Filed 8/20/21 Lewis v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ROBIN LEWIS,

Petitioner,

v.

THE SUPERIOR COURT OF FRESNO 

COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

F082686

(Super. Ct. Nos. M20925618, 

0002948)

OPINION

THE COURT*

ORIGINAL PROCEEDINGS; petition for writ of mandate. F. Brian Alvarez, 

Judge.

Antoinette Taillac, Fresno County Public Defender, and Griffin Estes, for 

Petitioner.

No appearance for Respondent.

Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, 

Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Real Party in 

Interest.

-ooOoo-

* Before Detjen, Acting P.J., Smith, J. and Snauffer, J.
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On April 22, 2021, petitioner, Robin Lewis, filed a “Petition for Writ of Mandate,” 

challenging the superior court’s April 1, 2021 order denying appointment of additional 

counsel on appeal. Instead, the court required the Fresno County Public Defender’s 

Office to represent petitioner in her misdemeanor appeal before the Appellate Division of 

the Fresno County Superior Court. The superior court acknowledged petitioner was 

entitled to appointment of counsel on appeal under the California Constitution. However, 

under Government Code section 27706, a court cannot compel the public defender to 

represent a misdemeanor defendant in an appeal from a preconviction ruling, as is the 

case here. Writ relief is therefore warranted.

FACTUAL AND PROCEDURAL HISTORY

On December 22, 2020, a misdemeanor criminal complaint was filed in Fresno 

County Superior Court against petitioner. The complaint alleged two counts, possession 

of drug paraphernalia in violation of Health & Safety Code section 11364, and possession 

of a controlled substance in violation of Health & Safety Code section11377, 

subdivision (a). On February 4, 2021, petitioner was appointed representation by the 

Fresno County Public Defender’s Office and waived formal arraignment and the reading 

of her rights. Petitioner moved to suppress evidence under Penal Code section 1538.5. A 

hearing on the suppression motion was held on February 25, 2021, at which the judge 

denied the motion. 

Petitioner filed a notice of appeal from the denial of the suppression motion on 

March 26, 2021. The same day, petitioner filed a “Request for Court-Appointed Lawyer 

in Misdemeanor Appeal” using California Judicial Counsel Form CR-133. On April 1, 

2021, the appellate division of the superior court issued an order denying the request for 

counsel. The court acknowledged petitioner, as an indigent defendant, was entitled to 

appointment of counsel on appeal under article I, section 15 of the California 

Constitution. But as to the discretion of public defenders to prosecute appeals set forth in 
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Government Code section 27706, the court did not believe it was interfering with such 

discretion by denying the request for additional appointed counsel and requiring the 

public defender to prosecute the appeal. 

On April 22, 2021, petitioner filed the instant petition seeking an order mandating 

the Appellate Division of the Fresno County Superior Court vacate is ruling denying 

appointment of counsel and issue a ruling appointing counsel other than the public 

defender to represent petitioner in the interlocutory appeal. 

On June 7, 2021, petitioner filed a request to stay the proceedings before the 

appellate division of the superior court. We issued a stay on June 17, 2021, pending our 

determination of the petition and directed the parties to provide informal briefing. The 

stay and briefing order also notified the parties this court may elect to issue an

order for peremptory relief in the first instance. (See Palma v. U.S. Industrial Fasteners, 

Inc. (1984) 36 Cal.3d 171.) Briefing having been submitted, the matter stands ready for 

adjudication. 

DISCUSSION

There is no question defendant is entitled to representation of counsel in her 

criminal proceeding. “The defendant in a criminal cause has the right to a speedy public 

trial, to compel attendance of witnesses in the defendant’s behalf, to have the assistance 

of counsel for the defendant’s defense ....” (Cal. Const., art. I, sec. 15.) Further, the 

California Rules of Court explicitly extend the right to counsel to the appointment of 

appellate counsel in interlocutory misdemeanor proceedings conducted before the 

appellate division of the superior court. “On application, the appellate division must 

appoint appellate counsel for a defendant who was represented by appointed counsel in 

the trial court or establishes indigency and who: [¶] ... [¶] (B) Is charged with a 

misdemeanor and the appeal is a critical stage of the criminal process.” (Cal. Rules of 

Court, rule 8.851(a).)
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The question raised by this petition is who should represent petitioner in the 

proceeding. This issue was recently addressed in Gardner v. Appellate Division of 

Superior Court (2019) 41 Cal.App.5th 1139, 1142 (Gardner), under nearly identical 

procedural circumstances. In Gardner, the People appealed a suppression motion in a 

misdemeanor criminal proceeding to the appellate division of the superior court. Upon 

review of the relevant statutory authority governing the duties of public defenders, the 

court held the superior court must appoint new counsel, because the trial court is not 

statutorily authorized to appoint the public defender under those circumstances. 

(Gardner, at p. 1142.)

The duties of the public defender are prescribed by Government Code 

section 27706, subdivision (a), which states:

“The public defender shall perform the following duties:

“(a) Upon request of the defendant or upon order of the court, the public 

defender shall defend, without expense to the defendant, any person who is 

not financially able to employ counsel and who is charged with the 

commission of any contempt or offense triable in the superior courts at all 

stages of the proceedings, including the preliminary examination. 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.” (Gov. Code, 

§ 27706.)

Two phrases in the second sentence of Government Code section 27706, 

subdivision (a) were persuasive to the Gardner court finding the public defender could 

not be compelled to provide appellate representation. First, the use of the term “ ‘upon 

request’ ” but not “ ‘upon order of the court’ ” indicated the Legislature meant to prohibit 

a court from appointing the public defender in an appeal. (See Gardner, supra, 41 

Cal.App.5th at p. 1145.) Second, the same sentence of Government Code section 27706 
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“only allows a public defender to ‘prosecute’ an appeal on behalf of a person who has 

been ‘convicted.’ ” (Ibid.) Even if the sentence does allow a court to appoint the public 

defender in an 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.” (Ibid.; see Mowrer v. Appellate Department (1990) 

226 Cal.App.3d 264, 268 [“Section 27706 vests the office of the county public defender 

with the broad discretion to choose which clients it wishes to represent on appeal.”].) 

The Gardner court summarized, “Whether the public defender should handle a 

preconviction appeal is a policy question. To answer it, the decision maker must weigh 

continuity of representation against other values, including those stated in Erwin [v. 

Appellate Department (1983) 146 Cal.App.3d 715]—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 [Government Code] section 27706(a).” (Gardner, 

supra, 41 Cal.App.5th at p. 1147.)

The statutory interpretation conducted in Gardner is sound, and the Attorney 

General, responding on behalf of real party in interest, reached the same conclusion. He 

concluded, “in light of the decision in Gardner [], it is evident that additional appointed 

counsel should be someone other than the public defender” and the writ petition be 

granted. We agree and direct the issuance of a peremptory writ in the first instance. 

(Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at pp. 177–180.) The parties 

were properly notified a peremptory writ may issue. Further, petitioner’s right to relief is 

obvious and no useful purpose would be served by issuance of an alternative writ, further 

briefing, and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see Lewis v. 

Superior Court (1999) 19 Cal.4th 1232, 1236–1237, 1240–1241; Brown, Winfield & 

Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240–1244.)
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DISPOSITION

Let a peremptory writ issue directing the Appellate Division of the Fresno County 

Superior Court to: (1) vacate its April 1, 2021 order denying the “Request for 

Court-Appointed Lawyer in Misdemeanor Appeal,” (2) grant the request, and (3) appoint 

counsel other than the public defender to represent petitioner on appeal.

The order staying the proceedings, issued on June 17, 2021, is vacated.

In the interests of justice and to prevent further delays, this decision shall be final 

as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The remittitur 

will issue immediately upon the finality of this opinion as to this court, should the parties 

so stipulate. (Cal. Rules of Court, rules 8.272(c)(1) & 8.490(d).