Gardner v. Appellate Div. of the Superior Court of San Bernardino Cnty.

• Decision Date: 12 November 2019
• Docket Number: E066330
• Court: California Court of Appeals Court of Appeals
• Parties: Christopher GARDNER, as Public Defender, etc., Petitioner, v. APPELLATE DIVISION OF the SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; The People, Real Party in Interest.

41 Cal.App.5th 1139

255 Cal.Rptr.3d 20

Christopher GARDNER, as Public Defender, etc., Petitioner,

v.APPELLATE DIVISION OF the SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent;

The People, Real Party in Interest.

E066330

Court of Appeal, Fourth District, Division 2, California.

Filed November 12, 2019

G. Christopher Gardner, Public Defender, Thomas W. Sone, Assistant Public Defender, Jennie Cannady, Chief Deputy Public Defender, and Stephan J. Willms, Deputy Public Defender, for Petitioner.

Robert L. Driessen for Respondent.

No appearance for Real Party in Interest.

OPINION

RAMIREZ P. J.

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.

IFACTUAL 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 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) 17 Cal.App.5th 636, 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, 245 Cal.Rptr.3d 58, 436 P.3d 946.) It concluded its opinion by saying: "[T]he question remains whether the appellate division must appoint a new attorney to represent 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, 245 Cal.Rptr.3d 58, 436 P.3d 946.)

IITHE 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 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, 194 Cal.Rptr. 328 ; accord, Mowrer v. Appellate Department (1990) 226 Cal.App.3d 264, 267, 276 Cal.Rptr. 38 ; Littlefield v. Superior Court (1979) 98 Cal.App.3d 652, 654-655, 160 Cal.Rptr. 175.)

Erwin v. Appellate Department , supra , 146 Cal.App.3d 715, 194 Cal.Rptr. 328 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 Defender [citation] and, in certain instances, to private counsel [citations] ...."³ ( Id. at p. 719, 194 Cal.Rptr. 328.)

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, 194 Cal.Rptr. 328.)

Thereafter, in Mowrer v. Appellate Department , supra , 226 Cal.App.3d 264, 276 Cal.Rptr. 38, 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 discussed, makes no mention of any judicial power to appoint." ( Id. at p. 267, 276 Cal.Rptr. 38.) 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, 276 Cal.Rptr. 38.)

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, 112 Cal.Rptr.3d 722, 235 P.3d 42.) 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...