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Gardner v. Appellate Division of Superior Court of San Bernardino County

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.

         [255 Cal.Rptr.3d 21] ORIGINAL PROCEEDINGS; petition for writ of mandate. Michael A. Knish, Annemarie G. Pace and Carlos M. Cabrera, Judges. Petition granted. (Super.Ct.Nos. CIVDS1610302 & ACRAS 1600028)

Page 1140

[Copyrighted Material Omitted]

Page 1141

         COUNSEL

          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.

Page 1142

          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 [255 Cal.Rptr.3d 22] 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 ...


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