Richards v. Townsend

• Decision Date: 16 September 1969
• Docket Number: No. 50260.,50260.
• Parties: Nancy Lee RICHARDS, Petitioner, v. Jackie TOWNSEND et al., Respondents.
• Court: U.S. District Court — Northern District of California

303 F. Supp. 793

Nancy Lee RICHARDS, Petitioner, v. Jackie TOWNSEND et al., Respondents.

No. 50260.

United States District Court N. D. California.

September 16, 1969.

John D. Nunes, Public Defender for Alameda County, Oakland, Cal., with Andre T. La Borde, appearing for petitioner.

Thomas C. Lynch, Atty. Gen. of Cal., San Francisco, Cal., Karl S. Mayer, Deputy Atty. Gen., appeared for respondents.

ORDER GRANTING RELIEF

WOLLENBERG, District Judge.

On October 30, 1967, petitioner was given three years probation for violations of California Penal Code, sections 148 (resisting or obstructing an officer) and 272 (contributing to the delinquency of a minor). During the trial of her case, petitioner was represented by retained counsel; she had also hired the services of a certified court reporter, since Alameda County does not, as a rule, provide official reporters for misdemeanor trials in its municipal courts.

At the conclusion of trial, petitioner found herself indigent, trial counsel withdrew from the case, and the court appointed counsel (the public defender) to represent petitioner. Being unable to pay for the transcript prepared by the retained reporter, petitioner attempted to secure same at court expense. Both trial and appellate courts denied the appropriate motions made by petitioner. The public defender who was appointed counsel also tried, in collaboration with the prosecuting attorney, the trial judge, and others, to draw up a settled statement in conformity with Cal. Rule of Court 184, but this attempt was unsuccessful and petitioner's appeal, when brought before the Superior Court of the State of California in and for the County of Alameda, was dismissed for "lack of records". A petition for hearing in the Supreme Court of the State of California was denied without comment. Petitioner now petitions this court for appropriate relief on the grounds that the failure of Alameda County to provide court reporters in municipal courts constitutes an arbitrary discrimination between residents of Alameda and those of other counties, and, particularly, that the failure to provide this indigent petitioner with a transcript at public expense is a denial of equal protection and due process of the laws. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955), Williams v. City of Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969).

At the outset, it must be affirmed that petitioner's probationary status is a sufficient form of "custody" under the terms of 28 U.S.C. § 2241. See Benson v. California, 328 F.2d 159 (9 Cir. 1964). Likewise, since petitioner was convicted of misdemeanors which can result in relatively severe penalties, her case should not be distinguished from Griffin, cit. supra, on the basis that Griffin should be applied only to felony convictions. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1967); Harvey v. Mississippi, 340 F.2d 263 (5th Cir. 1965); Preston v. Municipal Court, 188 Cal.App. 2d 76, 10 Cal.Rptr. 301 (1961).

The obligation imposed on the states by Griffin and analogous cases grows from the general maxim that "all people charged with crime must, so far as the law is concerned, `stand on an equality before the bar of justice in every American court'". Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1955). The states are under no constitutional obligation to provide machinery for criminal appeals, but if they do, such machinery must not be so administered as to discriminate against individual defendants on the basis of race, affluence, or other reasons unrelated to some "rational policy of criminal appeal." Id. at p. 22, 76 S.Ct. 585 (concurring opinion). Thus the indigent must be provided court appointed counsel on appeal, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1962); Similarly the state must provide transcripts or "other means of affording adequate and effective appellate review to indigent defendants." Griffin, cit. supra, 351 U.S. at p. 20, 76 S.Ct. at p. 591.

California provides for appeals in misdemeanor as well as felony cases; California is therefore bound to make such appeals "adequate and effective" for indigent defendants such as petitioner. An effective appeal certainly requires a transcript or other means of informing both court and attorney of events at trial. In the instant case, petitioner's attorney was especially burdened in that he was appointed after the trial had concluded. "When * * * new counsel represents the indigent on appeal, how can he faithfully discharge the obligation which the court has placed on him unless he can read the entire transcript?" Hardy v. United States, 375 U.S. 277, 279-280, 84 S.Ct. 424, 425-426, 11 L.Ed.2d 331 (1963). Thus it is not surprising that after making a bona fide attempt to draw up a settled statement, and after being refused funds for the transcript of the certified reporter, petitioner filed an appeal which was dismissed "for lack of records". How then does respondent claim that the obligations outlined in Griffin, Muller v. Municipal Court, 259 Cal.App.2d 177, 66 Cal.Rptr. 367 (1968), Green v. Superior Court, 191 Cal.App.2d 484, 12 Cal.Rptr. 796 (1961), etc., have been fulfilled by the State of California?

It might be said that since Alameda County generally supplies transcripts to neither affluent nor indigent defenders in misdemeanor cases, there is no discrimination against peti...