I dissent. The majority hold that before an indigent misdemeanor defendant is entitled to a free trial transcript he must demonstrate *59that the alternative of a settled statement of the proceedings would be inadequate to reflect his contentions on appeal. I believe it is the burden of the state to show that a settled statement would constitute an adequate substitute fora trial transcript.
It is “invidious discrimination,” forbidden by the equal protection clause of the Fourteenth Amendment, that the justice administered to an individual depend upon whether he is rich or poor. (Griffin v. Illinois (1956) 351 U.S. 12, 17 [100 L.Ed. 891, 898, 76 S.Ct. 585].) Although the United States Supreme Court has never held that states are required to establish avenues of appellate review, “once established, these avenues must be kept free of unreasoned distinctions that can only impede open and equal access to the courts.” (Rinaldi v. Yeager (1966) 384 U.S. 305, 310 [16 L.Ed.2d 577, 581, 86 S.Ct. 1497].)
The Supreme Court has repeatedly struck down barriers to providing “the indigent [with] as adequate and effective an appellate review as that given appellants with funds . . . .” (Draper v. Washington (1963) 372 U.S. 487, 496 [9 L.Ed.2d 899, 906, 83 S.Ct. 774].) Particularly, the court has held that it is the duty of the state to afford each indigent appellant a free transcript of the criminal proceedings against him (Roberts v. LaVallee (1967) 389 U.S. 40, 42 [19 L.Ed.2d 41, 43-44, 88 S.Ct. 194]) or some adequate alternative basis for appellate review. (Eskridge v. Washington State Board (1958) 357 U.S. 214, 216 [2 L.Ed.2d 1269, 1271, 78 S.Ct. 1061].) Most recently, this right to a free transcript or adequate substitute has been extended to indigent misdemeanor defendants. (Williams v. Oklahoma City (1969) 395 U.S. 458, 460 [23 L.Ed.2d 440, 442-443, 89 S.Ct. 1818].)
Although the adequacy of a given settled statement cannot be evaluated in the abstract, the United States Supreme Court has clearly indicated that the state must “show that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of petitioners’ contentions.” (Draper v. Washington, supra, 372 U.S. 487, 498 [9 L.Ed.2d 899, 907].) Then, “on the basis of such a showing by the State,” the trial court need only provide a settled statement or partial transcript. (372 U.S. at p. 498 [9 L.Ed.2d at p. 907].) The Supreme Court has thus clearly placed upon the state the burden of showing that there is an adequate substitute for a full transcript of the criminal trial from which petitioners wish to appeal. (See Coppedge V. United States (1962) 369 U.S. 438, 447-448 [8 L.Ed.2d 21, 29-30, 82 S.Ct. 917].)
*60The state clearly failed to discharge its burden of proof in the present case. Petitioners filed a motion in the trial court for preparation of a transcript at county expense detailing the portions of the proceedings required and the reasons these portions were necessary for the appeal.1 At the hearing on the motion, only the petitioners’ counsel appeared, although the prosecution had been duly notified. Consequently, the record in the municipal court lacks any showing that a settled statement would have adequately protected petitioners’ substantial legal points on review. (See In re Henderson (1964) 61 Cal.2d 541, 543 [39 Cal.Rptr. 373, 393 P.2d 685].)
After the defendants requested designated portions of the transcript and explained why the partial transcript was necessary for appeal, the prosecution bore the burden of demonstrating that a settled statement would be adequate. The defendant’s counsel told the court that he needed at least part of the transcript because he could not remember certain crucial portions of the proceedings. Similar claims of inability to reconstruct the testimony at trial have been held to entitle the defendant to a free transcript. (Draper v. Washington, supra, 372 U.S. 487, 492 [9 L.Ed.2d 899, 903-904]; Preston v. Municipal Court (1961) 188 Cal.App.2d 76, 86 [10 Cal.Rptr. 301]; see Gardner v. California (1969) 393 U.S. 367, 369-370 [21 L.Ed.2d 601, 603-604, 89 S.Ct. 580].) Perhaps the prosecution could have demonstrated the existence of some adequate alternative to a transcript, but the prosecution did not even appear at the hearing upon defendants’ motion for a transcript.
The majority in essence seek to avoid the expenses of supplying transcripts to financially disadvantaged defendants by shifting the burden to already overburdened lawyers required to serve with little or no compensation. (See Hardy v. United States (1963) 375 U.S. 277, 290 [11 L.Ed.2d 331, 340, 84 S.Ct. 424] (concurring opn. of Goldberg, J.).)
I cannot join in this misallocation of the scarce resources of legal manpower available to indigent defendants. In the past few decades we have taken great steps toward insuring to the poor and underprivileged the same *61access to the law as that enjoyed by the affluent and established. If we now falter in this high endeavor we frustrate the rising expectation of the disadvantaged for equal justice under law; we undermine respect for the legal system.
Peters, J., concurred.
Petitioners requested a transcript of (1) all proceedings out of the presence of the jury, because their attorney did not possess adequate notes to reconstruct the issues raised, argued, and ruled upon; (2) all prosecution testimony, because petitioners challenge the sufficiency of the evidence and contend that the statute may not be constitutionally applied to their conduct; (3) closing arguments of counsel, because the prosecutor’s argument contained prejudicial remarks; (4) the instructions, because the trial court exceeded the bounds of the written instructions submitted by the parties; and (5) the proceedings on motions for new trial, arrest of judgment, and sentencing, because petitioners must establish they preserved their points for appeal.