Public Defender cannot be appointed on People’s appeal of  a suppression order in a misdemeanor case

Gardner v. Appellate Division of Superior Court of San Bernardino County (Cal. Ct. App., Nov. 12, 2019, No. E066330) 2019 WL 5886241, at *1–4

Right to appointed counsel on appeal in a misdemeanor case

 The California Supreme Court held that, when the People appeal from a suppression order in a misdemeanor case, the defendant, if indigent, has a right to appointed counsel. This case was remanded to determine whether the Public Defender’s appointment for purposes of trial continues for purposes of the appeal, or whether, the appellate division must appoint new counsel. The Court of Appeal held that the trial court is not statutorily authorized to appoint the Public Defender under these circumstances.


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)). T

The San Bernardino Public Defender was appointed to represent her and filed a motion to suppress the evidence in the case which the trial court granted. (Pen. Code, § 1538.5.) The trial court then dismissed both counts in the interest of justice. (Pen. Code, § 1385, subd. (a).)

People appeal order granting the suppression motion

The People filed a notice of appeal from the order granting the suppression motion. (Pen. Code, § 1538.5, subd. (j).) The appellate division may appoint counsel only for an indigent defendant who has been “convicted of a misdemeanor.” (California Rules of Court, rule 8.851(a) and (b) The Public Defender filed a request with the appellate division to appoint counsel for Lopez on appeal. The appellate division responded that Lopez was not eligible for appointment of counsel on appeal, because she was the respondent. It also stated that the Public Defender was still counsel for Lopez.

The Public Defender filed a petition for 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.”

The Court of Appeal denied the petition. It held that Lopez had no right to appointed counsel under the federal constitution or the California Rules of Court. (Morris v. Superior Court (2017) 17 Cal.App.5th 636, 225 Cal.Rptr.3d 749, pet. for rev. granted, Feb. 28, 2018, S246214.) The Court did not address the Public Defender’s contentions as to who must be appointed.


Public Defender’s petition for Review Granted by Supreme Court 

The Supreme Court granted the Public Defender’s petition for review and held that Lopez had a right to appointed counsel under the state constitution. (Gardner v. Appellate Division (2019) 6

Cal.5th 998, 245 Cal.Rptr.3d 58, 436 P.3d 946.) The Supreme Court left it to the Court of Appeal to determine whether the appointment of the Public Defender continues through appeal or whether another attorney must be appointed.

No statutory authority for the Public Defender to be appointed on a misdemeanor appeal by the People

The Public Defender argued that there is no statutory authority for its office to be appointed to represent a misdemeanor defendant in an appeal by the People and his original appointment by the trial court cannot continue on into the appeal.

Government Code Section 2700 and the Public Defender’s Office

Since 1948, Government Code section 27000 has allowed counties to establish a public defender’s office. The duties of the public defender are prescribed by Government Code section 27706

Section 27706(a) provides:

Upon request of the defendant or upon order of the court, the public defender shall defend … any person who is not financially able to employ counsel and who is charged with the commission of any … offense triable in the superior courts at all stages of the proceedings ….” “The public defender shall, upon request, give counsel and advice to such person about any charge against the person upon which the public defender is conducting the defense, and shall prosecute all appeals to a higher court or courts of any person who has been convicted, where, in the opinion of the public defender, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.”

Erwin v. Appellate Department (1983) 146 Cal.App.3d 715, held that section 27706(a) did not authorize the appellate department to compel the public defender to represent a defendant in an appeal from a misdemeanor conviction when the public defender did not believe the appeal would result in reversal or modification of the judgment. The court reasoned that many Public Defender Offices lack training in appellate advocacy and lack adequate funding to represent indigent defendants and handle appeals from misdemeanor convictions.

Legislature did not intend for Public Defender to represent indigents on appeal

Here the court reasoned that had the Legislature intended that a Public defender represent an indigent client in “all stages of the proceedings” including  an appeal, it would not have added the second sentence, which deals specifically with appeals, and which provides that the public defender has a duty to represent a defendant in an appeal only under limited circumstances.

Mowrer held that the trial court does not have the power to appoint the public defender in an appeal against his consent. The Court reasoned that the Legislature meant to prohibit a court from appointing the public defender in an appeal.

Moreover, a public defender may only “prosecute” an appeal on behalf of a person who has been “convicted.” Therefore, a court cannot compel the public defender to represent a misdemeanor defendant in the People’s appeal from a preconviction ruling or a dismissal.

Public Defender has discretion to represent a defendant on appeal

The Court did not express an opinion as to whether the public defender could choose to represent a defendant in an appeal by the People or by a defendant who has not been convicted. “In determining whether to provide the services of his office, the public defender ‘exercises an original power vested in him by statute, not superior to but coequal with the power of the court’ to determine whether a person is entitled to be represented by the public defender. (In re Brindle (1979) 91 Cal.App.3d 660, 681, 154 Cal.Rptr. 563.)

Ingram v. Justice Court (1968) 69 Cal.2d 832, 73.) held that the public defender has the authority to represent a defendant in a collateral attack on a final judgment of conviction. (Id. at pp. 835, 842-844) It explained: “The intent of the Legislature in specifically authorizing the public defender to prosecute an appeal was to insure his continued representation whenever he reasonably believed that the judgment of conviction was defective and hence subject to ‘reversal or modification.’ … ‘[T]he questions that may be raised on coram nobis are as crucial as those that may be raised on direct appeal.’ Accordingly, if the public defender reasonably believes that a judgment, although final, is so defective as to be subject to a successful collateral attack, whether by coram nobis or habeas corpus, it does no violence to the statute to allow him to represent such an indigent at the latter’s request.” (Id. at p. 843.)

Indigent defendants are normally represented by appointed counsel on appeals of pre-trial rulings

In a felony case, the People can also appeal from certain pretrial rulings. (Pen. Code, § 1238, subds. (a)(1), (a)(2), (a)(11).) In such an appeal, an indigent defendant would normally be represented by appointed counsel other than the public defender.  The Court saw no erason to deviate from this practice in a misdemeanor case.

Representation by the public defender on preconviction appeals is a policy question decided by the legislature

The public defender’s limited expertise in appeals and limited funding prompted the legislature to limit the scope of their representation.

Holding: The trial court — whether sitting as the criminal division or as the appellate division — has no authority to appoint the Public Defender to represent Lopez in the People’s appeal. Lopez has a right to counsel and the appellate division must appoint someone other than the Public Defender to represent her.


A writ of mandate was issued directing the appellate division of the superior court to appoint counsel for Lopez other than the Public Defender.

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