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Andrus v. Municipal Court for West Orange County Judicial District of Orange County6/17/1983
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
Civ. No. 30066
1983.CA.40673 ; 192 Cal. Rptr. 341; 143 Cal. App. 3d 1041
June 17, 1983
LARRY RONALD ANDRUS, PLAINTIFF AND APPELLANT,
v.
THE MUNICIPAL COURT FOR THE WEST ORANGE COUNTY JUDICIAL DISTRICT OF ORANGE COUNTY, DEFENDANT AND RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST AND RESPONDENT
Superior Court of Orange County, No. 380777, Luis A. Cardenas, Judge.
Cohen, Stokke & Davis, Allan H. Stokke and Robison D. Harley, Jr., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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 by Crosby, J., with Trotter, P. J., concurring. Separate concurring and dissenting opinion by Sonenshine, J.
Crosby
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?
I
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 petition for issuance of a writ of mandamus or prohibition directed to a municipal court or a justice court or the judge or judges thereof which relates to a matter pending in the municipal or justice court. However, an appellate court may, in its discretion, review a judgment granting or denying a petition for issuance of a writ of mandamus or prohibition upon petition for an extraordinary writ." At our request, the parties in this and other similar cases have filed supplemental briefs concerning the effect, if any, of the amendment on pending matters. We have concluded the statute should be applied to unresolved appeals filed before January 1, 1983, and that each must be treated as a petition for extraordinary relief. (People v. Cimarusti (1978) 81 Cal. App. 3d 314, 320-321 [146 Cal. Rptr. 421]; Branham v. State Farm Mut. Auto. Ins. Co. (1975) 48 Cal. App. 3d 27, 32-33 [121 Cal. Rptr. 304]; U.S. Financial v. Sullivan (1974) 37 Cal. App. 3d 5, 11-12 [112 Cal. Rptr. 18]; Clovis Ready Mix Co. v. Aetna Freight Lines (1972) 25 Cal. App. 3d 276, 28
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