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2021 California Rules of Court

Rule 8.851. Appointment of appellate counsel

(a) Standards for appointment

(1)  On application, the appellate division must appoint appellate counsel for a defendant who was represented by appointed counsel in the trial court or establishes indigency and who:

(A)  Was convicted of a misdemeanor and 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; or

(B)  Is charged with a misdemeanor and the appeal is a critical stage of the criminal process.

(2)  On application, the appellate division may appoint counsel for any other indigent defendant charged with or convicted of a misdemeanor.

(3)  For applications under (1)(A), 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.

(Subd (a) amended effective September 1, 2020.

(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 or is a party in an appeal described in (a)(1)(B), 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)  Within 15 court days after an application is filed in the trial court, the clerk must send it to the appellate division. A defendant may, however, apply directly to the appellate division for appointment of counsel at any time after the notice of appeal is filed.

(4)  The appellate division must grant or deny a defendant's application for appointment of counsel within 30 days after the application is filed.

(Subd (b) amended effective September 1, 2020; previously amended effective March 1, 2014.)

(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 amended effective September 1, 2020; adopted effective January 1, 2009; previously amended effective March 1, 2014.

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 defendant was not represented by the public defender or other appointed counsel in the trial court, the defendant must use Defendant's Financial Statement on Eligibility for Appointment of Counsel and Reimbursement and Record on Appeal at Public Expense (form CR-105) to show indigency. These forms are available at any courthouse or county law library or online at www.courts.ca.gov/forms.

Subdivision (a)(1)(B). In Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, the California Supreme Court addressed what constitutes a critical stage of the criminal process. The court provided the analysis for determining whether a defendant has a right to counsel in confrontational proceedings other than trial, and held that the pretrial prosecution appeal of an order granting the defendant's motion to suppress evidence was a critical stage of the process at which the defendant, who was represented by appointed counsel in the trial court, had a right to appointed counsel as a matter of state constitutional law.

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