People v. Scott

Opinion

Defendant was charged by information with two counts of selling marijuana (Health & Saf. Code, § 11531) and one count of

Defendant’s trial commenced May 6, 1969. All evidence was presented, and the cause was argued on that date. The jurors were instructed and rendered their verdict the following day. Defendant was placed on probation May 28, 1969. Defendant’s notice of appeal was received by the Clerk of the Court of Appeal on December 10, 1969. Pursuant to rule 31a of the California Rules of Court it was deemed timely filed. Thereafter a clerk’s transcript was duly prepared as part of the record on appeal. A partial reporter’s transcript covering the proceedings of May 7 and 28, 1969, was also prepared, together with an affidavit by the court reporter stating that she had been unable to locate her notes for May 6, 1969, despite a thorough and diligent search for them. Upon being advised of the unavailability of these notes, this court ordered that the superior court should cause a settled or agreed statement covering the May 6, 1969, proceedings to be prepared and filed as part of the record on appeal. Judge Herbert V. Walker, who had presided at the trial but who was by then retired from the superior court bench, agreed to accept an appointment for the month of April 1971 to help settle the record on appeal. No settled or agreed statement was arrived at during the term of Judge Walker’s appointment, apparently because appointed counsel on appeal was worried about jeopardizing defendant’s position by participating in proceedings which would produce such a statement. After Judge Walker’s appointment had terminated, and in order to avoid further imposition upon Judge Walker’s good offices, appointed counsel entered into what is entitled on its face an “Agreed Statement on Appeal Pursuant to Rules 6 and 36(a).”

The statement was arrived at on the basis of consultation by defendant’s appointed counsel on appeal with defendant’s trial counsel and with the deputy district attorney who tried the case. Counsel on appeal also reviewed the preliminary hearing transcript as well as other available court documents before agreeing to the statement. Defense counsel, however, treats the statement as the equivalent of a settled statement rather than an agreed statement. Indeed the document contains within its terms a proviso that the statement does not prejudice defendant’s right to challenge the constitutionality of the procedure for obtaining a settled statement on appeal under rules 7 and 36(b) of the California Rules of Court. We think it clear that counsel’s entering into the statement was tantamount to a stipulation that this was the statement that would have been settled by Judge Walker had he been reappointed for that purpose. We therefore treat the statement as a settled statement for purposes of this appeal.

On November 8, 1968, Bosse and Tony were again seated in Bosse’s car on Bonsallo Avenue. They saw defendant. Tony called him over and asked if he could get Bosse a “couple of rolls of whites.” Bosse understood this to mean a foil-wrapped roll of five to ten amphetamine tablets. Defendant entered a nearby apartment house. He returned about five minutes later and handed Bosse two foil wrapped packages of tablets stipulated to contain amphetamine. Bosse asked the price of the tablets. Defendant asked for two dollars. Bosse and defendant went to a liquor store where Bosse changed a five dollar bill. Bosse then paid defendant two dollars. Bosse also asked defendant if they could “score some more weed,” which meant purchase more marijuana. Defendant said that they would have to go back to the location he had directed Bosse to the previous day. Bosse again drove to that location. Defendant asked him what he wanted. Bosse replied that he wanted a five dollar bag. Defendant said that they only came in eight and ten dollar bags. Bosse reminded defendant that he had paid only seven dollars the day before. Defendant said that there was a different seller involved this time. Bosse said that he would take an eight dollar bag. Defendant left the car and walked out of Bosse’s sight. He returned about five minutes later and handed Bosse a wax paper bag stipulated to contain marijuana. Bosse handed defendant a twenty dollar bill. Defendant again left the car and walked out of Bosse’s view. He returned about five minutes later and gave Bosse his change. Bosse then drove defendant and Tony back to Bonsallo Avenue.

Defense counsel successfully objected to the admission of evidence regarding an extrajudicial identification of defendant by Bosse at Los Angeles Police Department headquarters.

Defendant testified in his own behalf. He denied having ever sold marijuana or amphetamines to anyone. He claimed to have been playing foot

Bosse testified in rebuttal that the sales took place only two blocks from the location defendant and Lucas claimed to have been at on November 7 and 8.

The successful objection to the introduction of evidence regarding the extrajudicial identification of defendant by the officer was the sole objection made by defense counsel at trial. There were no pretrial defense motions.

Defendant raises this single contention on appeal: that whenever a defendant, through no fault of his own, is denied a full and complete trial transcript, he is deprived of his constitutional right to an effective appeal. Recognizing, however, that the courts have reversed convictions in cases where no transcript was available only when there was no effective substitute for a transcript (e.g., People v. Serrato, 238 Cal.App.2d 112 [ 47 Cal. Rptr. 543 ]; cf. People v. Chessman, 35 Cal.2d 455 [ 218 P.2d 769 , 19 A.L.R.2d 1084 ]; People v. Fuentes, 132 Cal.App.2d 484 [ 282 P.2d 524 ]), defendant further argues that a settled or agreed statement can never be an adequate substitute for a transcript when counsel on appeal is someone other than counsel at trial. In view of defendant’s indigency, this latter argument raises issues under the equal protection provisions of the United States Constitution. Those provisions, however, require only that an indigent defendant be provided with as adequate and effective a review as would be afforded a defendant with funds. (Draper v. Washington, 372 U.S. 487 , 488, 496 [ 9 L.Ed.2d 899 , 901, 905, 83 S.Ct. 774 ].) The transcript involved herein, of course, is unavailable solely because the reporter’s notes have been lost. Defendant could not obtain a more extensive record on appeal had he unlimited wealth. This case is thus clearly distinguishable from those cases which have discussed the state’s refusal to provide transcripts which would be available to a nonindigent defendant. (Mayer v. Chicago, 404 U.S. 189 [ 30 L.Ed.2d 372 , 92 S.Ct. 410 ]; Hardy v. United States, 375 U.S. 277 [ 11 L.Ed.2d 331 , 84 S.Ct. 424 ]; Draper v. Washington, supra, 372 U.S. 487 ; Griffin v. Illinois, 351 U.S. 12 [ 100 L.Ed. 891 , 76 S.Ct. 585 ]; Grimes v. Municipal Court, 5 Cal. 3d 643 [ 97 Cal.Rptr. 9 , 488 P.2d 169 ]; Magezis v. Municipal Court, 3 Cal.3d 54 [ 88 Cal.Rptr. 713 , 473 P.2d 353 ].)

No errors appear on the record before us and none are raised by defendant.

The judgment (order granting probation) is affirmed.