Does a defendant have to participate in the presentation of the defense case during the penalty phase?

3 By comparison, counsel may properly oppose a represented defendant's efforts to participate in the presentation of the defense case. As we have explained, "the decision whether to proceed in that fashion is a matter of tactics for professional counsel to decide." (People v. Hamilton, supra, 48 Cal.3d 1142, 1163, 259 Cal.Rptr. 701, 774 P.2d 730.)

4 Although the trial court formally denied defendant's motion for self-representation, an argument can be made that defendant actually represented himself at the penalty phase. He conducted all cross-examination of prosecution witnesses, argued his case to the jury, and appears to have substantially controlled the selection of mitigating evidence. But counsel also argued to the jury on defendant's behalf and may have retained some tactical control over presentation of the defense case. Given that a defendant cannot be both self-represented and represented by counsel at any given time (People v. Hamilton, supra, 48 Cal.3d 1142, 1162, 259 Cal.Rptr. 701, 774P.2d730), a defendant who assumes self-representation has necessarily surrendered the right to representation by counsel, even though counsel remains available to assist the defendant in a subordinate role. Here, we find it unnecessary to resolve the ambiguity in the record as to whether such a surrender of the right to counsel took place during the penalty phase of this case.