Hidalgo v. Municipal Court of Santa Barbara Judicial District, Santa Barbara County

• Decision Date: 30 November 1954
• Citation: 129 Cal.App.2d 244,277 P.2d 36
• Parties: Refugio Hernandez HIDALGO, also known as Refugio Hernandez, Respondent, v. The MUNICIPAL COURT OF the SANTA BARBARA JUDICIAL DISTRICT, COUNTY OF SANTA BARBARA, State of California, Frank P. Kearney, Judge of said Municipal Court, John D. Hossack, Official Court Reporter of said Municipal Court, Appellants. Civ. 20329.
• Court: California Court of Appeals Court of Appeals

Page 36

277 P.2d 36

129 Cal.App.2d 244

Refugio Hernandez HIDALGO, also known as Refugio Hernandez, Respondent, v. The MUNICIPAL COURT OF the SANTA BARBARA JUDICIAL DISTRICT, COUNTY OF SANTA BARBARA, State of California, Frank P. Kearney, Judge of said Municipal Court, John D. Hossack, Official Court Reporter of said Municipal Court, Appellants.

Civ. 20329.

District Court of Appeal, Second District, Division 1, California.

Nov. 30, 1954.

Hearing Denied Jan. 26, 1955.

Vern B. Thomas, Dist. Atty., Albert W. Meloling, Deputy Dist. Atty., Santa Barbara, for appellants.

W. P. Butcher, James M. DeLoreto, Santa Barbara, for respondent.

WHITE, Presiding Justice.

This is an appeal from a judgment of the Superior Court of Santa Barbara County, directing the issuance of a peremptory writ of mandate commanding the Municipal Court of Santa Barbara Judicial District, Honorable Frank P. Kearney, Judge of said court, and John D. Hossack, official reporter thereof, to prepare a clerk's and reporter's transcript on appeal in a certain action entitled, 'People of the State of California, Plaintiff vs. Refugio Hernandez Hidalgo, also known as Refugio Hernandez, Defendant.'

The question presented is whether, under the law, a defendant appealing from a judgment of conviction in the municipal court is entitled to the clerk's and reporter's transcript at the expense of the county in which said court is situated.

On January 21, 1954, in the above-named municipal court, respondent herein was found guilty on three counts of petty theft, a misdemeanor. At the commencement of the trial the judge of said court duly appointed appellant John D. Hossack to take down in shorthand the proceedings, evidence, arguments and testimony received at said trial.

From the aforesaid judgment of conviction respondent duly perfected her appeal to the Superior Court of Santa Barbara County and with her notice of appeal, requested a clerk's and reporter's transcript of the proceedings. Such request was denied by the judge of the municipal court on the ground that the appellant in said action should bear the costs of said transcripts on appeal. Thereupon, appellant sought and secured from the Superior Court in and for the County of Santa Barbara a peremptory writ of mandate. From the judgment directing the issuance of said writ this appeal was taken.

Had respondent herein been convicted in the Superior Court of a felony there is no doubt of her right to a transcript of the evidence at the expense of the state, People v. Smith, 34 Cal.2d 449, 211 P.2d 561. Appellants herein earnestly contend that the statutes and rules on appeal applicable to appeals in felony cases are not controlling in appeals taken from a misdemeanor conviction in a municipal or other inferior court. The question here presented is one of first impression and must depend for solution upon a construction of the statutes and rules on appeal promulgated by the Judicial Council pursuant to the rule-making power vested in it by the Constitution in 1927, Const. Art. VI, § 1a, adopted in 1926, Stats. 1927, p. 1048.

Section 1247k of the Penal Code confers upon the Judicial Council: '* * * the power to prescribe by rules for the practice and procedure on appeal, and for the time and manner in which the records on such appeals shall be made up and filed, in all criminal cases in all courts of this State. * * *'

Section 274c of the Code of Civil Procedure provides for the appointment of reporters in municipal courts and with reference to their duties the section provides in part that, 'Such reporters, or any one of them, must, at the request of either party or of the court in a civil proceeding, or on the order of the court in a criminal action or proceeding, take down in shorthand all the testimony, the objections made, the rulings of the court, the exceptions taken, all arraignments, pleas and sentences of defendants in criminal cases, the arguments of the prosecuting attorney to the jury, and all statements and remarks made and oral instructions given by the judge; and if directed by the court, or requested by either party, must, within such reasonable time after the trial of such case as the court may designate, write out the same, or such specific portions thereof as may be requested, in plain and legible longhand, or by typewriter, or other printing machine, and certify to the same as being correctly reported and transcribed, and when directed by the court, file the same with the clerk of the court.' (Emphasis added.)

With reference to the payment of reporter's fees we find in Government Code, section 69952, the following language: 'In criminal cases in which the court specifically so directs, the fee for reporting and for a transcript ordered by the court to be made shall be paid out of the county treasury on the order of the court, * * *.' (Emphasis added.)

From a reading of section 274c of the Code of Civil Procedure, it is manifest that the presence of an official court reporter in a criminal proceeding in the municipal court is dependent upon the discretion of the judge thereof. And should the judge order the presence of a reporter, the matter of transcribing the proceedings had during such a proceeding is dependent upon the request of the court or of either party to the action. With reference to payment of the reporter for such transcription, Government Code section 69952 would seem to indicate a legislative intent to make such payment a charge against the county only in cases where the court specifically so directs that such transcript be made.

In the cases of People v. Smith, supra, and In re Paiva, 31 Cal.2d 503, 190 P.2d 604, cited by both appellants and respondent herein, the Supreme Court was concerned with appeals from felony convictions which involved an interpretation of section 274 of the Code of Civil Procedure. That this section is applicable to appeals from the superior court is made manifest by the fact that the legislature adopted section 274c of the same code governing the appointment, duties and fees for reporters in municipal courts, and the answer to the question here presented to us must depend, among other...