concurrence">WARNER, J.,

specially concurring.

I concur in the statement of the law which leads the majority to the conclusion that this court has the power and duty to appoint counsel to assist indigent persons convicted of felonies to perfect an appeal when it reasonably appears that such an appeal is justified.

I cannot join in the formula which the opinion sets up for the determination of the necessity for such an appointment, for the reason that it omits a step which I deem necessary in fairness to the applicant and as a time-saving device for the court.

I would place no great value on what the party might state in his application as representing appeal-able error. No matter what his education or experience, it would be impossible for him to make an adequate or sufficient presentation of alleged errors, except in some rare cases, or unless applicant was skilled in the law. The majority opinion suggests to me that unless his trial attorney might “be willing” to express a belief on the probable merits of an appeal, this court will make such an examination of the record without independent aid and, predicated thereon, say that there is or is not warrant for an appeal. I do not gainsay the ability of the court to come to a sound *644conclusion by reason of its examination of the transcript, but, aside from the burden such procedure would east upon the court, I feel the value of an independent examination, especially if made by applicant’s trial counsel, would give greater weight to the ultimate conclusion for or against the need of counsel to perfect an appeal.

I would make it clear in the majority opinion that when the application for the appointment of counsel, accompanied by the transcript of testimony, is received by the clerk of the court, our only concern at that juncture will be to satisfy ourselves that the applicant is indigent. If we so find, we thereupon pass the application, together with the transcript of testimony, to applicant’s attorney of record in the trial of the matter for examination with directions to certify within a definite time whether or not in his opinion the applicant has good cause for appeal, and if he so finds, to briefly state his reasons therefor. If the applicant had no counsel to defend him in the lower court, then I would have this court refer the application and transcript to an attorney of our selection or a committee of the bar for such a preliminary investigation and report as is done by the District Court of Appeal, Second District, Division 3, California. People v. Logan, 137 Cal App 331, 290 P2d 11.

If counsel examining the record certify that in their opinion no grounds for appeal are shown, then this court would be warranted in denying the application. If, on the other hand, counsel certify that in their opinion there are grounds warranting an appeal, then it should be incumbent upon this court, without further examination of the record here, to forthwith appoint counsel to bring the matter to the attention of the court in regular course by preparing necessary *645briefs and making an oral presentation in behalf of the applicant.

O’CONNELL, J.,

concurring in part; dissenting in part.

I concur in that part of the opinion in which it is held that an indigent defendant convicted of a crime has the right to the assignment of counsel to aid him in his appeal to this court whenever that is necessary to afford him equal justice. But I cannot agree with the qualifications placed upon this right by the majority of the court. The majority would postpone our decision as to whether the indigent defendant is entitled to counsel on appeal until we had considered the appeal on its merits. The premise is that a mentally competent person, although untrained in the law, is capable of adequately presenting to this court a sufficient description of his claims to enable us to safeguard his constitutional rights. I cannot agree with this premise. The fear is expressed in the majority opinion that if “free appellate review” is afforded indigent defendants this court will be disabled by a flood of appeals. That may well be true, but it is an irrelevance if the constitutional guarantee of equal protection of the laws and due process of law, under the Fourteenth Amendment, requires us to furnish counsel in such cases. Admittedly, there is no clear command in the cases decided by the United States Supreme Court that we do so. But the reasoning in Griffin v. Illinois, 351 US 12 (1955), when laid upon the facts of the present case, fits so snugly that I feel that it must control our decision. In the Griffin case the court held that the defendant was entitled on appeal to a transcript of the trial court proceedings, because a denial of the use of the transcript would deny “adequate appellate review to the poor while granting *646such review to all others.” Griffin v. Illinois, supra, at page 13. But, as Justice Qua says, “It seems clear that no special significance attaches to the fact that the expense in the Griffin case happened to be the cost of a transcript instead of some other comparable expense necessary to a fair and adequate appeal under state law.” 25 U Chi L Rev 143 at 147-8. As I see it, the assistance of counsel is as important in the protection of one’s rights on appeal as a transcript of proceedings of the trial court. In many cases the need for counsel on appeal is as great as it is at the trial of the case. The majority recognizes that under some circumstances counsel on appeal would be essential to satisfy constitutional guarantees. But it assumes that the court itself can afford the needed protection by a scrutiny of a document prepared by the defendant himself. I do not believe that this would provide the indigent defendant with the protection which he would receive were he represented by counsel. In the first place, this court, with a large backlog of cases, is not in a position to spend the time necessary to search out possible errors in the proceedings of the trial court which might be disclosed by the defendant’s “document.” This same point is made in the dissenting opinion in People v. Breslin, 172 NYS2d 157, 164 (1958), where it was said:

“It is suggested that an appellate tribunal, having the record before it, is entirely competent to review the case and pass upon the merits without the aid of counsel. However, experience has demonstrated that there are just not enough hours in the day to permit judges of busy appellate courts, no matter how conscientious and willing, to examine and read the records before them as carefully or as critically as single-minded counsel for the appellant. And, if, as is the case where an indigent *647defendant is involved, there is bnt one copy of the record, and that typewritten, the task of adequate review without the aid of appellate counsel to point the alleged errors and call attention to the asserted questions of law, some of which might otherwise escape the judges, approaches the impossible.”

The argument that the court itself is adequate counsel for the indigent defendant was answered in Powell v. Alabama, 287 US 45 (1932). There the court dealt with the question of the defendant’s right to counsel at the trial stage of his case, but Mr. Justice Sutherland’s statement can be applied as well to a case involving the defendant’s right on appeal. He said:

* * But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.” 287 US 45 at page 61, 77 L ed 158 at 166.

Even if we as a court should apply ourselves diligently to the task of searching the appellant’s document for error it may not be revealed, because the defendant, untrained in the law, may not know what to say in order to suggest to us the possibility of error in the proceedings below.

Our system of appellate review, including the opportunity for oral argument, is predicated upon the assumption that advocacy will be helpful to the parties and to the court in arriving at the proper conclusion. To say, as the majority seems to say, that advocacy is not important in influencing the court’s decision in *648these cases, or that the court itself can take over that role along with its judicial functions is to disregard the realities of our legal procedures.

This court is .already harassed by a considerable volume of frivolous appeals in criminal eases. It is almost certain that the guarantee of counsel on appeal to indigent defendants would increase the volume of such appeals. As a consequence we are forced to postpone our decisions in meritorious cases. But we cannot deny a defendant the equal protection of the laws simply because some defendants use the state’s legal machinery for frivolous purposes. If the abuse of the privilege of appeal is to be eliminated it must be accomplished by some procedure which does not deprive a defendant of his constitutional rights.

McAllister, J., joins in this opinion.

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