I. INTRODUCTION
One of the persistent challenges for appellate counsel is to receive a timely and accurate copy of the record on appeal. The goal of this handout is to distill the various tactics to get these records, while also setting forth the various filing/service requirements unique to the Sixth District.
Please note that the strategies in this handout are specific to the Sixth District. If you have a case from a different court of appeal in which the oversight has been transferred to SDAP, you may need to employ different strategies to get a complete copy of the record. In that circumstance – or if you have any record-related issues not addressed by this handout – please reach out to your SDAP buddy assigned to the case.
II. FORMATTING OF RECORDS
In the Sixth District, Reporter’s Transcripts in felony cases must be provided to counsel in hard copy form. The superior courts then have the option to provide electronic copies of records in all other cases. Similarly, they may provide electronic copies of the Clerk’s Transcripts in felony appeals.
In the Sixth District, each of the four counties have standard ways that they format their records, though this may vary from case to case. Below, we summarize the common practices of each county:
Monterey County: Produces hard copies of records in all SDAP cases. Records are shipped first to SDAP and then will be forwarded to the panel attorney by SDAP.
San Benito County: Produces hard copies of records in all SDAP cases. Records are shipped first to SDAP and then will be forwarded to the panel attorney by SDAP.
Santa Clara County: Produces hard copies of reporter’s transcripts in felony cases. SDAP picks these up on a weekly basis and then will forward to the panel attorney. Otherwise, transcripts are generally produced electronically and served upon SDAP. SDAP staff will then send the electronic transcript to the panel attorney. On occasion, hard copy records (particularly augmented/omitted records) are mailed by the trial court directly to the panel attorney. If this happens, please let SDAP know so that we can log that you received it.
Santa Cruz County: Produces hard copies of reporter’s transcripts in felony cases. These are mailed to SDAP and then forwarded by SDAP on to the panel attorney. Otherwise, transcripts are generally produced electronically and served upon SDAP. SDAP staff will then send the electronic transcript to the panel attorney.
A common question is whether a panel attorney can be reimbursed for printing a copy of an electronic record. As indicated above, only Santa Clara and Santa Cruz Counties presently produce electronic records. A panel attorney can be reimbursed for the actual cost of printing an electronic transcript from these counties if: (1) he or she contacts the client, who indicates that he or she would like a copy of the record; and (2) the client does not have the means to accept an electronic copy of the record (i.e., the client is in custody or otherwise does not have the ability to access electronic transcripts). Before printing the record, we recommend that the panel attorney reaches out their SDAP buddy to confirm that the printing costs will be reimbursed. These costs should be billed on Line 9 (Other) – as opposed to Line 1 (Copying) – of the Expenses Page on eClaims.
III. HANDLING RECORD PRODUCTION DELAYS
As many of you know, Santa Clara County suffered from lengthy delays with its record production. This has improved significantly over the last few years. With that said, delays sometimes do occur. If counsel is concerned about a delayed record (whether it be an original record or an augmented/corrected one), he or she should reach out to his or her SDAP buddy and discuss whether the filing of a motion requesting the Court of Appeal issue an order to show cause is appropriate. Your SDAP buddy can provide you a sample of such a motion. Our court has shown a willingness to issue orders to show cause in appropriate circumstances.
This is particularly important in time-sensitive appeals, including dependency, delinquency, and civil commitment cases, or other cases that may be rendered moot if the appeal is delayed. In those cases, counsel should be diligent in monitoring the record production process and take appropriate steps when it is delayed. Time spent monitoring the record production process can and should be billed on counsel’s claim.
IV. CORRECTING THE NORMAL RECORD ON APPEAL
In general, the filing of an omission letter or augment motion can result in a delay, particularly if the case is from Santa Clara County. For this reason, if you are missing only a few discrete documents, we recommend you try and get them from the trial attorney or prosecutor. You can then attach them to an augment motion (with a declaration from counsel attesting to their validity). This is true even if the missing documents are part of the normal record on appeal.
Sometimes, panel attorneys will not be able to receive missing documents from trial counsel. If the documents are part of the normal record on appeal (see Cal. Rules of Court, Rules 8.320 [criminal], 8.407 [juvenile]), then the panel attorney should file a record omission letter.
Counsel should Truefile a service copy of the letter with Court of Appeal; the court will toll time for briefing and, upon the filing of the omitted record, give you 15 days to file the brief.
Counsel should serve the letter to the specific trial court in the following manner:
Monterey County: Monterey County accepts eservice through any third party efiling provider listed on their website: https://www.monterey.courts.ca.gov/efiling. There are many listed, and they have no preference (SDAP uses Greenfiling) just as long as the documents are efiled/eserved to the court.
San Benito County: Mail a hard copy of the letter to the following address:
San Benito County Superior Court
Attn: Appeals Clerk
450 Fourth Street
Hollister, CA 95023
Santa Clara County: Counsel should eserve their omission letter to the superior court through Greenfiling. Counsel should also email a service copy to appealsclerks@scscourt.org with subject line that reads “COURTESY COPY re: [trial court case name & number & title of document].”
Santa Cruz County: Email letter to appeals@santacruzcourt.org.
Counsel should monitor the filing of the corrected record. If the record is delayed and the case is time-sensitive (or if there is a considerable delay in non-time-sensitive cases), he or she should reach out to his or her SDAP buddy about appropriate next steps.
Time spent on omission letters should be billed on Line 5 (Other Motions), and not Line 4 (Augment) on eClaims.
V. AUGMENTING THE RECORD
An augment motion should be filed in two circumstances:
(1) When something needs to be included in the record, but it is not a part of the normal record on appeal; OR
(2) When you receive a document from the trial attorney/prosecutor and want it to be included as part of the record on appeal.
The Sixth District Court of Appeal requires the use of a proposed order for all motions to augment the record. The PDF fillable proposed order must be used in civil appeals as well. It should be noted that an attorney can request an extension of time to file the opening brief of more than 15 days after the record is filed. (Time is tolled once an augment motion is granted.)
It is also important to note that the Court requests the form be submitted separately in the TrueFiling bundle and not attached to the augment motion. Please contact your SDAP buddy if you have any questions concerning the form, which is located here: 6DCA-AugOrderCR-Rev12122023.pdf.
If you are attaching documents to the augment motion, these should be file-stamped (if possible) and should be supported by a declaration from trial counsel/prosecutor attesting to their validity.
After the augmented or corrected record is filed, counsel should promptly review it to ensure all missing documents are included. The Court of Appeal will often reach out to counsel to ensure that all the requested documents have been included. Please promptly respond to these inquiries. If there are still missing documents, counsel should file a new augment motion, omission letter, or, if necessary, move to settle the record (see below).
VI. SETTLING THE RECORD ON APPEAL
If an omission letter or augment motion do not turn up the missing documents, then you will need to move for a settled statement. This can be a complicated process, so I encourage you to review Anna Stuart’s handout on settling the record, located here: http://www.sdap.org/downloads/research/criminal/als19.pdf.
We recommend you contact your SDAP buddy if you need to settle the record, particularly if you have not done so before.
VII. TRANSFERRING EXHIBITS
It is not uncommon for counsel to need to review some of the trial court’s exhibits as part of his or her review of the record. If you just need the records for your own personal review, we encourage you to try and obtain them from trial counsel. Since COVID, it has been difficult to get exhibits directly from the trial courts or to set up an appointment to view them. (If you do need to go to the trial court to view them – this is most common if you need to review physical evidence – please reach out to your SDAP buddy in advance to get pre-approval for your travel time.)
If you cannot get the exhibits via these mechanisms or if you need to get the exhibits in front of the Court of Appeal (i.e., they pertain to an issue raised on appeal), then you should file a motion to transfer exhibits with the Court of Appeal. The Court of Appeal will then issue an order directing the trial court to transfer the exhibits to it. Counsel can then reach out to the Court of Appeal to get scanned copies of the exhibits.
VIII. PITCHESS REQUESTS
In rare cases, counsel will raise an issue requesting the Court of Appeal review the documents produced via a Pitchess motion. If such an issue is being raised, counsel should work to get those documents transferred to the Court of Appeal before the issue is raised. Otherwise, the Court of Appeal will need to procure the documents on its own, which will delay resolution of the appeal.
How to ask for Pitchess records depends on whether the trial court followed the directives in People v. Mooc (2001) 26 Cal.4th 1216and saved a copy of the records or at least a log of what they reviewed. If the trial court saved a copy of the records, then a motion to augment the record should be filed requesting the documents be transferred to the Court of Appeal. If counsel can’t tell if the trial court has complied with the requirements in Mooc, we recommend he or she move to get the documents by filing a motion to augment or a motion to settle the record in the alternative. If you confront this issue, we encourage you to reach out to your SDAP buddy about how to proceed.
