Hernandez

I.

Introduction

In this petition for writ of mandate we are asked to decide whether rule 185.5 of the California Rules of Court requires the appellate department of *1186 the superior court to conclusively presume a misdemeanor appellant is indigent for purposes of appointing appellate counsel if he was found indigent and represented by appointed counsel in the trial court. We find that rule 185.5 does not require such a conclusive presumption.

II.

Facts and Proceedings Below

Petitioner Jorge Zavala Hernandez was tried in municipal court on a misdemeanor charge of receiving stolen property. He was represented at trial by the county public defender. The court convicted Hernandez and later found him in violation of probation in another case. As a result, the court sentenced Hernandez to consecutive terms in county jail. The public defender filed a notice of appeal on Hernandez’s behalf, together with an application for appointment of counsel on appeal as required by the appellate department’s rule.

After reviewing Hernandez’s financial application, the appellate department found “an insufficient showing of indigency,” and denied Hernandez’s request for appointment of…

I respectfully dissent. In this petition for writ of mandate we were asked to decide whether rule 185.5 of the California Rules of Court requires the appellate department of the superior court to presume a misdemeanor appellant is indigent if he was found indigent and represented by appointed counsel in the trial court for purposes of appointing counsel. While I agree with the majority as to the nature of the presumption rule 185.5 1 creates, I regard the appellate department’s local rule or practice requiring defendants to submit a new affidavit of indigency to be inconsistent with that presumption. This local rule or practice actually shifts the burden of production of evidence to the party in whose favor the presumption runs under rule 185.5. Since the local rule or practice violates rule 185.5,1 would issue a writ directing the appellate department to appoint counsel for petitioner for his appeal.

To explain why I reach this conclusion requires some exploration into the background of rule 185.5 and the presumption it creates. This rule became effective on July 1, 1991. 2 The history of this new rule reveals its purpose is to ensure timely appointment of counsel to indigent…

James K. Hahn, City Attorney, Debbie Lew and Lisa S. Berger, Deputy City Attorneys, for Real Party in Interest.

OPINION

WOODS (Fred), J. —

In this petition for writ of mandate we are asked to decide whether rule 185.5 of the California Rules of Court requires the appellate department of the superior court to conclusively presume a misdemeanor appellant is indigent for purposes of appointing appellate counsel if he was found indigent and represented by appointed counsel in the trial court. We find that rule 185.5 does not require such a conclusive presumption.

Petitioner Jorge Zavala Hernandez was tried in municipal court on a misdemeanor charge of receiving stolen property. He was represented at trial by the county public defender. The court convicted Hernandez and later found him in violation of probation in another case. As a result, the court sentenced Hernandez to consecutive terms in county jail. The public defender filed a notice of appeal on Hernandez's behalf, together with an application for appointment of counsel on appeal as required by the appellate department's rule.

After reviewing Hernandez's financial application, the appellate department found "an…