PROCEDURES
procedures for obtaining a settled statement
(NOTE: This article is under review for updating)
by Laurel Thorpe & Sandra Uribe, CCAP Staff Attorneys
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A. Introduction
An appellant in a criminal case has a right under the Eighth and Fourteenth Amendments to an appellate record that is adequate to permit meaningful appellate review. (People v. Alvarez (1996) 14 Cal.4th 155, 198, fn. 8.) However, it is appellant's burden to show the record is inadequate to permit such review. (People v. Arias (1996) 13 Cal.4th 92, 158.) Thus, if an appellate record can be reconstructed with a settled statement, the appellant must use such methods to obtain appellate review. (People v. Young (2005) 34 Cal.4th 1149, 1170.)
The mechanics for doing settled statements in criminal cases are set forth in the California Rules of Court, rules 8.137 [within 10 days of filing the notice of appeal] and 8.346 [record on appeal]. Anyone who attempts to settle a statement will find two universal truths: 1) these rules do not answer many of the practical questions that arise, and 2) very few trial attorneys or judges understand the procedures on how to do a settled statement. This article offers some suggestions for understanding the process of doing a settled statement and avoiding a few of the pitfalls.
Previously, in In re Steven B. (1979) 25 Cal.3d 1, 6-8, the Supreme Court held that since no statute, rule or case held that a settled statement was appropriate in a juvenile court appeal when the complete transcript was unavailable; the remedy was a new hearing. However, California Rules of Court, rule 8.404(d), pertaining to the contents of the record in juvenile appeals and writs, now specifically provides for the use of settled statements, and directs the parties to comply with rule 8.346.
B. What is a Settled Statement?
A settled statement is some part of the record or oral proceedings for which there is no reporter's transcript available. Thus, a settled statement operates to make up for the absence of a reporter's transcript of oral proceedings and not to supply what was omitted from those proceedings. (People v. Griffin (2004) 33 Cal.4th 536, 554; see also People v. Tuilaepa (1992) 4 Cal.4th 569, 585, affd. sub nom. Tuilaepa v. California (1994) 512 U.S. 967, 114 S.Ct. 2630, [stating that the “settlement ... process does not allow parties to create proceedings . . . which they neglected to [create] earlier”].)
The "oral proceedings" described by the rule has been defined as an "unreported matter, the contents of which may be useful on appeal." (People v. Gzikowski (1982) 32 Cal.3d 580, 585, fn.2.) The following is an illustrative list of the type of items which should qualify as oral proceedings:
- An unreported bench conference between the trial judge and a juror regarding a juror's ability to serve (People v. Wright (1990) 52 Cal.3d 367, 401, fn. 6);
- An in chambers discussion between trial judge and counsel regarding proposed jury instructions. (People v. Hardy (1992) 2 Cal.4th 86, 183-184.)
- An in chambers discussion concerning the defendant's mental competency (People v. Castro (1982) 138 Cal.App.3d 30);
- A map used by a witness during testimony but not introduced into evidence (St. George v. Superior Court (1949) 93 Cal.App.2d 815);
- Physical gestures by a witness during testimony which were not adequately described on the record;
- A summary of what occurred during a jury's visit to a crime scene;
- Courtroom security, shackling and physical restraints used on the defendant during trial (United States v. Greenwell (4th Cir. 1969) 418 F.2d 845);
- The fact that the trial judge viewed the premises which are subject of the proceedings (San Francisco Unified School District v. Board of National Missions (1954) 129 Cal.App.2d 236, 241).
However, the term "oral proceedings" does not include the reasoning or thought processes of either the trial judge or counsel regarding their actions or failure to act. This was the holding in People v. Williams (1988) 44 Cal.3d 883, where, over objections, the trial court settled the record to include trial counsel's explanation that a Beagle (People v. Beagle (1972) 6 Cal.3d 441) motion was not made as a part of his trial strategy. The Supreme Court there recognized that the "recital regarding counsel's trial strategy may not reflect an unreported 'oral proceeding' that may be settled under rule 36(b) [repealed and replaced by current rule 8.346]…" (Id. at p. 921.) Counsel may, therefore, properly object to the inclusion of any statements being placed on the record or included in the settled statement which are an expression of reasons or thought processes for what was done or not done. Where counsel endeavors to keep such matters out of the statement, they should object at every opportunity and should renew the objections in the Court of Appeal under rule 8.155(c) by moving to strike that portion of the engrossed settled statement. (Ibid.)
C. What is the Process?
First, appellate counsel should speak to trial counsel. The only way to discover some of the more unusual happenings during trial is to explore the "off the record" proceedings with trial counsel. Appellate counsel should also determine whether material might be uncovered which would be adverse to the contentions to be made on appeal. If such material exists, settling the record may undermine, rather than support, the arguments to be made on appeal.
Second, appellate counsel should move to augment for the proceedings rather than assume it was unreported. Moreover, rule 8.346(a) specifically requires that an application to settle the record explain why the transcripts cannot be obtained. The return certificate from the superior court clerk will indicate that a transcript "cannot be obtained" and will be useful in satisfying this requirement.
Third, appellate counsel should file an application for permission to prepare a settled statement. Different districts interpret this rule differently. In the Fifth District, appellate counsel must file the application in the Court of Appeal first, and obtain the court's permission to file the motion in the trial court. In contrast, in the Third District, appellate counsel may file the motion directly in the trial court directly, without first obtaining the appellate court’s permission. In either case, appellate counsel will need to monitor deadlines and file extension of time requests for extension of time for filing the opening brief, as the pending motion in either the trial court or the Court of Appeal will not toll the opening brief due date.
As a part of the motion to settle the statement, a supporting declaration should set forth "with some certainty how the contents of an unreported matter, as he understands them, constitute an 'oral proceeding,' i.e., one that may be useful on appeal." (People v. Gzikowski, supra, 32 Cal.3d at p. 585, fn.2.) This means that appellate counsel should specify the issue on appeal which the statement will relate, and should include a general summary of what the statement will be. In deciding whether to grant the motion, the trial court should accept appellate counsel's version of the expected content of the statement. (Ibid.) If the Attorney General opposes the motion, appellate counsel should immediately request a hearing to argue the matter. (But see, Pitfalls infra.) At this stage, it is appellate counsel's burden to make a requisite showing of a colorable need for a complete transcript.
Unlike most motions filed in the Court of Appeal, which need only be served on the Attorney General and counsel for any other parties to the appeal, an application to settle the record, must be served on the district attorney and trial counsel as well. When filing in the superior court, the trial court judge must be served with an original and three copies of the application. (Cal. Rules of Court, rule 8.346 (c).) (Note: In Sacramento County, the appeals desk clerk should also be sent a copy of the motion, in addition to the one that is addressed directly to the trial judge’s department. The superior court appeals desk clerk will track the application in that court and the subsequent augmentation of the settled statement will be handled smoothly.)
In the Fifth District, an order granting the application for permission to settle the record will normally include due dates for filing the application to settle the record in the trial court.
The superior court judge has five days to rule on the application to settle the record. (Cal. Rules of Court, rule 8.346(b).) (Note: It may be useful to call the trial judge’s clerk and inform him or her that an application to settle the record is forthcoming because trial judges do not receive such applications regularly, and thus may be unaware that it requires immediate attention.) Rule 8.346 then refers to rule 8.137 for the time deadlines triggered after the trial court has made its order permitting preparation of the settled statement. (Cal. Rules of Court, rule 8.346(b).) Rule 8.137(b)(1) allows 30 days in which to prepare and serve a proposed settled statement. During this time, appellate counsel should contact trial counsel and (if necessary) the prosecutor to solicit their input for the statement. The statement is usually in narrative form. It is also limited to those issues or points to be raised on appeal. The respondent then has 20 days in which to file its proposed amendments to the proposed statement. (Cal. Rules of Court, rule 8.137(b)(4).)
Rule 8.137(c) encompasses the final steps in the process. If there is a disagreement or the respondent submits amendments, the trial court is directed to set the matter for hearing within 10 days for settlement of the statement. Oddly, this rule designates the trial judge as fact finder. (Marks v. Superior Court (2002) 27 Cal.4th 176, 195; Burns v. Brown (1946) 27 Cal.2d 631, 636.) Counsel may request that another judge preside at the hearing -- especially where the recollections of the attorney and judge conflict. Granting this request, however, is purely discretionary. Ultimately, it is the function of the trial judge to correct the settled statement so as to fairly reflect the evidence or other oral proceedings. (Cal. Rules of Court, rule 8.788.) As long as the trial judge does not act arbitrarily, his or her action is final. (Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 376, fn. 1; People v. Hardy (1992) 2 Cal.4th 86, 183.)
At the hearing, the judge will settle the statement (based on testimony if necessary). Here, the judge has broad discretion to accept or reject counsel’s representations in accordance with its assessment of their credibility ... [and] cannot refuse to make that assessment.” (People v. Gzikowski, supra, 32 Cal.3d at 585, fn. 2.) In addition, the judge may rely on his/her notes or those of the attorneys; the judge’s memories or those of the attorney’s, witness, and jurors; the agreement of the parties, or other sources. (People v. Moore (1988) 201 Cal.App.3d 51, 56; People v. Everett (1990) 224 Cal.App.3d 932, 937.) The judge will then make his or her findings and fix the time within which counsel must prepare, serve, and file the settled statement. (Cal. Rules of Court, rule 8.137(c)(2).) Opposing counsel has five days in which to file objections to the prepared statement. (Cal. Rules of Court, rule 8.137(c)(3).) The objections may be the original amendments and objections not adopted by the judge, or new objections based on the court’s findings. If objections are not filed, the rule presumes that the statement is properly prepared in accordance with the findings of the court. (Cal. Rules of Court, rule 8.137(c)(3).) [Note: older caselaw refers to former rule 7: to "engross" the statement; the current rule uses simpler language: "prepare." The term "engross" means to put the statement in final written form. (People v. Jenkins (1976) 55 Cal.App.3d Supp. 55, 64.)]
The final step is to present the prepared statement to the trial judge for certification. (Cal. Rules of Court, rule 8.137(c)(3).) Appellate counsel may wish to consider whether the pleadings and record should be prepared and made part of the record on appeal, particularly where there has been a contested evidentiary hearing as to the contents of the statement. (See Cal. Rules of Court, rule 8.137(b)(5) ["The proposed statement and proposed amendments may be accompanied by copies of any document includable in the clerk's transcript under rule 5(b)(3) and (4)"].) In Third District cases, counsel should file a motion to augment the record in order to get the settled record into the appellate record.
D.Who is in Charge?
It is appellate counsel's responsibility to prepare and file the settled statement as outlined above. However, it is also appellate counsel's responsibility to file any objections to a settled statement prepared by the respondent and to work with the trial attorney to insure that as little harm as possible comes from this record. It is not the responsibility of the trial judge, district attorney, or trial defense counsel to get the statement together. Often trial counsel understands little about the appellate process or how helpful or damaging the statement can be to the appeal. As a result, appellate counsel must be in charge. Of course, having a cooperative trial counsel helps -- s/he can talk directly with the judge and district attorney who are known and familiar to them. This lessens the impact of feelings that an "outsider" is meddling in their court.
In this respect, it might be advantageous to notify both trial counsel and the district attorney in advance that you plan to move to settle the record. Notifying the parties in advance may enable you to work out a tentative time line for submitting the proposed statement and amendments and for scheduling the hearing. Since trial attorneys tend to have very full schedules, they might be more receptive to working with you on the settled statement if you show that you are willing to take their schedules into account to the extent possible.
The former rule on settled statements authorized only appellant’s to apply for permission to prepare a settled statement. But current rules expand this authority to include any party. If the respondent moves for a settled statement, appellate counsel then must work with trial counsel to understand the proceedings below and file objections if needed.
E. What are Some of the Pitfalls & Limitations?
Being "home-towned" is one pitfall. Appellate counsel will be the "outsider" trying to conduct an evidentiary hearing with an unfamiliar judge and attorneys. In order to maintain credibility and persuade the court to include his or her version of the statement in the final outcome, appellate counsel must be prepared. Counsel should know the facts before filing the motion. The proposed statement should be consistent and should stick to the facts needed to support the appellate issues. This is not a discovery device for the development of other issues.
There are constraints on investigation and on the amount of travel that will be permitted for court appearances. In both the Third and the Fifth Districts, travel expenses will not be reimbursed unless preauthorization for travel and expenses has been obtained for each appearance on this matter. Therefore, the bulk of the work in preparing the motion and the proposed statement should be done by telephone. Appellate counsel should make sure s/he knows the purpose for each hearing set in the superior court. If the appearance is merely for the purposes of calendaring the filing of the engrossed statement, for example, then appellate counsel should explore other options. Such options might include inquiring whether the court will permit a telephonic appearance, or ascertaining whether the trial attorney would make a special appearance for this limited purpose. Ideally, the only appearance appellate counsel should make would be for the evidentiary hearing itself, and then only if the trial attorney cannot manage the hearing without appellate counsel's assistance.
(Hint: In your travel request, you will need to disclose to the Court of Appeal why the defense trial attorney cannot fairly represent the client's interests at the hearing without your assistance. One example encountered was the trial attorney's strong feeling that the record should be deliberately "vague"; thus, defense counsel was working at cross-interests with what appellate counsel was trying to accomplish.)
Another potential problem is that the trial judge (the very one who may be the subject of a claim of error on appeal and who may relish the opportunity to "set the record straight") is the ultimate fact-finder. One way to short circuit a trial judge's overly-enthusiastic involvement is to work closely with the Attorney General on the proposed statement and amendments so that the parties can "stipulat[e] that the statement as originally served or as prepared is correct[,] is equivalent to the judge's certification." (Cal. Rules of Court, rule 8.137(c)(4).) This removes the necessity for an evidentiary hearing, findings of fact by the trial judge, and has the same effect as a formal settlement process.
The final pitfall is one inherent in every evidentiary hearing: the tables can turn. One way to avoid this is to know what the anticipated statement will be before undertaking this process. This means appellate counsel will have done a lot of investigation (hopefully with the cooperation and participation of trial counsel) before filing the motion. The prepared settled statement should look essentially the same as the general summary included in the initial motion. Surprises are usually not good news.