Filed 11/21/17 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO PHYLLIS K. MORRIS, as Public Defender for the County of San Bernardino, E066330 Petitioner, (Super.Ct.Nos. CIVDS1610302 & v. ACRAS1600028) THE SUPERIOR COURT OF OPINION SAN BERNARDINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDINGS; petition for writ of mandate. Michael A. Knish, Annemarie G. Pace and Carlos M. Cabrera, Judges. Petition denied. Phyllis K. Morris, Public Defender, Stephan J. Willms, Deputy Public Defender, for Petitioner. Robert L. Driessen for Respondent. 1 No appearance for Real Party in Interest. California Rules of Court, rule 8.851(a) (rule 8.851), which applies in the appellate division of a superior court, only authorizes appointment of counsel on appeal for defendants who have been “convicted of a misdemeanor.” Consequently, it does not require the appellate division to appoint counsel for a defendant who is acting as the respondent on an appeal by the People from an order suppressing evidence under Penal Code section 1538.5. In this petition, Phyllis K. Morris, in her capacity as the Public Defender for the County of San Bernardino, argues the United States Constitution obligates respondent, the Superior Court of San Bernardino County, to appoint counsel for all indigent defendants in the appellate division. While we agree that a defendant acting as respondent in the appellate division would likely1 fare better with an attorney than without one, we stress that showing that something might be procedurally better is not the same as showing that the state is obligated to provide it. (See, e.g., Ross v. Moffitt (1974) 417 U.S. 600, 616 (Ross) [“[T]he fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required.”].) Petitioner has failed to show why appointment of counsel for respondents in the appellate 1 Though the absence of counsel is not always fatal to a claim on appeal; we note the litigant in the landmark case who caused the United States Supreme Court to hold that all indigent criminal defendants have the right to appointed counsel, was himself without counsel for the majority of that proceeding. (Gideon v. Wainwright (1963) 372 U.S. 335, 338 (Gideon).) 2 division, as much as it might conceivably benefit those respondents, is constitutionally mandated. Consequently, we deny the petition.2 FACTUAL AND PROCEDURAL BACKGROUND Petitioner’s office represented Ruth Zapata Lopez, a nonparty to this petition, in a case alleging she committed two misdemeanors by driving while under the influence of alcohol and/or drugs. (Veh. Code, § 23152, subds. (a), (b).) Acting on Lopez’s behalf, petitioner’s office successfully moved to suppress evidence supporting the People’s case. (Pen. Code, § 1538.5.) On March 14, 2016, both counts were dismissed in the interest of justice. The People filed a notice of appeal from the granting of the suppression motion on the same day. On May 11, 2016, a deputy public defender filed a request with the Appellate Division of the Superior Court of ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals