Am I entitled to court-appointed counsel at my Prop 47 hearing?

Petitioners who are eligible for relief are entitled to a court-appointed lawyer.

Generally speaking, indigent defendants are entitled to counsel at sentencing because it’s a “critical stage in the proceeding.” But whether petitioners and applicants seeking a Prop 47 reduction can obtain appointed counsel depends on where they are in the process.

  • Defendants litigating their eligibility for Prop 47 relief. Court of Appeal cases have ruled that court-appointed counsel is not required when defendants are attempting to establish their right to Prop 47 relief. For example, Sixth Amendment rights are not implicated when a defendant attempts to establish that the value of the merchandise taken in a commercial burglary was less than $950. (People v. Rivas–Colon (2015) 241 Cal.App.4th 444, 451–452; People v. Ortiz (2016) 243 Cal.App.4th 854, 862.) This defendant is not entitled to court-appointed counsel.
  • Defendants who are eligible for relief, who are facing resentencing. On the other hand, once defendants establish that they are entitled to relief, they get a full-blown resentencing, no different in any essential way than their initial sentencing. Therefore, the Sixth Amendment applies, and counsel must be appointed if the defendant cannot afford to hire a lawyer. Note that Prop 47 specifies that the defendant at resentencing cannot be given a sentence harsher than the one originally imposed. Still, the judge has the ability to entirely restructure the “sentencing package.” For this reason, counsel is needed. (People v. Rouse, No. B261503, 2016 WL 772546 (Cal. Ct. App. Feb. 29, 2016).)

Interestingly, the defendant in Rouse had waived his right to be present at the resentencing hearing, by saying so in writing when he filed his petition. No matter, said the court; he had a right to counsel, and the court was constitutionally bound to offer that assistance (which, of course, Mr. Rouse could have declined, but to pass muster, he would have had to do so explicitly).

It’s important to note that the Rouse decision applies only to resentencing of people who have not yet concluded their sentences. It does not apply to applications to reduce the convictions of persons who have completely finished their sentences. Undoubtedly, courts will eventually address this question too.

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