Thursday, November 14, 2019
Court of Appeal:
By a MetNews Staff Writer
A Government Code section providing that the public defender shall represent an indigent “at all stages of the proceedings” does not include services in the Superior Court’s Appellate Division in a People’s appeal of a suppression order, Div. Two of the Fourth District’s Court of Appeal has declared.
The Appellate Division must make the appointment of counsel, Presiding Justice Manuel A. Ramirez said in an opinion filed Tuesday, and may not appoint the public defender.
It was in connection with the prosecution’s appeal of a suppression order granted to Ruth Zapata Lopez, charged with two misdemeanor counts of driving under the influence, that the issue arose. The San Bernardino Superior Court Appellate Division denied appointed counsel to Lopez because she was not the appellant.
Supreme Court Opinion
The public defender sought a writ in the Court of Appeal ordering the Appellate Division to appoint counsel for Lopez; the writ petition was denied in a Nov. 21, 2017 opinion; the California Supreme Court granted review and held that Lopez is entitled to counsel on appeal.
In its March 28 opinion in Gardner v. Appellate Division, Justice Leondra R. Kruger wrote:
“Having concluded that Lopez has a right to appointed counsel in the present appeal, the question remains whether the appellate division must appoint a new attorney to represent her, as petitioner had argued below, or whether the public defender continues to represent her pursuant to the original appointment. The Court of Appeal did not resolve this issue because it ruled that Lopez did not have a right to appointed counsel. We leave it to the Court of Appeal to resolve this issue in the first instance.”
It resolved the issue by referring to the language of Government Code §2770(a) which, with Ramirez’s paring and italicizing reads:
“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.”
“Had the Legislature intended ‘all stages of the proceedings’ to include 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.”
He went on to say:
“[W]e presume that, by repeating ‘upon request’ but not ‘upon order of the court’ in the second sentence, the Legislature meant to prohibit a court from appointing the public defender in an appeal.”
The jurist noted that the second sentence only authorizes a public defender to “prosecute” the appeal of a “convicted” client. Even if the public defender could be appointed to handle “a defendant’s appeal from a misdemeanor conviction,” he said, “a court cannot compel the public defender to represent a misdemeanor defendant in the People’s appeal from a preconviction ruling or a dismissal.”
Neither a judge of a criminal department of the Superior Court nor the Appellate Division may appoint the public defender “to represent Lopez in the People’s appeal,” Ramirez declared, adding:
“Because Lopez has a right to counsel, the appellate division must appoint someone other than the Public Defender to represent her. We leave it up to the appellate division to determine how best to do so.”
The case is Gardner v. Appellate Division, 2019 S.O.S. 3537.
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