Andrus

Larry Andrus is charged with misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). The municipal court denied his pretrial motion for a court reporter or other recording device, and the superior court declined his writ petition because he did not claim indigency. Andrus filed a timely notice of appeal on June 22, 1982.

We consider two questions; (1) Does repeal of the statutory right to appeal from an extraordinary writ proceeding in the superior court brought to challenge an action of the municipal court apply to appeals pending on the effective date of the legislation? (2) Is a defendant in a misdemeanor proceeding entitled to a state provided court reporter or other means of securing a verbatim record on request in the absence of proof of indigency?

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When the notice of appeal was filed, Andrus was unquestionably entitled to appeal as a matter of statutory right. However, Code of Civil Procedure section 904.1, the source of that right, was amended effective January 1, 1983. It now reads, “An appeal may be taken from a superior court in the following cases: (a) From a judgment, except ... (4) a judgment granting or denying a…

Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, William W. Bedsworth and J. Philip Ashey, Deputy District Attorneys, for Real Party in Interest and Respondent.

OPINION

CROSBY, J.

Larry Andrus is charged with misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)). The municipal court denied his pretrial motion for a court reporter or other recording device, and the superior court declined his writ petition because he did not claim indigency. Andrus filed a timely notice of appeal on June 22, 1982.

We consider two questions: (1) Does repeal of the statutory right to appeal from an extraordinary writ proceeding in the superior court brought to challenge an action of the municipal court apply to appeals pending on the effective date of the legislation? (2) Is a defendant in a misdemeanor proceeding entitled to a state provided court reporter or other means of securing a verbatim record on request in the absence of proof of indigency?

(1a) When the notice of appeal was filed, Andrus was unquestionably entitled to appeal as a matter of statutory right. However, Code of Civil Procedure section 904.1, the source of that…

The majority, in their quest to expose what they perceive to be the twisted reasoning of In re Armstrong (1981) 126 Cal.App.3d 565 [ 178 Cal.Rptr. 902 ], resort to their own distorted logic to reach a conclusion which neither comports with precedent nor satisfies due process. While I concur for the reasons stated by the majority in holding Code of Civil Procedure section 904.1 retroactive and thus dismiss this appeal, I would issue the peremptory writ commanding the municipal court to provide a court reporter at trial, without a showing of indigency, at state expense.

Armstrong correctly holds upon request, and without showing indigency, a verbatim record must be provided at state expense in misdemeanor prosecutions. This holding was a consequence of Armstrong’s inability to obtain a settled statement on appeal (Cal. Rules of Court, rule 187) which in turn resulted from the inability of the trial court, prosecution and defense to agree on the facts which led to Armstrong’s conviction. In essence, Armstrong acknowl *1057 edged a constitutionally adequate appeal includes the due process guarantee of an adequate appellate record. Armstrong found due process not satisfied by a…