Filed 8/13/19

                           CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                   DIVISION TWO



HEDY WOLF,

        Petitioner,                                    E071318

v.                                                     (Super.Ct.Nos. CIVDS1823575 &
                                                       ACRAS1800106 & MSB1401789)
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,                                 OPINION

        Respondent;

THE PEOPLE,

        Real Party in Interest.



        ORIGINAL PROCEEDINGS; petition for extraordinary writ. Carlos M.

Cabrera, Judge. Writ granted.

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

Defender for Petitioner.

        Jason Anderson and Michael A. Ramos, District Attorneys, Brent J. Schultze,

Deputy District Attorney for Real Party in Interest.



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       Petitioner, Hedy Wolf, pled guilty to the misdemeanor offense of making

harassing telephone calls. (Pen. Code, § 653m, subd. (a).)1 The trial court (1) granted

Petitioner one year of summary probation with the condition she serve one day in jail in

lieu of paying fines; and (2) imposed a criminal protective order. Petitioner moved to

withdraw her plea. The trial court denied Petitioner’s motion. Petitioner appealed the

denial of her motion to the superior court’s appellate division and requested the

appointment of appellate counsel. The appellate division denied Petitioner’s request for

appointment of appellate counsel.

       Petitioner petitions this court for a writ of mandate directing the superior court’s

appellate division to (1) vacate its order denying Petitioner’s request for appointment of

appellate counsel, and (2) enter an order granting Petitioner’s request for appointment of

appellate counsel. We grant the writ petition.

                    FACTUAL AND PROCEDURAL HISTORY

       Petitioner was charged with the misdemeanor offense of making harassing

telephone calls. (§ 653m, subd. (a).) On May 14, 2018, Petitioner pled guilty to the

charge. The trial court (1) granted Petitioner one year of summary probation with the

condition she serve one day in jail; and (2) imposed a three-year criminal protective

order. Petitioner was not represented by counsel at the May 14 hearing.




       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.


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       On May 29, 2018, Petitioner moved to withdraw her plea. Petitioner asserted she

had not been represented by counsel and did not understand that the plea would result in

a three-year protective order and probation. Petitioner requested that she be able to

proceed to trial on the charge. On June 29, the trial court appointed the public

defender’s office to represent Petitioner. On July 2, the public defender’s office

accepted the appointment. On August 2, the trial court held a hearing on Petitioner’s

motion to withdraw her plea. Petitioner was represented by the public defender’s office.

The trial court denied the motion but modified the protective order to expire one year

from May 14, 2018.

       Petitioner appealed the denial of her motion to withdraw her plea. Petitioner’s

notice of appeal was filed in the appellate division on August 6, 2018. (Judicial Council

Form CR-132.) In the notice of appeal, in section 2 of the form, Petitioner wrote, “A

court appoint appeal atty is requested [sic].” In section 4 of the notice of appeal,

Petitioner marked the boxes to indicate (a) she was represented by the public defender

in the trial court, and (b) she was “asking the court to appoint a lawyer to represent [her]

in this appeal.”

       On August 17, Petitioner filed a request for a court-appointed attorney. (Judicial

Council Form CR-133.) On that form, petitioner again marked the box indicating she

was represented by a court-appointed attorney in the trial court. Petitioner also marked

a box indicating she had been granted probation.




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         On August 17, the appellate division denied Petitioner’s request for appointment

of counsel. The appellate division explained that counsel did not need to be appointed

because “[t]he denial of a motion to withdraw a plea is not a significant adverse

collateral consequence of the conviction.” Petitioner’s writ petition concerns the

appellate division’s order dated August 17, 2018.

                                         DISCUSSION

         Petitioner contends the superior court’s appellate division erred by denying her

request for appointment of appellate counsel.

         The facts are undisputed, therefore we apply the de novo standard of review.

(People v. Hernandez (2009) 177 Cal.App.4th 1182, 1187.) California Rules of Court,

rule 8.851(a)(1)2 provides: “On application, the appellate division must appoint

appellate counsel for a defendant convicted of a misdemeanor who: [¶] (A) Is subject

to incarceration or a fine of more than $500 (including penalty and other assessments),

or who is likely to suffer significant adverse collateral consequences as a result of the

conviction; and [¶] (B) Was represented by appointed counsel in the trial court or

establishes indigency.” “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).)

         A condition of Petitioner’s probation was that she serve one day in jail.

Therefore, Petitioner was subject to incarceration. (Rule 8.851(a)(1)&(3).)

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


                                                4
       At the hearing on the motion to withdraw her plea, Petitioner was represented by

appointed counsel. In the superior court’s appellate division, Petitioner is appealing the

trial court’s denial of her motion to withdraw her plea. Thus, Petitioner was represented

by appointed counsel at the hearing on the motion that is the subject of her appeal in the

appellate division. Therefore, Petitioner was “represented by appointed counsel in the

trial court.” (Rule 8.851(a)(2).)

       In sum, Petitioner was (1) subject to incarceration, and (2) represented by

appointed counsel in the trial court. Rule 8.851(a)(1) mandates that appellate counsel

be appointed when the foregoing two criteria are met. Therefore, the appellate division

was required to appoint appellate counsel for Petitioner. We conclude the appellate

division erred.

       Real Party in Interest contends (1) Petitioner was not represented by appointed

counsel at the time of judgment, therefore Petitioner was not represented by counsel in

the trial court; (2) Petitioner made procedural errors in her request for appointment of

counsel; and (3) Petitioner’s appeal is from the judgment and is untimely, therefore the

issue of appointment of counsel is moot.

       We address the assertion that Petitioner was not represented by counsel in the

trial court because she was unrepresented at the time of judgment. We apply the de

novo standard of review when interpreting a rule of court. (Mercury Interactive Corp.

v. Klein (2007) 158 Cal.App.4th 60, 81.)

       If a defendant “desires and is unable to employ counsel the court shall assign

counsel to defend him or her.” (§ 987, subd. (a).) “In order to assist the court in


                                             5
determining whether a defendant is able to employ counsel in any case, the court may

require a defendant to file a financial statement or other financial information under

penalty of perjury with the court or, in its discretion, order a defendant to appear before

a county officer designated by the court to make an inquiry into the ability of the

defendant to employ his or her own counsel. If a county officer is designated, the

county officer shall provide to the court a written recommendation and the reason or

reasons in support of the recommendation. The determination by the court shall be

made on the record.” (§ 987, subd. (c).)

       Rule 8.851(a)(1)(B) reads: “[T]he appellate division must appoint appellate

counsel for a defendant convicted of a misdemeanor who . . . [¶] . . . [¶] . . . Was

represented by appointed counsel in the trial court or establishes indigency.” One can

reasonably infer that proof of the defendant having appointed counsel in the trial court is

an option so that the defendant is not required to again go through the process of

establishing indigency upon filing an appeal in the appellate division. Using proof of a

prior appointment of counsel, rather than establishing indigency a second time in the

same case, helps “to provide means for relatively speedy and inexpensive appeals from

judgments and appealable orders in criminal cases.” (People v. Jenkins (1976) 55

Cal.App.3d Supp. 55, 60.)

       With the foregoing understanding of rule 8.851(a)(1)(B), it is of little

consequence whether a defendant had appointed counsel prior to a judgment or after a

judgment. The point of a defendant having appointed counsel in the trial court is that

the defendant established indigency and is not required to establish it a second time in


                                             6
the appellate division. Not having to go through a second process of establishing

indigency permits appeals to proceed in an efficient manner. Therefore, we are not

persuaded by Real Party in Interest’s assertion that Petitioner is not entitled to appointed

counsel on appeal because her appointed counsel was appointed postjudgment.

Petitioner established her indigency in the trial court and was appointed counsel, and

therefore was entitled to the appointment of counsel in the appellate division.

       Next, we address the assertion that Petitioner made procedural errors in her

request for appointment of appellate counsel. Real Party in Interest asserts that

Petitioner did not submit information regarding indigency. Rule 8.851(a)(1)(B) requires

the defendant (i) have been represented by appointed counsel in the trial court, or

(ii) establish indigency. As set forth ante, Petitioner was represented by appointed

counsel in the trial court, therefore, Petitioner was not required to again establish

indigency in the appellate division.

       Real Party in Interest contends Petitioner failed to use the proper forms to request

appointment of appellate counsel. Real Party in Interest contends Petitioner’s failure to

use the proper forms meant the appellate division was required to search the record to

determine if Petitioner was entitled to appointment of counsel, and the appellate

division was not required to conduct that search so it could properly deny Petitioner’s

request for appointment of counsel.

       The determination of whether Petitioner is entitled to the appointment of

appellate counsel required looking at two minute orders: (1) the minute order granting

Petitioner probation with the condition she serve one day in jail; and (2) the minute


                                             7
order reflecting Petitioner was represented by appointed counsel at the hearing on her

motion to withdraw her guilty plea. We are not persuaded that Petitioner’s alleged

failure to use the correct form(s) created a burden so great that the appellate division

needed to deny Petitioner’s request with prejudice. In sum, we find Real Party in

Interest’s assertion to be unpersuasive.

       We turn to the issue of the appointment of counsel being moot because

Petitioner’s appeal is allegedly untimely. It is not for this court to decide if Petitioner’s

appeal in the superior court’s appellate division is untimely. If Real Party in Interest

believes Petitioner’s appeal is untimely, then Real Party in Interest should direct a

motion to dismiss to the appellate division of the superior court. If Real Party in

Interest moves to dismiss Petitioner’s appeal due to it being untimely, then Petitioner

should be represented by counsel for purposes of responding to that motion. In other

words, the possibility that Real Party in Interest could prevail on a motion to dismiss

Petitioner’s appeal in the appellate division does not mean Petitioner should be denied

counsel.

                                      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. The

previously ordered stay is lifted.




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       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.

       CERTIFIED FOR PUBLICATION


                                                        MILLER
                                                                                Acting P. J.


We concur:


SLOUGH
                                  J.


RAPHAEL
                                  J.




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