Harris v. Superior Court of San Joaquin Cnty.

• Decision Date: 09 August 2017
• Docket Number: C083669
• Citation: 222 Cal.Rptr.3d 192,14 Cal.App.5th 142
• Court: California Court of Appeals Court of Appeals
• Parties: Homer Laron HARRIS, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent; The People, Real Party in Interest.

14 Cal.App.5th 142

222 Cal.Rptr.3d 192

Homer Laron HARRIS, Petitioner,

v. The SUPERIOR COURT of San Joaquin County, Respondent;The People, Real Party in Interest.

C083669

Court of Appeal, Third District, California.

Filed August 9, 2017

Certified for Partial Publication.^*

Miriam T. Lyle, Public Defender, Nelson C. Lu, Deputy Public Defender, for Petitioner.

No appearance for Respondent Superior Court.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General for Real Party in Interest.

MURRAY, J.

This is a petition for writ of mandate by petitioner Homer Laron Harris after the Appellate Division of the Superior Court of San Joaquin County (Appellate Division) summarily denied the appointment of counsel to represent him in his appeal of a restitution order in connection with a misdemeanor conviction. We conclude that appellate counsel should be appointed to represent petitioner on appeal. Accordingly, we shall issue a writ of mandate directing the Appellate Division to vacate its order denying petitioner's request for appointed counsel and enter a new order granting that request. In doing so, we conclude that an order requiring the payment of restitution is a "significant adverse collateral consequence" within the meaning of California Rules of Court, rule 8.851(a)(1)(A),¹ requiring the appointment of counsel for an indigent defendant on appeal in a misdemeanor case.

FACTUAL AND PROCEDURAL HISTORY

Superior Court Proceedings

On April 6, 2016, the district attorney filed an amended complaint charging petitioner with misdemeanor corporal injury to a spouse/cohabitant/parent of child ( Pen. Code, § 273.5, subd. (a) ; count 1);² misdemeanor vandalism (§ 594, subd. (a)(1); counts 2 & 4); and misdemeanor dissuading a witness (§ 136.1, subd. (b)(1); count 3). Petitioner subsequently pleaded no contest to count 1, and the remaining charges were dismissed in the interest of justice in light of the plea. Imposition of sentence was suspended, and petitioner was granted three years of formal probation and ordered to serve 45 days in county jail as a condition of probation and to pay various fines and fees, totaling $735. No restitution to the victim was ordered at that time. On October 31, 2016, the trial court modified petitioner's probation following a restitution hearing and ordered him to serve his original 45–day jail sentence and pay restitution in the amount of $1,571.32.

On November 21, 2016, petitioner, through appointed counsel who represented defendant at the restitution hearing, filed a notice of appeal of the trial court's restitution order and requested the appointment of counsel to represent him on appeal. The form created by the Judicial Council to request counsel, and used here, instructs defendants in item 3 to "[d]escribe the punishment the court gave you/your client in this case (check all that apply and fill in any required information) ." Only the box labeled "Restitution" was checked and $1,571.32 was filled in on the line provided for the amount of restitution ordered. The form further instructs in item 4: "Describe any significant harm that you are/your client is likely to suffer because of this conviction ." In response, the form submitted on defendant's behalf stated: "[Petitioner] faces serious financial harm as a result of the restitution judgment rendered in this case. The amount of restitution ordered is exponential; and the statutory standard, used to determine the restitution amount, was not upheld. Accordingly, such a judgment not only jeopardizes [petitioner's] financial well-being, but could later affect his credit should any sort of civil judgment be imposed."

The Appellate Division summarily denied petitioner's request for appointed counsel.

Writ Proceedings

Petitioner filed in this court the instant petition for writ of mandate and request for a stay, arguing that he had a right to appeal the restitution order because he was likely to suffer "significant adverse collateral consequences" from the order and therefore had a right to the appointment of counsel under California Rules of Court, rule 8.851.³ This court issued a temporary stay, pending filing of opposition and further order. Thereafter, this court received preliminary informal opposition from the Attorney General on behalf of real party in interest the People of the State of California, contending that the request for appointed counsel was properly denied because the restitution order was not a "significant adverse collateral consequence" of petitioner's conviction but rather, a "direct consequence" of his guilty plea and thus was not a matter for which rule 8.851 required appointment of counsel. In his reply to the preliminary opposition, petitioner maintained his position that the restitution order was a significant collateral consequence requiring the Appellate Division to appoint appellate counsel pursuant to rule 8.851. Additionally, for the first time, petitioner argued in the alternative, that regardless of the restitution order, petitioner was nevertheless entitled to the appointment of counsel under rule 8.851(a)(1)(A), because his punishment included 45 days in county jail as well as fines totaling more than $500. That same day, this court issued an order to show cause why the relief prayed for in the proceeding should not be granted.

In the People's return to order to show cause, the Attorney General conceded that pursuant to rule 8.851(a)(1)(A), "[d]espite the fact that petitioner's request for counsel failed to properly describe all of the punishment imposed in his case, the appointment of counsel is required because his sentence included jail time and fines totaling $735." Accordingly, the Attorney General conceded the petition for writ of mandate should be granted. Petitioner filed a traverse to the Attorney General's return, accepting the People's concession but maintaining he was also entitled to relief under the "original theory argued—that the restitution amount ordered was a collateral consequence that rendered substantial harm." We address that issue to clarify that an order requiring the payment of restitution in the amount ordered here is a "significant adverse collateral consequence" within the meaning of rule 8.851.

DISCUSSION

I. Significant Adverse Collateral Consequences

Rule 8.851 sets forth the standards for appointment of counsel in misdemeanor appeals. The Appellate Division "must" appoint counsel for a misdemeanor appellant who "is likely to suffer significant adverse collateral consequences as a result of the conviction[ ] and [¶] [w]as represented by appointed counsel in the trial court or establishes indigency." ( Rule 8.851(a)(1) & (a)(1)(A), italics added; see fn. 3, ante .)

The phrase, "significant adverse collateral consequences" is not defined in the rule or elsewhere in the Rules of Court. Further, there is no published case law interpreting this phrase in the rule. We do so here.

In interpreting the language of the rule, we apply traditional rules of statutory interpretation. ( Rossa v. D.L. Falk Construction, Inc. (2012) 53 Cal.4th 387, 391, 135 Cal.Rptr.3d 329, 266 P.3d 1022 [Rules of Court are interpreted according to the same principles governing interpretation of statutes], superseded by rule in Siry Investments, L.P. v. Farkhondehpour (2015) 238 Cal.App.4th 725, 729, 189 Cal.Rptr.3d 554.) It is well-settled that the primary goal when interpreting a statute or rule is to determine the drafters' intent in order to give effect to the rule's purpose. ( Rossa , at p. 391, 135 Cal.Rptr.3d 329, 266 P.3d 1022.) " ‘The court begins with the language used. [Citation.] The court attempts to give effect to the usual, ordinary import of the language and to avoid making any language mere surplusage. [Citations.] "The words must be construed in context in light of the nature and obvious purpose of the statute where they appear. ..." [Citation.] The statute "must be given a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the Legislature, practical rather than technical in nature, and which, when applied, will result in wise policy rather than mischief or absurdity." ’ " ( In re Rosalio S. (1995) 35 Cal.App.4th 775, 778, 41 Cal.Rptr.2d 534.) Thus, it has long been a settled principle of statutory interpretation in our state that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. (See People v. Leiva (2013) 56 Cal.4th 498, 506, 508, 510, 154 Cal.Rptr.3d 634, 297 P.3d 870 ; People v. Pieters (1991) 52 Cal.3d 894, 898, 276 Cal.Rptr. 918, 802 P.2d 420 ; Younger v. Superior Court (1978) 21 Cal.3d 102, 113, 145 Cal.Rptr. 674, 577 P.2d 1014.) " ‘Experience teaches ... that unforeseen ambiguities can and do come to light despite the drafters' considered efforts to avoid them. In such cases, courts may consult appropriate extrinsic sources to clarify the drafters' intent.’ " ( Rossa , at pp. 391–392, 135 Cal.Rptr.3d 329, 266 P.3d 1022.)

It is not clear what the Judicial Council meant by using the word "collateral" to describe the adverse consequences that trigger a right to the appointment of appellate counsel. "A dictionary is a proper source to determine the usual and ordinary meaning of a word or phrase in a statute." ( E. W. Bliss Co. v. Superior Court (1989) 210 Cal.App.3d 1254, 1258, fn. 2, 258 Cal.Rptr. 783.) As pertinent here, the American Heritage Dictionary defines the adjective "collateral" as follows: "1. Situated or running side by side; parallel. 2. Coinciding in tendency or effect; concomitant or accompanying. ... 4. Of a secondary nature; subordinate." (American Heritage Dict. (5th ed. 2016) p. 362.)

The Attorney General points out that "collateral consequences" is a term used in the context of plea advisement...