MOTIONS IN THE COURT OF APPEAL

1. The Deadlines For Record Preparation.
Pursuant to California Rules of Court, rule 8.336, the court reporter must prepare the reporter’s transcript within 80 days of the filing of the notice of appeal. The initial deadline for the reporter is 20 days after the filing of the notice of appeal. (Rule 8.336(d)(3).) This period may be extended by 60 days by order of the Court of Appeal. (Rule 8.336(e)(2).)

The Sixth District Court of Appeal monitors record preparation and usually will issue an order to show cause to the reporter if the 80 day deadline is exceeded. If you do not receive a transcript within 80 days of the filing of the notice of appeal, call the appellate court clerk to ensure that proper steps are being taken to enforce the deadline.

2. Designation of the Record and Request for Additional Record.
Unlike civil appellants, there is no requirement that a criminal appellant designate a record on appeal. California Rules of Court, rule 8.320, sets forth the contents of what will be included in a "normal" record on appeal, both in terms of the clerk's transcript and reporter's transcript. In addition to the “normal” record, rule 8.328(a) provides for the appellant to automatically receive a copy of the transcript of any Marsden hearing which is filed under seal. (People v. Marsden (1970) 2 Cal.3d 118.)

A request for additional record beyond the “normal” record may be filed in the Superior Court. (Cal. Rules of Ct., rule 8.324.) The request must be filed as soon as is practicable. (Rule 8.324(c)(2).) The request must be adjudicated by the trial judge within five days after the filing of the application. If no ruling is made, the request is automatically granted. If the application is filed after the record has already been transmitted to the Court of Appeal, the request is denied by operation of law. (Rule 8.324(c)(2).)

3. Exhibits.
All exhibits are deemed to be part of the record on appeal. (Cal. Rules of Ct., rule 8.320(e).) However, only two types of exhibits are included in the “normal” clerk’s transcript: (1) written transcripts of sound and video recordings; and (2) court and CDC documents used to prove prior convictions. (Cal. Rules of Ct., rules 8.320(b)(11) and 8.320(b)(13)(C).)

It is incumbent upon appellate counsel to examine essential exhibits as part of the review of the record. SDAP paralegals may be able to assist panel attorneys who are distant from the Superior Court by obtaining copies of documentary exhibits or by examining exhibits to obtain needed information.

Generally speaking, SDAP cannot copy videotapes or audiotapes which were introduced into evidence. Appellate counsel can personally review these items by having them transferred to the Court of Appeal where facilities exist for their review. (Cal. Rules of Ct., rule 8.224(d).) If counsel is distant from the Sixth District, arrangements can be made to have the exhibit sent to a nearby Court of Appeal.

As a courtesy to the Court of Appeal and the Attorney General, an important exhibit can be timely filed and served by way of a motion to augment the record. Under California Rules of Court, rule 8.155(a)(2), any document or transcript filed or lodged in the Superior Court can be attached to a motion to augment the record.

4. Augmentation.
The Sixth District subscribes to the use of California Rules of Court, rule 8.340(b) to obtain portions of the “normal” record which have not been included. This is a simplified procedure whereby a letter to the Superior Court Appeals Clerk will serve as notice that some portion of the “normal” record has been omitted. A copy of the letter must be served on the parties and the Clerk of the Court of Appeal.

It is SDAP’s expectation that counsel will obtain the full “normal” record in every case. You must obtain and review the complete record to which your client is entitled.

In order to obtain an item which is not within the “normal” record, counsel must file a motion to augment the record. (Cal. Rules of Ct., rule 8.155(a).) The motion should include counsel’s declaration specifying the material to be included and a statement of how it may be useful on appeal.

The court must apply a liberal standard in reviewing a motion to augment the record. (People v. Gaston (1978) 20 Cal.3d 476, 482-483.) In order to justify a request for augmentation, counsel need only specify with “some certainty” that the missing material “may be useful.” (Id., at p. 482.) Thus, counsel need only show that a requested transcript could possibly reveal reversible error or otherwise show the prejudice flowing from an error. (People v. Silva (1978) 20 Cal.3d 489, 492-493.)

If a motion to augment the record is denied, it may be renewed with a further showing. In addition, a petition for review may be filed from the denial. The petition is due within the 31st and 40th days of the Court of Appeal’s order. However, under the Supreme Court’s unwritten practice, the due date for the petition is measured from the denial of the original motion even if it is later renewed.

Following are some examples of reporter’s transcripts which are not part of the normal record, but are the subject of frequent requests.

a. Waiver of jury trial.
Even though the clerk's minutes may indicate a waiver of jury trial, the reporter’s transcript of the proceeding is necessary for effective appellate review. The right to a jury trial is guaranteed by the state and federal constitutions. The failure to obtain a proper waiver of the right to a jury trial renders the judgment voidable and the error is reversible per se. (People v. Collins (2001) 26 Cal.4th 297, 311-313.) The record must show a personal waiver by the defendant and no waiver may be implied from silence. (People v. Ernst (1994) 8 Cal.4th 441, 445.) A clerk's notation does not provide a basis for determining whether the alleged waiver was legally valid or properly obtained. The same rationale applies to a waiver of the right to counsel.

b. Jury Voir dire.
Reversible error often occurs in the selection of the jury. For example, there may be a prosecutorial abuse of peremptory challenges which deprived the defendant of a jury drawn from a representative cross-section of the community. Such an error is reversible per se. (Batson v. Kentucky (1986) 476 U.S. 79, 100; People v. Wheeler (1978) 22 Cal.3d 258, 287.) When an objection has been noted in the clerk’s minutes, the entire record of jury selection should be sought. This is so since the prosecutor’s bias might be revealed during any part of the voir dire process.

The voir dire transcript may be essential for many other reasons. It may demonstrate that defendant requested voir dire which was denied, but which was essential to a fair trial. Through voir dire questioning, the prosecution may have warmed the jury up to an erroneous theory of liability or other prosecutorial misconduct may have occurred. Information about the defendant may have come out during voir dire which affected the jurors' ability to be impartial.

5. Settled Statement.
In reviewing the record on appeal, counsel may discover that certain proceedings -- such as a conference in chambers or at the bench -- were unreported. Alternatively, counsel may find that a court reporter is unable to provide verbatim transcripts of a substantial portion of trial because the notes covering the relevant proceedings have been lost or inadvertently destroyed. As will be explained below, such occasions may require an attempt to reconstruct the relevant proceedings via a settled statement. A settled statement may be necessary in order to preserve an issue for appellate review.

For example, during the course of trial, defense counsel may have requested to approach the bench in order to make an objection and state the relevant grounds outside the presence of the jury. Unfortunately, the reporter's transcript will only read: "Discussion at the bench, unreported." Accordingly, without anything more, appellate counsel will be foreclosed from raising the issue on appeal because no objection was made on the record. Communication with trial counsel, however, may reveal that an appropriate objection was made and overruled by the court at the bench. In such a case, a settled statement establishing the objection and the court's ruling will preserve the issue for appellate review.

Where a substantial portion of the record has been lost or inadvertently destroyed, a settled statement may be necessary to establish that the relevant proceedings cannot be reconstructed because the parties have no independent recollection of what occurred, or have conflicting recollections as to what occurred. If such a statement is filed, counsel can move to vacate the judgment pursuant to Penal Code section 1181, subdivision (9) on the ground that appellant has been denied a fair and adequate record on appeal. (People v. Jones (1981) 125 Cal.App.3d 298, 302; People v. Apalatequi (1978) 82 Cal.App.3d 970, 974.)

In Apalatequi, appellant claimed the prosecutor committed misconduct during his closing argument to the jury. Unfortunately, the court reporter lost her notes and was unable to provide a transcript of the argument. Appellant's proposed settled statement of what happened strongly conflicted with the prosecutor's recollection and with the assumptions of the trial court about what it would have done if such misconduct had occurred.

In light of this unusual situation, the Court of Appeal concluded that the settled statement was insufficient to afford effective appellate review. (People v. Apalatequi, supra, 82 Cal.App.3d at p. 974.) Accordingly, since there was no effective substitute for the reporter's transcript, appellant's motion to vacate the judgment was granted. (Ibid.)

If there is any question as to whether a particular proceeding has been reported, appellate counsel should file a motion to augment the record to include a reporter's transcript of that proceeding. If the proceeding was unreported, or the notes were lost or destroyed, the court reporter or the clerk will file a certificate or declaration asserting that fact. Once it is established that there is no reporter's transcript, and the verbatim proceedings are material to an issue on appeal, counsel should proceed to prepare the settled statement.

The California Supreme Court has catalogued the steps which must be taken in a proceeding to settle the record. (Marks v. Superior Court (2002) 27 Cal.4th 176, 192-194.) Although Marks does not address this point, the practice in the Sixth District is that the initial application to settle the record should be filed in the Court of Appeal. In this way, the Court of Appeal will order the trial court to act within a specified amount of time. If there is undue delay, the Court of Appeal can then be asked for a further order to speed up the process.

The initial application should be filed in the superior court (see Cal. Rules of Ct., rule 8.346), but the court of appeal should be served. The application must set forth reasons why a settled statement is necessary. For example, where an objection and the court's ruling were entered off the record, appellate counsel should obtain a declaration from trial counsel establishing these facts and attach the declaration to the application. The court must decide the application within five days, and if the showing is sufficient, issue an order permitting the preparation of the settled statement. (Rule 8.346(b).)

Next, counsel must prepare the proposed settled statement. (Cal. Rules of Ct., rule 8.137(b)(1).) This document generally consists of a condensed statement in narrative form of all or a portion of the oral proceeding deemed material to the determination of the issues on appeal. (Cal. Rules of Ct., rule 8.137(b)(1).)

If the statement covers only a portion of the proceeding, counsel is required to state what issues are to be raised on appeal. It is very important that counsel set forth all possible issues since he or she may be precluded from asserting any additional grounds for reversal thereafter. (Rule 8.137(b)(2).) Respondent is then afforded an opportunity to serve and file proposed amendments. (Rule 8.137(b)(4).)

Once respondent has filed proposed amendments, or the time limit to do so has expired (whichever comes first), the clerk must calendar a hearing on the settled statement before the judge who tried the case. (Rule 8.137(c)(1).) In addition, the clerk must give at least five days' notice to all of the parties. (Ibid.)

At the hearing, the judge must settle the statement and set the time within which counsel must prepare the statement as directed by the judge, and serve and file the statement. (Rule 8.137(c)(2).) Often, testimony will have to be taken at the hearing so counsel must ensure that trial counsel, and on occasion, the client, are both present. Moreover, counsel should determine whether other trial participants, such as witnesses or jurors, also need to be present. To expedite matters and obviate the need for a hearing, appellate counsel should consider contacting the prosecutor to determine whether any objection will be made to the proposed settled statement that has been filed. If not, then counsel can submit a settled statement to the trial judge for his signature with a letter notifying him that the prosecutor has no objection to the proposed settled statement.

Once the settled statement is filed, it is presumed to be prepared in accordance with the order of the judge if no objections to the statement are served and filed within the following five days. (Rule 8.137(c)(3).) At that point, the clerk must present the statement to the judge for certification. (Ibid.) If the parties stipulate that the statement as filed is correct, then no certification is required. (Rule 8.137(c)(4).)

If appellate counsel wishes to contest the fairness of the settlement proceedings or the sufficiency of the record notwithstanding the settled statement, the documents relating to the trial court proceedings may be added to the record by way of a motion to augment the record. Similarly, a reporter’s transcript of the settlement proceedings may be sought in an augmentation motion. (People v. Apaletequi, supra, 82 Cal.App.3d at pp. 972-973.)

The foregoing outline of the procedure underscores the importance of communicating with trial counsel from the outset of the case, i.e. while appellate counsel is first reviewing the record. If there is substantial delay, the recollection of trial participants may not be retrievable.

6. Judicial Notice.
Ordinarily, the appellate court will not grant judicial notice of “matters if they have not been presented to the trial court; . . . .” (People v. Preslie (1977) 70 Cal.App.3d 486, 493.) However, counsel should not allow this general rule to stand in the way of the creative use of judicial notice.

Judicial notice has been taken for the first time on appeal in a variety of cases. (People v. Jurado (1981) 115 Cal.App.3d 470, 482-483; newspaper articles and records from another case to review denial of motion for change of venue; People v. Lawrence (1980) 111 Cal.App.3d 630, 635, fn.1; distance between point of theft and detention of appellant considered in review of sufficiency of the evidence; People v. Shaw (1965) 237 Cal.App.2d 606,616; judicial notice of records to determine if prior convictions were for separate terms such that appellant faced imprisonment for life to determine the appropriate number of peremptory challenges.)

Evidence Code section 459 provides that the reviewing court may take notice of matters noticed by the trial court; matters the trial court was required to notice under sections 451 or 453; or any matter specified in section 452. Also, the reviewing court may take notice in a tenor different from that noticed by the trial court.

The motion for judicial notice should include an indication of whether the matter was previously the subject of notice; show the propriety of judicial notice; and, indicate any opportunity the parties have had to address the information. If the motion relates to a document or record on file in the trial court, a certified copy of the document or record should be attached to the motion as an exhibit. (See People v. Preslie, supra, 70 Cal.App.3d 486, 494-495.)

If a case has previously been the subject of an appeal, it is appropriate to ask the Court of Appeal to judicially notice the transcripts and opinion from the prior appeal. In most cases, judicial notice will be necessary to ensure that an adequate record is before the court.

7. Extensions of Time
The opening brief is due within 40 days of the filing of the record on appeal. (Cal. Rules of Ct., rule 8.360(c)(1).) If due to the size of the record, complexity of the case or other specific obligations, you cannot file the opening brief within the initial 40 days, you must file a request for an extension of time. The request for extension should be accompanied by a declaration which details good cause for the extension. In this regard, California Rules of Court, rule 8.63(b) sets forth specific factors which the court must consider on the issue of good cause. Do not use boilerplate excuses like "press of business." Be specific as to why you have been unable to complete the brief.

Absent truly extraordinary circumstances, the Court of Appeal will not grant an extension for more than 30 days at a time. The application must be served on all parties. Counsel must provide the court with “sufficient postage prepaid envelopes for mailing the order granting or denying the application to all parties.” (Cal. Rules of Ct., rule 8.50.)

If you let the filing deadline lapse without requesting an extension of time, you will receive a letter from the Court of Appeal requiring you to file the brief within 30 days. (Cal. Rules of Ct., rules 8.220(a) and 8.360(c)(5).) It is SDAP’s policy that counsel should not fall into rule 8.220(a) time unless the brief is certain to be filed within a matter of days. On many occasions, attorneys have prepared poor briefs because they fell into rule 8.200(a) time and did not have sufficient time to prepare a quality brief. If you fall into rule 8.220(a) time, do not expect a SDAP staff attorney to drop everything in order to review a draft of a brief which is due in the next few days.

Counsel may apply for an extension after receiving the rule 8.220(a) notice. However, such a request is disfavored. If you fail to file the brief within the rule 8.220(a) period or within the extension of time granted after issuance of a rule 8.220(a) notice, you will be in default. If you permit a case to go into default, your appointment will likely be vacated, you may not be compensated for any work you have done, and you may be removed from the SDAP panel.