California Court of Appeals, Fourth District, Second Division
ORIGINAL PROCEEDINGS; petition for writ of mandate. Super.Ct.
Nos. CIVDS1610302 & ACRAS 1600028 Michael A. Knish,
Annemarie G. Pace and Carlos M. Cabrera, Judges. Petition
Christopher Gardner, Public Defender, Thomas W. Sone,
Assistant Public Defender, Jennie Cannady, Chief Deputy
Public Defender, and Stephan J. Willms, Deputy Public
Defender, for Petitioner.
L. Driessen for Respondent.
appearance for Real Party in Interest.
RAMIREZ P. J.
case, the California Supreme Court has already held that,
when the People appeal from a suppression order in a
misdemeanor case, the defendant, if indigent, has a right to
appointed counsel. It remanded to us to determine whether the
Public Defender's appointment for purposes of trial
continues for purposes of the appeal, or whether, on the
other hand, the appellate division must appoint new counsel.
We will hold that the appellate division must appoint new
counsel, because the trial court is not statutorily
authorized to appoint the Public Defender under these
AND PROCEDURAL BACKGROUND
Zapata Lopez was charged with two misdemeanor counts of
driving under the influence (Veh. Code, § 23152, subds.
(a), (b)) with a prior conviction for driving under the
influence (Veh. Code, § 23540, subd. (a)). The Public
Defender was appointed to represent her, and his deputy
successfully moved to suppress evidence. (Pen. Code, §
1538.5.) The trial court then dismissed both counts in the
interest of justice. (Pen. Code, § 1385, subd. (a).)
People filed a notice of appeal from the order granting the
suppression motion. (Pen. Code, § 1538.5, subd. (j).)
California Rules of Court, rule 8.851(a) and (b) allow the
appellate division to appoint counsel only for an indigent
defendant who has been “convicted of a
misdemeanor.” Nevertheless, the Public Defender filed a
request with the appellate division to appoint counsel for
Lopez on appeal. Through its clerks, the appellate division
responded that Lopez was not eligible for appointment of
counsel on appeal, because she was the respondent. It also
took the “position... that the P[ublic] D[efender] is
Public Defender filed a petition for writ of mandate in this
court. The petition sought a writ of mandate directing the
appellate division to appoint counsel for Lopez and for all
other indigent appellees in appeals in misdemeanor cases. It
also sought a judgment declaring either (1) that the superior
court “may not appoint the Public Defender to represent
indigent appellees in misdemeanor criminal appeals, ”
or that (2) “the Public Defender... remain[s] appointed
in cases where the Public Defender previously represented an
indigent appellee in the Superior Court.”
denied the petition. We held that, under the circumstances,
Lopez had no right to appointed counsel under the federal
constitution or the California Rules of Court. (Morris v.
Superior Court (2017) 225 Cal.Rptr.3d 749, pet. for rev.
granted, Feb. 28, 2018, S246214.) We therefore did not
address the Public Defender's contentions as to who must
Supreme Court granted the Public Defender's petition for
review. It then held that Lopez had a right to appointed
counsel under the state constitution. (Gardner v.
Appellate Division (2019) 6 Cal.5th 998.) It concluded
its opinion by saying: “[T]he question remains whether
the appellate division must appoint a new attorney to
represent her, as [the Public Defender] had argued below, or
whether the [P]ublic [D]efender continues to represent her
pursuant to ...