Herick v. Municipal Court

Opinion

The question on this appeal from the superior court’s summary denial of a writ of mandate is whether this indigent appellant^[1] from a criminal conviction in a municipal court, is entitled, as a matter of right to a free transcript on appeal without having made any effort to procure a settled statement on appeal as prescribed by rules 184 through 187 of California Rules of Court.

After a lengthy trial, which was reported, the jury found defendant guilty on one of six counts. He was found not guilty on three counts. The jury was unable to agree on the remaining two. These were eventually dismissed under the provisions of section 1385 of the Penal Code and appellant was sentenced to 30 days in the county jail, one day suspended. He filed his notice of appeal and moved the municipal court to order the preparation of a reporter’s transcript at the county’s expense. The motion was denied. Although the court gave appellant a 15-day extension to file a proposed statement on appeal, none was filed. Instead he petitioned the superior court for a writ of mandate to compel the municipal court to provide him with a free reporter’s transcript. The petition was supported by appellant’s declaration concerning his indigency and a declaration of his attorney with respect to his need of a reporter’s transcript for adequate presentation

In this court it is contended that under applicable principles the facts alleged in the petition entitled appellant at least to the issuance of an alternative writ of mandate, to give him his day in court to prove the truth of the allegations in the petition. Alternatively it is argued that, as a matter of constitutional right, an indigent defendant who is convicted in the municipal court is entitled to a free transcript without first having attempted to obtain a settled statement. The claim is that a denial of such a transcript is a violation of the equal protection clause in that: (a) a rich defendant can order a transcript and have it available on his appeal as a matter of course without any requirement relating to an attempt to procure a settled statement; and (b) if a person is convicted in the superior court, he is entitled to a free transcript as a matter of right, although the difference between a misdemeanor conviction in that court and in the municipal court is unrelated to any rational fiscal objective. (Rinaldi v. Yeager, 384 U.S. 305 , 309-310 [ 16 L.Ed.2d 577 , 580-581, 86 S.Ct. 1497 ].)

The Summary Denial of the Petition

Appellant claims that his petition below adequately alleged facts which, if true, entitled him to a free transcript under prevailing law and that the summary denial was, therefore, error.

The most thorough discussion of the problem of free transcripts on misdemeanor appeals from the municipal court appears in Preston v. Municipal Court, 188 Cal.App.2d 76 , 81-88 [ 10 Cal.Rptr. 301 ]. In that case the court

One can read the passage just quoted as a holding that once indigency is established, the burden of producing evidence concerning the constitutional adequacy of a settled statement devolves on the People. This would, however, lead to an absurd result: It would mean that the People must perform the very task which the court rules impose on the appellant, for just as in the vast majority of cases the only practical way of proving that a settled statement is inadequate is to try to get one, there is really no way of proving the adequacy of a settled statement, other than by exactly the same method. We do not believe that the quoted passage in Henderson was intended to place the burden of initiating an attempt to procure a settled statement on the People. Rather, we feel that Henderson should be confined to its own peculiar facts: two and one-half years had elapsed since the trial and it was highly unlikely that the appellant would be represented by his trial counsel on the reinstated appeal. The court apparently simply felt that in such an unusual situation, it would be futile to order an attempt to obtain a settled statement.

We therefore think it to be the law that except under extraordinary circumstances an attempt to secure a settled statement is a prerequisite to the ripening of an indigent’s right to a free transcript. No such circumstances are shown in this record.^[5]

Counsel for appellant attempted to explain his failure to attempt to seek settlement of a statement on appeal by pointing to the length of the trial, the number of witnesses, the number of exhibits, the large number of legal issues and the difficulty of proceeding from memory and notation. Although counsel stated that he was “unable sufficiently to remember many of the relevant portions of the trial” he nevertheless regarded them as “crucial for presentation to the appellate court.”^[6] Counsel’s declared inability to proceed by way of a settled statement is just as compatible with a flawless trial as it is with one in which the court erred so much that counsel could not count the ways—not even one. If the declaration filed in this instance is sufficient to negative the necessity of a good faith attempt to obtain a settled statement, then that requirement simply does not exist as long as a lot of witnesses are called and many exhibits are admitted or rejected. We note that while the declaration refers to the “large number of legal issues” not a single one is specifically mentioned. Surely if an attorney gets through with a trial under the impression that a large number of legal issues will be involved in the appeal, we have the right to expect that he will at least list those few that come most readily to mind. When, however, counsel’s position is, in effect, that there was something wrong with the trial, but that he

Further, the records which the superior court was entitled to consider showed defense counsel to be exceptionally able. The court had before it a partial transcript of the municipal court hearing held in connection with the previous request for a free transcript to be used at the motion for new trial in which the trial court, very gently, expressed doubt that in view of counsel’s ability he needed such a transcript to argue that motion. At that hearing the trial court also made the remark quoted in the footnote.^[8] The superior court was entitled to consider that competent counsel, even in the heat of a criminal case, knowing of, though disagreeing with, the requirement of Green, could make brief notes of such rulings as might provide the basis for an appeal. Finally, the superior court could consider that, had the defense made some effort to serve and file a proposed statement on appeal, the municipal court would have held a hearing under California rule 187 for the purpose of settling the proposed statement and any proposed amendments filed pursuant to rule 185, and that at such hearing the court would undoubtedly have had the right to have the reporter read relevant portions of his notes. (Cf. Western States Constr. Co. v. Municipal Court, 38 Cal.2d 146 , 149 [ 238 P.2d 562 ]; Eisenberg v. Superior Court, 142 Cal.App.2d 12 , 19 [ 297 P.2d 803 ]; Keller v. Superior Court, 100 Cal.App.2d 231 , 235 [ 223 P.2d 309 ].)

We recognize that there may be cases which truly present the paradox which appellant claims to be involved here: that without a transcript the appellant in the criminal case cannot even take the first step leading to the preparation of a settled statement, which is the very step he has to take to get a transcript. With all respect, unless the court had to accept counsel’s ipse dixit on the point, the declaration filed below does not show this to be such a case.

We take cognizance of Williams v. Oklahoma City, 395 U.S. 458 [ 23 L.Ed.2d 440 , 89 S.Ct. 1818 ], decided after the briefs in this case were filed. There the United States Supreme Court applied the rule of Griffin v. Illinois, supra, 351 U.S. 12 to a conviction for what the Oklahoma Court of Crimi

Equal Protection

We now turn to the claim that for the two stated reasons any requirement that an indigent must first attempt to proceed by way of settled statement denies him the equal protection of the laws.

Unquestionably a defendant who can afford it can simply order a reporter’s transcript, while in most cases the indigent must make the attempt prescribed by Green. Certainly this discriminates, to some extent, against the indigent, but we are foreclosed by previous decisions of our own Supreme Court from holding that such discrimination is “invidious” within the meaning of Griffin. In People v. Hill, 67 Cal.2d 105 [ 60 Cal.Rptr. 234 , 429 P. 2d 586 ], the defendant on a felony appeal had attempted to obtain a transcript of counsels’ arguments which were not part of the normal record on appeal. (Cal. Rules of Court, rule 33.) He did not, however, show the materiality of the augmented record by stating the points on appeal on which he intended to rely. He simply claimed that he was entitled to the transcript without any such showing, because a rich man would have been. The court met the point as follows: “Although under California procedure some discrimination between indigent and nonindigent defendants does exist, we are of the view that it does not deny equal protection of the law. (Cf. People v. Chavez, 243 Cal.App.2d 761 , 767 [ 52 Cal.Rptr. 633 ].) While it is true that a nonindigent may purchase a complete transcript without giving reasons therefor, and while the indigent must give reasons, this discrimination is not invidious, because the indigent will be furnished all materials necessary for ‘adequate consideration of the errors assigned.’ (Draper v. Washington, 372 U.S. 487 , 497 [ 9 L.Ed.2d 899 , 906, 83 S.Ct. 774 ]; see also Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214 [ 2 L.Ed.2d 1269 , 78 S.Ct. 1061 ].) The appellant was present at his trial and should have some idea of what particular aspect of argument to the jury offended his sense of justice. (People v. Hagan, supra, 203

Less directly in point but nevertheless relevant is People v. Shipman, 62 Cal.2d 226 [ 42 Cal.Rptr. 1 , 397 P.2d 993 ]. There the court discussed the rule that in California we do not furnish counsel to indigents to aid them in preparing coram nobis petitions.^[10] The court said: “A state may, however, adopt reasonable standards to govern the right to counsel in coram nobis proceedings. These standards may preclude absolute equality to the indigent, but, as the United States Supreme Court pointed out in the Douglas case, absolute equality is not required; only ‘indivious. discrimination’ denies equal protection. (Douglas v. California, 372 U.S. 353 , 356-357 [ 83 S.Ct. 814 , 9 L.Ed.2d 811 , 814-815].) . . . In habeas corpus cases we require a convicted defendant to allege with particularity the facts upon which he would have a final judgment overturned and to disclose fully his reasons for any delay in the presentation of those facts. (In re Swain, 34 Cal.2d 300 , 304 [ 209 P.2d 793 ].) We then examine his allegations in the light of any matter of record pertaining to his case (see California Rules of Court, rule 60) to determine whether a hearing should be ordered. We recognize that these rules, applicable as well to petitions for coram nobis, place indigent petitioners in a less advantageous position than those with funds to retain counsel and employ investigators. It bears emphasis, however, that the ordinary processes of trial and appeal are presumed to result in valid adjudications. Unless we make the filing of adequately detailed factual allegations stating a prima facie case a condition to appointing counsel, there would be no alternative but to require the state to appoint counsel for every prisoner who asserts that there may be some possible ground for challenging his conviction. Neither the United States Constitution nor the California Constitution compels that alternative. . . .” (62 Cal.2d at p. 232.)

We find no denial of equal protection in the requirement that an in

Finally, appellant points to the fact that a defendant convicted of a misdemeanor in the superior court is entitled to a free transcript as a matter of right without any condition relating to a previous attempt to proceed by way of settled statement.

The question of classification is not as simple as the argument suggests. While it is perfectly true that a defendant may emerge from a superior court trial convicted of a misdemeanor and nothing else, that is possible only if that misdemeanor is either an offense necessarily included in a felony or properly joined with a felony under the rule of Kellett v. Superior Court, 63 Cal.2d 822 , 826-827 [ 48 Cal.Rptr. 366 , 409 P.2d 206 ]. Before such a trial can take place a felony charge must have passed muster before a grand jury or a magistrate and, if challenged under section 995 of the Penal Code, before a superior court judge. The fact that as things eventually turn out nothing but a misdemeanor conviction results, does not prove that a legislative classification which distinguishes between procedures applicable to defendants initially charged with a more serious crime and those not so charged, is unreasonable.

The judgment is affirmed.

Stephens, J., and Aiso, J., concurred.