t going to happen here. And another thing for sure is you are not going to create a state and you are not going to take them and ship them in one state, one thing for sure. That is not going to happen. You think it is going to happen, you are dreamin.’ They are here to stay.” Finally, counsel warned the jury that “if you felt one should get it, you better be pretty darned sure all get it, because the nature of this crime does not indicate that we are going to be selective, because if you are selective, then you are just as wrong as he is.”
See People v. Frierson, supra, 25 Cal.3d at page 193, footnote 7 (conc. opn. of Mosk, J.).