Grimes v. Municipal Court

• Citation: 97 Cal.Rptr. 9,5 Cal.3d 643,488 P.2d 169
• Court: United States State Supreme Court (California)
• Decision Date: 03 September 1971
• Parties: , 488 P.2d 169 Odis GRIMES, Petitioner, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF ORANGE COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 29781. In Bank

Page 9

97 Cal.Rptr. 9

5 Cal.3d 643, 488 P.2d 169

Odis GRIMES, Petitioner, v. The MUNICIPAL COURT FOR the CENTRAL JUDICIAL DISTRICT OF ORANGE COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 29781.

Supreme Court of California,

In Bank.

Sept. 3, 1971.

Frank L. Williams, Jr., Public Defender, and James R. Goff, Deputy Public Defender, for petitioner.

Cecil Hicks, Dist. Atty., Michael R. Capizzi and Oretta D. Sears, Deputy Dist. Attys., for respondent and for real party in interest.

WRIGHT, Chief Justice.

Petitioner seeks a writ of mandate to compel respondent court to order a reporter's transcript of his trial prepared at county expense for use in appealing his conviction of refusing to disperse upon a lawful command (Pen.Code, § 416), a misdemeanor. We have concluded that petitioner is not entitled to a free transcript because he has not complied with the requirements set forth in our decision in Magezis v. Municipal Court (1970) 3 Cal.3d 54, 88 Cal.Rptr. 713, 473 P.2d 353.

Petitioner was arrested on April 16, 1969, and upon arraignment pleaded not guilty to the charge of violating Penal Code section 416. Trial by jury was set for June 10, but petitioner failed to appear and a bench warrant issued for his arrest. After being returned to the court and after numerous continuances at his request, petitioner ultimately waived a jury trial and was found guilty on January 13, 1970 upon trial by the court.

Notice of appeal was filed on January 22, and on January 28 petitioner's trial counsel was relieved and the public defender was appointed to represent him. A hearing for the purpose of arriving at a settled statement of facts was scheduled before respondent court near the end of February, but petitioner failed to appear. The record on appeal, without a settled statement of facts, was certified to the appellate department of the superior court on March 2, and on April 30 the appellate department relieved petitioner from default for failure to have filed a brief, reappointed the public defender to represent petitioner on appeal and ordered petitioner's trial attorney to cooperate with the public defender in preparing and filing a settled statement of facts. The appellate department remanded the case and directed the respondent court to accept the statement if filed within 10 days. On May 7 the respondent court denied petitioner's motion for the preparation of the trial transcript at county expense. On the following day the appellate department also denied the same motion but granted petitioner an extension of time within which to file a settled statement to May 20. A settled statement has never been filed and petitioner seeks a writ of mandate from this court directing respondent court to order the trial transcript prepared at county expense.

Petitioner's motion for the free transcript was made in the respondent court upon the grounds that petitioner was indigent and that his trial counsel was unable to assist in preparing a settled a statement. The motion was supported only by petitioner's declaration that he could not reconstruct the testimony of the witnesses at his trial, and by a declaration of the public defender that he had been 'unable to get a response to requests for assistance from Michael Gerbosi, (petitioner's) trial attorney, because of his present representation of another defendant being tried for Murder,' and that the public defender '(had) been told and (did) believe that Mr. Gerbosi (was) unable to reconstruct the testimony of the witnesses sufficient to prepare a record so that the sufficiency of the evidence of (petitioner's) guilt may be reviewed.' These declarations were patently insufficient to meet the requirements of Magezis.

In Magezis we held that before an indigent misdemeanant is entitled to a free transcript on appeal he must first attempt to reach agreement upon a settled statement of facts. The transcript will be provided only if the parties cannot agree or if the settled statement would be inadequate. The misdemeanant 'must show in a reasonably particularized presentation the reasons why (he) cannot inform the reviewing court by a settled statement of the claimed inadequacies and errors.' (Magezis v. Municipal Court, supra, 3 Cal.3d 54, 58, 88 Cal.Rptr. 713, 715, 473 P.2d 353, 355.) Petitioner in the instant case has not complied with Magezis because there is nothing in the declarations filed in the trial court which indicates that he had attempted to obtain agreement upon a settled statement. It is impossible to determine whether the parties cannot agree or whether a settled statement would be inadequate unless there has first been a real attempt at agreement.

Petitioner offered no explanation for his failure to contact either the trial judge or the prosecutor. In municipal courts where reporters are seldom present, recourse to the trial judge's notes is a generally accepted method by which a settled statement is successfully prepared. While petitioner in the instant case cannot be compelled to rely upon the notes of the trial judge and the prosecutor, the fact remains that petitioner is in no position to claim that those notes are inadequate or that he does not agree with them until he has at least attempted to contact the persons who compiled them.

The record reflects that the public defender also failed to contact a fellow deputy from the same office who represented a codefendant of petitioner at trial. There is a reasonable possibility that the notes and recollections of such deputy would have been useful in the preparation of a settled statement. Magezis places the burden on the appellant to contact the parties who were involved in the trial, and thereafter to demonstrate to the court why the notes and recollections of these parties would not be of any assistance in the preparation of a settled statement. Petitioner made no showing before the trial court that he has complied with these requirements.

The only person petitioner attempted to contact within the requirements of Magezis was his trial attorney. Petitioner states that he was unable to get a response from the attorney because of the attorney's involvement in another trial, and that in any event he was told that the attorney would be unable to reconstruct the testimony adduced at trial. If this statement is to be deemed a 'reasonably particularized presentation (of) the reasons why (he) cannot inform the reviewing court by a settled statement of the claimed inadequacies and errors,' then the requirements of Magezis would be rendered meaningless.

The public defender was appointed to represent petitioner on appeal on January 28, 1970, and his declaration before the trial court was not filed until May 7. He had more than three months to contact the trial attorney, and Magezis requires an explanation of his failure to do so. As previously stated, a hearing on the settled statement of facts was scheduled before the trial court near the end of February 1970. Petitioner neither appeared at the hearing nor communicated in any way with the court. He made no attempt to have a settled statement prepared and he did not ask for a transcript. If petitioner had truly intended to contact his trial attorney and to reach agreement on a settled statement, the minimum bona fide effort would have included his appearance at the hearing which was scheduled for that very purpose. Finally, on April 30 the appellate department issued an order requiring the trial attorney to cooperate with the public defender in preparing a settled statement. Petitioner has offered no explanation for his failure to seek the court's aid in compelling the assistance of his trial attorney.

Whether to grant a motion for a free transcript to an indigent misdemeanant is a question to be initially resolved by the trial court. It is evident that petitioner's declarations filed in the trial court did not comply with Magezis and that the denial of petitioner's request was therefore a proper exercise of the trial court's discretion.

The alternative writ of mandate is discharged, and a peremptory writ is denied.

McCOMB, BURKE and SULLIVAN, JJ., concur.

MOSK, Justice (dissenting).

I dissent.

The majority have fallen into unfortunate error on both of the issues before us. First, the rule of Magezis v. Municipal Court (1970) 3 Cal.3d 54, 88 Cal.Rptr. 713, 473 P.2d 353, should not apply to a case in which defendant has new counsel on appeal. Second, even if, arguendo, Magezis is apposite under such circumstances this petitioner has met the burden of showing he was unable to prepare a proposed settled statement.

I

The right to appeal is basic. Implicit in that right is the need for the most effective, not necessarily the most economical, presentation of the issues on appeal. In many instances, as this court indicated in Magezis, an appropriate record can be made by means of a settled statement. But it seems elementary that a transcript is indispensable when a defendant has new counsel on appeal, for the appellate counsel, who was not present at trial, lacks the knowledge to determine whether a settled statement will be an adequate substitute for a transcript.

In the instant case petitioner informed the public defender who took over representation on appeal that in his view the evidence was insufficient to justify conviction. Since petitioner is a layman he is, of course, unable to weigh the evidence with any degree of objectivity, and he cannot be expected to recognize whether other legal grounds for appeal exist, such as improper instructions, errors in the admission or exclusion of evidence, prejudicial misconduct of the prosecutor or the judge, or even incompetency of trial counsel. The attorney who represents a defendant on appeal must be made fully aware of the trial proceedings in order to responsibly discharge his duties. He cannot determine the grounds for an appeal until he is apprised of the prior proceedings in considerable...