People v. Smith

SHENK, J. This is an application for an order to direct the court reporter to prepare transcripts in the trial proceedings. The question is whether under the law a defendant appealing from a judgment of conviction is entitled to the reporter’s transcript at the expense of the state.

On November 12, 1948, in the Superior Court in Marin County, the defendant was convicted of a felony (violation of section 4573.5 of the Penal Code, unauthorized bringing into a state prison any drug including benzedrine for the use of prisoners). He was sentenced and placed on probation for [450]five years, the first year to he spent in the county jail. He appealed from the judgment of conviction and from an order denying his motion for a new trial. With his notice of appeal he requested, as an addition to the clerk’s record, a transcript of the proceedings on motions and all written instructions; and, as an addition to the reporter’s transcript, all instructions which could not be copied by the clerk, the opening and closing arguments of the district attorney, and the exhibits. (Rules on Appeal, rule 33(b), 22 Cal.2d 1, 23.) In the request he stated that on the appeal he relied on errors in the giving of instructions and in the refusal to give requested instructions, and on misconduct of the district attorney.

The trial judge denied the defendant the right to the reporter’s transcripts on the ground that the defendant had declined to take the pauper’s oath. The reporter refused to make any transcription without a court order or the payment of the fees prescribed by section 274 of the Code of Civil Procedure.

The defendant thereupon filed the present application for an order directing the reporter to prepare the normal transcript and the additional transcript pursuant to rules 33(b) and 35(b) of the Rules on Appeal. In support of the application he relies on section 274 of the Code of Civil Procedure, section 1247 of the Penal Code enacted in 1909 as amended and as subsequently incorporated in the Rules on Appeal, and on the recognition of the right to the requested transcripts without cost to him contained in In re Paiva, 31 Cal.2d 503 [190 P.2d 604].

The People, relying on Richards v. Superior Court, 145 Cal. 38 [78 P. 244], decided in 1904, and despite contrary opinions of the attorney general (Atty.Gen.Ops.N.S. 784, 1937; 8 Ops.Atty.Gen. 323, 1947; cf., 4 Ops.Atty.Gen. 258, 1944), contend that the expense of the reporter’s transcript on appeal falls on the defendant unless the trial court, exercising a discretion based on the defendant’s inability to pay, orders otherwise. No question is raised as to the propriety of the present proceeding for an order directed to the reporter.