Preston v. Municipal Court of City and County of San Francisco

• Decision Date: 09 January 1961
• Citation: 10 Cal.Rptr. 301,188 Cal.App.2d 76
• Court: California Court of Appeals Court of Appeals
• Parties: Viola A. PRESTON, Petitioner and Appellant, v. MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO, State of California; Honorable Charles S. Peery, Judge Thereof, Presiding in Department 11; and Ivan L. Slavich, Clerk Thereof; and Secretary of Judges Thereof, Respondents. Civ. 18864.

Page 301

10 Cal.Rptr. 301

188 Cal.App.2d 76

Viola A. PRESTON, Petitioner and Appellant, v. MUNICIPAL COURT OF the CITY AND COUNTY OF SAN FRANCISCO, State of California; Honorable Charles S. Peery, Judge Thereof, Presiding in Department 11; and Ivan L. Slavich, Clerk Thereof; and Secretary of Judges Thereof, Respondents.

Civ. 18864.

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

Jan. 9, 1961.

As Modified on Denial of Rehearing Feb. 8, 1961.

Hearing Denied March 9, 1961.

A. Don Duncan, San Francisco, for appellant.

Stanley Mosk, Atty. Gen., Albert W. Harris, Jr., Arlo E. Smith, Deputy Attys. Gen., for respondents.

TOBRINER, Justice.

We face the single question here, whether an appellant is entitled to a reporter's transcript at the expense of the City and County of San Francisco on an appeal from a judgment of conviction for a misdemeanor in the municipal court. As we shall explain, we do not concur in appellant's contention that the statutes and decisions require that transcripts be furnished in all misdemeanor cases. On the other hand, since appellant has filed an affidavit in forma pauperis and the superior court apparently has accepted her contention that she could not safely prosecute the appeal without the transcript, we believe that under these special circumstances she would, upon proof of such facts, be entitled to the transcript at the expense of the City and County of San Francisco.

Upon conviction for petty theft in a criminal action in the Municipal Court of the City and County of San Francisco, appellant was granted probation upon condition of a suspended sentence to the county jail for six months, restitution of $200 and apayment of a fine of $100. Appellant appealed, giving notice in her statement on appeal that she intended to file a reporter's transcript of the proceedings, 'to be prepared at the expense of the City and County of San Francisco.' She filed a 'Notice of Motion for Order to Reporter to Prepare Transcript at Expense of City and County of San Francisco, supported by Affidavit of Defendant in Forma Pauperis.' Respondent municipal court denied the motion.

Appellant then petitioned the Superior Court of the City and County of San Francisco for a writ of mandate commanding the municipal court, the judge, and the clerk, to furnish to appellant, for use on appeal, a reporter's transcript of the trial and related proceedings, 'at the expense of the City and County of San Francisco, and without expense to appellant * * * .' The petition alleged that the evidence at the trial involved testimony by various witnesses about many checks and receipts; that it would be impossible for appellant's counsel to compose a statement on appeal based on his memory or notes; that appellant could not safely proceed with her appeal without the assistance of a reporter's transcript; that appellant was wholly without funds to pay for a transcript.

The superior court sustained, without leave to amend, respondent's demurrer to the petition, and denied the writ of peremptory mandate. In its judgment the superior court stated that it found appellant's allegations in the petition to be true, but that 'it is not true' that appellant 'is entitled to the preparation of a Reporter's Transcript to implement her said appeal * * * at the expense of the City and County of San Francisco * * *.'

We shall first consider appellant's contention that she is entitled to the transcript under the statutes of California; thereafter we shall analyze her claim to it as a pauper and as afforded under the State and Federal Constitutions.

The statutory provisions which grant a publicly supplied transcript to criminal defendants in the superiro court do not apply to such defendants in the municipal court. The opinion of Justice White in Hidalgo v. Municipal Court, 1954, 129 Cal.App.2d 244, 277 P.2d 36, 37, disposes of the exact issue before us, explaining that while 'there is no doubt' of the right of one convicted of a felony 'to a transcript of the evidence at the expense of the state,' (129 Cal.App.2d at page 245, 277 P.2d at page 37) section 274c of the Code of Civil Procedure in effect provides, as to municipal courts, that the presence of the reporter 'is dependent upon the discretion of the judge * * *.' 129 Cal.App.2d at page 246, 277 P.2d at page 38. If the judge orders a reporter, the matter of transcription depends upon the parties. Government Code section 69952 indicates 'a legislative intent to make such payment a charge against the county only in cases where the court specifically so directs * * *.' 129 P.2d at page 246, 277 P.2d at page 38.

People v. Smith, 1949, 34 Cal.2d 449, 211 P.2d 561, sets out the statutory history of the sections. As of the date of that case section 274 of the Code of Civil Procedure (now the above-mentioned Government Code section 69952) provided: '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 must be paid out of the county treasury on the order of the court * * *.' (Emphasis added.) In 1909 the Legislature added section 1247 to the Penal Code providing: 'Upon any appeal being taken from any judgment or order of the superior court * * * in any criminal proceedings, * * * the defendant or the district attorney when the people appeal, may within two days * * * designate what portion of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon, and ask the court to make an order for the transcription thereof. * * * If the court fails to make the order within one day after the application is presented, an order shall be deemed to be given and made for the portion of the notes requested in the application.' Stats.1909, c. 710, p. 1084; emphasis added. The Legislature in 1911 amended section 1247 (Stats.1911, c. 382, p. 692) which, again referring to 'an appeal being taken from any judgment or order of the superior court, * * * in any criminal action or proceeding' (page 692; emphasis added), provided: 'If the court fails to make the order within two days after the application if filed, the notes requested in the application shall be transcribed without such order.' (page 693.) Smith held that Penal Code section 1247 and the amendments setting out 'the requirement for a court order within the specified time and in the absence thereof the mandate that the reporter make the transcription as requested, operated to provide a transcript at state expense pursuant to section 274 of the Code of Civil Procedure.' People v. Smith, supra, 34 Cal.2d 449, 452, 211 P.2d 561, 562.

Respondents properly point out that '[n]o comparable legislation has been enacted with respect to municipal courts.' As a consequence, the decisions in People v. Smith, supra, 34 Cal.2d 449, 211 P.2d 561; In re Paiva, 1948, 31 Cal.2d 503, 190 P.2d 604; and Gross v. Superior Court, 1954, 42 Cal.2d 816, 270 P.2d 1025, which involve superior courts, do not control.

To overcome Hidalgo and the statutory history appellant apparently urges three positions which we now discuss. As we shall point out, we do not find them meritorious.

Appellant first presents a labored argument that Hidalgo was wrongly decided because the language of section 274c of the Code of Civil Procedure and section 69952 of the Government Code, the successor of section 274, Code of Civil Procedure, were substantially similar and must be treated in pari materia; that, when Smith was decided, section 274, Code of Civil Procedure, relating to superior courts, provided that in criminal cases 'in which the court specifically so directs" the fee "must be paid out of the county treasury"; that the language of Government Code section 69952, as of the date of Hidalgo, and upon which it rests, makes the same provision. Hidalgo, then, on the basis of Smith should have treated the problem in the same manner and allowed the transcript free to the defendant.

The argument overlooks the qualifying language of the amendments to section 1247 of the Penal Code, set out supra, which applied specifically to superior courts. The purpose of the amendments, according to Smith, was probably to correct the situation discussed in Richards v. Superior Court, 1904, 145 Cal. 38, 78 P. 244, a case which held that section 274, Code of Civil Procedure, unadorned by section 1247 of the Penal Code, did not provide for furnishing transcripts at public expense. Hence the presence of section 1247 of the Penal Code, plus the additional and clarifying enactments, destroys appellant's attempt to demolish Hidalgo because it did not follow Smith.

Pointing out that Code of Civil Procedure section 274c was amended in 1953 (Stats. 1953, c. 206, § 6, p. 1340) to include a reference to section 69952 of the Government Code, appellant argues, as a second position, that the former section thereby includes the language of Code of Civil Procedure section 274 upon which the cases of Paiva, Smith and Gross rested. Whatever significance the argument may have, it disintegrates in the removal of the reference to Government Code section 69952 by Statutes 1955, chapter 1424, section 1, page 2592. Appellant's argument that the Legislature dropped the reference to Government Code section 69952 because, in 1951, it had enacted language in Penal Code section 690 which covered the subject, cannot stand. The generalized language of the Penal Code section, providing that 'criminal actions and proceedings in all courts' be the same, does not refer to transcripts or provide for payment for them.

Thirdly, appellant relies upon Government Code section 74514 because it in turn refers back to Government Code section 69952. Thus Government Code section 74514 provides: 'In all cases where by law, the court may direct the payment of transcription fees out of the city and county treasury, such fees shall, upon order of the court, be paid from the general fund...