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
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 8.47(b) 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).)
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.
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
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.,
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.
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
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.
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
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.
8. Electronic Filing
Counsel must electronically file all motions, briefs, and petitions in the court of appeal via a private vendor called TrueFiling. SDAP will accept electronic service at email@example.com in PDF format. The Attorney General must be electronically served all documents in PDF format at SFAGDocketing@doj.ca.gov. The subject header should include the case name, case number and the title of the document. In dependency cases, county counsel must be served a hard copy in the mail. A hard copy should be mailed to the client, the district attorney, the superior court, and any other parties, if they are requires by rule.
The proof of service needs to be modified. (See Cal. Rules of Court, Rule 2.251(g).) Counsel is responsible for maintaining an unaltered copy of the documents that are electronically filed, delievered, or served. (Code Civ. Proc. 1010.6; Cal. Rules of Court, Rules 2.250 et seq.) The standing orders are below. Additional information and the methodology for electronic filing and electronic delivery will be found on the court’s website at http://www.courts.ca.gov/6dca.htm.