Lewis v. Superior Court CA5

Filed 8/20/21 Lewis v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

ROBIN LEWIS,

Petitioner, F082686 v. (Super. Ct. Nos. M20925618, THE SUPERIOR COURT OF FRESNO 0002948) COUNTY,

Respondent; OPINION THE PEOPLE,

Real Party in Interest.

THE COURT* ORIGINAL PROCEEDINGS; petition for writ of mandate. F. Brian Alvarez, Judge. Antoinette Taillac, Fresno County Public Defender, and Griffin Estes, for Petitioner. No appearance for Respondent. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Real Party in Interest. -ooOoo-

* Before Detjen, Acting P.J., Smith, J. and Snauffer, J.

On April 22, 2021, petitioner, Robin Lewis, filed a “Petition for Writ of Mandate,” challenging the superior court’s April 1, 2021 order denying appointment of additional counsel on appeal. Instead, the court required the Fresno County Public Defender’s Office to represent petitioner in her misdemeanor appeal before the Appellate Division of the Fresno County Superior Court. The superior court acknowledged petitioner was entitled to appointment of counsel on appeal under the California Constitution. However, under Government Code section 27706, a court cannot compel the public defender to represent a misdemeanor defendant in an appeal from a preconviction ruling, as is the case here. Writ relief is therefore warranted. FACTUAL AND PROCEDURAL HISTORY On December 22, 2020, a misdemeanor criminal complaint was filed in Fresno County Superior Court against petitioner. The complaint alleged two counts, possession of drug paraphernalia in violation of Health & Safety Code section 11364, and possession of a controlled substance in violation of Health & Safety Code section11377, subdivision (a). On February 4, 2021, petitioner was appointed representation by the Fresno County Public Defender’s Office and waived formal arraignment and the reading of her rights. Petitioner moved to suppress evidence under Penal Code section 1538.5. A hearing on the suppression motion was held on February 25, 2021, at which the judge denied the motion. Petitioner filed a notice of appeal from the denial of the suppression motion on March 26, 2021. The same day, petitioner filed a “Request for Court-Appointed Lawyer in Misdemeanor Appeal” using California Judicial Counsel Form CR-133. On April 1, 2021, the appellate division of the superior court issued an order denying the request for counsel. The court acknowledged petitioner, as an indigent defendant, was entitled to appointment of counsel on appeal under article I, section 15 of the California Constitution. But as to the discretion of public defenders to prosecute appeals set forth in