When the prosecution appeals from a suppression order in a misdemeanor case, the appellate division of the trial court cannot compel the public defender to represent the defendant in the proceedings and must appoint new counsel. Defendant Lopez’s motion to suppress evidence in a misdemeanor case was granted and the trial court dismissed the case in the interests of justice. The People appealed. The appellate division declined to appoint counsel on the basis that California Rules of Court, rule 8.851 allows the appellate division to appoint counsel only for an indigent defendant who has been “convicted of a misdemeanor.” The appellate division further took the position that, since Lopez was represented by the public defender in the trial court, the public defender must continue that representation into the appellate division. The public defender declined to represent Lopez in the appellate division, and pursued a writ to compel the appellate division to appoint other counsel. Ultimately, the California Supreme Court held that Lopez has a right to appointed counsel under the state constitution and remanded the proceedings to the Court of Appeal to determine whether the appellate division must appoint a new attorney to represent Lopez. (Gardner v. Appellate Division (2019) 6 Cal.5th 998.) Held: Writ of mandate granted. The duties of the public defender are prescribed by Government Code section 27706, and subdivision (a) addresses the public defender’s representation at the trial level and in appellate proceedings. After analyzing the statutory language and relevant case law, the Court of Appeal concluded that the public defender has discretion whether to represent a person on appeal, and the court is not authorized to compel the public defender to do so. The matter was remanded for the appellate division to appoint counsel other than the public defender to represent the Lopez in the People’s appeal.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/E066330A.PDF