Counsel/Record/Briefs
Category > Counsel/Record/Briefs
Updated 2/3/2024A settled statement requires that conflicts be resolved in the trial court.Defense counsel made a Batson/Wheeler challenge after the prosecution excused a black prospective juror. The court denied the motion, and the court reporter later lost the ability the ability to prepare the transcript for that part of jury selection. The trial judge was thereafter unavailable during record correction proceedings, and so the judge siting in collected the differing recollections of the two sides. However, this was an inadequate settled statement, and it is up to the trial court to resolve conflicts in the record. However, any error here was harmless where, even accepting the defense version, there was no error in excusing the juror in question.id: 27395
An indigent criminal defendant is entitled to a free transcript of the prior trial, including witness testimony and statements or arguments of counsel.An indigent criminal defendant facing a retrial is entitled to a free copy of the transcripts from the original trial. This includes not only witness testimony, but the statements of counsel, and no showing of necessity is required.id: 25149
Defendant was denied meaningful appellate review at the penalty phase where the Pitchess materials the trial court reviewed were lost and not part of the record. The trial court in a capital case reviewed an officer’s personnel records following a Pitchess motion. However, the materials the judge reviewed in making a ruling were lost and could not be recovered and reviewed on appeal. The absence of the materials from the record deprived defendant of meaningful appellate review of the ruling. Reversal of the penalty judgment was not required where it was not reasonably possible that defendant would have received a better result absent the error.id: 24682
Red light camera violation conviction was dismissed where the testifying police officer could not lay the proper foundation.Defendant was convicted of failing to stop at a red light at an intersection equipped with an automated red light enforcement system. A private company provided the photos and video to the police department which issued the ticket. However, the court erred by admitting the evidence obtained from the red light cameras because the evidence was authenticated, not by an employee of the company who could show the system was properly calibrated, inspected and working well, but by a police officer who lacked the required knowledge. Even though there were deficiencies in the settled statement, the record was adequate to show the legal error.id: 22597
The written gang conditions were modified to reflect the conditions orally pronounced by the trial court. The written gang conditions in the minute order listing the probation conditions were inconsistent with the conditions orally imposed by the court. In the case of a discrepancy, the oral pronouncement prevails and so the written conditions were modified. id: 21856
Prosecutor's appeal was operative to review an order dismissing a charge but not one granting probation and the Court of Appeal erred in ruling on an issue not briefed by both parties.The Court of Appeal violated Government Code section 68081 by
holding that the People's appeal was authorized under Penal Code section 1238, subd.(a)(10) as an appeal from an unlawful sentence, because the parties had neither proposed nor addressed this issue in their briefs. The Court of Appeal compounded the error by denying defendant's petition for rehearing on that basis. Moreover, the appeal from the order setting aside one count of the information under Penal Code section 995 was authorized by Penal Code section 1238,subd.(a)(1), which permits the prosecutor to appeal from an order setting aside a portion of an information, but no appeal lies from the court's purported order granting probation.id: 19725
The trial court violated defendant's due process rights by conducting a portion of jury selection off the record, outside the presence of the jurors and defendant without a waiver from the latter.Defendant's right to due process was violated by the court's
conducting a portion of the jury selection off the record, outside the presence of prospective jurors and outside his presence without his waiver. The discussions outsided efendant's presence involved the excusal of jurors including one juror who defendant and his attorney agreed should have been excused, but who counsel overlooked.id: 19714
Settled statement was inadequate substitute for trial transcript where trial counsel was absent and the trial court did not recall the proceedings.The court reporter could not prepare transcripts for a portion of the trial due to a technical malfunction. The defense
lawyer who tried the case became unavailable and defense counsel who appeared at the hearing to discuss a settled statement was unfamiliar with the case. The trial court had no recollection of
the relevant proceedings, but approved a settled statement. Under the circumstances, the revised settled statement was an inadequate substitute for a trial transcript. The trial court was ordered to hold a hearing to determine the availability of trial counsel. If counsel is unavailable the judgment will be reversed. id: 19595
Reporter’s duplication of instructions before voir dire relating to mundane matters did not render the capital record untrustworthy.Defendant argued the record in his capital case was flawed and untrustworthy because the court reporter cut and pasted portions of the court’s pre-voir dire instructions and used that in later groups of jurors. However, the copied instructions concerned mundane matters of no significance and most instances occurred during jury selection that didn’t result in the seating of a juror.id: 25796
The trial court did not violate equal protection principles by denying the indigent defendant transcripts of the opening statements and closing arguments of the first trial that ended in a hung jury. Defendant represented himself at a trial that ended in a hung jury. Before the retrial he requested transcripts from the first trial and the court ordered transcripts of all of the witness testimony. He argued that he should also have been provided with the opening statements and closing arguments. There was no equal protection violation in denying the indigent defendant transcripts that would have been available to a non-indigent defendant, absent a showing of need for the transcripts of the arguments.id: 24291
Supreme Court declines to consider attorney's challenge to Michigan ban on appointed appellate counsel.In 2000, Michigan passed a statute barring the appointment of appellate counsel for most indigent defendants who pleaded guilty. Attorneys who represent indigent defendant challenged the ban on the ground that it denied indigent defendant's equal protection and due process. The Sixth Circuit fount the statute unconstitutional, but the Supreme Court held that the attorneys lacked standing to assert the indigent defendants's rights. The Court did not reach the merits of the attorney's constitutional challenge.id: 20109
The loss of 55 juror questionnaires did not result in an inadequate appellate record.Defendant argued there was an inadequate appellate record of the capital trial where 55 juror questionnaires were lost. However, he failed to explain how the absence of the questionnaires precluded meaningful appellate review of his Batson/Wheeler claim, and even if relevant to a comparative juror analysis, the reporter’s transcript from the voir dire of each prospective juror provided an ample appellate record.id: 22830
The trial court did not err in denying the capital defendant’s request to settle the record by recreating a chalkboard that trial counsel took no steps to preserve.
Defendant argued the trial court erred in denying his request to settle the capital record with respect to a chalkboard diagram created by the blood splatter expert. However, trial counsel took no steps to preserve the diagram and the settlement process does not permit defendant to create anew something that he neglected to make part of the record in the first place.id: 22265
The failure to report all proceedings in the capital case was not prejudicial where the court summarized each unreported conference on the record.The trial court violated Penal Code section 190.9 by conducting numerous pretrial and trial proceedings without a court reporter present. In each case, the court summarized the objections raised and the court’s rulings. The error was not reversible per se and defendant conceded he could not show prejudice from the error.id: 21536
Absence of juror questionnaires in the appellate record did not preclude Batson-Wheeler review where the court found no prima facie case of bias was made and the prosecutor's reasons for excusing jurors was irrelevant.Defendant argued a due process violation occurred where the appellate record did not contain juror questionnaires
necessary to assist with a Batson-Wheeler claim. However, since the court ruled defendant failed to show a prima facie case of group discrimination, the prosecution's reasons for challenging the African American jurors, and hence the questionnaires were irrelevant.id: 19537
Defendant was entitled to daily transcripts from preliminary hearing in a potential death penalty case.The prosecution charged defendant with special circumstance murder but had not announced a decision on whether it would seek the death penalty. Since this was a case in which a death sentence may be imposed, Penal Code section 190.9, subd.(a)(1) required the preparation and certification of daily transcripts of the preliminary hearing.id: 19988
Misdemeanor defendant who fails to provide an adequate record on appeal need not be given a chance to address the issue of the inadequate record.A defendant convicted of a misdemeanor who fails to provide an adequate record on appeal need not be given an opportunity under Government Code section 68081 to address the issue of the inadequate record even if the lack of record is the grounds for affirmance on appeal.id: 19849
Capital defendants were not entitled to have the record augmented with the trial court's personal notes. After stating in its denial of the motion to modify the death
verdict in 1993 that it relied extensively on its personal notes, the court denied defendant's request in 1999 to augment the record to include those personal notes (which may have been
discarded by then). The notes were the court's own work product and personal to the judge. That the court consulted its notes in denying the motion to modify the verdict did not require that
the notes be made part of the record.id: 19252
Record on appeal was not inadequate in a capital case where in-chambers discussions regarding juror hardships were not reported.Defendant argued he was denied his right to a record adequate to permit meaningful review of his capital case where
in-chambers hearings regarding juror hardship excusals were not reported. However, any error was waived as it was defense counsel's suggestion to proceed off-the-record. Moreover, the
questionnaires prepared by the prospective jurors, along with the clerk's minutes of the proceedings and the on-the-record excusal of 133 of the prospective jurors whose hardship
questionnaires were discussed in chambers provided an adequate record on appeal.id: 19222
Settled statement procedure could not be used to determine the contents of the video and audiotapes. The videotape and audiotape were at times indecipherable both to
the police transcriptionist and the trial judge. The court later denied the suppression motion based in part on this uncertainty. Defendant sought to invoke the settled statement procedure. Defendant's request to settle the record by determining which portions of the transcript were played to the jury was proper. However, the settled statement procedure could not be used to determine the contents of the video and audiotapes because the statements made to police were not part of the "oral proceedings" of the court.id: 19153
Failure to record jury instruction conference in capital case was harmless where the instructions discussed in the conference were available for review. Defendant argued reversal of the conviction was required in his capital case due to the fact that the jury instruction conference was not reported, and two sealed reports were lost and no one could remember what they contained. However, there was no prejudicial error because the instructions discussed in the conference were available to review, and defendant could show no prejudice due to the loss of the sealed reports.id: 19011
The departure from the standard instruction regarding mental competence was insignificant and likely a function of court reporter error.At defendant's Penal Code section 1367 competency trial, the court instructed the jury in language that, according to the reporter's transcript, differed slightly from the standard jury instruction. However, because the court was obviously reading a standard instruction, it was far more likely that the punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed by the court's oral instructions than that the court misread the standard instruction. Moreover, any minor departure by the court from the language of the standard instruction was not reasonably likely to cause the jury to misunderstand its duties.id: 19014
Defendant was not entitled to transcripts of her prior trial absent a showing of particular need.Where a criminal defendant requests a transcript from a prior trial for use in a later trial on different charges, the necessity of the transcript for the preparation of an
effective defense is not presumed. Rather, as in cases involving a motion for new trial or other collateral relief, the defendant must demonstrate specific need. Defendant did not demonstrate the particularized need for the transcripts where counsel simply informed the court she wanted the transcript "to prepare for this matter" without specifying how the transcript would be helpful. id: 18984
Capital defendant was not prejudiced by the omission of portions of the record.Defendant argued the record on appeal was inadequate to permit the meaningful review necessary in a capital appeal because several conferences were unreported and the parties were unable to reconstruct the unreported conferences during settlement proceedings. However, because the record was adequate to reach the merits of defendant's claims, defendant was not prejudiced by the omission of portions of the record.id: 18347
Record was unclear as to juror requests and the court's responses without notifying counsel, and the defense had the burden of developing the record with a settled statement.Defendant argued the court erred in failing to advise defense counsel about jury requests made during penalty phase deliberations. However, the record was unclear as to the questions and court's responses. Defendant had the burden of developing a proper record by way of a settled statement. The present record did not show any irregularity prejudiced defendant.id: 17416
Appellant was not denied equal protection by the court's order granting the prosecutor's request for a transcript after earlier denying his.Appellant was granted a mistrial and was not provided (nor had he made timely request for) a transcript of the first trial. During trial, the court granted the prosecutor's request for a partial transcript of the first trial. Appellant was not denied equal protection by virtue of the court's granting the prosecutor's request since appellant's request was untimely as it was filed a few days before the second trial commenced, he was represented by the same attorney at both trials and he failed to establish any prejudice from the court's orders.id: 14731
Augmentation request for entire voir dire transcript should have included a factual basis for the claim such as a declaration by trial counsel.During voir dire in defendant's capital case a potential juror stated that she felt killers should be killed and she did not know if she could be fair. The trial court denied the challenge for cause believing the juror was simply trying to avoid jury service. Defendant exercised his 19th peremptory challenge on the juror and later used his last challenge. However, defendant never objected to the jury as finally constituted and did not seek an additional peremptory challenge. He claimed a due process violation in the denial of his request to augment the record to include the entire voir dire transcript arguing that reviewing the entire transcript would establish whether he informed the court of his dissatisfaction with the jury as impaneled. However, his augmentation request failed to provide a supporting factual basis including a declaration by trial counsel, the court reporter, or by the minutes.id: 14732
Denial of additional transcripts to prepare for new trial motion was not a denial of due process absent an adequate showing of need.Appellant's first trial ended in a mistrial. At a motion for a new trial following his second trial, he requested all the transcripts from the first trial. Since appellant already had transcripts of the second trial, he should have indicated specifically which additional transcripts were needed and why. Because he failed to make an adequate showing of need, the court correctly denied the motion for additional transcripts.id: 14733
Retained appellate counsel may not file a Wende brief.Counsel was retained by appellant on appeal. Counsel filed a brief that failed to allege error by the trial court but invited the court to review the records pursuant to <i>People v. Wende</i> (1979) 25 Cal.3d 436. However, <i>Wende</i> does not require an appellate court to conduct a review of the entire record and determine whether any arguable issues exist when such a request is made by retained counsel in a criminal appeal.id: 14734
Written sentencing order is not a compilation of clerical entries subject to nunc pro tunc correction.Defendant argued the reporter's transcript indicated the trial court's apparent intent to increase the amount of the restitution fine from $500 to $1,000 payment to a separate fund. He claimed that in a case of discrepancy between the judgment as orally pronounced and clerical entry of the judgment the oral pronouncement controls, and he requested the minute order be amended. However, it was not clear that the entry in the written sentencing order was inconsistent with the proceedings in open court. Moreover, the written sentencing order was inconsistent with the proceedings in open court is not simply a compilation of clerical entries but rather is a formal order of the court and not subject to nunc pro tunc correction.id: 14735
Trial court did not err in refusing defendant a free transcript of the entire trial of a severed codefendant where there were different charges and issues in the two trials;Defendant argued the trial court committed automatically reversible error by denying his counsel a free transcript of the entire trial of a severed codefendant. However, codefendant's trial involved a charge that was not present in defendant's case and not all witnesses and issues were the same between the two trials. On the one occasion where the trial counsel did identify a particular witness' testimony and a basis for its relevance, the court granted the request for that transcript. Defense counsel's indiscriminate insistence on the entire transcript of the severed codefendant's trial, when much of it was plainly irrelevant to defendant's ability to defend against the murder charge, was improper.id: 12948
Court did not err in denying the request to augment the record with the entire voir dire transcript for purposes of a Wheeler motion.The prosecutor used three peremptory challenges to excuse Black prospective jurors. After the third challenge defendant made a <i>Wheeler</i> motion, claiming the prosecutor's reasons for excusing the jurors were disingenuous. The appellate record furnished to defendant contained the voir dire of the three challenged jurors and the argument and ruling on the <i>Wheeler</i> motion. Still, defendant sought to augment the record with a transcript of the entire jury voir dire. The court did not err in failing to grant the request because the record on appeal contained everything necessary for counsel to brief the issue and for the court to render a decision.id: 12590
Failure to require a verbatim record of a hearing at which the juvenile admits the petition is not reversible per se.Reversal is not always required when a juvenile court fails to require a verbatim record of a hearing at which the minor admits the petition. In the instant case the record, in the form of the clerk's minute order, was sufficient to permit a conclusion that appellant's admission of the amended counts was free and voluntary. Moreoever, the issue regarding advisement of the direct consequences of the plea was waived when not raised at the dispositional hearing.id: 11661
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245