Rule 8.851. Appointment of appellate counsel
(a) Standards for appointment
(1)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.
(2)On application, the appellate division may appoint counsel for any other indigent defendant convicted of a misdemeanor.
(3)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.
(b) Application; duties of trial counsel and clerk
(1)If defense trial counsel has reason to believe that the client is indigent and will file an appeal, counsel must prepare and file in the trial court an application to the appellate division for appointment of counsel.
(2)If the defendant was represented by appointed counsel in the trial court, the application must include trial counsel's declaration to that effect. If the defendant was not represented by appointed counsel in the trial court, the application must include a declaration of indigency in the form required by the Judicial Council.
(3)When the trial court receives an application, the clerk must promptly send it to the appellate division. A defendant may, however, apply directly to the appellate division for appointment of counsel at any time after filing the notice of appeal.
(c) Defendant found able to pay in trial court
(1)If a defendant was represented by appointed counsel in the trial court and was found able to pay all or part of the cost of counsel in proceedings under Penal Code section 987.8 or 987.81, the findings in those proceedings must be included in the record or, if the findings were made after the record is sent to the appellate division, must be sent as an augmentation of the record.
(2)In cases under (1), the appellate division may determine the defendant's ability to pay all or part of the cost of counsel on appeal, and if it finds the defendant able, may order the defendant to pay all or part of that cost.
Rule 8.851 adopted effective January 1, 2009.
Advisory Committee Comment
Request for Court-Appointed Lawyer in Misdemeanor Appeal (form CR-133) may be used to request that appellate counsel be appointed in a misdemeanor case. If the appellant was not represented by the public defender or other appointed counsel in the trial court, the appellant must use Defendant's Financial Statement on Eligibility for Appointment of Counsel and Reimbursement and Record on Appeal at Public Expense (form MC-210) to show indigency. These forms are available at any courthouse or county law library or online at www.courtinfo.ca.gov/forms.