Harris v. Super. Ct. ( 2017 )

Filed 8/9/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
HOMER LARON HARRIS, C083669
Petitioner,
(Super. Ct.
v. No. STKCRMDV20160004541)
THE SUPERIOR COURT OF SAN JOAQUIN
COUNTY,
Respondent;
THE PEOPLE,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Stay issued. Petition granted. George J.
Abdallah, Jr., Judge.
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.
* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part II. of the Discussion.
1
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
1 Undesignated rule references are to the California Rules of Court.
2 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
2
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
3 Rule 8.851 provides as follows: (a) Standards for appointment [¶] (1) On application,
the appellate division must appoint appellate counsel for a defendant convicted of a
3
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
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. [¶] (2) On application, the
appellate division may appoint counsel for any other indigent defendant convicted of a
misdemeanor. [¶] (3) 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.” (Boldface omitted & italics added.)
4
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 [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.) 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.) “ „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
5
absurdity.” ‟ ” (In re Rosalio S. (1995) 35 Cal.App.4th 775, 778.) 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; People v. Pieters (1991) 52 Cal.3d 894, 898; Younger v. Superior Court (1978)
21 Cal.3d 102, 113.) “ „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.)
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.) 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 requirements and argues that the same definition must be
applied in rule 8.851(a)(1)(A). As we shall explain, this conflation is untenable and
would result in absurd consequences we conclude could not have been intended by the
Judicial Council.
In addition to advising a criminal defendant of his or her constitutional rights,
California trial courts must also advise defendants of the “direct” consequences of a
guilty or no contest plea. (People v. Gurule (2002) 28 Cal.4th 557, 634 (Gurule);
Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605 (Bunnell); People v. Dillard (2017)
8 Cal.App.5th 657, 664 (Dillard).) “The advice requirement generally extends only to
6
„penal‟ consequences [citations], which are „involved in the criminal case itself.‟ ”
(People v. Moore (1998) 69 Cal.App.4th 626, 630 (Moore).) A consequence is direct in
this context “if it has „ “ „a definite, immediate and largely automatic effect on the range
of the defendant‟s punishment.‟ ” ‟ ” (Ibid., accord, Dillard, at p. 664.) Victim
restitution is a direct consequence of the plea. (People v. Walker (1991) 54 Cal.3d 1013,
1022, disapproved as stated in People v. Villalobos (2012) 54 Cal.4th 177, 181-183
(Villalobos); People v. Valdez (1994) 24 Cal.App.4th 1194, 1203-1204.)4 In fact,
restitution is constitutionally mandated in all cases in which a victim suffers a loss as a
result of the defendant‟s criminal act. (People v. Broussard (1993) 5 Cal.4th 1067, 1068-
1069, citing Cal. Const., art. I, former § 28, subd. (b), as enacted June 8, 1982, by voters
in adopting Prop. 8, the Victims‟ Bill of Rights; People v. Martinez (2017) 2 Cal.5th
1093, 1100-1101, citing Cal. Const., art. I, former § 28, subd. (b)(13), as revised and
enacted Nov. 5, 2008, by voters in adopting Prop. 9, the Victims‟ Bill of Rights of 2008:
Marsy‟s Law.)
While an advisement is required for a direct consequence, no advisement is
required for “collateral” consequences. (Gurule, supra, 28 Cal.4th at p. 634.) A
“collateral” or “indirect” consequence is one that “does not „inexorably follow‟ from a
4 The following is a non-exclusive list of other direct consequences for which an
advisement must be given under California‟s judicially declared rule of criminal
procedure: the potential maximum sentence, including fines (Bunnell, supra, 13 Cal.3d
at p. 605); minimum and maximum restitution fine (Villalobos, supra, 54 Cal.4th at
p. 186); probation ineligibility (People v. Caban (1983) 148 Cal.App.3d 706, 711);
registration requirements (People v. McClellan (1993) 6 Cal.4th 367, 376; People v. Zaidi
(2007) 147 Cal.App.4th 1470, 1485 [same]); maximum period of parole (In re Moser
(1993) 6 Cal.4th 342, 352); mandatory revocation of driving privileges (Corley v.
Department of Motor Vehicles (1990) 222 Cal.App.3d 72, 76). There are also statutory
requirements that require advisements for consequences that could otherwise be
considered collateral, e.g.: potential effect on immigration status (§ 1016.5; Moore,
supra, 69 Cal.App.4th at p. 633); a no contest plea in a misdemeanor case may not be
used against the defendant in a civil case. (§ 1016, subd. (3).)
7
conviction of the offense involved in the plea.” (People v. Crosby (1992) 3 Cal.App.4th
1352, 1355.) The use of the adjective “collateral” in the context of plea advisements is
consistent with the common, ordinary dictionary definition of the word.5 The rule
requiring advisement of direct consequences and not collateral consequences is a
judicially declared rule of state criminal procedure. (Gurule, at p. 634; Barella, supra, 20
Cal.4th at p. 266; Bunnell, supra, 13 Cal.3d at p. 605.)
Since victim restitution is a direct consequence, not a collateral consequence in the
plea advisement context, the Attorney General argues petitioner is not entitled to the
appointment of counsel to challenge a restitution order on appeal. As noted, a
consequence is direct if it “has „ “ „a definite, immediate and largely automatic effect on
the range of the defendant‟s punishment.‟ ” ‟ ” (Moore, supra, 69 Cal.App.4th at p. 630.)
Such consequences involve “ „penal‟ consequences [citations], which are „involved in the
criminal case itself.‟ ” (Ibid.) In our view, whether petitioner is entitled to the
appointment of counsel under rule 8.851, cannot reasonably be limited to collateral
consequences as defined in the plea advisement case law and exclude consequences
5 The following is a non-exclusive list of collateral consequences for which no
advisement need be given prior to defendant entering a guilty or no contest plea: the
conviction resulting from the plea may be used to enhance a sentence for a future
conviction (Gurule, supra, 28 Cal.4th at pp. 634-635 [plea to murder could be used to
support prior murder special circumstance in a future murder prosecution]; People v.
Bernal (1994) 22 Cal.App.4th 1455, 1457 [plea to a serious felony or felony that qualifies
for a prior prison term enhancement]); requirement that defendant participate in a sex
offender management program as a condition of probation pursuant to section 1203.067,
subdivision (b) (Dillard, supra, 8 Cal.App.5th at pp. 666-667); possibility that a guilty
plea might result in a revocation of probation and a prison sentence (People v. Martinez
(1975) 46 Cal.App.3d 736, 745; People v. Searcie (1974) 37 Cal.App.3d 204, 211); that
fewer conduct and work credits are available when a defendant pleads to a strike offense
(People v. Barella (1999) 20 Cal.4th 261, 262 (Barella)); that conviction related to
certain sex crimes could result in a finding that the defendant is a sexually violent
predator (Moore, supra, 69 Cal.App.4th at pp. 630-633).
8
deemed direct because they involve penal consequences involved in the case and have an
effect on the range of a defendant‟s punishment. Such a result would be absurd.
We note there is no indication that the Judicial Council intended to import the
“collateral consequences” doctrine from the plea advisement case law when drafting rule
8.851. Our only available direct insight into the Judicial Council‟s intent is an advisory
committee report recommending the adoption of the rule, which does not address the
meaning of the phrase either. (Judicial Council of Cal., Advisory Com. Rep., Appellate
Procedure: Rules and Forms for the Superior Court Appellate Divisions, Feb. 6, 2008,
pp. 41-42, at [as of August 9,
2017] (Advisory Committee Report).)6
While the Attorney General urges us to apply the dichotomy of “direct” and
“collateral consequences” from the plea advisement cases to prevent appointment of
counsel under rule 8.851, we look to how the term “collateral consequences” has been
used in the context of appeals and conclude the meaning of “collateral consequences”
more likely intended by the Judicial Council is illustrated in mootness cases involving
criminal appeals. For example, in People v. Valencia (2014) 226 Cal.App.4th 326, 329
(Valencia), the court held that under the circumstances of the case, “no prejudicial
collateral consequences would be ameliorated” by an appeal awarding defendant three
additional days of presentence custody credit; therefore, the appeal was deemed moot
even though the defendant had been entitled to the three days of credit. In People v.
Ellison (2003) 111 Cal.App.4th 1360, 1368-1369, the court stated: “A criminal case
6 The report did note a public comment recommending that the committee add a
definition for “significant adverse collateral consequences.” (Advisory Committee
Report, at pp. 375-376.) The committee did not indicate an intent to employ the
definition of collateral consequences relevant to plea advisement in response to that
comment. Rather, the committee response was that it would consider this
recommendation during the next committee year. (Id. at p. 374.) We can find no
indication in subsequent reports related to rule 8.851 that this ever occurred.
9
should not be considered moot where a defendant has completed a sentence where, as
here, the sentence may have „disadvantageous collateral consequences.‟ ” (Italics
added.) In Ellison, the defendant had been sentenced to prison after a probation violation
by a judge who did not have authority to do so under People v. Arbuckle (1978) 22
Cal.3d 749. (Ellison, at pp. 1366-1367.) The Ellison court rejected the People‟s
contention that the appeal was moot simply because the defendant had been released on
parole during the pendency of the appeal, noting that the parole period could potentially
extend beyond the original period of probation, defendant could be sent back to prison if
he violated parole and the conviction could be used as a future prior prison commitment
enhancement under section 667.5, subdivision (b). (Ellison, at p. 1369.) The court
concluded that in light of these “adverse collateral consequences,” the appeal could not
be considered moot. (Ibid.) In People v. DeLong (2002) 101 Cal.App.4th 482, the court
concluded that the defendant‟s appeal from a conviction after jury trial was not rendered
moot when her conviction was set aside after successfully completing a Proposition 36
drug treatment program, in part because she continued “to suffer disadvantageous and
prejudicial collateral consequences therefrom.” (DeLong, at p. 492.) The court observed
that under section 1210.1, subdivision (d)(2), the conviction prohibited the defendant
from legally possessing a firearm and she was still required to report the conviction under
certain circumstances when asked under section 1210.1, subdivision (d)(3).7 (DeLong, at
p. 492.)
7 In pertinent part, former section 1210.1, subdivision (d), in effect at the time provided
as follows: “(d) Dismissal of charges upon successful completion of drug treatment [¶]
(1) At any time after completion of drug treatment, a defendant may petition the
sentencing court for dismissal of the charges. If the court finds that the defendant
successfully completed drug treatment, and substantially complied with the conditions of
probation, the conviction on which the probation was based shall be set aside and the
court shall dismiss the indictment, complaint, or information against the defendant. In
addition, except as provided in paragraphs (2) and (3), both the arrest and the conviction
shall be deemed never to have occurred. Except as provided in paragraph (2) or (3), the
10
As was the case with the use of the word “collateral” in the plea advisement
context, the meaning of “collateral” as applied in the context of these mootness cases
discussing collateral consequences is consistent with the ordinary dictionary meaning of
the word. However, in our view, for the reasons we have stated, it is highly unlikely the
Judicial Council meant to import the meaning of collateral consequences from the plea
advisement context to a rule involving appeals. Instead, it seems likely that the meaning
of collateral consequences as used relative to the justiciability of appeals is the meaning
the Judicial Council intended in creating a standard by which to determine whether
counsel should be appointed to represent indigent criminal defendants on appeal in the
Appellate Division. This is so because there would be no point to appointing counsel
when there are no prejudicial consequences that could be ameliorated by the appeal. (See
Valencia, supra, 226 Cal.App.4th at p. 329 [holding that appeal was moot because “no
prejudicial collateral consequences would be ameliorated” by the appeal].) Here,
defendant shall thereafter be released from all penalties and disabilities resulting from the
offense of which he or she has been convicted. [¶] (2) Dismissal of an indictment,
complaint, or information pursuant to paragraph (1) does not permit a person to own,
possess, or have in his or her custody or control any firearm capable of being concealed
upon the person or prevent his or her conviction under Section 12021. [¶] (3) Except as
provided below, after an indictment, complaint, or information is dismissed pursuant to
paragraph (1), the defendant may indicate in response to any question concerning his or
her prior criminal record that he or she was not arrested or convicted for the offense.
Except as provided below, a record pertaining to an arrest or conviction resulting in
successful completion of a drug treatment program under this section may not, without
the defendant‟s consent, be used in any way that could result in the denial of any
employment, benefit, license, or certificate. [¶] Regardless of his or her successful
completion of drug treatment, the arrest and conviction on which the probation was based
may be recorded by the Department of Justice and disclosed in response to any peace
officer application request or any law enforcement inquiry. Dismissal of an information,
complaint, or indictment under this section does not relieve a defendant of the obligation
to disclose the arrest and conviction in response to any direct question contained in any
questionnaire or application for public office, for a position as a peace officer as defined
in Section 830, for licensure by any state or local agency, for contracting with the
California State Lottery, or for purposes of serving on a jury.” (Italics added.)
11
restitution must be seen as a prejudicial consequence that could be ameliorated on appeal
should defendant prevail, and the common dictionary meaning of “collateral” easily
applies to the consequence of having to make restitution.
While, as we have noted, we have no direct insight into the Judicial Council‟s
intended meaning, our construction of the rule is consistent with the Judicial Council
form used to request counsel. Form CR-133 (rev. Mar. 1, 2014), in plain English states
in the “Instructions” section: “The court is required to appoint a lawyer to represent you
on appeal only if you cannot afford to hire a lawyer and [¶] (1) your punishment
includes going to jail or paying a fine of more than $500 (including penalty and other
assessments), or [¶] (2) you are likely to suffer other significant harm as a result of being
convicted.” Item 4 of the form calls for a description of “any significant harm” the
defendant is likely to suffer as a result of the conviction. The use of the phrases “other
significant harm” and “any significant harm” demonstrates a broader meaning of the term
“collateral consequences” than advocated by the Attorney General and would seem to
include restitution orders. This view is further confirmed by item 3 on the form calling
for a description of the punishment the trial court gave the defendant. That section
includes boxes not only for “Restitution,” but also “Probation,” another consequence that
would be considered a direct consequence under the plea advisement body of law.
We note that there are additional consequences that result from a restitution order
which could be ameliorated by an appeal, and these consequences must be considered
“collateral” even under the Attorney General‟s conception of that term. An order to pay
restitution is deemed a money judgment and enforceable as if it were a civil judgment.
(§§ 1202.4, subd. (i), 1214, subd. (b).) Restitution orders from misdemeanor cases are
enforceable in the same manner as a money judgment in a limited civil case. (§ 1214,
subd. (c); Code Civ. Proc. § 582.5.) Section 1214, subdivision (b), gives victims “access
to all resources available under the law to enforce the restitution order,” including:
access to the defendant‟s financial records, information regarding the defendant‟s assets
12
and wage garnishment, and lien procedures.8 Any unpaid balance of restitution survives
the probationary term and thus the termination of probation does not terminate a
restitution order. (§ 1214; People v. Seymour (2015) 239 Cal.App.4th 1418, 1435.) The
remaining balance may still be enforced as a civil judgment. (§ 1203, subd. (j); People v.
Freidt (2013) 222 Cal.App.4th 16, 22; People v. Guillen (2013) 218 Cal.App.4th 975,
985.) Additionally, as petitioner argues, the restitution order would have adverse
consequences on his financial well-being and his credit. Finally, since the payment of
restitution was a condition of probation, the failure to pay could result in a violation of
probation. These adverse collateral consequences could be ameliorated by the appeal
challenging the restitution order.
Our analysis does not end with the definition of “collateral consequences.” Rule
8.851(a)(1)(A) requires that the adverse consequences a defendant is likely to suffer be
“significant.” As pertinent here, “significant” is defined as: “2. Having or likely to have
a major effect; important . . . 3. Fairly large in amount or quantity.” (American Heritage
Dict. (5th ed. 2016) p. 1630.) The amount of restitution ordered here was $1,571.32. We
have no trouble deeming that amount “significant” within the meaning of the rule
because it is over three times as much as the statutory threshold for fines of $500. (Rule
8.851(a)(1)(A).) Restitution is similar to (but not the same as) a fine in this context,
serving rehabilitative and deterrent purposes, in addition to compensating the victim.
(People v. Hume (2011) 196 Cal.App.4th 990, 995; People v. Harvest (2000) 84
Cal.App.4th 641, 650 [noting the deterrence function of restitution, but also noting
restitution is not a criminal penalty]; People v. Moser (1996) 50 Cal.App.4th 130, 135-
136 [noting that the direct relation between the harm and restitution gives restitution a
more precise deterrent effect than a traditional fine].) Additionally, the civil enforcement
8 Additionally, section 1214, subdivision (b), gives victims the right to receive on
request a certified copy of the restitution order and defendant‟s financial disclosure.
13
mechanisms available to the victim, the fact that a failure to pay could result in a
violation of probation, the fact that the obligation to pay extends beyond the period of
probation, and the impact on a criminal defendant‟s credit are all adverse consequences
that are appropriately characterized as “significant.” Accordingly, we hold that the
restitution order here is a significant consequence of petitioner‟s misdemeanor conviction
and encompassed by the phrase “significant adverse collateral consequences” under rule
8.851(a)(1)(A).
Consequently, the Appellate Division should have appointed counsel to represent
defendant on his appeal.
II. Incarceration and Fine
A. Additional Background
This matter is before us largely because of forms that were incorrectly filled out by
counsel who represented defendant in the trial court. The notice of appeal was made on
Judicial Council form CR-132 (rev. Jan. 1, 2016). In item 2, the section entitled,
“Judgment or Order You Are Appealing,” the box for “An order modifying the
conditions of probation” was not checked. Instead, only the box labeled, “Other action”
was checked and the following description of that action was provided by counsel: “The
restitution judgment which was entered at the conclusion of the restitution hearing on
October 31, 2016 in Department 15 at 8:30 a.m.”
The request for appointment of appellate counsel was filed on the same day as the
notice of appeal. As noted, item 3 of the form reads: “Describe the punishment the trial
court gave you/your client in this case.” Even though the form clearly instructs, “check
all that apply and fill in any required information,” the boxes for “Jail time,” “A fine,”
and “Probation” were not checked and the lines for the amounts of the fine and the length
of probation were left blank. Only the box for “Restitution” was checked, specifying the
amount of $1,571.32. As noted, in item 4, which requires a description of the “significant
harm” petitioner was “likely to suffer,” counsel wrote: “[Petitioner] faces serious
14
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.”
Based on the request submitted by counsel, the Appellate Division summarily
denied petitioner‟s request for appointed counsel in his appeal. Had the form been filled
out correctly, defendant would have been appointed counsel and the resources expended
to file, oppose, and address this writ petition would not have been expended. This is so
because as both petitioner and the People now note, even if petitioner was not entitled to
the appointment of appellate counsel on the basis of the restitution order, he is
nevertheless entitled to counsel under rule 8.851(a)(1)(A), because his sentence included
incarceration and a fine of more than $500. (See fn. 3, ante.)
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ issue directing
the respondent court to: (1) vacate its order denying petitioner‟s request for the
appointment of counsel to represent him on appeal, and (2) enter a new order granting
that request. The previously issued stay is vacated upon finality of the opinion.
MURRAY , J.
We concur:
RAYE , P.J.
NICHOLSON , J.
15