finding argument that murder was committed to avoid apprehension was "totally speculative" where defendant hitchhiked a ride with victim, took victim to a remote location, shot victim, and drove away with his car
How later courts described this case
- finding argument that murder was committed to avoid apprehension was "totally speculative" where defendant hitchhiked a ride with victim, took victim to a remote location, shot victim, and drove away with his car
- submitting financial gain aggravator to jury where robbery aggravator applied error because former applies only where victim’s death is consideration for financial gain sought by defendant
- adopting rule of per se reversal where it is shown that failure to appoint standby counsel was abuse of discretion
- "[W]e believe the court should construe special circumstance provisions to minimize those cases in which multiple circumstances will apply to the same conduct, thereby reducing the risk that multiple findings on special circumstances will prejudice the defendant”
Written by the judges who cited it.
Later courts went against this
Disagreed with in part by People v. Garcia, 93 Cal. Rptr. 2d 796 (2000)
Indeed, we respectfully disagree with the portion of the Bigelow opinion that goes beyond confirming the right of courts to appoint advisory
Distinguished
Distinguished by State v. Clark, 2006 Minn. LEXIS 707 (2006)
” Id. Bigelow is distinguishable.
Distinguished by People v. Vorise, 72 Cal. App. 4th 312 (1999)
rejected the People’s argument the Bigelow case was distinguishable on the basis the victim in Coleman “had set the wheels in motion by yelling to her neighbor.” {People v. Coleman, supra, 48 Cal.3d at p. 146.
Distinguished by People v. Hamilton, 48 Cal. 3d 1142 (1989)
) Bigelow is inapposite here.
Distinguished by People v. Crandell, 46 Cal. 3d 833 (1988)
Because this record does not demonstrate that denial of defendant’s request for advisory counsel would have been an abuse of discretion, Bigelow is distinguishable and its rule of per se reversal does not govern.
The opinion
KAUS, J.
I concur in the judgment and in all of the reasoning of the majority opinion with one exception. While I agree that the trial court’s failure to appoint advisory counsel was prejudicial in this case, I would reserve judgment on the question whether such error is prejudicial per se. This situation appears distinguishable from the precedents on which the majority relies, both because the right to advisory counsel is not of constitutional origin and because an advisory counsel, by definition, plays a subordinate, auxiliary role in the conduct of the defense. Unlike deprivation of the right to counsel or the right to self-representation, denial of advisory counsel does not completely eviscerate a defendant’s constitutionally guaranteed means of defending a criminal charge.
Although it may be that such an error will frequently prove prejudicial, it is at least theoretically possible that a defendant who chooses to represent himself will conduct a faultless defense, or that the defense that the defendant has insisted on presenting—perhaps over the advice of numerous attorneys—will have had absolutely no hope of prevailing under any circumstances, no matter how able or ingenious advisory counsel may have been. Further while we may not be able to tell from the record on appeal whether advisory counsel would have suggested additional witnesses or evidence, when no obvious prejudice appears it may not be unfair to require defendant to provide some indication of actual harm in a habeas proceeding.
Rather than attempt to anticipate and prejudge future cases, I would rest the reversal in this case on the obvious actual prejudice that resulted here from the trial court’s denial of advisory counsel.