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Filed 8/13/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

HEDY WOLF,

Petitioner,

v.

THE SUPERIOR COURT OF 

SAN BERNARDINO COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

E071318

(Super.Ct.Nos. CIVDS1823575 & 

ACRAS1800106 & MSB1401789)

OPINION

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Carlos M. 

Cabrera, Judge. Writ granted.

G. Christopher Gardner, Public Defender, Stephan J. Willms, Deputy Public 

Defender for Petitioner.

Jason Anderson and Michael A. Ramos, District Attorneys, Brent J. Schultze, 

Deputy District Attorney for Real Party in Interest.
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Petitioner, Hedy Wolf, pled guilty to the misdemeanor offense of making 

harassing telephone calls. (Pen. Code, § 653m, subd. (a).)1 The trial court (1) granted 

Petitioner one year of summary probation with the condition she serve one day in jail in 

lieu of paying fines; and (2) imposed a criminal protective order. Petitioner moved to 

withdraw her plea. The trial court denied Petitioner’s motion. Petitioner appealed the 

denial of her motion to the superior court’s appellate division and requested the 

appointment of appellate counsel. The appellate division denied Petitioner’s request for 

appointment of appellate counsel. 

Petitioner petitions this court for a writ of mandate directing the superior court’s 

appellate division to (1) vacate its order denying Petitioner’s request for appointment of 

appellate counsel, and (2) enter an order granting Petitioner’s request for appointment of 

appellate counsel. We grant the writ petition.

FACTUAL AND PROCEDURAL HISTORY

Petitioner was charged with the misdemeanor offense of making harassing 

telephone calls. (§ 653m, subd. (a).) On May 14, 2018, Petitioner pled guilty to the 

charge. The trial court (1) granted Petitioner one year of summary probation with the 

condition she serve one day in jail; and (2) imposed a three-year criminal protective 

order. Petitioner was not represented by counsel at the May 14 hearing.

 

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 All subsequent statutory references will be to the Penal Code unless otherwise 

indicated. 
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On May 29, 2018, Petitioner moved to withdraw her plea. Petitioner asserted she 

had not been represented by counsel and did not understand that the plea would result in 

a three-year protective order and probation. Petitioner requested that she be able to 

proceed to trial on the charge. On June 29, the trial court appointed the public 

defender’s office to represent Petitioner. On July 2, the public defender’s office

accepted the appointment. On August 2, the trial court held a hearing on Petitioner’s 

motion to withdraw her plea. Petitioner was represented by the public defender’s office. 

The trial court denied the motion but modified the protective order to expire one year 

from May 14, 2018. 

Petitioner appealed the denial of her motion to withdraw her plea. Petitioner’s 

notice of appeal was filed in the appellate division on August 6, 2018. (Judicial Council 

Form CR-132.) In the notice of appeal, in section 2 of the form, Petitioner wrote, “A 

court appoint appeal atty is requested [sic].” In section 4 of the notice of appeal, 

Petitioner marked the boxes to indicate (a) she was represented by the public defender 

in the trial court, and (b) she was “asking the court to appoint a lawyer to represent [her] 

in this appeal.” 

On August 17, Petitioner filed a request for a court-appointed attorney. (Judicial 

Council Form CR-133.) On that form, petitioner again marked the box indicating she 

was represented by a court-appointed attorney in the trial court. Petitioner also marked 

a box indicating she had been granted probation. 
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On August 17, the appellate division denied Petitioner’s request for appointment 

of counsel. The appellate division explained that counsel did not need to be appointed 

because “[t]he denial of a motion to withdraw a plea is not a significant adverse 

collateral consequence of the conviction.” Petitioner’s writ petition concerns the 

appellate division’s order dated August 17, 2018.

DISCUSSION

Petitioner contends the superior court’s appellate division erred by denying her 

request for appointment of appellate counsel. 

The facts are undisputed, therefore we apply the de novo standard of review. 

(People v. Hernandez (2009) 177 Cal.App.4th 1182, 1187.) California Rules of Court, 

rule 8.851(a)(1)2 provides: “On application, the appellate division must appoint 

appellate counsel for a defendant convicted of a misdemeanor who: [¶] (A) Is subject 

to incarceration or a fine of more than $500 (including penalty and other assessments), 

or who is likely to suffer significant adverse collateral consequences as a result of the 

conviction; and [¶] (B) Was represented by appointed counsel in the trial court or 

establishes indigency.” “A defendant is subject to incarceration or a fine if the 

incarceration or fine is in a sentence, is a condition of probation, or may be ordered if 

the defendant violates probation.” (Rule 8.851(a)(3).)

A condition of Petitioner’s probation was that she serve one day in jail. 

Therefore, Petitioner was subject to incarceration. (Rule 8.851(a)(1)&(3).)

 

2

 For ease of reference, we will refer to Cal. Rules of Court, rule 8.851 as Rule 

8.851.
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At the hearing on the motion to withdraw her plea, Petitioner was represented by 

appointed counsel. In the superior court’s appellate division, Petitioner is appealing the 

trial court’s denial of her motion to withdraw her plea. Thus, Petitioner was represented 

by appointed counsel at the hearing on the motion that is the subject of her appeal in the 

appellate division. Therefore, Petitioner was “represented by appointed counsel in the 

trial court.” (Rule 8.851(a)(2).)

In sum, Petitioner was (1) subject to incarceration, and (2) represented by 

appointed counsel in the trial court. Rule 8.851(a)(1) mandates that appellate counsel 

be appointed when the foregoing two criteria are met. Therefore, the appellate division 

was required to appoint appellate counsel for Petitioner. We conclude the appellate 

division erred.

Real Party in Interest contends (1) Petitioner was not represented by appointed 

counsel at the time of judgment, therefore Petitioner was not represented by counsel in 

the trial court; (2) Petitioner made procedural errors in her request for appointment of 

counsel; and (3) Petitioner’s appeal is from the judgment and is untimely, therefore the 

issue of appointment of counsel is moot. 

We address the assertion that Petitioner was not represented by counsel in the 

trial court because she was unrepresented at the time of judgment. We apply the de 

novo standard of review when interpreting a rule of court. (Mercury Interactive Corp. 

v. Klein (2007) 158 Cal.App.4th 60, 81.)

If a defendant “desires and is unable to employ counsel the court shall assign 

counsel to defend him or her.” (§ 987, subd. (a).) “In order to assist the court in 
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determining whether a defendant is able to employ counsel in any case, the court may 

require a defendant to file a financial statement or other financial information under 

penalty of perjury with the court or, in its discretion, order a defendant to appear before 

a county officer designated by the court to make an inquiry into the ability of the 

defendant to employ his or her own counsel. If a county officer is designated, the 

county officer shall provide to the court a written recommendation and the reason or 

reasons in support of the recommendation. The determination by the court shall be 

made on the record.” (§ 987, subd. (c).)

Rule 8.851(a)(1)(B) reads: “[T]he appellate division must appoint appellate 

counsel for a defendant convicted of a misdemeanor who . . . [¶] . . . [¶] . . . Was 

represented by appointed counsel in the trial court or establishes indigency.” One can 

reasonably infer that proof of the defendant having appointed counsel in the trial court is 

an option so that the defendant is not required to again go through the process of 

establishing indigency upon filing an appeal in the appellate division. Using proof of a 

prior appointment of counsel, rather than establishing indigency a second time in the 

same case, helps “to provide means for relatively speedy and inexpensive appeals from 

judgments and appealable orders in criminal cases.” (People v. Jenkins (1976) 55 

Cal.App.3d Supp. 55, 60.) 

With the foregoing understanding of rule 8.851(a)(1)(B), it is of little 

consequence whether a defendant had appointed counsel prior to a judgment or after a 

judgment. The point of a defendant having appointed counsel in the trial court is that 

the defendant established indigency and is not required to establish it a second time in 
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the appellate division. Not having to go through a second process of establishing 

indigency permits appeals to proceed in an efficient manner. Therefore, we are not 

persuaded by Real Party in Interest’s assertion that Petitioner is not entitled to appointed 

counsel on appeal because her appointed counsel was appointed postjudgment. 

Petitioner established her indigency in the trial court and was appointed counsel, and 

therefore was entitled to the appointment of counsel in the appellate division.

Next, we address the assertion that Petitioner made procedural errors in her 

request for appointment of appellate counsel. Real Party in Interest asserts that 

Petitioner did not submit information regarding indigency. Rule 8.851(a)(1)(B) requires 

the defendant (i) have been represented by appointed counsel in the trial court, or 

(ii) establish indigency. As set forth ante, Petitioner was represented by appointed 

counsel in the trial court, therefore, Petitioner was not required to again establish 

indigency in the appellate division.

Real Party in Interest contends Petitioner failed to use the proper forms to request 

appointment of appellate counsel. Real Party in Interest contends Petitioner’s failure to 

use the proper forms meant the appellate division was required to search the record to 

determine if Petitioner was entitled to appointment of counsel, and the appellate 

division was not required to conduct that search so it could properly deny Petitioner’s 

request for appointment of counsel. 

The determination of whether Petitioner is entitled to the appointment of 

appellate counsel required looking at two minute orders: (1) the minute order granting 

Petitioner probation with the condition she serve one day in jail; and (2) the minute 
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order reflecting Petitioner was represented by appointed counsel at the hearing on her 

motion to withdraw her guilty plea. We are not persuaded that Petitioner’s alleged 

failure to use the correct form(s) created a burden so great that the appellate division 

needed to deny Petitioner’s request with prejudice. In sum, we find Real Party in 

Interest’s assertion to be unpersuasive.

We turn to the issue of the appointment of counsel being moot because 

Petitioner’s appeal is allegedly untimely. It is not for this court to decide if Petitioner’s 

appeal in the superior court’s appellate division is untimely. If Real Party in Interest 

believes Petitioner’s appeal is untimely, then Real Party in Interest should direct a 

motion to dismiss to the appellate division of the superior court. If Real Party in 

Interest moves to dismiss Petitioner’s appeal due to it being untimely, then Petitioner 

should be represented by counsel for purposes of responding to that motion. In other 

words, the possibility that Real Party in Interest could prevail on a motion to dismiss 

Petitioner’s appeal in the appellate division does not mean Petitioner should be denied 

counsel. 

DISPOSITION

Let a writ of mandate issue directing the Appellate Division of the Superior 

Court of San Bernardino County to vacate its order denying Petitioner’s request for a 

court-appointed lawyer in her misdemeanor appeal and to enter an order granting 

Petitioner’s request for a court-appointed lawyer in her misdemeanor appeal. The 

previously ordered stay is lifted.
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Petitioner is DIRECTED to prepare and have the writ of mandate issued, copies 

served, and the original filed with the clerk of this court, together with proofs of service 

on all parties.

CERTIFIED FOR PUBLICATION

MILLER

Acting P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.