Does a competent, unconflicted counsel who submitted on the evidence at the preliminary hearing, should have argued to the trial court that this evidence did not establish the lawful duty element beyond a reasonable doubt?

^9. Defendant asserts that counsel, while submitting on the evidence adduced at the preliminary hearing, should, and if unconflicted likely would, at least have argued to the trial court that this evidence did not establish the "lawful duty" element beyond a reasonable doubt. But competent, unconflicted counsel could conclude otherwise. Aside from an assessment that such an argument was unlikely to succeed, counsel could fear it would cause the prosecution to seek the opportunity to adduce further evidence on this issue. Even if defendant was willing to submit his cause on the evidence adduced at the preliminary hearing, the prosecution was not necessarily compelled to agree to such a procedure. Had the People been alerted to a claim that, in fact, their showing at the preliminary hearing failed to meet the reasonable-doubt standard on any guilt or special circumstance element, no reason of fairness or logic suggests they were foreclosed from insisting on the right to present further evidence, whether before the court or a jury, to bolster their case. (But cf., People v. Ernst (1994) 8 Cal.4th 441, 446-447 [prosecution may not exercise its right to jury trial over defendant's plea of guilty].) As noted in the text, the strategy chosen by counsel avoided this pitfall, kept open the possibility the trial court would find the preliminary hearing evidence unpersuasive, and, if the court failed to do so, preserved defendant's right to raise an insufficient-evidence claim on appeal.