California Court of Appeals, Fourth District, Second Division
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)
[Copyrighted Material Omitted]
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 Defenders 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
FACTUAL 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 [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 ...