Opinion

Defendant appeals from the judgment entered after a jury convicted him of second degree murder. (Pen. Code, § 187.) In urging reversal, defendant asserts he was erroneously denied a free transcript of the testimony at a previous trial on the same charge. The claim is unsupported by the record. We will therefore affirm the judgment.

The judgment under review arose from the second trial of defendant on the same charge. The first trial (Feb. 27-Mar. 18, 1980) resulted in a mistrial when the jury was unable to reach a verdict. Retrial was set for May 12, 1980.

On March 19, 1980, defense counsel, the San Joaquin County Public Defender, moved “that the Court order a transcript of the first trial” at the court’s expense limited to the testimony of the prosecution witnesses. The prosecutor did not oppose the request, but suggested the People had an equal right to a transcript of testimony of defense wit nesses at the court’s expense. The court took the requests under submission and announced its ruling in open court the next day:

The public defender then indicated his budget contained an appropriation for transcript preparation but “there is not that much in that account.” The court again suggested the public defender apply to the board of supervisors for the necessary funds because “the motion has only to do with payment. I have not said the transcript was not required at all.” The court then offered that “if the Board of Supervisors denies your request for additional funds, then I think you should renew your motion again, ...” These proceedings took place on March 20, 1980. Retrial, set for May 12, actually commenced May 13, 1980.

No renewal of the request for transcript appears in the record nor does the record enlighten us as to whether or not counsel actually obtained and had available at trial a transcript of the requested testimony from the first trial.

An indigent defendant facing retrial has a right to a free transcript of the previous trial unless the prosecution can show an informal alternative substantially equivalent to a transcript is available. (People v. Hosner (1975) 15 Cal.3d 60, 69 [ 123 Cal.Rptr. 381 , 538 P.2d 1141 ].) Furthermore, “erroneous denial of an indigent defendant’s motion for a free transcript of a prior trial requires automatic reversal.” ( Hosner, supra, at p. 70 .)

Defendant contends that the trial court ruling of March 20 amounted to erroneous denial of a free transcript entitling him, per se, to a reversal. We do not so read the record. In those proceedings, almost eight weeks before the scheduled retrial, the trial court merely directed the public defender if possible to arrange payment for the transcript out of his own budget, augmented, if necessary, by a supplemental appropriation of county funds. From the record, it is clear to us that both the court and the public defender treated the motion as one to direct payment of the cost of transcript preparation from funds appropri ated for the court’s budget. The trial court’s ruling did no more than deny that request without prejudice to its renewal if the alternate source of public funding could not be arranged. In so ruling the court implicitly acknowledged defendant’s right to the requested transcripts at public expense.

There was no issue in the trial court over defendant’s right to a free transcript. Rather the issue involved the source of payment for the transcript as between two governmental entities both funded by the county. Addressing the latter issue, defendant cites Government Code section 69952 which provides that “[i]n criminal cases in which the court specifically so directs, the fee ... for a transcript ordered by the court to be made shall be paid out of the county treasury on the order of the court.” While Government Code section 69952 authorizes the court to direct payment from county funds, it does not preclude the court from first exploring an alternate method of public funding. Thus the trial court did. not abuse discretion eight weeks before the scheduled commencement of retrial in directing the public defender first to attempt to arrange payment for the transcript from his own budget.

Other than to emphasize that defendant’s right to a free transcript is paramount to the competing fiscal imperatives suggested by this record, there is no need for us to be drawn further into this internecine conflict because this record does not demonstrate that defendant’s paramount right has been violated. Although the defendant’s motion for court funding was denied almost eight weeks before scheduled retrial, defendant did not again seek the court’s assistance in securing a transcript despite the court’s express invitátion to do so if alternate measures were unsuccessful. From this fact and the failure of the record unambiguously to disclose whether or not at trial defendant did indeed have a transcript, we conclude either that (1) defendant secured a transcript for use at trial, or (2) counsel did not pursue the means available to secure a transcript either from neglect or from an informed tactical preference to litigate an issue rather than to obtain a transcript, and thus was without a transcript at trial. Of course, if counsel’s negligent failure to secure a transcript deprives a defendant of a crucial or potentially meritorious defense, defendant is not without a remedy. (People v. Pope (1979) 23 Cal.3d 412, 425 [ 152 Cal.Rptr. 732 , 590 P.2d 859 , 2 A.L.R.4th 1 ].)

Defendant further contends the trial court failed to allow appropriate conduct credit on his presentence custody time pursuant to People v. Sage (1980) 26 Cal.3d 498 [ 165 Cal.Rptr. 280 , 611 P.2d 874 ]. The record shows credit for 278 days pretrial custody and a “good time” award of 47 days. Full conduct credits would total 139 days (People v. McMillan (1980) 110 Cal.App.3d 682, 686 [ 167 Cal.Rptr. 924 ]). The transcript of the sentencing hearing reveals no dispute as to defendant’s entitlement, but neither does it show the court’s intention to award full credit. If the court intended to award full credit, the matter can be resolved on remand without further hearing simply by amending the abstract of judgment. If the court did not intend to award full credit, a new sentencing hearing limited to the question of appropriate conduct credits must be held. Any change in the number of days awarded must be reported to the Department of Corrections by certified copy of the amended abstract of judgment.

The cause is remanded for reconsideration of conduct credits due defendant. In all other respects, the judgment is affirmed.

Carr, J., and Sparks, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied April 1, 1982. Bird C. J., was of the opinion that the petition should be granted.

It does appear from defense counsel’s remarks at trial and from his reading the testimony of a defense witness from the first trial into the record that the defense had access to at least some of the reported testimony at the first trial.