In what circumstances will the defense not give a final argument at the penalty and guilt phases of a criminal trial?

37. Bell v. Cone (2002) 535 U.S. 685 [122 S.Ct. 1843, 152 L.Ed.2d 914], cited by the majority (maj. opn., ante, 132 Cal.Rptr.2d at p. 324, 65 P.3d at p. 793), is readily distinguishable. The defense there had put on considerable mitigating evidence in an earlier stage of trial. At the penalty trial (held the day after the jury returned its guilt verdicts), defense counsel made an opening statement in which he called the jury's attention to the mitigating evidence already before them and argued the defendant was remorseful and the jury should exercise mercy and spare his life. (535 U.S. at p. 691 [122 S.Ct. at p. 1848].) After both sides rested, the junior prosecutor gave a `low key'" closing argument; the defense then waived closing argument, "preventing the lead prosecutor, who by all accounts was an extremely effective advocate, from arguing in rebuttal." (Id. at p. 692, 122 S.Ct. at p. 1845.) In the present case, in contrast, the defense introduced no mitigating evidence at the guilt or penalty phase. The penalty trial took place more than a month after the guilt verdicts were returned, and the defense gave no opening statement. Moreover, before penalty argument began, the trial court ruled that the People would have no opportunity to rebut, and both prosecutors consequently gave their closing arguments before the defense was called on to argue. The factors that arguably justified a tactical waiver of final argument in Bell v. Cone were entirely absent here.