The majority, in their quest to expose what they perceive to be the twisted reasoning of In re Armstrong (1981) 126 Cal.App.3d 565 [178 Cal.Rptr. 902], resort to their own distorted logic to reach a conclusion which neither comports with precedent nor satisfies due process. While I concur for the reasons stated by the majority in holding Code of Civil Procedure section 904.1 retroactive and thus dismiss this appeal, I would issue the peremptory writ commanding the municipal court to provide a court reporter at trial, without a showing of indigency, at state expense.1
Armstrong correctly holds upon request, and without showing indigency, a verbatim record must be provided at state expense in misdemeanor prosecutions. This holding was a consequence of Armstrong’s inability to obtain a settled statement on appeal (Cal. Rules of Court, rule 187) which in turn resulted from the inability of the trial court, prosecution and defense to agree on the facts which led to Armstrong’s conviction. In essence, Armstrong acknowl*1057edged a constitutionally adequate appeal includes the due process guarantee of an adequate appellate record. Armstrong found due process not satisfied by a settled statement procedure which, by its very nature, requires compromise among the memories and perceptions of participants with a stake in its outcome.
March v. Municipal Court (1972) 7 Cal.3d 422 [102 Cal.Rptr. 597,498 P.2d 437, 66 A.L.R.3d 945] followed a long line of cases which first required free transcripts to indigent felons on appeal (Griffin v. Illinois (1956) 351 U.S. 12 [100 L.Ed. 891, 76 S.Ct. 585, 55 A.L.R.2d 1055]) and subsequently provided them to indigent misdemeanants. (Mayer v. City of Chicago (1971) 404 U.S. 189 [30 L.Ed.2d 372, 92 S.Ct. 410].) The majority goes to great lengths to chastise the court in Armstrong for failing to limit the provision of court reporters to indigent misdemeanants only. The majority’s analysis of Armstrong concludes the court erred in ordering reporters for all misdemeanants since all of the cases cited by Armstrong hold the right to a free transcript for misdemeanants requires a showing of indigency. (Mayer v. City of Chicago, supra, 404 U.S. 189; Williams v. Oklahoma City (1969) 395 U.S. 458 [23 L.Ed.2d 440, 89 S.Ct. 1818]; March v. Municipal Court, supra, 7 Cal.3d 422; Preston v. Municipal Court (1961) 188 Cal.App.2d 76 [10 Cal.Rptr. 301].)
Notwithstanding the majority’s criticisms, they conclude Armstrong was “half right” by holding indigent misdemeanants have a right to a court reporter at state expense. The majority reasons as follows: (1) March v. Municipal Court abolished the “colorable need requirement” (i.e., any lawyer worth his salt can conjure up appellate issues pretrial); (2) March v. Municipal Court requires an adequate appellate record to satisfy due process; (3) a fortiori court reporters (for indigents) must be provided at state expense upon request in misdemeanor proceedings.
Since no case directly holds (other than Armstrong) court reporters must be provided to indigent or nonindigent misdemeanants, the majority relies upon the exercise of judicial administration to support its holding. They declare “there is little an appellate court can do when the collection of a verbatim record is denied and a statement cannot be settled, except to reverse for lack of an adequate record.” (Majority opn., ante, at p. 1051.) (Cf. People v. Goudeau (1970) 8 Cal.App.3d 275 [87 Cal.Rptr. 424].) Thus, the majority comes full circle to Armstrong in holding the inadequacy (or mere potential inadequacy) of a settled statement compels as a prophylactic remedy the obligation to provide court reporters to indigent misdemeanants in order to avoid the necessity of reversals and retrials.
The above analysis does not, however, support the majority’s holding court reporters must be provided to only the indigent. Acknowledging the inadequacy *1058of the settled statement process, the majority makes much of the costs inherent in supplying a verbatim record in all misdemeanor proceedings, and points out most misdemeanants do not appeal, nor do all misdemeanor proceedings require a court reporter. To justify the limitation of their holding to indigents, the majority asserts those who can, should pay.
This analysis merely begs the question. The fact is, court reporters are provided in all superior court criminal and civil proceedings, and in preliminary examinations (Code Civ. Proc., § 269; Pen. Code, § 869). Similarly, civil litigants in municipal courts are provided court reporters at their request (Code Civ. Proc., § 274c) regardless of how insignificant or unmeritorious the claim. Further, while most misdemeanants do not appeal, the use of a settled statement procedure without the ability to refer to a verbatim record to resolve factual disputes, is an inadequate (or potentially inadequate) form of appellate record.
The majority holding places the nonindigent in an untenable position. Prior to trial the defendant must elect whether to expend funds and obtain the services of a court reporter or hope, upon appeal, a settled statement is constitutionally adequate. If not, the added pains of reversal and retrial await.2 The wealthy are as entitled to due process fairness as the poor. To say the poor have a constitutional right to the due process guarantee of an adequate appellate record, but not the nonindigent, comports with neither the spirit nor the letter of due process.
Appellant’s petition for a hearing by the Supreme Court was denied August 18, 1983. Bird, C. J., Reynoso, J., and Grodin, J., were of the opinion that the petition should be granted.
The majority correctly assumes a court reporter is synonymous with “or other recording device.”
Or does the majority hold nonindigent misdemeanants waive their constitutional right to an adequate record on appeal by choosing not to employ a court reporter?