I concur in the judgment.
After review, I have concluded that none of the claims that defendant has raised warrants reversal.
I write separately, however, because I am most troubled by a claim that defendant does not make—that trial counsel provided ineffective assistance under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15, of the California Constitution.
To succeed, such a claim requires proof by the defendant that (1) counsel’s performance was deficient, i.e., his conduct fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218 [233 Cal.Rptr. 404, 729 P.2d 839] [discussing both federal and state constitutional rights]; Strickland v. Washington (1984) 466 U.S. 668, 687-696 [80 L.Ed.2d 674, 693-699, 104 S.Ct. 2052] [discussing federal constitutional right].)
As to the first component, proof may indeed be available. Certainly, counsel’s performance—or better, nonperformance—with regard to the court’s “instruction” on the history of defendant’s case appears deficient. *486The court effectively—and altogether improperly—informed the jurors that a prior judgment of death had been reversed on a “technicality,” viz., the failure to instruct on intent to kill as an element of the felony-murder special circumstance.
In United States v. Williams (5th Cir. 1978) 568 F.2d 464, 471, the United States Court of Appeal for the Fifth Circuit stated, “[W]e are hard pressed to think of anything more damning to an accused than information that a jury had previously convicted him for the crime charged.” I am not. More damning still is information—which the court here inexplicably provided—that a jury had previously condemned the defendant to death, but was subsequently reversed on a “technicality.”
In spite of the obvious detriment that the court’s “instruction” threatened, counsel did nothing, or at least practically nothing, to avoid the harm. Therefore, in this regard his conduct may well have fallen below an objective standard of reasonableness.
As to the second component, however, proof is lacking. On the peculiar facts of this case, prejudice does not appear. The People and defendant litigated the special circumstance and penalty issues “on the merits” without undue reference to the “technicality.” In light of the record before this court, it must be presumed that the jury decided those questions on that same basis. Therefore, there is not a reasonable probability that, but for any deficient performance on counsel’s part, the result would have been different.
Accordingly, having concluded that reversal is not warranted for ineffective assistance or for any of the reasons presented by defendant, I concur in the judgment.
Appellant’s petition for a rehearing was denied February 20, 1991.