JOY A. MAGEZIS еt al., Petitioners, v. THE MUNICIPAL COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; THE PEOPLE, Real Party in Interest.
S.F. No. 22713
In Bank.
Aug. 26, 1970.
3 Cal.3d 54
Paul N. Halvonik and Charles C. Marson for Petitioners.
No appearance for Respondent.
Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Derald E. Granberg and Karl S. Mayer, Deputy Attorneys General, for Real Party in Interest.
OPINION
McCOMB, J.—Petitioners seek a writ of mandate requiring respondent court to order a reporter‘s transcript of evidence and proceedings prepared at county expense for their use in appealing their convictions of loitering near a school where children normally congregate, a misdemeanor. (
Facts: Petitioners were prosecuted in respondent court for allegedly participating in a “street-play,” which the police deemed obscene. Following their convictions, eаch petitioner filed and served a notice of appeal and a statement on appeal in which notice was given that a reporter‘s transcript was to be filed. As grounds for appeal, petitioners (1) challengе the statute as unconstitutional, (2) allege error in the jury instructions, in that the judge went beyond the written instructions submitted by the parties, (3) charge that the People‘s closing argument contained prejudicial material, and (4) allege that the evidence was insufficient to support the verdicts.
There were also filed in respondent court in petitioners’ behalf a motion for preparation of a transcript at county expense, a declaration of indigency, and a more detailed request for transcript. In the latter document, executed in petitioners’ behalf by their attorney, the contents of the transcript requested are set forth, and allegations are made that the attorney did not have аdequate notes of conferences in chambers or motions to show what points were raised and arguments made and that the prosecution testimony
Attached to the request for transcript is an affidavit by petitioners’ attorney, reading, as follows: “PAUL N. HALVONIK declares that he is the attorney for [petitioners] and certifies thаt the materials requested above for the within appeal are needed fairly to present [petitioners‘] substantial legal points on appeal. The settled statement of these matters would be inadequate to protect the rights of [petitioners]. If my clients had the money I would order prepared, at their expense, the above portions of the transcript.”
Petitioners’ motion was denied by respondent court, and they then sought a writ of mandate from the San Francisco Superior Court to compel respondent court to order the reporter‘s transcript prepared at county expense. The superior court denied the petition, stating that “the denial of the motion for preparation of a reporter‘s transcript at the expense of the county was a proper exercise of the trial judge‘s discretion and that no attempt had been made to obtain a settled statement of facts for purposes of appeal.”
The People moved the same day in the appellate division of the superior court that petitioners’ appeal from their convictions be dismissed for failure to prosеcute the appeal with due diligence, since no transcript had been filed. The motion was argued and is presently under submission pending this court‘s decision herein.
Question: Would a requirement that an indigent misdemeanor defendant seek a sеttled statement on appeal before being entitled to a free transcript invidiously discriminate against such defendant, thereby denying him equal protection of the laws?
No. In both California and the federal system, indigent misdemeanor defendаnts may be entitled to a free transcript. (Williams v. Oklahoma City, 395 U.S. 458 [23 L.Ed.2d 440, 89 S.Ct. 1818]; In re Henderson, 61 Cal.2d 541, 543 [39 Cal.Rptr. 373, 393 P.2d 685]; Preston v. Municipal Court, 188 Cal.App.2d 76, 85-86 [10 Cal.Rptr. 301].) A free transcript must be given to such defendants when the transcript is “necessary for an adequate and effective appellate review.” (In re Henderson, supra, 61 Cal.2d at p. 543; accord, Roberts v. LaVallee, 389 U.S. 40, 42 [19 L.Ed.2d 41, 88 S.Ct. 194].)
There is no constitutional requirement, howevеr, that a free transcript be provided in every case where a defendant cannot afford to purchase one. (Griffin v. Illinois, 351 U.S. 12, 20 [100 L.Ed. 891, 899, 76 S.Ct. 585].) “Alternative methods of reporting proceedings are permissible if they
Since the United States Supreme Court has held that such alternatives are permissible, presumably to save states money, it cannot be unconstitutional to require that an indigent misdemeanor defendant attempt to agree to a settled statement. If the parties cannot agree, or if the settled statement would be inadequate, the defendant is entitled to receive a free transcript. Under the circumstances, there is no merit to petitioners’ contention that if an indigent misdemeanor defendant is required to seek a settled statement on appeal before being entitled to a free transcript, there would be invidious discrimination against him, resulting in a dеnial of equal protection of the laws.
It is not sufficient for indigent misdemeanor defendants to state in a general way that they need a transcript. Some matters, such as alleged unconstitutionality of the statute under which they were cоnvicted, would seem to lend themselves readily to settled statement for adequate presentation on appeal. Others, such as asserted insufficiency of the evidence or errors in admission or exclusion of evidence, may or may not require the use of a transcript. The petitioning defendants must show in a reasonably particularized presentation the reasons why they cannot inform the reviewing court by a settled statement of the claimed inadequaсies and errors. Petitioners have not done this.
The alternative writ of mandate is discharged, and a peremptory writ is denied.
Sullivan, Acting C. J., Mosk, J., Burke, J., and Devine, J.,* concurred.
TOBRINER, J.—I dissent. The majority hold that before an indigent misdemeanor defendant is entitled to a freе trial transcript he must demonstrate
It is “invidious discrimination,” forbidden by the equal protection clause of the Fourteenth Amendment, that the justice administered to an individual depend upon whether he is rich or poor. (Griffin v. Illinois (1956) 351 U.S. 12, 17 [100 L.Ed. 891, 898, 76 S.Ct. 585].) Although the United States Supreme Court has never held that states are required to establish avenues of appellate review, “once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” (Rinaldi v. Yeager (1966) 384 U.S. 305, 310 [16 L.Ed.2d 577, 581, 86 S.Ct. 1497].)
The Supreme Court has repeatedly struck down barriers to providing “the indigent [with] as adequate and effective an appellate review as that given appellants with funds. . . .” (Draper v. Washington (1963) 372 U.S. 487, 496 [9 L.Ed.2d 899, 906, 83 S.Ct. 774].) Particularly, the court has held that it is the duty of the state to afford each indigent appellant a free transcript of the criminal proceedings against him (Roberts v. LaVallee (1967) 389 U.S. 40, 42 [19 L.Ed.2d 41, 43-44, 88 S.Ct. 194]) or some adequate alternative basis for appellate reviеw. (Eskridge v. Washington State Board (1958) 357 U.S. 214, 216 [2 L.Ed.2d 1269, 1271, 78 S.Ct. 1061].) Most recently, this right to a free transcript or adequate substitute has been extended to indigent misdemeanor defendants. (Williams v. Oklahoma City (1969) 395 U.S. 458, 460 [23 L.Ed.2d 440, 442-443, 89 S.Ct. 1818].)
Although the adequacy of a given settled statement cannot be evaluated in the abstract, the United States Suprеme Court has clearly indicated that the state must “show that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of petitioners’ contеntions.” (Draper v. Washington, supra, 372 U.S. 487, 498 [9 L.Ed.2d 899, 907].) Then, “on the basis of such a showing by the State,” the trial court need only provide a settled statement or partial transcript. (372 U.S. at p. 498 [9 L.Ed.2d at p. 907].) The Supreme Court has thus clearly placed upon the state the burden of showing that there is an adequаte substitute for a full transcript of the criminal trial from which petitioners wish to appeal. (See Coppedge v. United States (1962) 369 U.S. 438, 447-448 [8 L.Ed.2d 21, 29-30, 82 S.Ct. 917].)
After the defendants requested designated portions of the transcript and explained why the partial transcript was necessary for appeal, the prosecution bore the burdеn of demonstrating that a settled statement would be adequate. The defendant‘s counsel told the court that he needed at least part of the transcript because he could not remember certain crucial portions оf the proceedings. Similar claims of inability to reconstruct the testimony at trial have been held to entitle the defendant to a free transcript. (Draper v. Washington, supra, 372 U.S. 487, 492 [9 L.Ed.2d 899, 903-904]; Preston v. Municipal Court (1961) 188 Cal.App.2d 76, 86 [10 Cal.Rptr. 301]; see Gardner v. California (1969) 393 U.S. 367, 369-370 [21 L.Ed.2d 601, 603-604, 89 S.Ct. 580].) Perhaps the prosecution could have demonstrated the existence of sоme adequate alternative to a transcript, but the prosecution did not even appear at the hearing upon defendants’ motion for a transcript.
The majority in essence seek to avoid the expenses of supрlying transcripts to financially disadvantaged defendants by shifting the burden to already overburdened lawyers required to serve with little or no compensation. (See Hardy v. United States (1963) 375 U.S. 277, 290 [11 L.Ed.2d 331, 340, 84 S.Ct. 424] (concurring opn. of Goldberg, J.).)
I cannot join in this misallocation of the scarce resources of legаl manpower available to indigent defendants. In the past few decades we have taken great steps toward insuring to the poor and underprivileged the same
Peters, J., concurred.