In Re Apperson

VAN DYKE, P. J.

The writ of habeas corpus heretofore granted to petitioner must be discharged.

Petitioner was tried to a jury in the Justice Court of the Red Bluff Judicial District and was convicted of violations of the Vehicle Code as follows: Driving while under the influence of intoxicating liquor, failure to drive on the right side of the highway and failing to have a driver’s license in his possession. The court sentenced him to pay a fine in the total sum of $526 and to serve five days in the county jail. He was further required to surrender his driver’s license. Thereafter petitioner filed notice of appeal to the superior court. He filed a proposed statement on appeal; the district attorney filed a proposed amendment to petitioner’s statement on appeal. No reporter was present at the trial. At a duly noticed hearing, at which counsel for both parties were present, proceedings were taken towards settling the statement on appeal. At the conclusion of that hearing the court made the following order: “It appearing that it would be futile and impossible to continue further efforts to agree on the testimony and occurrences at the trial, the court informed counsel that it would assume responsibility for settling and engrossing the statement on appeal.” Thereafter, without further notice to petitioner or his counsel, the justice court caused to be filed in the superior court a certified statement on appeal. The appeal was presented to the superior court, which affirmed the judgment. It is petitioner’s contention here that in the certification and settlement of the record on appeal he was denied procedural due process of law. His contention is groundless.

Although conceding that upon due notice a hearing was had in the trial court looking to a settlement of the statement on

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appeal and that agreement was not reached at that hearing, petitioner contends that before the record could be settled and certified by the trial court he was entitled to further notice of the proposed settled record. In this petitioner is in error. The provisions governing the preparation of the record on appeal in criminal cases are contained in the “Rules on Appeal from Municipal Courts and Inferior Courts in Criminal Cases.” Rule 7 governs the settlement of the statement on appeal and provides that upon the filing of a proposed statement and any proposed amendments thereto “the [trial] judge shall forthwith fix a time for settlement of the statement . . . and cause notice thereof to be mailed, at least five days before the time fixed, to each party,.... The trial judge shall at the time fixed, or any other time to which the matter may be continued, settle the statement or transcript, or both, and the amendments proposed thereto, if any, correcting, altering, or rewriting such statement or transcript, or both, as may be necessary to make the same set forth fairly and truly the evidence and proceedings relating to the specified grounds of appeal or the matters set forth by the appellant in support thereof. ’ ’