to consider all of the mitigating evidence introduced by the [defendant]. . . . In combination with the instructions, the comments of the prosecutor . . . create a ‘legitimate basis for finding ambiguity concerning the factors actually considered by the’ jury.” (California v. Brown, supra, 479 U.S. at p. 546 [93 L.Ed.2d at p. 943, 107 S.Ct. at p. 842] (conc. opn. of O’Connor, J.).) On this record I cannot conclude that the error was harmless. In Hitchcock v. Dugger (1987) 481 U.S. 393, 399 [95 L.Ed.2d 347, 353, 107 S.Ct. 1821, 1824], the United States Supreme Court suggested that the kind of error under consideration here may be held nonprejudicial only when “it had no effect on the jury . . . .” (Cf. Satterwhite v. Texas (1988) 486 U.S. _, _-_ [100 L.Ed.2d 284, 108, S. Ct. 1792] (<HOLDING>) In view of the strong mitigating evidence
holding that errors of federal constitutional dimension occurring at the penalty phase of a capital trial are generally subject to harmlesserror review under the beyondareasonabledoubt test of chapman v california 1967 386 us 18 24 17 led2d 705 710711 87 sct 824 24 alr3d 1065 holding the rule that an accused has a right to counsel at any critical confrontation announced in united states v wade 388 us 218 87 sct 1926 18 led2d 1149 and gilbert v california 388 us 263 87 sct 1951 18 led2d 1178 not to be retroactive holding that bjecause there has never been a definitive statement by the united states supreme court clarifying the recognized ambiguity in cooper v california 386 us 58 87 sct 788 17 led2d 730 1967  we are free to adopt our own view of its holding unconstrained by opinions of federal courts of appeal holding that although walker v birmingham 388 us 307 87 sct 1824 18 led2d 1210 1967 upheld a rule that barred collateral challenges of contempt citations appellant nevertheless could challenge his contempt citation on habeas because california elected not to adopt a collateral bar rule holding that for habeas relief to be granted based on constitutional error in capital penalty phase error must have had substantial and injurious effect on the jurys verdict in the penalty phase