California Court of Appeals, Fourth District, Second Division
PHYLLIS K. MORRIS, as Public Defender for the County of San Bernardino, Petitioner,
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent THE PEOPLE, Real Party in Interest.
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.
L. Driessen for Respondent.
appearance for Real Party in Interest.
RAMIREZ P. J.
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.
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 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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
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. We find that it is not, at least under
the authorities petitioner has cited.
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
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.
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.)
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
even if we could properly consider petitioner's arguments
regarding the history and purpose of rule 8.851 on the
merits,  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 ...