PEOPLE v. WEBB (1978)

On February 6, 1978, the State Public Defender on behalf of the appellant Walter Webb filed what he designates a ‘Renewed Motion to Augment Record on Appeal.’ For the reasons developed below, we shall deny the motion. In order fully to understand our decision and to place this motion in its proper context, it is necessary to review the procedural history of this appeal in some detail.

Appellant Webb was convicted by a Sacramento Superior Court jury of murder in the first degree, robbery in the first degree, attempted murder and possession by an exfelon of a concealable firearm in violation of Penal Code section 12021. On January 28, 1977, appellant was sentenced to State Prison. His notice of appeal from the judgment was filed the same day. A copy thereof was received by this court on February 1, 1977.

In response to the appellant's written request, on March 4, 1977, we appointed the State Public Defender to represent him on appeal. The court reporter requested and was granted several extensions of time to complete the record. On April 11, 1977, the court reporter executed his certificate that the transcript was complete and accurate. On April 27, 1977, a normal record (rule 33(a), Cal. Rules of Court), consisting of one volume of clerk's transcript and six volumes of reporter's transcript, was filed in this court. The public defender made no request in the trial court for additional record. (See rule 33(b), Cal. Rules of Court.)

Appellant's opening brief was due on May 27, 1977. (Cal. Rules of Court, rule 37(a).) However, on May 31, 1977, the public defender filed a request for extension of time until June 26. The request was granted the same day. On June 28, the public defender's second application for an extension to file appellant's opening brief was filed and time was extended to July 12, 1977, as requested.

On July 13, the public defender filed a motion to augment the record accompanied by an application for extension, of time to file the opening brief. The following materials were requested: (1) a reporter's transcript of the preliminary hearing; and (2) a reporter's transcript of the proceedings held on specified dates pursuant to motions to consolidate, sever, suppress evidence (Pen. Code, § 1538.5), set aside the information (Pen.Code, § 995), and strike the allegation of special circumstances. On July 25, 1977, we granted the motion as to the preliminary hearing transcript and denied the remainder for lack of adequate showing. The time within which to file appellant's opening brief was extended to August 11, 1977.

The augmented record consisting of 169 pages of reporter's transcript was filed on August 4. On August 12, the public defender filed a renewed motion to augment the record on appeal. This motion requested reporter's transcripts of the arguments on the motions to consolidate, suppress evidence (Pen.Code, § 1538.5) and set aside the information (Pen.Code, § 995). These same materials had been unsuccessfully sought in the previous motion filed July 13. In addition, a reporter's transcript of the ‘prosecution's opening and closing statements' was requested. An accompanying request for extension of time was granted to September 10, 1977. On August 29, 1977, we denied the motion to augment without comment.

On September 13, 1977, the public defender filed a request for extension of time to file appellant's opening brief until October 19. We granted the application with the admonition that no further time would be granted.

On October 13, 1977, the public defender filed what he designated a ‘Renewed Renewed Motion To Augment Record On Appeal.’ This motion sought ‘Oral proceedings pursuant to the 1538 [sic] motion to suppress evidence held on December 3, 1976, December 8, 1976, and continued to December 10, 1976 before the Honorable Judge Diaz.’ These were some of the same materials that had been sought unsuccessfully in the motions of July 13 and August 12. This time our order of October 19 articulated the reasons for denying the request, reasons which in any event were apparent from the record.¹ Our order read: ‘So far as appears from the within motion and the record before us, the entire evidentiary record upon which the trial court decided the motion to suppress is part of the record on appeal. No reason is given why the record should be burdened with the transcript of counsel's oral arguments to the trial court on that motion. Presumably, the same arguments could be repeated to this court, perhaps with more telling effect.’

On October 24, 1977, the public defender filed another application for extension of time, requesting until November 21, 1977, so that he could petition the Supreme Court for writ of mandate to secure the desired augmentation. We granted that request.

The public defender's petition for writ of mandate in the Supreme Court stated: ‘This petition challenges the legality of respondent Court of Appeal's orders denying petitioner's motions to augment the normal record on appeal with the oral argument in support of the 1538.5 motion to suppress evidence.’ Included with the petition were copies of the various motions to augment and of this court's orders in response thereto with the rather conspicuous exception of our order of October 19 in which we explained our reasons for denying augmentation. A copy of that order was not placed before the Supreme Court in the mandate proceedings.

On November 11, 1977, the Supreme Court took jurisdiction of the appeal, ordered that the record on appeal be augmented to include ‘a certified copy of the reporter's transcript of oral proceedings pursuant to the Penal Code section 1538.5 motion to suppress evidence held on December 3, 1976, December 8, 1976, and December 10, 1976 . . .’ and retransferred the case to this court.

On November 23, we granted another extension of time to December 21, 1977. The reporter's augmented transcript on appeal was filed December 15, 1977.² On December 23, 1977, the public defender filed yet another request for an extension of time within which to file appellant's opening brief. We granted an extension of time to January 23, 1978, but stipulated that no further time would be granted.

Nevertheless, on January 18, 1978, an extension of time was again requested. We extended time to February 4, 1978, and again ordered that no further time would be granted.

On February 6, 1978, two days past the last day for filing the brief,³ the public defender filed his latest ‘renewed’ motion to augment which is the subject of this opinion. In this motion he seeks to augment the record to include (1) the closing arguments of defense and prosecution counsel and (2) a transcription of certain tape recordings.

Turning to the request for the arguments, it will be recalled that on August 12, 1977, the public defender as part of an earlier ‘renewed’ motion to augment requested a ‘Reporter's transcript of prosecution's opening and closing statements.’ The only transcript citation furnished in support of the motion refers to the prosecution's opening statement. The phrase ‘closing statement’ is ambiguous, but apparently does not refer to closing ‘argument.’ In any event, the public defender abandoned this request after we denied it.

Thus, on February 6, 1978, eleven months after his appointment, the public defender for the first time requests that the record be augmented to include the ‘closing arguments of defense and prosecution counsel,’ giving his reasons as follows: ‘This is necessary to adequately research and brief appellant's first degree murder conviction. Appellant will contend that confusion was created by the trial court when it instructed the jury with ambiguous instructions not meeting the standard of specificity required to adequately inform the jury of each of the elements of an offense. This contention has been briefed and would be ready to be filed but for necessity to review the closing arguments of counsel for clarifying statements of the law which could have served to mitigate the error. Misleading statements by the prosection may have further prejudiced appellant, if the jury reasonably could have misinterpreted application of the felony-murder doctrine.’

This justification appears on its face to be nothing more than a typical ‘fishing expedition’ on the part of appellate counsel without regard to any showing of relevancy or materiality. (See, e. g., People v. Hill (1967) 67 Cal.2d 105, 122–124, 60 Cal.Rptr. 234, 429 P.2d 586; People v. James (1969) 274 Cal.App.2d 608, 614, 79 Cal.Rptr. 182; People v. Hagan (1962) 203 Cal.App.2d 34, 39–40, 21 Cal.Rptr. 116.) In essence, appellate counsel is merely stating there may be error. Nevertheless, the Supreme Court in People v. Gaston (1978) 20 Cal.3d 476, 143 Cal.Rptr. 205, 573 P.2d 423, specifically sanctioned and implicitly encouraged this type of application to augment the record, stating: ‘The language of the opinion [Hill], however, states that the litigant need only establish with some certainty how the materials he requests may be useful to him on appeal. The showing of ‘some certainty’ must be made as to the manner in which the materials may be useful, not as to the contents of the materials themselves.' (20 Cal.3d at p. 482, 143 Cal.Rptr. at p. 208, 573 P.2d at p. 426.) At another point, the court declares: ‘It is not necessary that appellant point out any statements of trial counsel in order to justify his motion. It is sufficient that appellant show ‘with some certainty how [the final arguments] may be useful to him.’ (People v. Hill, supra, 67 Cal.2d at p. 123, 60 Cal.Rptr. 234, 429 P.2d 586, italics added.)' (20 Cal.3d at p. 484, 143 Cal.Rptr. at p. 209, 573 P.2d at p. 427.)

Considered in this light, appellant's motion, as it relates to the arguments of counsel, meets the requirements of rule 12(a) of the California Rules of Court as interpreted by the Supreme Court. (See People v. Gaston, supra; People v. Silva (1978) 20 Cal.3d 489, 493, 143 Cal.Rptr. 212, 573 P.2d 430.)

In the second part of his motion, appellant has requested a transcription of four tape recordings which were played to the jury and which are alleged to be ‘. . . essential to the preparation of the appeal regarding trial court rulings on inadmissible hearsay.’ The four tape recordings are identified as People's Exhibits 14, 19, 24 and 27–A.⁴

Exhibits 14 and 19 were admitted into evidence. They were played to the jury but there is no indication in the record that they were in fact reported. (Cf. People v. Gaston, supra, 20 Cal.3d at p. 485, 143 Cal.Rptr. 205, 573 P.2d 423.) Nevertheless, People's Exhibits 14 and 19 are a part of the record of the trial (see rule 33, Cal. Rules of Court) and appellate counsel may constitute them part of the record on appeal by proceeding in accordance with rule 10(d), California Rules of Court.

People's Exhibits 24 and 27–A present an entirely different matter. Exhibit 24 was marked for identification and parts of the tape were played at trial and questions concerning it were asked of a witness. This exhibit was never admitted into evidence, the court merely commenting that it would remain marked for identification. People's Exhibit 27–A was marked for identification, played at trial and a witness confirmed the accuracy of the tape from a transcript he was furnished by the prosecutor. Exhibits 27–A and 27–B were apparently never admitted into evidence. Again, the record does not reflect whether or not the contents of Exhibits 24 and 27–A were in fact reported. Indeed, there is no indication where these exhibits are presently located. Presumably, if not received in evidence they could be withdrawn by the proponent at any time. (Cf. Pen. Code, §§ 1417–1419.) Even if the tapes were located, it is by no means clear whether it could be established that they were the same ones played before the jury.

More important, however, than the foregoing considerations, is the complete absence of any explanation for the long delay in requesting transcriptions of the arguments and the tapes. We think the language of the court in People v. Preslie (1977) 70 Cal.App.3d 486, 138 Cal.Rptr. 828, is particularly apropos to the situation before us: ‘[S]ound principles of judicial management and administration require that a party desiring to augment the record take the necessary action as early as practicable.

‘In criminal appeals particularly, the emphasis is upon expediting the disposition of the appeals. Several rules emphasize this policy to the end that the record be promptly prepared, certified and filed. Rule 33(b) authorizes an augmentation motion in the superior court before the record is filed. The parties should take advantage of this procedure to preclude late efforts to augment in the appellate court. Trial courts are required by other rules to prepare and promptly certify the record upon which the appellate court must rely. Rule 35 sets specific time limits within which this must be accomplished. In addition rule 53 requires that the ‘rules shall be liberally construed to secure the just and speedy determination of appeals, . . .’ and rule 77(a) places the responsibility squarely upon a presiding justice ‘for assuring that all records on appeal and briefs are promptly filed, . . .’ Failure of the parties to promptly review the trial record upon receipt and, if indicated, to quickly move for augmentation results in unconscionable delays since not only does such a motion require time but additional time is consumed in the preparation and certification of the material with which the record is augmented and the parties normally require an extension of briefing time in order to treat the augmented material.

‘We conclude that in view of the discretionary nature of granting of denying an augmentation request, the desirability of establishing and solidifying the record as early as possible and the supervisorial responsibility of this court over appeals, informal requests for augmentation made after a reasonable time has expired from receiving the record on appeal, and particularly as late as those contained in briefs, will be denied absent a strong showing of unusual or unavoidable circumstances giving rise to the delay. We further indicate that it is desirable to make such motion at as early a date as practicable and, though not required, rule 41 sets forth an appropriate method by which to proceed.'⁵ (Fn. omitted; 70 Cal.App.3d at pp. 491–492, 138 Cal.Rptr. at pp. 831–32.)

Viewed in the perspective of the procedural history of this case, the instant motion to augment presents an unacceptable impediment to the orderly progress of this appeal. Absolutely no effort has been made to explain or justify the otherwise inordinate delay in requesting the closing arguments and the tape recordings. Accordingly, the motion to augment the record is denied for undue and inexcusable delay in presenting the application. (See People v. Preslie, supra; see also Courtell v. McEachen (1956) 147 Cal.App.2d 219, 305 P.2d 115; Witkin, New California Rules on Appeal (1944) 17 So.Cal.L.Rev. 79, 130–131.) To the extent it refers to Exhibits 24 and 27–A, the motion to augment is also denied for failure of appellate counsel to show how tape recordings not admitted in evidence and apparently not reported can be transcribed. (Cf. rule 36(b), Cal. Rules of Court.)

Appellant's opening brief is to be filed and served on or before March 13, 1978.

FOOTNOTES

1.  The clerk's transcript reveals that on December 3, 1976, the trial court took the motion to strike special circumstances and the section 995 motion under submission and continued them to December 8; the motions to sever and to suppress evidence were likewise continued until December 8. The minute entry for December 8 indicates merely that the matters were continued until December 10. On December 10, all of the above motions were heard and decided; no witnesses were called; no evidence was introduced. The Penal Code section 1538.5 motion was decided on the basis of the preliminary hearing transcript.

2.  The augmented transcript contains 38 pages of colloquy between counsel and the trial judge on December 10, 1976, on the four motions before the court. The abbreviated proceedings on December 3 were apparently not reported. On December 8, a reporter wasn't even present. The arguments of counsel and comments of the trial judge on the Penal Code section 1538.5 motion cover approximately nine pages of transcript.

3.  Throughout these proceedings, the public defender has almost invariably been in default when applying for extensions of time.

4.  People's Exhibit 27–B is apparently a transcript of the cassette tape designated as Exhibit 27–A. A copy of this transcript is also requested.

5.  Although the instant case does not involve an ‘informal’ request for augmentation, the reasoning employed in Preslie applies with equal force.

PUGLIA, Presiding Justice.

REGAN and JANES, JJ., concur.