Christopher Gardner v. Appellate Division of the Superior Court of San Bernardino County, The People, Real Party in Interest

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’s1 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 the appellate division to appoint counsel only for an indigent defendant who has

1 We use “the Public Defender,” capitalized, to refer to petitioner, the Public

Defender of San Bernardino County. We use “the public defender,” uncapitalized, to

refer to a public defender in general.

3

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 counsel

on appeal, because she was the respondent. It also took the “position . . . that the P[ublic]

D[efender] is still counsel . . . .”

The Public Defender filed a petition for writ of mandate in this court. The petition

sought a 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.”

We denied the petition. We held that, under the circumstances, Lopez had no right

to appointed counsel under the federal constitution or the California Rules of Court.

(Morris v. Superior Court (2017) 225 Cal.Rptr.3d 749, pet. for rev. granted, Feb. 28,

2018, S246214.) We therefore did not address the Public Defender’s contentions as to

who must be appointed.

The Supreme Court granted the Public Defender’s petition for review. It then held

that Lopez had a right to appointed counsel under the state constitution. (Gardner v.

Appellate Division (2019) 6 Cal.5th 998.) It concluded its opinion by saying: “[T]he

question remains whether the appellate division must appoint a new attorney to represent

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her, as [the Public Defender] had argued below, or whether the [P]ublic [D]efender

continues to represent her pursuant to the original appointment. . . . We leave it to the

Court of Appeal to resolve this issue in the first instance.” (Id. at p. 1011.)

II

THE PUBLIC DEFENDER CANNOT BE APPOINTED TO REPRESENT

A MISDEMEANOR DEFENDANT IN AN APPEAL BY THE PEOPLE

The Public Defender contends that there is no statutory authority for him to be

appointed to represent a misdemeanor defendant in an appeal by the People. Logically, if

he cannot be appointed in the appeal at all, then his original appointment by the trial

court cannot continue on into the appeal; thus, the appellate division must appoint new

counsel — and, moreover, that new counsel cannot be the Public Defender.

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), of which only subdivision (a) (section 27706(a)) is

relevant here. Section 27706(a) has two sentences.

The first sentence 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 . . . .” (§ 27706(a), italics added.)

The second sentence provides: “The public defender shall, upon request, give

counsel and advice to such person about any charge against the person upon which the

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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.” (§ 27706(a), italics added.)

It has repeatedly been held that section 27706 is exclusive: “In the absence of

statutory authorization the county public defender cannot be compelled to provide

representation. [Citation.]” (Erwin v. Appellate Department (1983) 146 Cal.App.3d 715,

718; accord, Mowrer v. Appellate Department (1990) 226 Cal.App.3d 264, 267;

Littlefield v. Superior Court (1979) 98 Cal.App.3d 652, 654-655.)

Erwin v. Appellate Department, supra, 146 Cal.App.3d 715 held that section

27706(a) did not authorize the appellate department2

to compel the public defender to

represent a defendant in an appeal from a misdemeanor conviction — at least when the

public defender did not believe the appeal would result in reversal or modification of the

judgment. It reasoned that the Legislature had deliberately limited the public defender’s

scope of representation to appeals that he or she believed would result in reversal or

modification; in all other appeals, “the task of providing representation to indigent

criminal appellants had been assigned by the Legislature to the office of the State Public

2 What was called the appellate department when Erwin was decided is now

called the appellate division. (See generally Snukal v. Flightways Mfg., Inc. (2000) 23

Cal.4th 754, 763, fn. 2.)

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Defender [citation] and, in certain instances, to private counsel [citations] . . . .”3

(Id. at

p. 719.)

It also stated: “There are sound policy reasons which support California’s scheme

of limiting the number of appellate cases assigned to the county public defender. Many

county public defender offices lack staff trained in appellate advocacy. These offices,

seeking to operate in an era of reduced funding, are all too often struggling to maintain

sufficient staff with which to provide adequate representation to indigents. Adding the

burden of indigent appeals from misdemeanor convictions might well be the straw that

breaks the back of our present system of providing counsel from county public defenders’

offices to indigents at the trial level.” (Erwin v. Appellate Department, supra, 146

Cal.App.3d at p. 719.)

Thereafter, in Mowrer v. Appellate Department, supra, 226 Cal.App.3d 264, the

same panel held that section 27706(a) did not authorize the appellate department to

compel the public defender to represent a defendant in any appeal from a misdemeanor

conviction — even when the public defender refused to state a belief that the appeal

would result in reversal or modification of the judgment. It explained that “the first

sentence of this statute authorizes the trial court to order the appointment of the public

defender at the trial phase of the case; however, the second sentence, in which appeals are

3 Since Erwin was decided, in felony cases, the task of representing indigent

defendants on appeal has largely been reassigned from the State Public Defender to

nonprofit appellate projects. (See ADI’s History ,

as of Nov. 6, 2019.)

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discussed, makes no mention of any judicial power to appoint.” (Id. at p. 267.) It further

explained that the second sentence was intended to give the public defender discretion to

prosecute appeals, but it did not authorize a court to compel the public defender to do so.

(Id. at pp. 267-268.)

The first sentence of section 27706(a) allows a court to appoint the public

defender to represent a defendant “at all stages of the proceedings.” Erwin, however,

necessarily implied that this does not include a defendant’s appeal from a misdemeanor

conviction. Moreover, Mowrer came right out and held that the first sentence applies

only in “the trial phase.” We agree. 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.

Regarding the second sentence of section 27706(a), Mowrer held that it does not

give the trial court the power to appoint the public defender in an appeal against his or

her will. Once again, we agree. “It is a general rule of statutory construction that

‘[w]hen one part of a statute contains a term or provision, the omission of that term or

provision from another part of the statute indicates the Legislature intended to convey a

different meaning.’ [Citations.]” (Klein v. United States of America (2010) 50 Cal.4th

68, 80.) Hence, we 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.

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Separately and alternatively, the second sentence only allows a public defender to

“prosecute” an appeal on behalf of a person who has been “convicted.” Thus, even

assuming Mowrer was wrong, and this sentence does allow a court to appoint the public

defender in a defendant’s appeal from a misdemeanor conviction, a court cannot compel

the public defender to represent a misdemeanor defendant in the People’s appeal from a

preconviction ruling or a dismissal.

We express no opinion as to whether the public defender could choose to represent

a defendant in an appeal by the People and/or 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. [Citation.]” (In re Brindle (1979) 91 Cal.App.3d 660, 681.)

The respondent court argues that Ingram v. Justice Court (1968) 69 Cal.2d 832

“adopted an expansive interpretation of Government Code section 22706.” Ingram,

however, merely 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’ [citation]. Accordingly, if the public defender

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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.)

Thus, Ingram did not hold that section 27706 must be broadly construed in all

respects. It merely held that, by using the word “appeals,” the Legislature did not intend

to exclude collateral attacks that are the functional equivalent of appeals. Both Erwin and

Mowrer were decided after Ingram; indeed, they both cited Ingram. (Mowrer v.

Appellate Department, supra, 226 Cal.App.3d at p. 267; Erwin v. Appellate Department,

supra, 146 Cal.App.3d at p. 718.) Nevertheless, they both held that the Legislature did

intentionally restrict the scope of the second sentence of section 27706, for policy

reasons. Ingram therefore does not allow us to ignore these restrictions.

The respondent court also argues that “an interlocutory appeal, as in the case at

hand, is part of the pretrial process and should be handled by the same attorney who is

handling all of the remaining pretrial stages. [¶] It would be nonsensical for the public

defender to request private counsel to step in on preliminary hearings, . . . lineups,

postindictment interrogations, plea negotiations, [or] sentencing . . . . However, by

seeking private counsel on an interlocutory appeal, the public defender is asking to

remove themselves from a critical stage of the pretrial process.”

Actually, this is not an interlocutory appeal; there has been a final judgment of

dismissal. We recognize, however, that the People can appeal from a suppression order

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even when it is not followed by a dismissal. (People v. Gallagher (2009) 171

Cal.App.4th Supp. 1, 4-5.) 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. We see no reason for a different outcome in a misdemeanor case.

Whether the public defender should handle a preconviction appeal is a policy

question. To answer it, the decisionmaker must weigh continuity of representation

against other values, including those stated in Erwin — the public defender’s limited

expertise in appeals and limited funding. Such a decision is for the Legislature, not for

us, and the Legislature has made it in section 27706(a).

Finally, the respondent court argues that the appointment of anyone other than the

public defender to handle the appeal would “interfere with [the] existing attorney-client

relationship . . . .” However, this is equally true of a garden-variety appeal by a

defendant from a conviction, yet the defendant in such an appeal has no right to have the

public defender appointed.

We therefore conclude that 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. 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.

Let a writ of mandate issue directing the appellate division of the superior court to appoint counsel for Lopez other than the Public Defender. We do not rule on the Public Defender’s request that we direct the appointment of counsel for other indigent appellees, because we presume that the appellate division will follow the precedent set in this case; if it does not, other indigent appellees will have their own remedy by way of writ or appeal. The Public Defender is directed to prepare the writ of mandate and to have it issued, copies served, and the original filed with the clerk of this court, together with proofs of service on all parties.