# People v. Bigelow

> California Supreme Court · December 27, 1984 · 37 Cal. 3d 731

URL: https://www.frixlaw.com/law-library/cases/9623686

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. JERRY DOUGLAS BIGELOW, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** December 27, 1984
- **Citations:** 37 Cal. 3d 731; 209 Cal. Rptr. 328; 691 P.2d 994; 64 A.L.R. 4th 723; 1984 Cal. LEXIS 143
- **Precedential status:** Published
- **Opinion:** Concurrence by Kaus
- **Judges:** Broussard, Kaus, Bird
- **Cited by:** 159 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with in part by People v. Garcia, 93 Cal. Rptr. 2d 796 (2000).
- Negative treatments: 2
- Distinguished by: 4
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623686

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623686. Public record. Not legal advice.