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Morris v. Superior Court (The People)

California Court of Appeals, Fourth District, Second Division

November 21, 2017

PHYLLIS K. MORRIS, as Public Defender for the County of San Bernardino, Petitioner,

         ORIGINAL PROCEEDINGS; petition for writ of mandate, Super. Ct. Nos. CIVDS1610302 & ACRAS1600028. Michael A. Knish, Annemarie G. Pace and Carlos M. Cabrera, Judges. Petition denied.

          Phyllis K. Morris, Public Defender, Stephan J. Willms, Deputy Public Defender, for Petitioner.

          Robert L. Driessen for Respondent.

          No appearance for Real Party in Interest.


          RAMIREZ P. J.

         California Rules of Court, rule 8.851(a) (rule 8.851), which applies in the appellate division of a superior court, only authorizes appointment of counsel on appeal for defendants who have been “convicted of a misdemeanor.” Consequently, it does not require the appellate division to appoint counsel for a defendant who is acting as the respondent on an appeal by the People from an order suppressing evidence under Penal Code section 1538.5.

         In this petition, Phyllis K. Morris, in her capacity as the Public Defender for the County of San Bernardino, argues the United States Constitution obligates respondent, the Superior Court of San Bernardino County, to appoint counsel for all indigent defendants in the appellate division. While we agree that a defendant acting as respondent in the appellate division would likely[1] fare better with an attorney than without one, we stress that showing that something might be procedurally better is not the same as showing that the state is obligated to provide it. (See, e.g., Ross v. Moffitt (1974) 417 U.S. 600, 616 (Ross) [“[T]he fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required.”].) Petitioner has failed to show why appointment of counsel for respondents in the appellate division, as much as it might conceivably benefit those respondents, is constitutionally mandated. Consequently, we deny the petition.[2]


         Petitioner's office represented Ruth Zapata Lopez, a nonparty to this petition, in a case alleging she committed two misdemeanors by driving while under the influence of alcohol and/or drugs. (Veh. Code, § 23152, subds. (a), (b).) Acting on Lopez's behalf, petitioner's office successfully moved to suppress evidence supporting the People's case. (Pen. Code, § 1538.5.) On March 14, 2016, both counts were dismissed in the interest of justice. The People filed a notice of appeal from the granting of the suppression motion on the same day.

         On May 11, 2016, a deputy public defender filed a request with the Appellate Division of the Superior Court of San Bernardino County (appellate division) to appoint counsel for Lopez on appeal. Court clerks informed counsel that Lopez was not eligible for appointment of counsel on appeal. According to the deputy public defender, the reason provided was that Lopez “was the respondent, and the respondent on a misdemeanor appeal is not entitled to appointed counsel.” In an e-mail attached to the petition, the same deputy public defender asserts a court clerk told him the appellate division's position was that petitioner's office still represented Lopez.

         Petitioner filed an earlier petition (case No. E066181) challenging this policy. On June 28, 2016, we summarily denied that petition “without prejudice to petitioner's ability to petition the appellate division for the relief she seeks.” The following day, petitioner filed, in the appellate division, a petition for writ of mandate raising the same issue presented here. The appellate division summarily denied the petition on July 5, 2016. The instant petition to this court followed.


         In this court, petitioner primarily asserts that the Sixth and Fourteenth Amendments to the United States Constitution require the appellate division to “appoint counsel for all indigent appellees in all misdemeanor criminal appeals, including [Lopez].” Then, turning instead to California statutory authority, petitioner contends the trial court lacks statutory authority to compel her office, specifically, to represent Lopez as a respondent in the appellate division. (Gov. Code, § 27706, subd. (a).) We disagree with her first assertion and, finding no evidence the second has occurred, decline to weigh in on whether a public defender's office may be compelled to represent a respondent in the appellate division.

         Before explaining our reasons for drawing these conclusions, we comment on what is and what is not at issue on this petition. The petition purports to challenge “[t]he system in place in San Bernardino County, at least as suggested by Appellate Division staff, ” as if this “system” derived from a policy created by the appellate division in San Bernardino County. As the return notes, however, the rule the appellate division appears to be enforcing in this case is simply rule 8.851, which we mentioned at the outset. What we consider in this opinion, then, is petitioner's assertion that rule 8.851 is facially invalid.[3] We find that it is not, at least under the authorities petitioner has cited.

         Rule 8.851(a)(1) provides that an appellate division “must appoint appellate counsel for a defendant convicted of a misdemeanor who” is both: (1) subject to incarceration, a fine of more than $500, or “significant adverse collateral consequences as a result of the conviction”; and (2) indigent (which will be assumed if the defendant was “represented by appointed counsel in the trial court”). (Italics added.) Rule 8.851 further provides that “the appellate division may appoint counsel for any other indigent defendant convicted of a misdemeanor.” (Rule 8.851(a)(2), italics added.) The parties agree that Lopez does not qualify for appointment of counsel under rule 8.851 because she has not been “convicted of a misdemeanor.”

         As we construe the petition and traverse, petitioner suggests we could order that Lopez receive appointed counsel despite rule 8.851 in one of two ways: we could interpret rule 8.851 to require appointment of counsel for respondents who have not been convicted of a misdemeanor by finding an inadvertent omission by the rulemaking body, or we could find rule 8.851 constitutionally infirm as written and remake the rule to require appointment of counsel for even those respondents in the appellate division who have not been convicted of a misdemeanor. For the reasons to which we now turn, neither position has merit.

         A. We may not interpret rule 8.851 to require appointment of counsel for any criminal defendant who has not been convicted of a misdemeanor

         “ ‘The usual rules of statutory construction are applicable to the interpretation of the California Rules of Court.' [Citation.] This means our primary object is to determine the drafters' intent. ‘The words of the statute are the starting point. “Words used in a statute... should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature....” ' ” (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1122-1123.)

         We agree with the return that rule 8.851 “is expressed in plain, simple language.” There is therefore no need to look to sources extrinsic to the rule itself to determine that the rule's drafters intended to provide appointed counsel only to misdemeanor defendants who have been convicted of a misdemeanor, and not to those who, like Lopez, have not. At bottom, then, petitioner's request that we look to the history of rule 8.851 fails, because we have no reason to consult these materials to interpret the text of the rule.

         Still, even if we could properly consider petitioner's arguments regarding the history and purpose of rule 8.851 on the merits, [4] the inferences we draw from the materials presented are different from the ones petitioner draws. According to petitioner, the proposed rule on which the Judicial Council sought comment originally gave an appellate division discretion to appoint counsel, not just for “any other indigent misdemeanor defendant convicted of a misdemeanor” as under the version of rule 8.851(a)(2) that became operative, but for “any other indigent misdemeanor defendant.” The traverse continues: “If this version of Rule 8.851(a)(2) remained as written, this matter would not be before this court, because this language would have included indigent respondents. But for reasons unexplained, the... language noted above did not remain, and Rule 8.851(a)(2) now reads ‘[o]n application, the Appellate Division may appoint counsel for any other indigent defendant con ...

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