Shuford v. Superior Court

Opinion

McCOMB,

Petitioner seeks a writ of prohibition to restrain respondent court from retrying him in a criminal prosecution until Orange County furnishes him a free transcript of his first trial, which ended with a hung jury. We have concluded that the writ should issue.

Facts:

Petitioner is charged with burglary, murder, and assault with a deadly weapon and further charged with the use of a firearm in violation of section 12022.5 of the Penal Code. He was represented at his first trial by a private attorney other than the one now representing him. Before petitioner’s present attorney accepted the case, he made an investigation of petitioner’s ability to pay legal fees. The attorney learned that petitioner was the plaintiff in a pending personal injury action, and he agreed to represent petitioner in the criminal case in exchange for a lien against any proceeds of the civil case. If it were not for this lien arrangement, petitioner would qualify for representation by the public defender.

Petitioner filed an affidavit of indigence in respondent court and moved for a free transcript of the first trial. In his affidavit, he alleged that the cost of the transcript was estimated to be $600. Petitioner made a showing that the district attorney had a transcript of the testimony of defense witnesses at the first trial, and he represented that a study of a transcript of the entire proceedings was necessary for a proper preparation of his defense on the retrial. Respondent court, however, denied petitioner’s motion. Petitioner thereupon filed the instant petition, and we issued an alternative writ of prohibition.

Petitioner has filed with this court an affidavit given by the Chief Deputy Public Defender of Orange County, in which it is averred that it has been the practice of the public defender’s office, in the case of defendants represented by that office in which a jury has not been able to reach a verdict in the first trial, to obtain a transcript of the evidence of the first trial, or

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relevant portions thereof, before commencing the second trial whenever the attorney believed it would be helpful in his representation of the defendant, and also to secure a transcript of the evidence taken at the first trial before commencing to represent any defendant who was represented by different counsel at the first trial.