Filed 8/20/21 L ewis v. Superior Court CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COUN TY, 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.2

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 Defe nder’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 Constitutio n. 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 HIST ORY 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 r ights. 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 suppressio n 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 a rticle I , section 15 of the California Constitution. But as to the discretion of public defenders to prosecute a ppeals set forth in3

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, peti tioner 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 petiti oner 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 part ies 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 hav ing 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 co mpel attendance of witnesses in the defendant’s behalf, to have the assistance of counsel for the defendant’s defense ....” (Cal. Const., a rt. I , s ec. 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
th e 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).)4

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 c ircumstances. 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 h eld 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

sec tion 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 fin ancially 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 d efender, 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 t o the Gardner c ourt 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 appoin ting the public defender in an appeal. (See Gardner , supra , 41 Cal.App.5th at p. 1145.) Second, the same sentence of Government Code section 277065

“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 o r 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 c ourt 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 eviden t 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. Su perior 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.)6 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 i n Misdemeanor Appeal , ” (2) grant the request, and (3) appoint counsel other than the public defender to represen t 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 th is opinion as to thi s court, should the parties so stipulate. (Cal. Rules of Court, rules 8.272(c)(1) & 8.490(d).