Gardner v. Appellate Div. of the Superior Court , 6 Cal. 5th 998 ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
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.
S246214
Fourth Appellate District, Division Two
E066330
San Bernardino County Superior Court
CIVDS1610302 & ACRAS1600028
March 28, 2019
Justice Kruger authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Groban concurred.
GARDNER v. APPELLATE DIVISION OF
SUPERIOR COURT
S246214
Opinion of the Court by Kruger, J.
With the help of court-appointed counsel, a criminal
defendant facing misdemeanor charges filed a successful motion
to suppress the prosecution’s evidence against her. The
prosecution appealed. The question is whether the defendant is
entitled to the help of appointed counsel in responding to the
prosecution’s appeal of the suppression order. Based on article
I, section 15 of the California Constitution, we conclude the
answer is yes.
I.
This case arises from the criminal prosecution of Ruth
Zapata Lopez, who was charged by misdemeanor complaint with
driving under the influence of alcohol (Veh. Code, § 23152, subd.
(a)) and driving while having a blood-alcohol content of 0.08
percent or higher (id., § 23152, subd. (b)). The complaint also
alleged that Lopez had suffered a prior conviction for driving
while having a blood-alcohol content of 0.08 percent or higher.
The charges against Lopez are punishable by confinement in
county jail. (See id., § 23540, subd. (a) [minimum punishment
for violating Veh. Code, § 23152 within 10 years of prior
conviction under § 23152 is “imprisonment in the county jail for
not less than 90 days nor more than one year” and a fine]; see
also id., § 23542, subd. (a)(1)(B) [grant of probation requires
confinement in county jail “[f]or at least 96 hours”].)
1
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
The petitioner in this case is the Public Defender of San
Bernardino County, whom the superior court appointed to
represent Lopez.1 (See Pen. Code, § 987, subd. (a); see also id.,
§ 987.2, subd. (i).)2 On behalf of Lopez, petitioner filed a motion
under Penal Code section 1538.5 to suppress evidence collected
during a warrantless traffic stop. The court conducted a limited
hearing on the motion, during which Lopez was assisted by a
Spanish language interpreter. Petitioner argued that the traffic
stop leading to Lopez’s detention was invalid, rendering the
subsequent search unlawful. The court agreed and granted the
motion to suppress. The court then dismissed the underlying
case under Penal Code section 1385. (Pen. Code, § 1385, subd.
(a) [authorizing judge to dismiss action “in furtherance of
justice”].)
The prosecution appealed the suppression order to the
appellate division of the superior court. (See Pen. Code,
1
The San Bernardino Public Defender serving at the time,
Phyllis K. Morris, has since been succeeded in office by
Christopher Gardner, who has been substituted as a party.
2
Penal Code section 987, subdivision (a), provides: “In a
noncapital case, if the defendant appears for arraignment
without counsel, he or she shall be informed by the court that it
is his or her right to have counsel before being arraigned, and
shall be asked if he or she desires the assistance of counsel. If
he or she desires and is unable to employ counsel the court shall
assign counsel to defend him or her.”
Penal Code section 987.2, subdivision (i), provides in
relevant part: “Counsel shall be appointed to represent, in a
misdemeanor case, a person who desires but is unable to employ
counsel, when it appears that the appointment is necessary to
provide an adequate and effective defense for the defendant.”
2
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
§ 1538.5, subd. (j) [“If the property or evidence seized relates
solely to a misdemeanor complaint, and the defendant made a
motion for . . . the suppression of evidence in the superior court
prior to trial, both the people and defendant shall have the right
to appeal any decision of that court relating to that motion to
the appellate division . . . .”].) Questions promptly arose as to
who, if anyone, would represent Lopez in responding to the
appeal. Petitioner took the view that the public defender’s office
was no longer obligated to represent Lopez,3 and asked the
appellate division to appoint new counsel to represent her.4 The
appellate division refused. Court clerks informed petitioner
that, as the respondent in a misdemeanor appeal, Lopez was not
eligible for appointment of appellate counsel. In an e-mail to a
member of the office, a clerk also wrote that, in the court’s view,
the public defender “ ‘is still counsel’ ” for Lopez. (Morris v.
3
Petitioner relied for this argument on Government Code
section 27706, subdivision (a), which provides in relevant part:
“The public defender . . . 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.”
4
To make the request, the public defender adapted a form
entitled “Request for Court-Appointed Lawyer in Misdemeanor
Appeal,” which indicated that it was “only for requesting that
the court appoint a lawyer to represent a person appealing in a
misdemeanor case.” (Italics added, bold omitted.) In the portion
of the form calling for “Name of Appellant (the party who is
filing this appeal),” the public defender crossed out “Appellant
(the party who is filing this appeal)” and typed in “Appellee.”
Where the form called for the name of “Appellant’s lawyer,” the
public defender crossed out the word “Appellant’s” and typed in
“Appellee’s.”
3
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
Appellate Division of Superior Court (2017) 17 Cal.App.5th 636,
654 (Morris).)
Petitioner filed a petition for writ of mandate in the
appellate division. The petition asked the court to direct the
superior court “to appoint counsel for all indigent appellees in
all misdemeanor criminal appeals,” as well as to issue a
judgment declaring that the superior court “may not appoint the
Public Defender to represent indigent appellees in misdemeanor
criminal appeals, or declare the Public Defender to remain
appointed in cases where the Public Defender previously
represented an indigent appellee in the Superior Court.” The
appellate division summarily denied the petition. Petitioner
then sought a writ of mandate in the Court of Appeal, which also
issued a summary denial. This court granted review and
transferred the matter to the Court of Appeal with directions to
issue an order to show cause.
In a published opinion, the Court of Appeal again denied
the petition. Without addressing whether the public defender
remains appointed to represent Lopez, the Court of Appeal held
that Lopez neither has the right to appointment of counsel
under court rules nor a constitutional entitlement to be
represented by counsel on appeal. (Morris, supra, 17
Cal.App.5th at pp. 644, 653.)
The Court of Appeal explained that the appellate division
had been correct as to court rules: While the California Rules of
Court provide for the appointment of appellate counsel for an
indigent criminal defendant “convicted of a misdemeanor” (Cal.
Rules of Court, rule 8.851(a)(1), (2)), the rules make no provision
for the appointment of appellate counsel to represent a
misdemeanor defendant who, like Lopez, has not yet been
4
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
convicted. (Morris, supra, 17 Cal.App.5th at p. 644.) The court
went on to consider whether, notwithstanding the limited scope
of the court rules, the Sixth and Fourteenth Amendments to the
United States Constitution require that Lopez be represented
by counsel if she so chooses. The court answered that question
in the negative. As an initial matter, the court concluded that
the Sixth Amendment right to appointed counsel does not apply
in appellate proceedings; the right to appellate counsel is
instead governed by the due process and equal protection
clauses of the Fourteenth Amendment. (Morris, at p. 645.) But
in any event, under the Sixth and Fourteenth Amendments
alike, the right to counsel applies only when the defendant may
lose his or her physical liberty as a direct consequence of the
action. (Morris, at pp. 646–647.) Here, the court opined, that is
not the case; even if no counsel is appointed for purposes of the
appeal, Lopez faces no deprivation of “the right to be free from
uncounseled imprisonment” “since she will be represented at
trial even if the People prevail in the appellate division.” (Id. at
p. 647.)
We granted review.
II.
Before turning to the merits, we address a threshold issue
concerning the legal framework for our decision. In their initial
briefing before this court, the parties focused on the scope of the
right to counsel secured by the Sixth Amendment to the United
States Constitution. That amendment, which is binding on the
states through the Fourteenth Amendment, gives an indigent
defendant facing incarceration the right to court-appointed
counsel for his or her defense. (Gideon v. Wainwright (1963) 372
U.S. 335, 342–343 (Gideon).)
5
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
But in California courts, the federal Constitution is not the
sole source of a criminal defendant’s right to representation.
Article I, section 15 of the California Constitution, too,
guarantees a right to “the assistance of counsel for the
defendant’s defense” in a “criminal cause.” (Cal. Const., art. I,
§ 15.) Much like its federal counterpart, article I, section 15 has
been understood to confer a right to state-appointed counsel for
indigent defendants. (Mills v. Municipal Court (1973) 10 Cal.3d
288, 301 (Mills); In re Johnson (1965) 62 Cal.2d 325, 329–330
(Johnson).) But it has also been understood to extend more
broadly than its federal counterpart, particularly in relation to
misdemeanor cases like this one. (Compare Alabama v. Shelton
(2002) 535 U.S. 654, 661–662 (Shelton) [6th Amend. right to
appointed counsel applies to misdemeanor cases resulting in
imprisonment], with Mills, at p. 301 [Cal. Const. confers right
to counsel in all misdemeanor cases, without regard to whether
imprisonment is imposed].) To implement the state
constitutional guarantee, the Legislature has enacted several
statutory provisions governing the appointment of counsel for
defendants facing both felony and misdemeanor charges. (See
Pen. Code, §§ 686, 987, subd. (a), 987.2, subd. (i).)
Because of its importance to full consideration of the issue
before us, we directed the parties to submit supplemental briefs
regarding the relevance of article I, section 15 of the California
Constitution. We now conclude that article I, section 15 is
dispositive of the question presented. Our holding makes it
unnecessary for us to decide whether the same result would
obtain under the federal Constitution.
6
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
III.
Under article I, section 15 of the California Constitution,
a defendant’s right to the assistance of counsel is not limited to
trial, but instead extends to other, “critical” stages of the
criminal process. (People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 465 (Bryant, Smith and Wheeler); People v.
Bustamante (1981) 30 Cal.3d 88, 97–99 (Bustamante).) This
rule, which was first articulated in cases interpreting the Sixth
Amendment, recognizes that the right to the assistance of
counsel is fashioned according to the need for such assistance,
and this need may very well be greater during certain pre- and
posttrial events than during the trial itself. (Lafler v. Cooper
(2012) 566 U.S. 156, 165 (Lafler); United States v. Wade (1967)
388 U.S. 218, 224 (Wade).)
For purposes of determining whether the right to counsel
extends to a particular proceeding, we have described a critical
stage as “one ‘in which the substantial rights of a defendant are
at stake’ [citation], and ‘the presence of his counsel is necessary
to preserve the defendant’s basic right to a fair trial’ [citation].”
(Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 465.) More
broadly, critical stages can be understood as those events or
proceedings in which the accused is brought in confrontation
with the state, where potential substantial prejudice to the
accused’s rights inheres in the confrontation, and where
counsel’s assistance can help to avoid that prejudice. (See
Coleman v. Alabama (1970) 399 U.S. 1, 7 (Coleman); accord, e.g.,
Rothgery v. Gillespie County (2008) 554 U.S. 191, 212, fn. 16.)
Employing this rubric, courts have identified the following
proceedings, among others, as critical stages to which the
constitutional right to counsel attaches: arraignments
7
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
(Hamilton v. Alabama (1961) 368 U.S. 52, 54); preliminary
hearings (Coleman, supra, 399 U.S. at p. 10); postindictment
lineups (Wade, supra, 388 U.S. at p. 227); postindictment
interrogations (Massiah v. United States (1964) 377 U.S. 201,
206); plea negotiations (Missouri v. Frye (2012) 566 U.S. 134,
143 (Frye), In re Alvernaz (1992) 2 Cal.4th 924, 933–934); and
sentencing (Lafler, supra, 566 U.S. at p. 165). Relying solely on
the state Constitution, this court has recognized a right to
counsel in other proceedings as well. (E.g., Bustamante, supra,
30 Cal.3d at p. 102 [state right to counsel extends to
preindictment lineups], disagreeing with Kirby v. Illinois (1972)
406 U.S. 682, 690.)5
Employing the same rubric here, we conclude that a
pretrial prosecution appeal of a suppression order also qualifies
as a critical stage of the prosecution at which the defendant has
a right to appointed counsel as a matter of state constitutional
law. The suppression of evidence is generally a matter of vital
importance in the course of a criminal prosecution. As the high
court has noted, “suppression hearings often are as important
as the trial itself. [Citations.] In . . . many cases, the
suppression hearing [is] the only trial . . . .” (Waller v. Georgia
(1984) 467 U.S. 39, 46–47.) This case offers a vivid illustration
of the point. In the trial court, Lopez, with her counsel’s help,
secured a favorable suppression ruling; in the absence of the
suppressed evidence, the trial court concluded that the
prosecution could not continue. A reversal on appeal would both
5
Of course, not every stage of the criminal process will
qualify as a critical one at which counsel’s assistance is required.
(E.g., People v. Lucas (2014) 60 Cal.4th 153, 247 [the defendant
had no right under federal or state Constitution to have his
counsel present during investigatory forensic testing].)
8
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
revive the prosecution’s case against Lopez and meaningfully
increase the chances of conviction. In other cases, a ruling on a
suppression order may not be entirely dispositive of the
outcome, but may nevertheless have a dramatic impact on the
prosecution’s ability to meet its burden of proof at trial.
Regardless of the scope of the suppression order in any given
case, an appellate proceeding to determine whether the evidence
will remain suppressed poses a clear and substantial risk of
prejudice to the defendant’s position at trial. (See People v.
Shuey (1975) 13 Cal.3d 835, 841 [law of the case doctrine binds
trial courts to appellate courts’ legal rulings governing
suppression motions].)
The need for counsel in responding to such a state-
initiated appeal is equally clear and equally substantial. On
appeal, the defendant “ ‘face[s] an adversary proceeding that—
like a trial—is governed by intricate rules that to a layperson
would be hopelessly forbidding.’ ” (In re Olsen (1986) 176
Cal.App.3d 386, 390, quoting Evitts v. Lucey (1985) 469 U.S.
387, 396.) These rules are forbidding for any layperson, but all
the more so for criminal defendants who may come to court with
a wide range of educational backgrounds and linguistic and
other abilities. (See Halbert v. Michigan (2005) 545 U.S. 605,
621 [“Navigating the appellate process without a lawyer’s
assistance is a perilous endeavor for a layperson, and well
beyond the competence of individuals . . . who have little
education, learning disabilities, and mental impairments.”].)
Indeed, in part for these very reasons, the high court has held
that a criminal defendant has a Fourteenth Amendment right
to appointed counsel in his or her first appeal as of right. (See
Douglas v. California (1963) 372 U.S. 353 (Douglas).) For the
same reasons, we conclude that a defendant like Lopez is
9
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
entitled to the assistance of counsel in responding to the
prosecution’s appeal. Just as a defendant is unlikely to fare well
in filing and litigating a suppression motion without the help of
a trained attorney, a defendant will almost certainly struggle to
defend the trial court’s suppression ruling on appeal without the
assistance of counsel “skilled in persuading a panel of appellate
judges by means of a brief and perhaps oral argument.” (U.S. ex
rel. Thomas v. O’Leary (7th Cir. 1988) 856 F.2d 1011, 1014
(O’Leary).)
It is true, as respondent observes, that on appeal Lopez
“will reap the benefit of standards of review and other
procedural tools that are designed to protect the ruling the trial
court has already made.” But the effect of these “procedural
tools” should not be overstated; there are limits to how much an
appellate court can or should defer to a trial court’s conclusions.
(See, e.g., Kavanaugh v. West Sonoma County Union High
School Dist. (2003) 29 Cal.4th 911, 916 [on appeal, a court defers
to the trial court’s factual determinations if supported by
substantial evidence, but reviews questions of law de novo].)
Here, for example, we are concerned with a Fourth Amendment
suppression ruling regarding evidence obtained without a
warrant; in such cases, an appellate court independently applies
the law to the trial court’s factual findings, determining de novo
whether the findings support the trial court’s ruling. (People v.
Loewen (1983) 35 Cal.3d 117, 123.) The effect of standards of
review and other procedural tools is, moreover, often open to
reasoned debate; in our adversarial system of justice, we
ordinarily depend on the litigants to lay out the terms of that
debate. For an indigent defendant who, like Lopez, has won the
underlying ruling with counsel’s assistance, standards of review
10
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
are not an adequate substitute for continued assistance on
appeal.
Respondent raises two remaining arguments concerning
the scope of Lopez’s right to counsel. Both arguments are
predicated on the federal Constitution rather than the
California Constitution, which forms the basis of our judgment
here. For the sake of completeness, however, we address—and
reject—both arguments.
IV.
First, respondent argues that the right to appointed
counsel is a trial right, and therefore cannot confer a right to the
appointment of counsel on appeal. Respondent relies for this
argument on Martinez v. Court of Appeal of Cal., Fourth
Appellate Dist. (2000) 528 U.S. 152 (Martinez), in which the high
court considered whether the Sixth Amendment right of self-
representation6 entitles a convicted defendant to reject the help
of state-appointed counsel in appealing his conviction. The
court answered no, reasoning: “The Sixth Amendment identifies
the basic rights that the accused shall enjoy in ‘all criminal
prosecutions.’ They are presented strictly as rights that are
available in preparation for trial and at the trial itself. The
Sixth Amendment does not include any right to appeal. As we
have recognized, ‘[t]he right of appeal, as we presently know it
in criminal cases, is purely a creature of statute.’ [Citation.] It
necessarily follows that the Amendment itself does not provide
any basis for finding a right to self-representation on appeal.”
(Martinez, at pp. 159–160.) As this court has since noted, it
follows that the Sixth Amendment does not provide any basis
6
See Faretta v. California (1975) 422 U.S. 806.
11
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
for finding a right to the appointment of counsel for purposes of
appealing a conviction. (See In re Barnett (2003) 31 Cal.4th 466,
472–473 (Barnett), citing Martinez, supra, 528 U.S. 152; cf.
Barnett, at pp. 472–473 [noting other authorities conferring
right to counsel to bring first appeal as of right].) Respondent
argues the same rule applies here, and defeats any Sixth
Amendment claim Lopez might have to the appointment of
appellate counsel.
Although we have never squarely addressed the question,
we will assume Martinez applies equally to the state
constitutional right to counsel under article I, section 15 of the
California Constitution. Respondent’s reliance on Martinez is
unavailing all the same. The sort of appeal we are concerned
with here—a pretrial prosecution appeal of a suppression
order—is clearly not the sort of appeal the Martinez court had
in mind. Martinez concerned a defendant’s postconviction
appeal: that is, an appeal that takes place after the prosecution
is complete and charges against the defendant have been
resolved. In such an appeal, the defendant initiates the
appellate proceeding and “assumes the burden of persuading a
reviewing court that the conviction should be reversed.”
(Martinez, supra, 528 U.S. at p. 154.) The pretrial appeal of a
suppression order, by contrast, occurs before charges are finally
resolved and while criminal proceedings are still ongoing (or, as
in this case, are suspended pending the appellate court’s
decision whether the trial court’s ruling will be reversed and the
charges against the defendant revived). The appeal is not, of
course, part of the criminal trial. But neither are lineups (see
Wade, supra, 388 U.S. at p. 227; Bustamante, supra, 30 Cal.3d
at p. 102) or plea negotiations (see Frye, supra, 566 U.S. at
p. 143; In re Alvernaz, supra, 2 Cal.4th at pp. 933–934). The
12
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
constitutional right to counsel nevertheless extends to these
confrontations by virtue of their potential to affect the ultimate
resolution of the charges and the need for counsel’s advice in
navigating them. So, too, with a pretrial appeal of an order
suppressing evidence.
But even if we were to accept respondent’s limited view of
the counsel clauses of the Sixth Amendment or article I, section
15, it would go only to show that petitioner has invoked the
wrong constitutional provision; it would do nothing to
undermine the substantive conclusion that the California
Constitution entitles Lopez to the assistance of counsel in
responding to the prosecution’s appeal. As already noted, the
high court has also held that a criminal defendant has the right
to counsel’s assistance in bringing his or her first appeal as of
right, though that right is secured by the due process and equal
protection clauses of the Fourteenth Amendment rather than by
the Sixth Amendment. (See Douglas, supra, 372 U.S. 353; see
also, e.g., Lafler, supra, 566 U.S. at p. 165 [noting rule that
“defendants have a right to effective assistance of counsel on
appeal, even though that cannot in any way be characterized as
part of the trial”]; Barnett, supra, 31 Cal.4th at pp. 472–473
[also citing state statutory authority for the appointment of
counsel for defendants bringing criminal appeals].) Appointed
counsel, the high court has held, is necessary if the state-
conferred right of appeal is to be more than “a meaningless
ritual.” (Douglas, at p. 358.)7 Respondent has offered no reason
7
Martinez, by way of contrast, rejected the argument that
the Fourteenth Amendment confers a right to dispense with the
assistance of a state-appointed attorney on appeal, explaining
that self-representation is not “a necessary component of a fair
appellate proceeding.” (Martinez, supra, 528 U.S. at p. 161.)
13
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
to believe our state Constitution would afford any lesser
protection to indigent defendants pursuing such an appeal.
The reasons for requiring state-appointed counsel for a
first postconviction appeal as of right apply with equal force in
the context of the prosecution’s pretrial appeal of the
suppression order. (Accord, O’Leary, supra, 856 F.2d at p. 1015
[failing to appoint counsel for a defendant facing a pretrial
prosecution appeal “would clash with the Fourteenth
Amendment’s Due Process Clause”].) Indeed, the reasons are
arguably stronger. A defendant appealing his or her conviction
ordinarily needs counsel “not as a shield to protect him against
being ‘haled into court’ by the State and stripped of his
presumption of innocence, but rather as a sword to upset the
prior determination of guilt.” (Ross v. Moffitt (1974) 417 U.S.
600, 610–611.) Lopez, by contrast, seeks counsel as a shield, not
a sword. The prosecution has haled her into court, not the other
way around, and it has done so while the presumption of
innocence remains intact. Lopez is entitled to the assistance of
counsel to respond.8
V.
Respondent’s final constitutional argument relates to the
nature of the charges Lopez faces. While the United States
Supreme Court has described the Sixth Amendment right to
appointed counsel as generally applicable in felony cases (see
Gideon, supra, 372 U.S. at p. 339), it has not ruled so
8
This case, of course, concerns the right to appointed
counsel for purposes of responding to a pretrial prosecution
appeal of a favorable suppression ruling. We express no opinion
about a defendant’s right to appointed counsel for purposes of
bringing a pretrial appeal of an adverse suppression ruling.
14
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
categorically in other cases. In defining the scope of the federal
right to counsel in nonfelony cases, the high court’s Sixth
Amendment jurisprudence draws the line at cases involving
“ ‘actual imprisonment.’ ” (Shelton, supra, 535 U.S. at p. 662;
Scott v. Illinois (1979) 440 U.S. 367, 373; see Argersinger v.
Hamlin (1972) 407 U.S. 25, 33.) Respondent argues, and the
Court of Appeal agreed, that as a misdemeanor defendant,
Lopez is not entitled to the assistance of counsel for purposes of
responding to the prosecution’s pretrial appeal because she faces
no immediate prospect of imprisonment as a result of the
appellate division’s ruling. If the prosecution prevails, the worst
case scenario for Lopez is the case will return to trial court,
where she will be represented by counsel at the trial and
sentencing that determine her fate. (Morris, supra, 17
Cal.App.5th at p. 647.)
Respondent’s argument is beside the point here, for
reasons we noted at the outset of the discussion: While the high
court has drawn an “actual imprisonment” line in sketching the
contours of a misdemeanor defendant’s right to appointed
counsel, California (like many states) has not adopted the same
approach. (See p. 6, ante.)9 Many decades ago, this court
9
As the high court has acknowledged, California ranks
among the many states that provide a right to appointed counsel
that is more expansive than that afforded by the federal
Constitution. (Shelton, supra, 535 U.S. at pp. 668–669 & fn. 8;
Nichols v. United States (1994) 511 U.S. 738, 748, fn. 12.)
In invoking the “actual imprisonment” standard,
respondent relies on the Court of Appeal’s decision in People v.
Wong (1979) 93 Cal.App.3d 151. In that case, the defendant
sought the assistance of counsel to appeal a misdemeanor traffic
conviction that resulted only in a fine and a penalty totaling $65.
15
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
affirmed that the predecessor to the current version of article I,
section 15 of the California Constitution, confers a right to
counsel “in all felony and misdemeanor proceedings whether
actual imprisonment is to follow or not.” (Mills, supra, 10 Cal.3d
at p. 301; see also In re Kathy P. (1979) 25 Cal.3d 91, 103;
Rodriguez v. Municipal Court (1972) 25 Cal.App.3d 521, 527 [“It
is settled beyond cavil in this state that under the California
Constitution (art. I, [formerly] § 13) an indigent defendant in a
criminal prosecution for a misdemeanor, of whatever degree or
type, is entitled to representation by counsel.”].)10 We have put
the point plainly: the “actual imprisonment” standard “is not
the law in California. In this state, a person charged with a
misdemeanor has a right to counsel regardless of whether a jail
The court held that neither the federal nor the state
Constitution conferred a right to appellate counsel under those
circumstances. The question here is meaningfully different; we
are not concerned with the scope of a misdemeanor defendant’s
right to the assistance of counsel to challenge a conviction
resulting only in a small fine, but instead with a defendant’s
right to counsel’s help in defending a favorable suppression
ruling against the prosecution’s appellate challenge.
10
The provision at issue in Mills and Rodriguez was later
renumbered and reworded as part of a comprehensive
constitutional revision adopted by voters in 1974. (Prop. 7, Gen.
Elec. (Nov. 5, 1974).) The right to counsel and its companion
rights were moved from article 13 to article 15 in the state
Constitution, and they were reworded to apply in “a criminal
cause” rather than in “criminal prosecutions, in any court
whatever.” (Cal. Const. Revision Com., Proposed Revision
(1971) pt. 5, p. 24.) The history is clear, however, that this
revision was not intended to diminish the right to counsel. (See
Cal. Const. Revision Com. com. at p. 24 [commission
recommends retaining the “significant criminal procedure
provisions” contained in art. 1, former § 13, adding an express
right to confront witnesses, and deleting obsolete provisions].)
16
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
term actually is, or even could be, imposed.” (Salas v. Cortez
(1979) 24 Cal.3d 22, 27, fn. 2.) Consistent with that
understanding, this court has read the statutes implementing
the constitutional declaration to require that a misdemeanor
defendant be informed of the right to counsel at arraignment
and that a lawyer then be appointed if the defendant desires and
is unable to employ counsel, regardless of whether a sentence of
imprisonment may ultimately be imposed. (Johnson, supra, 62
Cal.2d at pp. 329–330; see Pen. Code, §§ 858, subd. (a), 987,
subd. (a); see also Tracy v. Municipal Court (1978) 22 Cal.3d
760, 766 [by statute, misdemeanor defendants entitled to
counsel even though charged offenses are punishable only by a
fine and not imprisonment].) Respondent offers no reason to
reconsider our understanding of the reach of the state counsel
guarantee as extending to misdemeanor defendants like Lopez.
VI.
Having concluded that Lopez has a right to appointed
counsel in the present appeal, the question remains whether the
appellate division must appoint a new attorney to represent her,
as petitioner had argued below, or whether the public defender
continues to represent her pursuant to the original
appointment. The Court of Appeal did not resolve this issue
because it ruled that Lopez did not have a right to appointed
counsel. We leave it to the Court of Appeal to resolve this issue
in the first instance. We reverse the judgment of the Court of
17
GARDNER v. APPELLATE DIVISION OF SUPERIOR COURT
Opinion of the Court by Kruger, J.
Appeal and remand for further proceedings consistent with this
opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Gardner v. Appellate Division of Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 17 Cal.App.5th 636Rehearing Granted
__________________________________________________________________________________
Opinion No. S246214
Date Filed: March 28, 2019
__________________________________________________________________________________
Court: Superior
County: San Bernardino
Judge: Michael A. Knish, Annemarie G. Pace and Carlos M. Cabrera
__________________________________________________________________________________
Counsel:
Phyllis K. Morris and Christopher Gardner, Public Defenders, and Stephan J. Willms, Deputy Public
Defender, for Petitioner.
Steven Harmon, Public Defender (Riverside) and Laura Arnold, Deputy Public Defender, for Law Offices
of the Public Defender County of Riverside and California Public Defenders Association as Amici Curiae
on behalf of Petitioner.
O’Melveny & Myers, Brett J. Williamson and Ryan W. Rutledge for the Innocence Project, the California
Innocence Project, the Project for the Innocent at Loyola Law School, the Northern California Innocence
Project, the University of San Francisco Criminal & Juvenile Justice Clinic, the American University
Washington College of Law Criminal Justice Clinic, Professor Lara Bazelon and Professor Jenny Roberts
as Amici Curiae on behalf of Petitioner.
Robert L. Driessen for Respondent.
No appearance for Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Stephan J, Willms
Deputy Public Defender
8303 Haven Avenue, Third Floor
Rancho Cucamonga, CA 91730
(909) 476-2206
Robert L. Driessen
Superior Court of San Bernardino, Appellate Division
8303 Haven Avenue
Rancho Cucamonga, CA 91730
(909) 708-8869