— I concur in the judgment. It is my opinion, however, that the holding in People v. Hyde, 51 Cal.2d 152,154 [331 P.2d 42], should be expanded to require the appointment of counsel on appeal for all indigent defendants convicted of felonies.1
*70The question calls for resolution even though we appointed counsel to represent defendant in this court. The question cannot remain in abeyance. This very case illustrates the recurring practice of the District Court of Appeal, Second District, Division Three, of referring the question of the appointment of counsel to the local bar association committee (see People v. Logan, 137 Cal.App.2d 331, 332 [290 P.2d 11]) and the consequent countervailing practice of this court to then grant a hearing, even on its own motion, whenever there has been no appointment of counsel. There would be no end to such wasteful procedure were the question deemed moot each time this court granted a hearing and appointed counsel. The question should be settled in the interest of effective appellate court administration. (See Almassy v. Los Angeles County Civil Service Com., 34 Cal.2d 387, 390 [210 P.2d 503]; Walling v. Mutual Wholesale Food & Supply Co., 141 F.2d 331, 334-335; People ex rel. Wallace v. Labrenz, 411 Ill. 618 [104 N.E.2d 769, 772]; State ex rel. Smith v. Smith, 197 Ore. 96 [252 P.2d 550, 563]; 103 U. of Pa. L. Rev. 772, 783, 787-793; 132 A.L.R. 1185, 1186.)
In Griffin v. Illinois, 351 U.S. 12 [76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055], the Supreme Court of the United States held that a state may not deny to a defendant, on the sole ground that he cannot pay for it, a stenographic transcript of the trial proceedings when it is essential to effective appellate review. The court declared that although there is no constitutional right to appeal, “that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty. Appellate review has now become an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant. Consequently at all stages of the proceedings the Due Process and Equal Protection clauses protect persons like petitioners from invidious discriminations.” (Id. at p. 18.)
Although this holding establishes only the right to a transcript, it indicates the Supreme Court’s concern to protect indigent defendants against discriminatory consequences of *71their poverty. Denial of counsel on appeal would seem to be a discrimination at least as invidious as that condemned in Griffin v. Illinois, supra. (See State v. Delaney, 221 Ore. 620 [332 P.2d 71, 74-81]; The effect of Griffin v. Illinois on the States’ Administration of the Criminal Law, 25 U. of Chi. L. Rev. 161, 170-171; Appointment of Counsel for Indigent Defendants in Criminal Appeals, 1959 Duke L.J. 484, 488-489.) We need not determine this constitutional question, however, for there are adequate independent grounds for the conclusion that appellate courts must appoint counsel on appeal for all indigent defendants convicted of felonies.
Appointment of counsel is essential to minimize hazards of affirming an erroneous judgment, particularly in view of rule 33 of the Rules on Appeal. This rule defines “normal record” on appeal and “additional record.” If the defendant wants the record on appeal to include matters that are part of the “additional record,” he must file “with his notice of appeal an application describing the material which he desires to have included and the points on which he intends to rely which make it proper to include it. ” It is unreasonable to expect the average indigent defendant without counsel to obtain an adequate record on appeal. He would ordinarily be incarcerated, without access to the trial court’s files, and cut off from consultation with his trial defense counsel, the trial judge, the prosecutor, and other witnesses to the trial. He would probably be without access to law books and unable to designate points that make it proper to include an additional record. He would probably be unaware of rule 33, or so unfamiliar with it that he would fail to realize that the normal record does not include rulings on motions, the voir dire examination of jurors, the opening statements and arguments to the jury, comments on the evidence by the trial judge, instructions given or refused, and rulings on the admissibility of exhibits. He would not be alert, as would an attorney, to possible reversible errors therein even when they amounted to a denial of constitutional rights. (See People v. Barrett, 207 Cal. 47, 49 [276 P. 1003] [manner in which the trial judge conducted the voir dire examination of the jurors amounted to a denial of the constitutional right to trial by jury].)
Even a court cannot make an adequate review on less than the whole record. A fortiori, an attorney called upon by a local bar association and unknown to defendant or trial counsel cannot evaluate the merits of an appeal on less than *72the whole record. It is unpredictable how far an appellate court would advance toward a determination of the merits of an appeal by ordering the preparation and transmission to it of the whole record. In any event, it would then vitiate rule 33, designed to avoid preparation and review of nonessential parts of the record.
An appellate court can no more appropriately judge whether there is error requiring reversal without the benefit of counsel than a trial court can decide the issues at the trial without benefit of counsel. (See Kopasz v. Kopasz, 34 Cal.2d 423, 425 [210 P.2d 846].) How then can it determine that there is no error requiring appointment of counsel? How can it undertake to dispense with counsel for indigents when it is not free to dispense with counsel for those who can afford them? A court does not suddenly become omniscient when the appellant proves impecunious. Thus in People v. Tahtinen, 50 Cal.2d 127 [323 P.2d 442], this court was divided on the merits, yet the attorney to whom the record was referred by the local bar association committee at the instigation of the District Court of Appeal thought there was no reasonable basis for an appeal, and that court accordingly denied defendant’s request for appointment of counsel. In the present case that court rejected the attorney’s recommendation for appointment of counsel, declaring that the appeal was “without a semblance of merit.” ((Cal.App.) 3 Cal.Rptr. 203, 205.) Yet this court, after ordering a hearing and appointing counsel, now finds that there are substantial legal issues demanding careful research and analysis that demonstrate the risk of fallibility of judgment without benefit of counsel’s advocacy.
Moreover, appointment of counsel promotes effective appellate court administration. Denied counsel, defendants frequently file briefs in proprio persona raising issues of little or no merit that still require the attorney general’s answer and the court’s consideration. Often when a District Court of Appeal affirms the judgment, a defendant files a petition for hearing in this court that does not comply with rules 28 and 29, which presuppose an orderly presentation of the case before the District Court of Appeal. When a defendant is incapable of making such a presentation, this court has a correspondingly heavy burden in reviewing his petition.
The court as well as defendant is more likely to benefit from oral argument, as well as from briefs presented by counsel rather than by defendant in proprio persona. More*73over, the first alternative also avoids possible complications of habeas corpus and the transportation of defendant under guard. There is no reason to forego these advantages of argument by counsel, particularly when the defendant might be driven to the second alternative to secure his right to oral argument on appeal implicit in rules 22 and 28(f) of the Rules on Appeal. (Metropolitan Water Dist. v. Adams, 19 Cal.2d 463, 467-468 [122 P.2d 257]; see Pen. Code, § 1253; Witkin, New California Rules on Appeal, 17 So. Cal. L. Rev. 232, 243-244.)
The problem is not averted merely because Government Code, section 27706, makes it the duty of the public defender to prosecute appeals “where, in his opinion, the appeal will or might reasonably be expected to result in the reversal or modification of the judgment of conviction.” Comparable discretion vested in federal district judges is subject to appellate review, and counsel must be appointed to assist the defendant in showing that his appeal has merit. (Johnson v. United States, 352 U.S. 565, 566 [77 S.Ct. 550,1 L.Ed.2d 593]; see also Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214 [78 S.Ct. 1061, 2 L.Ed. 2d 1269]; Earley v. United States, 354 U.S. 521, 522-523 [77 S.Ct. 1371, 1 L.Ed. 2d 1529]; see also People v. Kalan, 2 N.Y.2d 278 [140 N.E.2d 357, 358]; State ex rel. White v. Hilgemann, 218 Ind. 572 [34 N.E.2d 129, 131].) Moreover, it sometimes happens that defendants who were able to retain counsel at the trial are indigent at the time of appeal. It would be capricious to make a defendant’s right to appointment of counsel on appeal depend on the chance that he was represented by the public defender at the trial.
In the interest, therefore, of orderly as well as just review an appellate court should appoint counsel upon the request of an indigent defendant convicted of a felony. Any implications to the contrary in People v. Hyde, 51 Cal.2d 152, 154 [331 P.2d 42]; People v. Logan, 137 Cal.App.2d 331, 332-333 [290 P.2d 11]; People v. McGrory, 137 Cal.App.2d 723, 724 [291 P.2d 43]; People v. Hamm, 145 Cal.App.2d 242, 244 [302 P.2d 345]; and People v. Slater, 152 Cal.App.2d 814, 815-816 [313 P.2d 111], should be disapproved.
Of course appointed counsel should not present frivolous appeals. (See Ellis v. United States, 356 U.S. 674, 675 [78 S.Ct. 974, 2 L.Ed.2d 1060], discussed in Ehrenhaft, Indigent Appellants in the Federal Courts, 46 A.B.A.J. 646, 647; State ex rel. White v. Hilgemann, 218 Ind. 572, 578-579 [34 N.E.2d *74129].) It is for counsel to make a reasonable investigation, ordinarily involving consultation with the defendant, to insure consideration of meritorious grounds of appeal. (See United States v. Sevilla, 174 F.2d 879, 880.) Should he then conclude that the appeal is frivolous, he should so advise the court and the defendant. He need not proceed with the appeal; should the defendant insist on proceeding with it, the court need not appoint new counsel. (People v. Tabb, 156 Cal.App.2d 467, 471-472 [319 P.2d 656].)
The reasons for appointment of counsel on appeal from judgments of conviction do not extend to habeas corpus or other collateral attacks on final judgments of conviction unless the defendant presents a prima facie ease for relief. “This procedural requirement does not place upon an indigent prisoner who seeks to raise questions of the denial of fundamental rights in proprio persona any burden of complying with technicalities; it simply demands of him a measure of frankness in disclosing his factual situation.” (In re Swain, 34 Cal.2d 300, 304 [209 P.2d 793].) Our reluctance to consider even constitutional questions on habeas corpus if they could have been raised on appeal (see In re Dixon, 41 Cal.2d 756, 759-761 [264 P.2d 513]) makes it all the more important to afford defendants a fair opportunity to challenge their convictions on appeal.
Appointment of counsel on appeal should reduce applications for post-conviction remedies in the federal courts as well as our own.2 As the report of July 5, 1960, of the Habeas Corpus Committee of the National Association of Attorneys General points out, the states can largely obviate review of their decisions in criminal cases by federal district courts on habeas corpus petitions by providing adequate state remedies.
This discussion is limited to felonies because of the substantially less serious nature of misdemeanors and their correspondingly lighter penalties. (See Pen. Code, §§ 17-19b.) The misdemeanant suffers no loss of civil rights. (See Pen. Code, §§ 2600-2601.) He is entitled to bail as a matter of right after conviction pending appeal. (Pen. Code, §1272.) Any incarceration is likely to be brief. Frequently a misdemeanant is penalized only by fine, often payable in installments. (See Pen. Code, § 1205.) The court may grant probation summarily (Pen. Code, § 1203b) to the misdemeanant or permit him to *75serve time on weekends or at times when he is not working. With earning capacity thus maintained he may be able to employ counsel. Most misdemeanants are willing to forfeit bail or pay the fines and find it unnecessary to employ counsel or request trial. There is hence not the urgency for making appointment of counsel on appeal for indigent misdemeanants mandatory instead of discretionary.
Peters, J., and Dooling, J., concurred.
The problem has attracted nation-wide attention. The subcommittee to study defender systems of the Association of the Bar of the City of New York and the National Legal Aid Association concluded in their report, Equal Justice for the Accused 61 (Doubleday, 1959) that “ [i]n addition to affording early representation, any defender system should make provision for the continuance of representation through appeal in appropriate cases. An appeal when grounds exist is an inseparable part of the process through which the individual’s guilt or innocence of the charges brought against him by the state is established. Counsel is needed to assist with the determination of whether an appeal should be taken and, if an appeal is taken, to prepare and present it.”
State practice varies. Two states require the appointment of counsel on appeal in all felony eases. (Indiana: State ex rel. White v. Higelmann, 218 Ind. 572, 578 [34 N.E.2d 129]; State ex rel. Grecco v. Allen Circuit Court, 238 Ind. 571, 575 [153 N.E.2d 914]; Wisconsin: Wis. Stat. Ann. § 957.26(3), [if the court is satisfied that “review is sought in good faith and upon reasonable grounds”].) In New York the appointment of counsel on appeals turns upon whether the indigent defendant has a copy of the trial minutes. If he does, no counsel is appointed (People v. Breslin, 4 N.Y.2d 73, 86-87 [149 N.E.2d 85]); otherwise ap_ ointment is mandatory (People v. Kalan, 2 N.Y.2d 278, 280 [140 N.E.2d 357]; People v. Pitts, 6 N.Y.2d 288, 292-293 [160 N.E.2d 523]). Wyoming places discretion in the Supreme Court to appoint counsel for indigent defendants “in any criminal matter or proceeding before said Supreme Court. ’ ’ (Wyo. Stats. 1957, § 7-8.) Several states appoint counsel at the trial who has discretion to appeal at public expense. (Connecticut: State v. Klein, 95 Conn. 451, 453 [112 A. 524] [public defender]; State v. Zukauskas, 132 Conn. 450, 451-452 note [45 A.2d 289]; Iowa: Iowa Code Ann. tit. 36 § 775.5 (1959 Pocket Part), Tomlinson v. Monroe County, 134 Iowa 608, 610 [112 N.W. 100]; Michigan: Mich. Stat. Ann. §28.1254; Minnesota: Minn. Stat. Ann. § 611.07(2) (1959 Pocket Part) [Eeview must be sought “in good faith and upon reasonable grounds.” The provision may apply only when trial counsel was appointed by the court, cf. State v. Coursolle, 255 Minn. 384, 390 [97 N.W.2d 472] ]; Mississippi: Miss. Code Ann. 1942 §2505 [capital cases only]; Nevada: Nev. Eev. Stat. §§ 177.065(2), 7.260; Pennsylvania: Penn. Stat. Ann. tit. 19 § 1232.) Other states require appointment of counsel on appeal only in capital cases. (Alabama: Ala. Code tit. 15 §382 (5) (1955 Pocket Part), [applied but not discussed in Monk v. State, 258 Ala. 603 [64 So.2d 588]]; Florida: Fla. Stat. Ann. § 909.21 (1959 Pocket Part), [applied, State ex rel. Shargaa v. Culver, Fla., 113 So.2d 383]; Georgia: Ga. Code Ann. § 27-3002 (1958 Pocket Part); Illinois: 111. Eev. Stat. 1959, ch. 38 § 730a; Kansas: Gen. Stat. of Kan. § 62-1304 (1959 Supp.) (first degree murder only); Nebraska: Eev. Stat. of Neb. 1943 §§ 29-1803, 29-1804 (1959 Cum. Supp.); North Carolina: Gen. Stat. of No. Car. § 15-181; Oklahoma: Noel v. State, 17 Okla. Crim. 308, 318-322 [188 P. 688]; Oregon: Ore. Eev. Stat. §138.420 (1959 Beplaeement) ; *70of. Anonymous, 76 Me. 207 (1st case, 1884).) Three states refuse to appoint counsel on appeal. (Rhode Island: State v. Hudson, 55 R.I. 141, 158 [179 A. 130, 100 A.L.R. 813], followed, Lee V. Kindelan, 80 R.I. 212, 217-218 [95 A.2d 51], cert, den., 345 U.S. 1000 [73 S.Ct. 1146, 97 L.Ed 1406]; Tennessee: State ex rel. Fisher v. Lomar, 201 Tenn. 579, 581 [300 S.W.2d 927]; Texas: Spalding v. State, 137 Tex. Crim. 329, 334 [127 S.W.2d 457]; of. State v. Singletary, 187 S. G. 19, 28 [196 S.E. 527].)
In the two-week period from July 25, 1960, to August 5, 1960, this court denied seven petitions for habeas corpus from the same prisoner, who had taken his appeal in proprio persona.