Colbert v. Municipal Court

Opinion

CALDECOTT, J. On January 10, 1972, the United States Supreme Court granted appellants’ petition for writ of certiorari, vacated this court’s judgment, and remanded the case to this court for further consideration in the light of Mayer v. City of Chicago, 404 U.S. 189 [30 L.Ed.2d 372, 92 S.Ct. 410].

This case was previously before this court (unpublished opinion 1 Civil No. 27924) at which time we affirmed the order of the superior court denying appellants’ petition for writ of mandate.

Appellants, following their conviction in the municipal court, had made a motion for a free transcript. The motion was denied by the municipal court. Appellants then filed a petition for writ of mandate in the superior court which was also denied. Appellants then appealed to= this court from the order denying the writ of mandate. Appellants had filed a “Statement of Issues to be Raised on Appeal” in the municipal court, but through inadvertence of counsel, the statement was not filed with the superior court. The statement was referred to by various documents before the superior court and during argument of the petition before that court. The record does not show, however, that the superior court judge was ever informed as to the nature of the issues on appeal. The superior court properly denied the petition for writ of mandate in accordance with the law of California in effect at that time.

The United States Supreme Court in Mayer v. City of Chicago, supra, changed the requirements necessary to obtain a free transcript. In that case, the court stated at page 195 [30 L.Ed.2d at pages 378-379], “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. Moreover, where the grounds of appeal, as in this case, make out a color-able 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.”

As we read the Mayer case, the indigent defendant is entitled to [500]a full verbatim record only when it is necessary to assure an effective appeal. The defendant thus has the initial burden of showing that the grounds of appeal make out a colorable need for a complete transcript. At the hearing before the superior court on the petition for writ of mandate, the appellants did not do this. Apparently at that time1 and as previously stated on appeal, they based their right to a free1 transcript on the complexity of the case, the number of witnesses called and the length of the trial, not on the grounds of appeal. Appellants app>arently still contend that the complexity of the trial and the number of witnesses require a transcript for an effective appeal and that these factors satisfy the colorable need requirement. This claim, is not supported by Mayer. Appellants’ right to a transcript must be based on the grounds of appeal.