Mowrer v. Appellate Department of Superior Court

California Court of Appeal Dec 13, 1990 No. B050964Published

Before: Stone (s.J.)

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Holding. Government Code section 27706 does not require a public defender to file a declaration of no merit to decline an appeal, nor does it grant courts the authority to compel the public defender to represent indigent misdemeanants on appeal.

Issues

Does Government Code section 27706 mandate that a public defender represent all indigent misdemeanants on appeal?
Does a public defender have a statutory duty to file a declaration of no merit when declining an appeal?
Does the appellate department have jurisdiction to order the public defender to represent an indigent defendant on appeal?

Disposition. reversed

Quotations verified verbatim against the opinion

“In the absence of statutory authorization, respondent appellate department had no jurisdiction to compel the public defender to provide representation on appeal to indigents convicted of misdemeanors.”

“Section 27706 vests the office of the county public defender with the broad discretion to choose which clients it wishes to represent on appeal.”

[266]

Opinion

STONE (S. J.), P. J.

Here we consider whether a county public defender is mandated by statute to provide representation to all indigent misdemeanants on appeal in the absence of a written declaration that the proposed appeal will not reasonably be expected to result in the reversal or modification of the defendant’s sentence. We hold that Government Code section 27706, subdivision (a)

does not obligate the public defender to file such a declaration, and shall grant a peremptory writ of mandate.

Background

Glen Mowrer, in his capacity as Santa Barbara County Public Defender, was appointed as defense counsel for Thomas Christopher Murphy in a criminal prosecution. Acting on the advice of his counsel, Mr. Murphy entered a plea of no contest to a misdemeanor charge of being in a public place under the influence of alcohol. (Pen. Code, § 647, subd. (f).) A notice of appeal on behalf of Mr. Murphy, in propria persona, was duly filed by the public defender. The notice of appeal contained the statement that the public defender declined to represent Mr. Murphy in his appeal.

On July 11, 1989, Criminal Defense Associates, a private contractor, was appointed to represent Mr. Murphy on appeal. On February 16, 1990, Criminal Defense Associates moved to vacate the appointment. On May 9, 1990, respondent superior court appellate department vacated the appointment of Criminal Defense Associates and appointed the Santa Barbara County Public Defender to represent Mr. Murphy on appeal. It ruled that the court would not “relieve the Public Defender of his statutory duty to prosecute appeals unless he affirmatively states that in his opinion the appeal will not result in a reversal or modification of judgment.” (S

ee People

Wende

(1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071].)

On May 30, 1990, the appellate department appointed the public defender as counsel in two other appeals, and issued orders that were similar to the one made in People v. Murphy. (People v. Lionel Garza Cantu [case No. 179793] and People v. Charles Poitras [case No. 178709].)

Mowrer v. Appellate Department of Superior Court

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STONE (S. J.), P. J.

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