McIntosh

INTRODUCTION

Robert Arthur McIntosh sought appointment of counsel to help him prosecute a petition for writ of habeas corpus in superior court in a non-

capital case. 1 The petition raised claims pursuant to Penal Code 2 section 745, subdivision (a), of the California Racial Justice Act (RJA). (Stats. 2020, ch. 317.) The trial court denied McIntosh’s request for counsel on the ground he had not met the prima facie showing that is required for issuance of an order to show cause (OSC). The appointment of counsel in RJA habeas proceedings is governed by section 1473, subdivision (e) (section 1473(e)). We hold the plain language of section 1473(e) imposes a duty on trial courts to consider whether indigent petitioners who request counsel, like McIntosh, are entitled to appointed counsel based on an assessment of the adequacy of the factual allegations in the habeas petition, not an assessment of the overall sufficiency of the prima facie showing that must be met to obtain an OSC. This is a distinction with a difference. The trial court here accordingly had a duty to assess McIntosh’s request for counsel that was distinct and independent of its duty to assess whether to issue an OSC.…