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Court of Appeal, Second District, Division 3, California.


Civ. 38761.

Decided: February 23, 1972

Michael Reiss, Modesta, and Gary Bellow, Manhattan Beach, for petitioner. No appearance for respondent. John D. Maharg, County Counsel, and Harold S. Vites, Deputy County Counsel, for real party in interest.

Joe Razo was convicted in the Los Angeles Municipal Court of disturbing a religious service, a misdemeanor (Pen.Code, § 302), filed a notice of appeal from the judgment, and moved the trial court for an order directing the preparation of a transcript of the trial proceedings at county expense for use in his appeal. The motion was considered on oral and documentary evidence and was denied ‘on the ground that indigency of the defendant has not been shown and that a settled statement can be prepared to provide an adequate and effective appellate review’; over Razo's objections the trial court then signed an engrossed statement on appeal.

Razo thereupon filed in the superior court a petition for writ of mandate to command the municipal court to order a transcript of the criminal proceedings at government expense, setting forth in his petition facts as to his financial status and inadequacies in the engrossed statement on appeal. A return and answer to the petition was filed by the named respondents; attached thereto as an exhibit is a document, signed by Razo's counsel, entitled ‘Appellants Proposed Statement on Appeal.’ The petition was considered by the superior court on the verified pleadings filed in each court, including the declarations attached thereto, the transcript of Razo's testimony at the hearings on his motion in the municipal court, and the engrossed statement on appeal. Thereafter, the superior court signed and filed findings of fact, conclusions of law and judgment ordering the issuance of a peremptory writ of mandate commanding the municipal court to order the preparation of a transcript of the trial proceedings, as requested in Razo's proposed settled statement on appeal, at county expense. The Municipal Court, respondent below, and the County of Los Angeles, the real party in interest, appeal from this judgment.

In rendering its judgment in favor of Razo, the superior court found that a transcript of the criminal trial proceedings is necessary to afford Razo an adequate and effective appellate review; that a settled statement on appeal would not afford him an adequate basis for appeal that the estimated cost of the transcript is $4,300; that Razo does not have sufficient income or resources to pay for the transcript at the present time or in the foreseeable future; that there was no substantial evidence to support the municipal court's finding that a settled statement on appeal would afford Razo an adequate basis for appellate review, or to support its finding that Razo had the financial ability to pay for such transcript; and that the municipal court breached its duty to Razo in refusing to order a free transcript of the trial proceedings.

Since we must reverse the judgment for reasons hereinafter mentioned, it is unnecessary for us to summarize the evidence on the issues of indigency and need for transcript. We set forth, however, the principles which must guide the courts below on reconsideration of the motion.

‘Where the appeal is from a misdemeanor conviction in a municipal court . . . a transcript must be given the defendant without charge if he is indigent and the transcript is necessary for an adequate and effective appellate review.’ (In re Henderson, 61 Cal.2d 541, 543, 39 Cal.Rptr. 373, 374, 393 P.2d 685, 686.)

But this principle does not mean that the indigent defendant is automatically entitled upon demand to a full transcript. As stated in Magezis v. Municipal Court, 3 Cal.3d 54, 57–58, 88 Cal.Rptr. 713, 714–715, 473 P.2d 353, 354–355: ‘There is no constitutional requirement . . . that a free transcript be provided in every case where a defendant cannot afford to purchase one. [Citation.] ‘Alternative methods of reporting proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides . . . might be [an] adequate substitut[e], equally as good as a transcript.’ [Citation.] The settled statement on appeal from a municipal court judgment (Cal. Rules of Court, rules 184–187) is the California equivalent of such an agreed-to statement of facts. ‘When such a statement can afford an adequate basis for review, no right of an appellant is infringed by denial of a full transcript. [Citations.]’ [¶] Since the United States Supreme Court has held that such alternatives are permissible, . . ., 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.'

These principles were reiterated by the United States Supreme Court in Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 414, 415, 30 L.Ed.2d 372, 378 in discussing the meaning of the constitutional requirement that the record must be of sufficient completeness to permit proper consideration of the indigent defendant's claims. ‘A ‘record of sufficient completeness' does not translate automatically into a complete verbatim transcript . . . [A] State ‘may find other means [than providing stenographic transcripts for] affording adequate and effective appellate review to indigent defendants.’ [Citation.] . . . ‘A statement of facts agreed to by both sides, a full narrative statement based perhaps . . . on the court reporter's untranscribed notes . . . might . . . be adequate substitutes, equally good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its fuends unnecessarily in such circumstances. . . . [T]he fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review.’ [¶] We emphasize, however, that the State must provide a full verbatim record where that is necessary to assure the indigent as effective an appeal as would be available to the defendant with resources to pay his own way.'

As to burden of proof, Magezis, supra, states that ‘[t]he petitioning defendant[s] must show in a reasonably particularized presentation the reasons why [he] cannot inform the reviewing court by a settled statement of the claimed inadequacies and errors.’ (3 Cal.3d at p. 58, 88 Cal.Rptr. at p. 59, 473 P.2d at p. 355.) This rule was modified by Mayer, supra, which states that ‘where the grounds of appeal . . . make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an ‘alternative’ will suffice for an effective appeal on those grounds.' (Italics added.) (404 U.S. at p. 195, 92 S.Ct. at p. 415, 30 L.Ed.2d at pp. 378–379.) On reconsideration of defendant's motion the trial court must apply the standard set forth in Mayer.

Returning to the instant case we initially point out that a peremptory writ of mandate may be issued only to compel the performance of a duty by the municipal court. (Code Civ.Proc., § 1085; see generally Witkin, Cal. Procedure (2d Ed. 1971) Extraordinary Writs, § 61, p. 3838 et seq.) This necessarily limits the superior court's review to the determination of the question as to whether the municipal court abused its discretion; the municipal court's decision can disturbed only if the superior court finds that there was a clear abuse of discretion. (Denham v. Superior Court, 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.)

The initial and perhaps decisive inquiry in the municipal court was the issue of indigency. Although that court found that Razo was not an indigent, it accommodated his counsel by offering the services of the court reporter, without expense, to read to Razo and his counsel any portion or all of the reporter's untranscribed notes. After several sessions Razo interrupted this course of events by filing his mandamus proceeding; the superior court thereafter assumed jurisdiction and ordered the preparation at public expense of a transcript of the proceedings as requested by Razo in his proposed settled statement on appeal. It does not appear that the superior court considered alternative methods for a transcript, as suggested by Mayer, supra, and Magezis, supra. Furthermore, we point out that if it be found that Razo is an indigent, the ruling on the need for an entire or partial transcript and the adequacy of alternative methods must be made by the trial court.

With respect to the indigency issue, we note that approximately 18 months have elapsed since it was considered by the municipal court. It is entirely possible that in the intervening period there have been significant changes in Razo's resources, income and obigations. If Razo still contends that he is an indigent and requires a transcript, the municipal court must reconsider his request in the light of his current financial status. (See concurring opinion by Justice Blackmun in Mayer, supra, 404 U.S. at p. 201, 92 S.Ct. at p. 418, 30 L.Ed.2d at p. 382.)

We note from the record that Gloria Chavez, although charged in a separate complaint, was tried with Razo and convicted of the identical offense. She also filed a notice of appeal and a motion for a free transcript. Thereafter she withdrew her application for a free transcript and the superior court stayed her appeal pending the outcome of the present proceedings. The record does not indicate whether she has obtained a reporter's transcript of her joint trial with Razo, or has the finances to pay for such transcript, or intends, after her stay is terminated, to renew her application for a free transcript. Although she is not directly involved in this appeal, it would seem appropriate for the superior court to terminate the stay order immediately, thereby making it necessary for her to indicate her need and ability to pay for a transcript of the trial proceedings. If each defendant continues to seek a free transcript, the municipal court could then consider in a joint proceeding the alternative methods suggested by Mayer, supra, and Magezis, supra.

In connection with further hearings on indigency, we mention a further question that might arise and which to our knowledge has not been considered in any reported decision. It would be presented if the municipal court determines that a settled statement on appeal would not afford Razo an adequate basis for review and in connection therewith finds that he has the ability to pay for a portion of the cost of the transcript but not for all portions necessary to permit the proper consideration of his grounds of appeal.

We do not believe that an appellant would be denied any constitutional right if a court, after finding that he has the ability to pay for only a portion of the cost of a transcript, orders him to pay such portion and orders the county to pay the balance. In order that there be no delay in the appellate process, the county, under such circumstances, should immediately furnish the necessary transcript and then take steps to recover from the appellant the amount which the court determined that appellant could pay.

In reversing the judgment we note that approximately two years have passed from the date of the judgment of conviction to date hereof during which time nothing has been accomplished towards appellate review. Such delay is not in the best interests of justice. This case presents an unusual problem and one that requires the utmost cooperation of counsel to solve. If in further proceedings Razo be found to be an indigent, counsel must make efforts in good faith, with minimum delay, to present Razo's grounds of appeal by one of the alternative methods, and then if they cannot agree, or if the settled statement would be inadequate, the municipal court should then order at county expense the preparation of only those portions of the transcript necessary to afford Razo an adequate basis of appellate review.

We call to the attention of counsel the remarks of Chief Justice Burger in his concurring opinion in Mayer, supra, (404 U.S. at p. 199, 92 S.Ct. at pp. 417–418, 30 L.Ed.2d at pp. 381–382):

‘I join the Court's opinion but add these observations chiefly to underscore that there are alternatives in the majority of cases to a full verbatim transcript of an entire trial. The references to what was said in Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), emphasize the duty of counsel as officers of the Court to seek only what is needed. In most cases, . . . the essential facts are not in dispute on appeal, or if there is dispute it centers on certain limited aspects of the case. One need only examine briefs in appeals to see that at the appellate stage the area of conflict on the facts is generally narrow.

‘Every busy court is plagued with excessive demands for free transcripts in criminal cases. [Footnote omitted.] My own experience over the years indicates that privately employed counsel are usually spartan in their demands because the client must pay his own costs. Unfortunately one consequence of the advent of the Criminal Justice Act and state counterparts is that when costs are paid by the public, counsel are sometimes profligate in their demands, or yield their professional judgment to the client's desires. This is more than a matter of costs. An affluent society ought not be miserly in support of justice, for economy is not an objective of the system; the real vice is the resulting delay in securing transcripts and hence determining the appeal. When excessive demands are made by an appellant in order to postpone the day when the appeal is finally determined, because, for example, he is at liberty pending appeal, [foornote omitted] a lawyer who cooperate[d] is guilty of unprofessional conduct.

‘I quite agree with Mr. Justice Brennan that ‘a full verbatim record where that is necessary . . .’ should be provided but judges and lawyers have a duty to avoid abuses that promote delays.'

The judgment is reversed with directions to the superior court to issue its mandate instructing the municipal court to take action consistent with this opinion.

SCHWEITZER, Associate Justice.

COBEY, Acting P. J., and ALLPORT, J., concur.