Filed 11/21/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PHYLLIS K. MORRIS, as Public Defender
for the County of San Bernardino,
E066330
Petitioner,
(Super.Ct.Nos. CIVDS1610302 &
v. ACRAS1600028)
THE SUPERIOR COURT OF OPINION
SAN BERNARDINO COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Michael A. Knish,
Annemarie G. Pace and Carlos M. Cabrera, Judges. Petition denied.
Phyllis K. Morris, Public Defender, Stephan J. Willms, Deputy Public Defender,
for Petitioner.
Robert L. Driessen for Respondent.
1
No appearance for Real Party in Interest.
California Rules of Court, rule 8.851(a) (rule 8.851), 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.
In this petition, Phyllis K. Morris, in her capacity as the Public Defender for the
County of San Bernardino, argues the United States Constitution obligates respondent,
the Superior Court of San Bernardino County, to appoint counsel for all indigent
defendants in the appellate division. While we agree that a defendant acting as
respondent in the appellate division would likely1 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. (See, e.g., Ross v. Moffitt (1974)
417 U.S. 600, 616 (Ross) [“[T]he fact that a particular service might be of benefit to an
indigent defendant does not mean that the service is constitutionally required.”].)
Petitioner has failed to show why appointment of counsel for respondents in the appellate
1 Though the absence of counsel is not always fatal to a claim on appeal; we note
the litigant in the landmark case who caused the United States Supreme Court to hold that
all indigent criminal defendants have the right to appointed counsel, was himself without
counsel for the majority of that proceeding. (Gideon v. Wainwright (1963) 372 U.S. 335,
338 (Gideon).)
2
division, as much as it might conceivably benefit those respondents, is constitutionally
mandated. Consequently, we deny the petition.2
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner’s office represented Ruth Zapata Lopez, a nonparty to this petition, in a
case alleging she committed two misdemeanors by driving while under the influence of
alcohol and/or drugs. (Veh. Code, § 23152, subds. (a), (b).) Acting on Lopez’s behalf,
petitioner’s office successfully moved to suppress evidence supporting the People’s case.
(Pen. Code, § 1538.5.) On March 14, 2016, both counts were dismissed in the interest of
justice. The People filed a notice of appeal from the granting of the suppression motion
on the same day.
On May 11, 2016, a deputy public defender filed a request with the Appellate
Division of the Superior Court of San Bernardino County (appellate division) to appoint
counsel for Lopez on appeal. Court clerks informed counsel that Lopez was not eligible
for appointment of counsel on appeal. According to the deputy public defender, the
2 The petition was first filed in this court on July 7, 2016. On July 13, 2016, we
summarily denied that filing. The California Supreme Court stayed the action to
facilitate review of a petition for certiorari and then, on September 14, 2016, granted the
petition for review, transferred the matter to this court, and directed us to issue an order to
show cause why the relief sought in the petition should not be granted. “The Supreme
Court’s direction that we issue the alternative writ, after our denial, is an expression on
the part of the Supreme Court that we examine the contentions raised by petitioner and
write an opinion evaluating those contentions.” (Charlton v. Superior Court (1979) 93
Cal.App.3d 858, 861.) It is not an expression of an opinion that the petition should be
granted. (Ibid.; see Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107
Cal.App.3d 496, 500; Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939.)
3
reason provided was that Lopez “was the respondent, and the respondent on a
misdemeanor appeal is not entitled to appointed counsel.” In an e-mail attached to the
petition, the same deputy public defender asserts a court clerk told him the appellate
division’s position was that petitioner’s office still represented Lopez.
Petitioner filed an earlier petition (case No. E066181) challenging this policy. On
June 28, 2016, we summarily denied that petition “without prejudice to petitioner’s
ability to petition the appellate division for the relief she seeks.” The following day,
petitioner filed, in the appellate division, a petition for writ of mandate raising the same
issue presented here. The appellate division summarily denied the petition on July 5,
2016. The instant petition to this court followed.
DISCUSSION
In this court, petitioner primarily asserts that the Sixth and Fourteenth
Amendments to the United States Constitution require the appellate division to “appoint
counsel for all indigent appellees in all misdemeanor criminal appeals, including
[Lopez].” Then, turning instead to California statutory authority, petitioner contends the
trial court lacks statutory authority to compel her office, specifically, to represent Lopez
as a respondent in the appellate division. (Gov. Code, § 27706, subd. (a).) We disagree
with her first assertion and, finding no evidence the second has occurred, decline to
weigh in on whether a public defender’s office may be compelled to represent a
respondent in the appellate division.
4
Before explaining our reasons for drawing these conclusions, we comment on
what is and what is not at issue on this petition. The petition purports to challenge “[t]he
system in place in San Bernardino County, at least as suggested by Appellate Division
staff,” as if this “system” derived from a policy created by the appellate division in San
Bernardino County. As the return notes, however, the rule the appellate division appears
to be enforcing in this case is simply rule 8.851, which we mentioned at the outset. What
we consider in this opinion, then, is petitioner’s assertion that rule 8.851 is facially
invalid.3 We find that it is not, at least under the authorities petitioner has cited.
Rule 8.851(a)(1) provides that an appellate division “must appoint appellate
counsel for a defendant convicted of a misdemeanor who” is both: (1) subject to
incarceration, a fine of more than $500, or “significant adverse collateral consequences as
a result of the conviction”; and (2) indigent (which will be assumed if the defendant was
“represented by appointed counsel in the trial court”). (Italics added.) Rule 8.851 further
provides that “the appellate division may appoint counsel for any other indigent
defendant convicted of a misdemeanor.” (Rule 8.851(a)(2), italics added.) The parties
agree that Lopez does not qualify for appointment of counsel under rule 8.851 because
she has not been “convicted of a misdemeanor.”
3Petitioner first made this assertion in the traverse, as the petition neither cited
nor mentioned rule 8.851.
5
As we construe the petition and traverse, petitioner suggests we could order that
Lopez receive appointed counsel despite rule 8.851 in one of two ways: we could
interpret rule 8.851 to require appointment of counsel for respondents who have not been
convicted of a misdemeanor by finding an inadvertent omission by the rulemaking body,
or we could find rule 8.851 constitutionally infirm as written and remake the rule to
require appointment of counsel for even those respondents in the appellate division who
have not been convicted of a misdemeanor. For the reasons to which we now turn,
neither position has merit.
A. We may not interpret rule 8.851 to require appointment of counsel for any
criminal defendant who has not been convicted of a misdemeanor
“ ‘The usual rules of statutory construction are applicable to the interpretation of
the California Rules of Court.’ [Citation.] This means our primary object is to determine
the drafters’ intent. ‘The words of the statute are the starting point. “Words used in a
statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the
language is clear and unambiguous there is no need for construction, nor is it necessary to
resort to indicia of the intent of the Legislature . . . .” ’ ” (Kahn v. Lasorda’s Dugout, Inc.
(2003) 109 Cal.App.4th 1118, 1122-1123.)
We agree with the return that rule 8.851 “is expressed in plain, simple language.”
There is therefore no need to look to sources extrinsic to the rule itself to determine that
the rule’s drafters intended to provide appointed counsel only to misdemeanor defendants
who have been convicted of a misdemeanor, and not to those who, like Lopez, have not.
6
At bottom, then, petitioner’s request that we look to the history of rule 8.851 fails,
because we have no reason to consult these materials to interpret the text of the rule.
Still, even if we could properly consider petitioner’s arguments regarding the
history and purpose of rule 8.851 on the merits,4 the inferences we draw from the
materials presented are different from the ones petitioner draws. According to petitioner,
the proposed rule on which the Judicial Council sought comment originally gave an
appellate division discretion to appoint counsel, not just for “any other indigent
misdemeanor defendant convicted of a misdemeanor” as under the version of rule
8.851(a)(2) that became operative, but for “any other indigent misdemeanor defendant.”
4 Even if we disregard the rule that we do not examine extrinsic sources if the
legislation is unambiguous and consider petitioner’s contentions regarding the history of
rule 8.851, we have to take the traverse at face value and trust that petitioner correctly
represents the contents of the February 6, 2008 advisory committee report on which she
relies. This is because petitioner has not provided us with the legislative history materials
she cites; there is no request for judicial notice, and the 2008 report on which petitioner
relies has in no way been made part of the record in this court. (See Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26
[explaining importance of proper motions for judicial notice of legislative history
materials].) Also, “It is axiomatic that arguments made for the first time in a reply brief
will not be entertained because of the unfairness to the other party.” (People v. Tully
(2012) 54 Cal.4th 952, 1075; see, e.g., People v. Peevy (1998) 17 Cal.4th 1184, 1206
[“Normally, a contention may not be raised for the first time in a reply brief.”].) Here,
we find ourselves in the unexpected position of assessing a main premise (i.e. that rule
8.851(a) is unconstitutional) that was not raised until the traverse because the petition did
not cite rule 8.851 and, therefore, did not analyze its legislative history, purpose, or
intent. Although the return made some arguments regarding these issues, respondent has
had no ability to answer petitioner’s specific points, which, though potentially important
to her position, were not made known until the traverse. However, since we eventually
find petitioner’s legislative history materials do not help her case, we see no actual
prejudice to respondent in our treating those materials as we have.
7
The traverse continues: “If this version of Rule 8.851(a)(2) remained as written, this
matter would not be before this court, because this language would have included
indigent respondents. But for reasons unexplained, the . . . language noted above did not
remain, and Rule 8.851(a)(2) now reads ‘[o]n application, the Appellate Division may
appoint counsel for any other indigent defendant convicted of a misdemeanor.’ (Italics
added.) The addition of this italicized language, i.e. ‘convicted of a misdemeanor,’ took
indigent respondents out of the realm of those entitled to appointed counsel in any
Appellate Division proceeding.”
As petitioner sees it, the omission of respondents on appeal must have been
inadvertent, because California Rules of Court, rule 8.850, states that rules in the chapter
containing it and rule 8.851 apply to both preconviction and postconviction appeals.
However, the conclusion that an inadvertent omission occurred assumes that appointment
of counsel for defendants who have not been convicted of a misdemeanor is somehow
required, either because the rulemaking body intended to include such a benefit or
because some extrinsic authority requires appointment of counsel even for misdemeanor
pretrial respondents. It therefore begs the question. We do not have a record from which
we could conclude that the rulemaking body intended to offer appointment of counsel to
respondents on appeal such as Lopez, who have not been convicted; what petitioner has
shown us is that the rulemaking body considered but rejected an option that would have
given counsel to Lopez and others like her. We therefore interpret rule 8.851 to mean
8
exactly what it says, which is that only misdemeanor defendants who have actually been
convicted are entitled to appointed counsel in the appellate division.
Moreover, we explain in the next section why we find, at least under the
authorities petitioner has cited, that the United States Constitution does not require
appointment of counsel for all misdemeanor defendants on appeal. Petitioner gives us no
reason to find that the rulemaking body must necessarily have intended to offer more than
is constitutionally necessary, and we have already intimated that the law is otherwise,
because not all services that are “of benefit” to a litigant must be provided at government
expense. (Ross, supra, 417 U.S. at p. 616.) Petitioner’s legislative intent argument fails.
There is no indication in the record that the rulemaking body decided to offer appointed
counsel only to those criminal defendants in the appellate division who have been
convicted of a misdemeanor because of an omission instead of because the body
concluded, as we do, that no more is required under the Constitution.
B. Rule 8.851 does not violate the Sixth or Fourteenth Amendments to the United
States Constitution as alleged by the petitioner
The United States Supreme Court has recognized “the obvious truth that the
average defendant does not have the professional legal skill to protect himself when
brought before a tribunal with power to take his life or liberty, wherein the prosecution is
presented by experienced and learned counsel.” (Johnson v. Zerbst (1938) 304 U.S. 458,
462-463.) In that court’s view, this is why the Sixth Amendment to the United States
9
Constitution “withholds from federal courts,[5] in all criminal proceedings, the power and
authority to deprive an accused of his life or liberty unless he has or waives the assistance
of counsel.” (Johnson v. Zerbst, at p. 463, fn. omitted.) The rule that has developed
under the Sixth Amendment is that “in our adversary system of criminal justice, any
person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him.” (Gideon, supra, 372 U.S. at p. 344.) This is the rule
on which the petition chiefly relies for its Sixth Amendment claim.
However, “the Sixth Amendment does not apply to appellate proceedings.”
(Martinez v. Court of Appeal (2000) 528 U.S. 152, 161 (Martinez).) Therefore,
petitioner’s challenge to Rule 8.851 as violating the Sixth Amendment to the United
States Constitution fails.
Petitioner cites to both Gideon’s statement that the Sixth Amendment requires
appointment of counsel whenever a person is “haled into” criminal court (as purportedly
happened to Lopez when the People appealed (Gideon, supra, 372 U.S. at p. 344)), and to
Anders v. California (1967) 386 U.S. 738, 742, for the same proposition, presumably
because Anders quoted the above referenced rule from Gideon in a case examining the
role of counsel on appeal from a conviction. Nonetheless, Anders does not support a
conclusion that the Sixth Amendment applies on appeal, because Anders resolved these
5 The same holds true of state courts, since the Sixth Amendment’s right to
counsel clause is “made obligatory upon the States by the Fourteenth Amendment.”
(Gideon, supra, 372 U.S. at p. 342.)
10
questions not based on the Sixth Amendment, but instead on “[t]he constitutional
requirement of substantial equality and fair process.” (Anders, at p. 744.) As Martinez
instructs, the Sixth Amendment is not an applicable source of authority when it comes to
appointment of counsel on appeal. (Martinez, supra, 528 U.S. at p. 161.)
Because the Sixth Amendment does not apply, courts have looked to the
Fourteenth Amendment when analyzing claims regarding entitlement to counsel on
appeal. (See, e.g., Ross, supra, 417 U.S. at pp. 608-609.) Even though the Sixth
Amendment does not require the right to appeal at all, a state that provides the right to
appeal must, to remain consistent with the Fourteenth Amendment guarantees of due
process and equal protection, make that right equally available to the rich and the poor.
(Griffin v. Illinois (1956) 351 U.S. 12 [requiring states to furnish transcripts at no cost to
indigent defendants on appeal].) In this context, “ ‘Due process’ emphasizes fairness
between the State and the individual dealing with the State, regardless of how other
individuals in the same situation may be treated. ‘Equal protection,’ on the other hand,
emphasizes disparity in treatment by a State between classes of individuals whose
situations are arguably indistinguishable.” (Ross, at p. 609.)
We look, then, to see whether the due process and/or equal protection clauses of
the Fourteenth Amendment require the appointment of counsel when the People appeal
the granting of a Penal Code section 1538.5 motion to the appellate division in a
misdemeanor case. In order to evaluate the petition on the merits, as directed by the
Supreme Court, we look largely to United States Supreme Court jurisprudence regarding
11
the right to appointed counsel as a freestanding due process right. We find these
authorities quite helpful in explaining why we think the state acted constitutionally when
it drew the line for who gets appointed counsel in the appellate division at misdemeanor
defendants who have been convicted of a misdemeanor. (Lassiter v. Dept. of Social
Services (1981) 452 U.S. 18, 24 (Lassiter) [“Applying the Due Process Clause is . . . an
uncertain enterprise which must discover what ‘fundamental fairness’ consists of in a
particular situation.”].)
We begin by noting that, if petitioner’s core premise that the usefulness of counsel
is sufficient to create a due process right to counsel, it is difficult to see any case in which
appointment of counsel is not required. And yet that is resoundingly not the law. Rather,
“as a litigant’s interest in personal liberty diminishes, so does his right to appointed
counsel.” (Lassiter, supra, 452 U.S. at p. 26.) For example, in Scott v. Illinois (1979)
440 U.S. 367 (Scott), the court affirmed the misdemeanor theft conviction of a defendant
who was subject to imprisonment but only sentenced to a $50 fine even though the
defendant had requested and been refused counsel in the trial court. The court has also
rejected an argument that each state “is under a constitutional duty to provide counsel for
indigents in all probation or parole revocation cases” in favor of a system allowing the
government entities charged with administering probation and parole to decide
entitlement to counsel on a case-by-case basis. (Gagnon v. Scarpelli (1973) 411 U.S.
778, 787.) Similarly, in Lassiter, the court held that parents in proceedings to terminate
12
parental rights would only be entitled to appointed counsel on a case-by-case basis.
(Lassiter, at p. 32.)
Although the Sixth Amendment does not guarantee the right to counsel on appeal
from a conviction, cases that construe the rights guaranteed therein are instructive on the
issue of what due process under the Fourteenth Amendment requires since “[t]he
Constitution guarantees a fair trial through the Due Process Clauses, but it defines the
basic elements of a fair trial largely through the several provisions of the Sixth
Amendment, including the Counsel Clause.” (Strickland v. Washington (1984) 466 U.S.
668, 684-685; see United States v. Gonzalez-Lopez (2006) 548 U.S. 140, 146 [same].)
Having independently researched the issue, we emphasize that the United States Supreme
Court has repeatedly held that the risk of actual imprisonment marks the line at which
counsel must be appointed for purposes of the Sixth Amendment. (See, e.g., Alabama v.
Shelton (2002) 535 U.S. 654, 662; Scott, supra, 440 U.S. at pp. 373-374; Argersinger v.
Hamlin (1972) 407 U.S. 25.) “In sum, the Court’s precedents speak with one voice about
what ‘fundamental fairness’ has meant when the Court has considered the right to
appointed counsel, and we thus draw from them the presumption that an indigent litigant
has a right to appointed counsel only when, if he loses, he may be deprived of his
physical liberty. It is against this presumption that all the other elements in the due
process decision must be measured.” (Lassiter, supra, 452 U.S. at pp. 26-27.)
Since the petition does not mention this presumption, petitioner has not rebutted it.
Rather, she argues the appeal forces Lopez to face imprisonment because the People’s
13
prosecution of Lopez will resume if the appeal is successful, and Lopez faces
imprisonment if convicted. We reject this contention. To begin with, it is inconsistent
with Lassiter’s command that counsel need only be appointed for a litigant “when, if he
loses, he may be deprived of his physical liberty.” (Lassiter, supra, 452 U.S. at pp. 26-
27.) While we realize Lopez may be more likely to become imprisoned if the People
prevail on appeal, the cases discussed ante require more than mere likelihood. In fact,
and as we have explained, they require actual imprisonment as a direct consequence of
losing the action before the right to appointed counsel must attach. (Scott, supra, 440
U.S. at pp. 373-374 [“We therefore hold that the Sixth and Fourteenth Amendments to
the United States Constitution require only that no indigent criminal defendant be
sentenced to a term of imprisonment unless the State has afforded him the right to
assistance of appointed counsel in his defense.”].)
Phrased differently, what the Sixth and Fourteenth Amendments guarantee is not
so much counsel, but the right to be free from uncounseled imprisonment. (Lassiter,
supra, 452 U.S. at p. 26 [“the Sixth and Fourteenth Amendments to the United States
Constitution require only that no indigent criminal defendant be sentenced to a term of
imprisonment unless the State has afforded him the right to assistance of appointed
counsel in his defense.”].) The petition has given us no reason to set the line in a
different place for a respondent in the appellate division. If the right Lopez has is the
right to be free from uncounseled imprisonment, she faces no diminution of that right on
14
appeal, since she will be represented at trial even if the People prevail in the appellate
division.
Again, we take no issue with the idea that Lopez’s respondent’s brief, and perhaps
her chances of an affirmance on appeal, might well be better if she had counsel than if
she did not. (See, e.g., Johnson v. Zerbst, supra, 304 U.S. at p. 463 [“The ‘. . . right to be
heard would be, in many cases, of little avail if it did not comprehend the right to be
heard by counsel.’ ”].) Where we part ways with petitioner is in what we make of the
fact that Lopez would fare better on appeal with counsel. She appears to assume it means
she has a federal due process right to counsel. As we have explained, she does not.
The petition in this case does not address the framework of cases cited ante and
instead cites broad rules from Griffin and Douglas v. California (1963) 372 U.S. 353
(Douglas) without analyzing why they require appointment of counsel in the appellate
division in California. In her challenge based upon the Fourteenth Amendment,
petitioner relies heavily on Douglas. There, the court invalidated “a California rule of
criminal procedure which provides that state appellate courts, upon the request of an
indigent for counsel, may make ‘an independent investigation of the record and
determine whether it would be of advantage to the defendant or helpful to the appellate
court to have counsel appointed. . . . After such investigation, appellate courts should
appoint counsel if in their opinion it would be helpful to the defendant or the court, and
should deny the appointment of counsel only if in their judgment such appointment
would be of no value to either the defendant or the court.’ ” (Id. at p. 355.) The Douglas
15
court opined: “When an indigent is forced to run this gantlet of a preliminary showing of
merit, the right to appeal does not comport with fair procedure.” (Id. at p. 357.)
Petitioner does not explain whether she cites Douglas on due process or on equal
protection grounds, but the Ross court noted the Douglas court relied on both principles.
(Ross, supra, 417 U.S. at p. 610.) It then explained that with respect to due process,
“there are significant differences between the trial and appellate stages of a criminal
proceeding,” since the purpose of the trial court portion of the action is to give the state a
forum in which to attempt to overcome the presumption of innocence, while an appeal is
usually initiated by a convicted defendant who needs counsel not to protect against being
haled into court but to overturn a determination of guilt. (Ibid.) The court concluded:
“This difference is significant for, while no one would agree that the State may simply
dispense with the trial stage of proceedings without a criminal defendant’s consent, it is
clear that the State need not provide any appeal at all. McKane v. Durston, 153 U.S. 684
(1894). The fact that an appeal has been provided does not automatically mean that a
State then acts unfairly by refusing to provide counsel to indigent defendants at every
stage of the way. Douglas v. California, supra. Unfairness results only if indigents are
singled out by the State and denied meaningful access to the appellate system because of
their poverty. That question is more profitably considered under an equal protection
analysis.” (Ross, supra at p. 611.)
We also find Douglas distinguishable. Because the California rule the Douglas
court invalidated asked a Court of Appeal to conduct “an ex parte examination of the
16
record” and decide whether appointment of counsel would be helpful, it required a
“preliminary showing of merit” before the appellant could know whether he or she would
have a more effective appeal with counsel or a less effective one without. (Douglas,
supra, 372 U.S. at pp. 356-357.) In other words, the California procedure affected “the
right to appeal” itself. (Ibid.) Here, the right to appeal has not been affected, and there
can be no prejudging of the merits of the appeal at an early stage by the court that is to
assess the validity of the trial court’s act. In addition, Lopez’s interest in retaining the
dismissal she obtained after the trial court granted her suppression motion is undoubtedly
less weighty than that of a defendant who has been “convicted of a misdemeanor” (rule
8.851(a)(1), (a)(2)) and is trying to overturn the sentence.
In sum, then, the rule we deduce is that the due process clause allows a legislative
body to limit the right to appointment of counsel to only those defendants who have been
sentenced to actual imprisonment. As discussed ante, petitioner herself admits the
legislative body that drafted rule 8.851 deliberately chose to limit the right to appointed
counsel in the appellate division to those defendants who had been convicted of a
misdemeanor. We now turn to whether that decision violates the equal protection clause.
As previously described, petitioner challenges rule 8.851 on its face and asks us to
find that the appellate division may not refuse to appoint counsel for an indigent
defendant acting as respondent on appeal because otherwise “all [such a defendant] can
do is hope the appeals court will find anything in the record to justify affirming her
judgment while the rich man has the opportunity to have counsel fully and effectively
17
defend his judgment.” In other words, on the equal protection issue petitioner primarily
points to an alleged “disparity in treatment by a State between classes of individuals
whose situations are arguably indistinguishable.” (Ross, supra, 417 U.S. at p. 609.)
As we discussed at oral argument, the paucity of equal protection analysis
petitioner provided in her briefs greatly complicates this court’s task. At times, she
appears to complain about disparate treatment between appellants and respondents, and at
other times she argues an equal protection violation has occurred because indigent
litigants are being treated less favorably than wealthy ones. Petitioner does not discuss to
what extent either of these pairs of classes is similarly situated, and she does not explain
whether we should look for a rational basis or for something weightier when deciding
whether rule 8.851’s differentiation between misdemeanor defendants who have been
convicted and those who have not passes constitutional muster.
We find the following passage from Ross particularly instructive: “Despite the
tendency of all rights ‘to declare themselves absolute to their logical extreme,’ there are
obviously limits beyond which the equal protection analysis may not be pressed without
doing violence to principles recognized in other decisions of this Court. The Fourteenth
Amendment ‘does not require absolute equality or precisely equal advantages,’ [citation],
nor does it require the State to ‘equalize economic conditions.’ [Citation.] It does
require that the state appellate system be ‘free of unreasoned distinctions,’ [citation], and
that indigents have an adequate opportunity to present their claims fairly within the
adversary system. [Citations.] The State cannot adopt procedures which leave an
18
indigent defendant ‘entirely cut off from any appeal at all,’ by virtue of his indigency,
[citation], or extend to such indigent defendants merely a ‘meaningless ritual’ while
others in better economic circumstances have a ‘meaningful appeal.’ [Citation.] The
question is not one of absolutes, but one of degrees.” (Ross, supra, 417 U.S. at p. 612, fn.
omitted.)
In this case, limiting the right to appointed counsel in the appellate division to only
those defendants who have been convicted of a misdemeanor is not an “unreasoned
distinction.” (Ross, supra, 417 U.S. at p. 612.) As the previous discussion explains,
appointed counsel does not become matter of right until a defendant faces uncounseled
imprisonment.
We again emphasize that deciding whether to offer more than the Constitution
requires with respect to the right to appointed counsel is a legislative act. (Ross, supra,
417 U.S. at p. 618 [“We do not mean by this opinion to in any way discourage those
States which have, as a matter of legislative choice, made counsel available to convicted
defendants at all stages of judicial review.”].) To our knowledge, the only way a litigant
in the appellate division can be subjected to actual imprisonment is if he or she has been
convicted of a misdemeanor. (See Pen. Code, §§ 19.6 [no imprisonment in infraction
cases], 1466 [appellate division hears appeals in misdemeanor and infraction cases].)
Limiting the right to appointed counsel on appeal in the appellate division to only those
misdemeanor defendants who have suffered a conviction provides counsel to those with
the best likelihood of having a clearly established right to it under the due process clause,
19
while denying it to those who possess no such right. These two classes are therefore not
“arguably indistinguishable.” (Ross, at p. 609.)
This limitation also recognizes that the interest a convicted defendant seeks to
protect on appeal is weightier than the interest of a party like Lopez, who faces no
uncounseled imprisonment even if the appeal results in a reversal and the People resume
prosecution. Rule 8.851 does not deprive Lopez of the right to appeal, and we have
explained why the petition fails to show that the appeal in her case would be a
“meaningless ritual” unless she is appointed counsel. (Ross, supra, 417 U.S. at p. 612.)
It therefore appears to pass muster under the rules discussed herein.
In choosing to mount only a facial attack on rule 8.851, petitioner has not asked us
to find that counsel is appropriate for Lopez, in particular, because of unique facts of her
case. While we note the petition mentions in passing that Lopez is not fluent in English,
our information on this topic is scant. It is, in fact, limited to a statement in the petition
that Lopez does “not have any legal training,” “does not speak English,” and, “other than
being able to perform rudimentary tasks such as dating documents and printing her name,
she does not read or write English.” From this, petitioner asks us to conclude that, “If a
stay is not granted [Lopez] will have no choice but to sit back and hope that the
government’s opening brief, which will be prepared by experienced government lawyers,
will not be enough to persuade this court that the lower court judgment should be
reversed.”
20
The record does not show that Lopez’s appeal will be a “meaningless ritual”
(Douglas, supra, 372 U.S. at p. 358) because of her difficulties with the English
language. First, in a California appeal, unlike in the trial court, Lopez will reap the
benefit of standards of review and other procedural tools that are designed to protect the
ruling the trial court has already made.6 For example, “[a] judgment or order of a lower
court is presumed correct. All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown.”
(Hernandez v. Superior Court (1992) 9 Cal.App.4th 1183, 1190.) Although an appellate
court independently reviews whether the trial court properly applied the law regarding
6 The petition cites what purport to be statistics showing that the reversal rate is
unusually high when the People appeal from the granting of a suppression motion.
Rather than statistics from which we can draw conclusions, however, what petitioner has
provided is a list of cases and this statement in the unverified memorandum supporting
the petition: “Since January 2010, the government has filed at least twenty-five appeals
(including writ petitions) challenging the granting of a suppression motion.” We do not
know how many times the People have sought appellate review (if it was in fact more
than 25), in what courts, and how and by whom these data were compiled. Because we
have no statistics from which we can draw the comparative inferences petitioner
suggests, we assign no evidentiary value to the figures on which the first few pages of the
petition’s supporting memorandum rely. In addition, even were the petition correct that
reviewing courts often or even typically appoint counsel for respondents when the People
appeal the granting of a suppression motion, we would find this fact irrelevant to the
petition. (See Ross, supra, 417 U.S. at pp. 618-619 [encouraging states to offer more in
the way of counsel than the federal Constitution requires and entrusting that decision to
state legislative bodies].) In fact, rule 8.851 itself offers more than we conclude is
required, since it requires appointment of counsel for defendants who have been
convicted of misdemeanors but received sentences consisting of nothing but fines or
serious collateral consequences instead of only offering appointed counsel to those
misdemeanor defendants who have been sentenced to actual imprisonment. (Rule
8.851(a)(1)(A).)
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search and seizure under the Fourth Amendment, it still defers to any factual findings that
are supported by substantial evidence. (People v. Ayala (2000) 24 Cal.4th 243, 279.) We
assume our colleagues in the appellate division perform their official duty in accordance
with these rules of law. (Evid. Code, § 664.) Petitioner has not addressed why
safeguards such as these do not protect, or at least affect, the extent of her Fourteenth
Amendment rights. (Cf. Ross, supra, 417 U.S. at p. 616 [noting “the nature of
discretionary review in the Supreme Court of North Carolina” helped decrease the burden
to an appellant seeking such review without counsel].)
Second, the record fails to support the suggestion that Lopez will be unable to file
a brief at all, such that the appellate division will decide the People’s appeal “based on its
review of the Superior Court record . . . alone.” “In contemporary urban society, the non-
English speaking individual has access to a variety of sources for language assistance.
Members of his family, friends or neighbors—born or schooled here—may provide aid.
Private organizations also exist to aid immigrants.” (Jara v. Municipal Court (1978) 21
Cal.3d 181, 184.) Since the record contains so little detail about Lopez’s language
difficulties, the record does not support any claim that counsel must be appointed for
Lopez, individually, because her status as a non-English speaker means the Fourteenth
Amendment somehow requires that relief.
At oral argument, petitioner’s counsel referred to three cases that had not been
briefed. Despite counsel’s announcing his intention to discuss these cases in two letters
filed on May 15 and May 23, 2017, we are aware of no authority allowing a party to
22
delay mention of cases that were in existence when the briefs were prepared. Even if it
applies to a writ petition arising from a misdemeanor case,7 California Rules of Court,
rule 8.254 only allows a party to bring to our attention “significant new authority,
including new legislation, that was not available in time to be included in the last brief
that the party filed or could have filed.” (Cal. Rules of Court, rule 8.254(a), italics
added.) The three unbriefed cases on which petitioner wants to rely were published in
1992, 1998, and 2008. We are therefore not obligated to consider them.
Even if we do consider petitioner’s three cases, which are Claudio v. Scully (2d
Cir. 1992) 982 F.2d 798 (Claudio), United States ex rel. Thomas v. O’Leary (7th Cir.
1998) 856 F.2d 1011 (O’Leary), and Commonwealth v. Goewey (2008) 452 Mass. 399
(Goewey), we find them unavailing. First, and as counsel acknowledged at oral
argument, “lower federal court decisions on federal questions are persuasive authority,
but they are not binding on this court.” (Credit Managers Assn. of California v.
Countrywide Home Loans, Inc. (2006) 144 Cal.App.4th 590, 598.) We therefore need
not follow Claudio or O’Leary. The same is true of Goewey, which is an out-of-state
case. (See, e.g., Bowen v. Ziasun Technologies, Inc. (2004) 116 Cal.App.4th 777, 786
[out-of-state cases can be persuasive authority].)
7 California Rules of Court, rule 8.254 allows a party to submit a letter citing new
authorities, but that rule appears to only apply to appeals. We see no analogous provision
for writ petitions.
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Second, we find Claudio, O’Leary, and Goewey unpersuasive. Claudio and
O’Leary are both easily distinguishable, as they involve murder charges rather than
misdemeanor charges, and as both defendants in those cases were actually sentenced to
prison. (Claudio, supra, 982 F.2d at p. 800; O’Leary, supra, 856 F.2d at p. 1013.)
Goewey, which involved an appeal from the pretrial granting of a suppression motion, is
potentially more apt. However, the most the Goewey court offers us to explain why
counsel must be afforded to pretrial respondents on appeal if counsel is afforded to
pretrial appellants on appeal is that “the same general principles apply” to appellants and
respondents on appeal. (Goewey, supra, 452 Mass. at p. 403.) As we have now
explained, the matter is much more complicated. Goewey’s superficial analysis does not
affect our holding.
For the foregoing reasons, we reject petitioner’s challenge to rule 8.851 under the
Sixth and Fourteenth Amendments to the United States Constitution. While we agree
that Lopez might fare better as the respondent on appeal to the appellate division if she
had counsel, the petition has failed to show that appointment of counsel for Lopez or any
other respondent on appeal is mandated by the Sixth or Fourteenth Amendments.
C. The record does not support the contention that the appellate division is
requiring petitioner to represent Lopez on appeal
Petitioner’s final contention is that the appellate division is forcing her to represent
Lopez on appeal even though Government Code section 27706, which establishes a
public defender’s duties, allows for no such representation. The petition’s prayer asks us
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to: “Issue a judgment declaring the San Bernardino County Superior Court may not
appoint the Public Defender to represent indigent appellees in misdemeanor criminal
appeals, or declare the Public Defender to remain appointed in cases where the Public
Defender previously represented an indigent appellee in the Superior Court.”
We decline to pass on this issue, as we see no proof that the appellate division is
doing either of these things. First, we noted ante that the allegation that the appellate
division still considers petitioner to represent Lopez came to us in the form of an e-mail
from the deputy public defender who tried to arrange for appointment of counsel (other
than petitioner) for Lopez. We are unclear how much evidentiary weight, if any, to
assign to this e-mail, the contents of which are neither independently verified nor
repeated in any other portion of the record. We note, however, that the e-mail itself is
internally inconsistent, as it says both that “the Appellate Department’s position is that
[petitioner] is still counsel,” and that petitioner “can represent M[s]. Lopez if they so
choose, or petition the Fourth District for a writ.” Even if we find evidentiary worth in
this portion of the record, we see in it no proof that the appellate division is denying
petitioner the right to decide whether or not to represent Lopez on the People’s appeal.
More fundamentally, the relief petitioner requests sounds more like a declaratory
judgment than a writ of mandate. In fact, the cover page indicates petitioner’s intent that
we consider a “petition for writ of mandate and declaratory relief” (italics added), and, as
noted ante, the prayer asks us to enter “judgment” declaring certain things (italics added).
We may not do this on a mandamus petition asking us to review the propriety of a
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judicial order. Here, petitioner presents no evidence that the appellate division has
exposed it to sanctions for failing to represent Lopez, refused to accept a brief from
Lopez that was not prepared by petitioner’s office, or otherwise given effect to the
alleged statement by a court clerk that petitioner’s office is still counsel of record. “[W]e
are asked to direct the trial court to perform an act which, on the record, it has never
refused to perform. Ordinarily, mandate would not lie in such a situation.” (Lohman v.
Superior Court (1978) 81 Cal.App.3d 90, 98.)8
DISPOSITION
The petition is denied.
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
8 While the appellate division denied a petition making the same argument
petitioner makes here, it did so summarily, and may have done so because it has not, in
fact, compelled petitioner to represent Lopez.
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