Wolf v. Superior Court of San Bernardino Cnty.
251 Cal. Rptr. 3d 418
| Cal. Ct. App. 5th | 2019Background
- Petitioner Hedy Wolf pled guilty to misdemeanor making harassing telephone calls (Pen. Code § 653m(a)) on May 14, 2018, received one year summary probation with a one-day jail condition and a three-year criminal protective order; she was unrepresented at that plea hearing.
- Petitioner moved to withdraw her plea (May 29), asserting lack of counsel and lack of understanding about probation and the protective order; the public defender was appointed June 29 and appeared at the July 2 hearing.
- The trial court denied the motion to withdraw the plea and reduced the protective order to one year from May 14, 2018.
- Petitioner appealed the denial to the superior court’s appellate division (notice filed Aug. 6) and requested appointment of appellate counsel (form filed Aug. 17).
- The appellate division denied appointment, reasoning denial of a motion to withdraw a plea is not a significant adverse collateral consequence; petitioner sought writ relief from the Court of Appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appellate division was required to appoint appellate counsel under Cal. Rules of Court, rule 8.851 | Wolf: Rule 8.851 mandates appointment because she was represented by appointed counsel in the trial court and was subject to incarceration via a probation condition | Real Party: Wolf was unrepresented at time of judgment; procedural defects in her request; appeal may be untimely/moot | Court: Appointment required — Wolf was subject to incarceration (one-day jail condition) and was represented by appointed counsel at the hearing on the motion she appealed, so rule 8.851 mandated appointment |
| Whether post-judgment appointment of counsel in the trial court disqualifies reliance on prior appointment for appellate appointment | Wolf: Post-judgment appointed counsel showed indigency was established and satisfies rule 8.851’s purpose | Real Party: Appointment post-judgment means she lacked appointed counsel in the trial court at judgment | Court: Post-judgment appointment suffices — prior appointment demonstrates indigency and avoids re-proving it on appeal |
| Whether procedural/form defects in Wolf’s request justified denial without examining the record | Wolf: She indicated she had appointed counsel and sought appointment on appeal; no need to re-establish indigency | Real Party: Wolf failed to use correct forms / provide indigency info, relieving appellate division of burden to search | Court: Form errors don’t justify denial; appellate division should have checked the trial record to confirm the two rule 8.851 criteria |
| Whether potential untimeliness of the appeal makes appointment moot | Wolf: Even if timeliness is contested, she needs counsel to respond to any dismissal motion | Real Party: Appeal may be untimely, so appointment is unnecessary | Court: Mootness claim rejected — timeliness should be resolved by motion to dismiss in appellate division; Wolf needs counsel to oppose such motion |
Key Cases Cited
- People v. Hernandez, 177 Cal.App.4th 1182 (2009) (applies de novo review where facts are undisputed)
- Mercury Interactive Corp. v. Klein, 158 Cal.App.4th 60 (2007) (interpretation of rules of court reviewed de novo)
- People v. Jenkins, 55 Cal.App.3d Supp. 55 (1976) (explaining efficiencies from allowing proof of prior appointment of counsel to establish indigency)