Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. LA055614, Martin Larry Herscovitz, Judge.
Pensanti & Associates, Louisa B. Pensanti and Jocelyn H. Sicat for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P.J.
In this case we hold that an indigent defendant in a criminal case is not entitled to a free transcript of trial court proceedings to aid in moving for a new trial absent a showing of particularized need, a showing that was not made in this case. Accordingly, we affirm the judgment of conviction.
FACTUAL AND PROCEDURAL SUMMARY
Defendant and appellant, Rodney Jason Stanley, was charged and convicted of five counts of sex crimes against children. Of these, two counts of aggravated sexual assault were alleged as to one child, and three counts of lewd acts were alleged as to another. A special allegation charged that at least one of the counts involved a victim different from the victim in the other counts. Defendant was convicted by jury trial on all counts, and the special allegation was found to be true. Defendant, who was represented by private counsel at trial, retained other private counsel for sentencing proceedings and to move for a new trial.
Through his new counsel, defendant sought a free transcript of the trial, claiming indigency. In his motion for new trial defendant stated that his request for funds to pay for a transcript of the trial had been denied “without further explanation.” He argued that denial of funds for the transcript was constitutional error. At the hearing on the new trial court motion, the court explained the reasons for its denial of the free transcript. It stated that a showing of particularized need is required in order to justify a free trial transcript to support a motion for new trial, citing People v. Markley (2006) 138 Cal.App.4th 230, and that such showing had not been made. Instead, defendant’s counsel asked for the transcript simply because “I need it.” The court also rejected defendant’s other bases for new trial, and denied the new trial motion. The court then sentenced defendant to state prison for an aggregate term of 36 years to life. Defendant filed a timely notice of appeal.
DISCUSSION
The principal issue raised on appeal concerns the trial court’s denial of defendant’s application for funds to pay for a free transcript of the trial. Even though defendant was represented at trial and during posttrial proceedings by retained counsel, his claim of indigency and inability to pay for the transcript is not challenged. We shall assume his indigency for purposes of this review.
The right of an indigent defendant in a criminal case to a free transcript of the trial for use on appeal has been well established for over 50 years. (See Griffin v. Illinois (1956) 351 U.S. 12, 18.) The rule has been refined and applied to retrial after a mistrial due to a jury’s inability to reach a verdict. In Britt v. North Carolina (1971) 404 U.S. 226, the court ruled that the defendant’s need for the transcript was presumed, and the prosecution must bear the burden of rebuttal. (Id. at p. 227.) Two factors were identified as relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal, and (2) the availability of alternative means to fulfill the same function as the transcript. (Ibid.) As pointed out in Britt, Griffin and its progeny establish that the equal protection principle requires that states “provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense on appeal.” (Britt, supra, at p. 227; see also United States v. MacCollom (1976) 426 U.S. 317, 324 [denial of free transcript on collateral review did not violate defendant’s equal protection rights under facts presented].)
California cases have followed and applied these decisions of the high court. (See Shuford v. Superior Court (1974) 11 Cal.3d 903, 906 [retrial after hung jury]; People v. Lopez (1969) 1 Cal.App.3d 78, 83 [no mechanical tests for deciding when free transcripts are required in support of a motion for new trial; application denied for failure to demonstrate particularized need]; People v. Hosner (1975) 15 Cal.3d 60, 64 [applying Britt factors to retrial after hung jury].) Hosner also holds that failure to provide a transcript where it is constitutionally required is per se reversible error. (Id. at p. 69.)
In People v. Bizieff (1991) 226 Cal.App.3d 1689, the court dealt with substantially the same issue as presented in the present case. Following a review of the federal authorities, the court concluded that a trial court “may properly deny a request for free transcripts to prepare a motion for new trial where the indigent defendant fails to show a particularized need for transcripts.” (Id. at p. 1702.) Following Lopez, the court also held that defendant must show that the transcripts requested are necessary for effective representation on the new trial motion. (Ibid.) In Bizieff, the defense already had partial transcripts and if it thought more was needed, it had to show with specificity why they were needed; counsel failed to make that showing. (Id. at p. 1704.)
People v. Markley, supra, the case relied upon by the trial court, reviewed the same authorities. It pointed out that a defendant who seeks a free transcript of a prior trial for use in a subsequent trial on different charges is in quite a different position from one who seeks it in preparation for a retrial of the same charges or on direct appeal. “Courts have held that a trial court may properly deny a request for free transcripts for use in a motion for new trial or for use in other requests for collateral relief unless the indigent defendant first demonstrates that the transcript is necessary for effective representation by counsel” and “[t]he court must decide each case on its own facts and circumstances in determining whether the defendant has made a sufficient showing of need.” (138 Cal.App.4th at p. 241.)
We apply these principles here. From the materials presented to us on appeal, it does not appear that defense counsel made any showing of particularized need; as we have seen, the trial court characterized her request as a simple statement that counsel needed the transcript. That is the antithesis of a showing of particularized need. In the new trial motion itself, counsel placed no meat on these bare bones. She argued that her only source of information was the defendant himself and “scant family members who attended prior court dates, ” and that she encountered difficulties in scheduling interviews with defendant. Other arguments presented in support of a new trial appear to be related to issues separate from the need for a transcript: failure of prior counsel to discover potentially exculpatory evidence on identification, inconsistencies in a victim’s description of his attacker, and new evidence suggesting that someone else committed the crimes. To the degree these arguments are directed at a claim of error in the denial of a new trial motion based on insufficient evidence, new evidence, or deficiencies of trial counsel (see Pen. Code, § 1181), they are too conclusionary and non-substantive to justify appellate relief.
Defendant failed to demonstrate a particularized need for the transcript, or that alternative means of gathering information were unavailable. Even now that a full transcript of the preliminary hearing and the trial are available and part of the record on appeal, nothing more is shown. Instead, counsel attacks the particularized need standard as applied to this case. As we have discussed, that standard applies, and was not satisfied.
Defendant’s counsel’s declaration in support of the new trial motion stated that former counsel had not provided copies of police interviews even though requested to do so, and that “on information and belief, evidence also indicates defendant’s earlier trial proceedings involved violations of his right to [d]ue [p]rocess” specifically based on the failure of former counsel to provide effective assistance. These bare assertions are not sufficient to warrant reversal of the trial court’s decision.
Finally, appended to the reply brief on appeal is a May 31, 2010 declaration from one Daniel Mulrenin, apparently a private investigator, in which he states that, based on an interview of another prison inmate, there is evidence that person, rather than defendant, is the real culprit. This and other possible showings may be the basis for a subsequent habeas corpus proceedings, about which we do not speculate as to the merits. But this, too, is not a sufficient basis for this court to overturn the rulings of the trial court.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J.SUZUKAWA, J.