Metropolitan News-Enterprise


Friday, March 29, 2019


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California Supreme Court

Accused Misdemeanant Gets Free Lawyer on Prosecution’s Appeal

Kruger Cites State Constitutional Provision in Declaring That Woman Who Won Suppression Motion Is Entitled to Have Lawyer Provided in Responding to People’s Appeal to the Appellate Division


By a MetNews Staff Writer


An indigent is entitled to court appointed counsel in responding to the prosecution’s appeal from an order granting a suppression motion, the California Supreme Court declared yesterday.

Justice Leondra R. Kruger wrote the opinion for a unanimous court. It reverses a decision by Div. Two of the Fourth District Court of Appeal which agreed with the San Bernardino Superior Court that no appointment need be made for Ruth Zapata Lopez, who was charged with misdemeanor driving under the influence.

The Office of San Bernardino County Public Defendant won a suppression motion, which destroyed the prosecution’s case; the prosecution appealed to the Appellate Division; that division declined to appoint counsel, declaring that Lopez remained represented by the Public Defender’s Office. That office disclaimed responsibilities for appeals but insisted, in a petition for a writ of mandate filed in the Court of Appeal, that the Superior Court had a constitutional duty to appoint counsel for Lopez.

Ramirez’s View

Court of Appeal Presiding Justice Manuel A. Ramirez said in a Nov. 21, 2017 opinion:

“California Rules of Court, rule 8.851(a)…, which applies in the appellate division of a superior court, only authorizes appointment of counsel on appeal for defendants who have been ‘convicted of a misdemeanor.’ Consequently, it does not require the appellate division to appoint counsel for a defendant who is acting as the respondent on an appeal by the People from an order suppressing evidence under Penal Code section 1538.5.”

Ramirez went on to say:

“While we agree that a defendant acting as respondent in the appellate division would likely fare better with an attorney than without one, we stress that showing that something might be procedurally better is not the same as showing that the state is obligated to provide it….Petitioner has failed to show why appointment of counsel for respondents in the appellate division, as much as it might conceivably benefit those respondents, is constitutionally mandated.”

Kruger’s Opinion

Kruger’s decision was predicated on Art. I, §15 of the California Constitution which provides that  a “defendant in a criminal cause has the right…to have the assistance of counsel for the defendant’s defense.” The jurist declined to speculate as to whether the same result would be reached under the Sixth Amendment to the federal Constitution.

The state provision, she wrote, has been held to apply to “critical” stages of proceedings. She wrote:

“[W]e conclude that a pretrial prosecution appeal of a suppression order… qualifies as a critical stage of the prosecution at which the defendant has a right to appointed counsel as a matter of state constitutional law. The suppression of evidence is generally a matter of vital importance in the course of a criminal prosecution.”

Prejudice to Defendant

Kruger went onto say:

“This case offers a vivid illustration of the point. In the trial court, Lopez, with her counsel’s help, secured a favorable suppression ruling; in the absence of the suppressed evidence, the trial court concluded that the prosecution could not continue. A reversal on appeal would both revive the prosecution’s case against Lopez and meaningfully increase the chances of conviction. In other cases, a ruling on a suppression order may not be entirely dispositive of the outcome, but may nevertheless have a dramatic impact on the prosecution’s ability to meet its burden of proof at trial. Regardless of the scope of the suppression order in any given case, an appellate proceeding to determine whether the evidence will remain suppressed poses a clear and substantial risk of prejudice to the defendant’s position at trial.”

The rules on appeal, she said, “are forbidding for any layperson, but all the more so for criminal defendants who may come to court with a wide range of educational backgrounds and linguistic and other abilities.”

With respect to the view of the San Bernardino Superior Court that the Office of Public Defender still represented Lopez in the Appellate Division, Ramirez said: “We decline to pass on this issue.” 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.”

The case is Gardner v. Appellate Division of Superior Court, 2019 S.O.S. 1428.


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