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. (Pen. Code, § 653g.)
Facts'. Petitioners were prosecuted in respondent court for allegedly participating in a “street-play,” which the police deemed obscene. Following their convictions, each 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) challenge 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 adequate notes of conferences in chambers or motions to show what points were raised and arguments made and that the prosecution testimony [57]must necessarily be transcribed, particularly in view of the fact that petitioners did not testify and were challenging the sufficiency of the evidence.
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 that 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 prosecute 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 settled 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 defendants 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, however, 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 [58]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 substitute], equally as good as a transcript.” (Draper v. Washington, 372 U.S. 487, 495 [9 L.Ed.2d 899, 905, 83 S.Ct. 774].) 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 (see Preston v. Municipal Court, 188 Cal.App.2d 76, 86 . . . Griffin v. Illinois, 351 U.S. 12, 20 . . .).” (Muller v. Municipal Court, 259 Cal.App.2d 177, 179 [66 Cal.Rptr. 367].)
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 denial 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 convicted, 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 inadequacies 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.
Assigned by the Chairman of the Judicial Council.