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Appointed Counsel for Misdemeanant for People’s Appeal

Case Name: Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998
Case #: S246214
Last Updated: March 28, 2019

Is the Appellate Division of the Superior Court required to appoint counsel for an indigent defendant charged with a misdemeanor offense on an appeal by the prosecution?

Held: An indigent defendant respondent in a pretrial prosecution appeal is entitled to appointment of counsel. The trial court granted defendant’s motion to suppress evidence (Pen. Code, § 1538.5) in a misdemeanor case, and dismissed the underlying complaint. The People appealed to the appellate division of the trial court. The public defender asked the appellate division to appoint new counsel to represent defendant for the appeal. The appellate division concluded that a defendant respondent is not entitled to appointment of appellate counsel. The public defender filed a petition for writ of mandate in the appellate division asking the court to direct the superior court to appoint counsel for all indigent appellees in all misdemeanor criminal appeals. The appellate division denied the petition. Petitioner then sought a writ of mandate in the Court of Appeal, and the petition was ultimately denied. The California Supreme Court granted review. Held: Reversed and remanded. Although the parties had focused on the scope of the right to counsel under the Sixth Amendment, the court concluded California’s Constitution, which also affords a right to the assistance of counsel for the defendant’s defense in a criminal cause, was dispositive in this case. 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. Here, the court concluded that a pretrial prosecution appeal of a suppression order is a critical stage of the prosecution at which the defendant has a right to appointed counsel. Unlike the federal constitutional right in nonfelony cases, which is limited to cases where there is a risk of imprisonment, article I, section 15 of the California Constitution confers a right to counsel in all felony and misdemeanor proceedings?regardless of whether the defendant faces imprisonment. The matter was remanded to the Court of Appeal to determine whether the appellate division must appoint a new attorney to represent defendant or whether the public defender was obligated to continue to represent the defendant in the appeal. [Editor’s Note: Though not discussed in this opinion, People v. Bailey (1992) 9 Cal.App.4th 1252 concluded that there was an inherent conflict when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal.] This case was decided on 3/28/2019.

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