Filed 6/30/20
                             CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



 JACQUELYN WEBSTER,

          Petitioner,                               E074397

 v.                                                 (Super.Ct.Nos. ACRAS1900124 &
                                                     MSB17012610)
 THE SUPERIOR COURT OF SAN
 BERNARDINO COUNTY,                                 OPINION

          Respondent;

 THE PEOPLE,

          Real Party in Interest.




        ORIGINAL PROCEEDINGS: Petition for writ of mandate. Lynne M. Poncin,

Judge. Petition granted.

        G. Christopher Gardner, Public Defender, and Stephan J. Willms, Deputy Public

Defender for Petitioner.

        Robert L. Driessen for Respondent.

        No appearance for Real Party in Interest.



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                                    I. INTRODUCTION

       Petitioner, Jacquelyn Webster, was convicted by a jury of two misdemeanor

offenses. She was placed on summary probation for two years and ordered not to violate

any laws, complete 200 hours of community service, and pay a $235 fine. Petitioner

timely filed a notice of appeal and requested court-appointed counsel to represent her on

appeal. The respondent, San Bernardino Superior Court’s Appellate Division, denied her

request for appointed counsel on appeal. Petitioner now seeks a writ of mandate

directing the superior court’s appellate division to (1) vacate its order denying her request

for appointment of appellate counsel and (2) enter a new order granting her request. We

grant the writ petition.

                           II. FACTS & PROCEDURAL HISTORY

       On November 6, 2019, petitioner was convicted by a jury of one count of battery

against a peace officer (Penal Code,1 § 243, subd. (b)) and one count of resisting,

obstructing, or delaying a public officer (§148, subd. (a)(1)). Petitioner was placed on

summary probation for two years and ordered to not violate any laws, complete 200

hours of community service, and pay a $235 fine. Petitioner was represented by

appointed counsel during these trial court proceedings.

       Following sentencing, petitioner filed a notice of appeal and requested court-

appointed counsel to represent her on appeal. On December 9, 2019, respondent

summarily denied the request for court-appointed counsel. However, on December 16,


       1   Undesignated statutory references are to the Penal Code.

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2019, respondent invited petitioner to file a detailed justification explaining how she

might suffer significant adverse collateral consequences which would justify appointment

of counsel. Petitioner responded by stating she was entitled to appointment of counsel

pursuant to California Rules of Court, rule 8.851(a)(1)(A) and (a)(3) regardless of

whether she would suffer significant adverse collateral consequences. On December 24,

2019, respondent again denied petitioner’s request for counsel.

                                     III. DISCUSSION

       “Article I, section 15 of the California Constitution . . . guarantees a right to ‘the

assistance of counsel for the defendant’s defense’ in a ‘criminal cause.’ [Citation.] Much

like its federal counterpart, article I, section 15 has been understood to confer a right to

state-appointed counsel for indigent defendants. [Citations.]” (Gardner v. Appellate

Division of Superior Court (2019) 6 Cal.5th 998, 1003-1004.) “Rule 8.851 [of the

California Rules of Court2] sets forth the standards for appointment of counsel in

misdemeanor appeals.” (Harris v. Appellate Division of Superior Court (2017) 14

Cal.App.5th 142, 148 (Harris).) Specifically, Rule 8.851(a)(1) provides the appellate

division of the superior court must appoint appellate counsel for a defendant who has

been convicted of a misdemeanor if that defendant (1) is subject to incarceration or a fine

of more than $500 and (2) was represented by appointed counsel in the trial court or




       2 For ease of reference, we will refer to California Rules of Court, rule 8.851 as
Rule 8.851.


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establishes indigency.3 (Rule 8.851(a)(1); Wolf v. Appellate Division of Superior Court

(2019) 38 Cal.App.5th 699, 702 (Wolf).)

       Here, the parties do not dispute the underlying procedural history and do not

dispute that Rule 8.851 governs the appointment of counsel in petitioner’s case. Instead,

they dispute the interpretation of Rule 8.851. Specifically, petitioner argues she is

entitled to counsel despite being sentenced only to probation because she is threatened

with the prospect of incarceration if she violates probation.4 In contrast, respondent

contends that “being subject to probation alone does not satisfy the incarceration

requirement” for appointment of counsel and such an interpretation “goes against the

plain reading of the statute.”

       Where the facts are undisputed and the sole question before us is one of statutory

interpretation, we apply a de novo standard of review. (Wolf, supra, 38 Cal.App.5th at

p. 702; People v. Guerra (2016) 5 Cal.App.5th 961, 966.) “In interpreting the language

of the [Rules of Court], we apply traditional rules of statutory interpretation.

[Citations.] . . . [T]he primary goal when interpreting a statute or rule is to determine the

drafters’ intent in order to give effect to the rule’s purpose. [Citation.]” (Harris, supra,

14 Cal.App.5th at p. 148.) “In the first step of the interpretive process we look to the


       3   Rule 8.851 also provides for appointment of counsel where the defendant is
likely to suffer significant adverse collateral consequences as a result of the conviction.
(Rule 8.851(a)(1).) However, petitioner does not contend that this provision applies in
this case.

       4  Petitioner initially represented that she had been incarcerated for two days, with
credit for time served, but later conceded that was inaccurate.

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words of the statute themselves. . . . If the statutory language is clear and unambiguous,

our task is at an end, for there is no need for judicial construction.” (MacIsaac v. Waste

Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082-1083.)

       As applied here, respondent’s interpretation of Rule 8.851 to exclude all cases in

which a defendant is sentenced only to probation does not withstand scrutiny. Rule 8.851

on its face provides “[a] defendant is subject to incarceration or a fine if the incarceration

or fine is in a sentence, is a condition of probation, or may be ordered if the defendant

violates probation.” (Rule 8.851(a)(3), italics added.) Thus, contrary to respondent’s

interpretation of the rule, the fact that a defendant is sentenced only to probation is not

controlling. The plain language of the rule states that if incarceration may be ordered

upon a violation of probation, then a defendant is considered “subject to incarceration”

within the meaning of the rule.

       As petitioner correctly notes, her convictions for violation of section 243,

subdivision (b), and section 148, subdivision (a)(1), subject her to potential imprisonment

if she is found to later violate the terms of her probation. (§§ 1203.1, subd. (j), 1203.2,

subd. (c).)5 Accordingly, because incarceration may be ordered if petitioner violates

probation, petitioner falls within the definition of “subject to incarceration” under the




       5 Respondent does not contest the fact that petitioner may be subject to
incarceration if found in violation of the terms of her probation. In fact, respondent’s
brief completely ignores this fact, despite petitioner raising this point as a central
argument in her amended petition. Sections 243, subdivision (b), and 148 each carry up
to one year in the County Jail as set forth within their respective provisions.

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clear language of Rule 8.851. Petitioner was therefore entitled to appointment of

appellate counsel under Rule 8.851.

                                     IV. DISPOSITION

       Let a writ of mandate issue directing the Appellate Division of the Superior Court

of San Bernardino County to vacate its order denying petitioner’s request for a court-

appointed lawyer in her misdemeanor appeal and to enter an order granting petitioner’s

request for a court-appointed lawyer in her misdemeanor appeal.

       Petitioner is directed to prepare and have the writ of mandate issued, copies

served, and the original filed with the clerk of this court, together with proofs of service

on all parties.

       The stay issued on January 24, 2020, is hereby dissolved.

       CERTIFIED FOR PUBLICATION

                                                                 FIELDS
                                                                                  Acting P. J.
We concur:


SLOUGH
                           J.


MENETREZ
                           J.




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