Indigent respondent in misdemeanor appeal to the appellate division of the superior court is not entitled to appointed counsel. Petitioner Morris’ office, the Public Defender of San Bernardino County, represented Lopez in a misdemeanor driving under the influence of alcohol case. The public defender filed a successful motion to suppress evidence and Lopez’s case was dismissed. The prosecution appealed to the appellate division of the superior court. The public defender requested that counsel be appointed for Lopez. The court found Lopez ineligible for appointed counsel because California Rules of Court, rule 8.851(a)(1), only authorizes appointment of counsel for an indigent defendant convicted of a misdemeanor. The public defender petitioned for writ of mandate. Held: Denied. Rule 8.851(a)(1) mandates appointment of counsel for indigent defendants convicted of a misdemeanor, where the defendant is subject to incarceration, a fine of more than $500, or significant adverse collateral consequences of the conviction. The appellate division may appoint counsel for any other indigent defendant convicted of a misdemeanor. Because the language of the rule is clear, there is no need to resort to legislative history to interpret it. Even if the history and purpose of the rule were considered, there is no indication in the record that the rulemaking body intended to provide appointed counsel to any indigent misdemeanor defendant, and wording to that effect was removed from the proposed rule. The rule clearly does not require appointment of counsel in Lopez’s case.

Rule 8.851 does not violate the Sixth or Fourteenth Amendments to the United States Constitution. The Sixth Amendment provides that federal courts cannot deprive an indigent criminal defendant of her life or liberty without first providing appointed counsel or obtaining a waiver of counsel. However, the Sixth Amendment does not apply to appellate proceedings. (Martinez v. Court of Appeal (2000) 528 U.S. 152.) Thus, petitioner’s Sixth Amendment challenge to rule 8.851 fails because that right does not apply to respondents at the appellate level. However, a state that provides the right to appeal must make that right equally available to rich and poor to remain consistent with Fourteenth Amendment guarantees of due process and equal protection. A defendant’s risk of actual imprisonment marks the line at which counsel must be appointed for purposes of the Sixth Amendment and the due process clause allows a legislative body to limit the right to appointed counsel to those defendants who have been sentenced to actual imprisonment. Further, limiting the right to appointed counsel in the appellate division of the superior court to indigent defendants convicted of a misdemeanor is not an “unreasoned distinction” and therefore does not violate equal protection of the law.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E066330.PDF