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Gardner v. Superior Court (The People)

California Court of Appeals, Fourth District, Second Division

November 12, 2019

CHRISTOPHER GARDNER, as Public Defender, etc., Petitioner,
v.
APPELLATE DIVISION OF THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent THE PEOPLE, Real Party in Interest.

          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 granted.

          G. 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.

          Robert L. Driessen for Respondent.

          No appearance for Real Party in Interest.

          OPINION

          RAMIREZ P. J.

         In this 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[1] 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 circumstances.

         I

         FACTUAL AND PROCEDURAL BACKGROUND

         Ruth 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).)

         The 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 still counsel....”

         The 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.”

         We 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 be appointed.

         The 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 ...


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