Garcia

After a trial in which he elected to represent himself, a jury convicted Hugo Sandoval Garcia of first degree murder (count 1) and *1425 willful, deliberate and premeditated attempted murder (count 2), and found he had personally used a firearm in committing both offenses and had inflicted great bodily injury on the surviving victim. Garcia was sentenced to a total of 54 years in prison, consisting of 25 years to life for first degree murder, a consecutive term of 15 years to life for premeditated attempted murder, plus a four-year firearm enhancement on count 1 and a 10-year firearm enhancement on count 2.

Garcia appeals, contending (1) there is insufficient evidence of premeditation and deliberation to sustain his conviction of first degree murder; (2) the trial court committed reversible error in failing to appoint advisory ■ counsel to assist him; (3) the prosecutor committed misconduct (a) when he told the jury to show Garcia as much mercy as he showed his victim, (b) in commenting on Garcia’s failure to testify, and (c) by misrepresenting the legal principles of premeditation and deliberation; (4) the trial court committed reversible error in failing to instruct…

I concur completely in the result reached by the majority and I concur in the reasoning of the majority opinion, except for the discussion entitled “The Court Did Not Err in Failing to Appoint Advisory Counsel’ for Garcia.” As to that portion of the opinion I concur only in the result.

I am sympathetic with the concerns expressed by the majority regarding the circumstances in which advisory counsel can be or must be appointed for defendants who exercise their rights under Faretta v. California (1974) 422 U.S. 806 [ 95 S.Ct. 2525 , 45 L.Ed.2d 562 ] (Faretta). Undoubtedly there is a tension between the claimed right to self-representation and the claim of some entitlement to the assistance of counsel, albeit in an advisory role. I also agree with the majority that we should not extend the rule of People v. Bigelow (1984) 37 Cal.3d 731 [ 209 Cal.Rptr. 328 , 691 P.2d 994 , 64 A.L.R.4th 723 ] (Bigelow) to noncapital cases, absent specific direction form the Supreme Court.

I disagree with the majority’s criticism of Bigelow, supra, 37 Cal.3d 731 in this case. First, Garcia never requested advisory counsel. Thus he presents an issue never addressed in Bigelow , namely whether a court…

Certified for Partial Publication. [*]

McINTYRE, J.

After a trial in which he elected to represent himself, a jury convicted Hugo Sandoval Garcia of first degree murder (count 1) and willful, deliberate and premeditated attempted murder (count 2), and found he had personally used a firearm in committing both offenses and had inflicted great bodily injury on the surviving victim. Garcia was sentenced to a total of 54 years in prison, consisting of 25 years to life for first degree murder, a consecutive term of 15 years to life for premeditated attempted murder, plus a 4-year firearm enhancement on count 1 and a 10-year firearm enhancement on count 2.

Garcia appeals, contending (1) there is insufficient evidence of premeditation and deliberation to sustain his conviction of first degree murder; (2) the trial court committed reversible error in failing to appoint advisory counsel to assist him; (3) the prosecutor committed misconduct (a) when he told the jury to show Garcia as much mercy as he showed his victim, (b) in commenting on Garcia's failure to testify, and (c) by misrepresenting the legal principles of premeditation and deliberation; (4) the trial court committed…