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The Record on Appeal in California Criminal Cases

The appellate record is the centerpiece of every criminal appeal in California.

After a criminal appeal is initiated, a record on appeal must be prepared. A record on appeal (also called an “appellate record”) is a collection of court filings and transcripts that chronicle the trial court proceedings.

The record on appeal is perhaps the most important part of any appeal and normally provides the sole factual basis for the appellate court’s decision as well as any arguments made by the parties.1

This article provides an overview of the record on appeal as seen in California criminal cases. The primary focus is on felony appeals, but there is also a brief discussion about the record in misdemeanor and infraction appeals. This article does not cover death penalty or juvenile delinquency appeals. If you have any unanswered questions about the issues discussed here, be sure to contact a qualified criminal appellate attorney in your area today.

Appellate Records are Essential

The record on appeal is the centerpiece of every criminal appeal in California. To understand why, we can look at how appeals work.

In California, there are three levels of courts: (1) the superior courts, (2) the courts of appeal, and (3) the state supreme court.2 The superior court is the lowest of the three levels of courts.3 It is where criminal cases begin, and where the trial takes place (if one is needed).

After the trial court’s proceedings are over, the defendant may seek to appeal the decision by filing a notice of appeal. The appeal will be heard by the court of appeal—California’s intermediate court of review.4 The court of appeal will review the proceedings that happened in the trial court to determine whether any errors occurred.5 It can choose to either affirm, reverse, or modify the outcome of the trial court’s proceedings.

After the court of appeal decides the matter, one of the parties may ask the Supreme Court of California—the highest court in the state—to review the opinion of the court of appeal.6 The Supreme Court of California has discretion to choose the cases it wishes to review.

Overview of the Appellate Process in California

Understanding this process is important because it shows the purpose of appeals: they allow higher courts to review the proceedings of a lower court for errors.7 It is important to understand that an appeal is not a new trial; it is a way to fix harmful legal mistakes made in a lower court.8

Because appellate courts are only looking for legal mistakes, their review is limited to analyzing what happened in the lower court.9 In almost every appeal, the only way for appellate court judges to learn about a case is by reviewing the record on appeal.

The record on appeal is the official package of court records documenting what happened in the lower court.10 Unless exceptional circumstances are present, an appellate court will not listen to evidence outside of the record.11

The record on appeal is also the tool used by the parties to argue their case. During an appeal, parties are generally prohibited from introducing new evidence to support their arguments.12 And court rules require that all written arguments provide support for any factual assertions they make.13 As such, the parties in a criminal appeal will be required to include citations to the record to make their arguments.

Because the record on appeal is typically the sole source of facts for both arguments and decisions in appeals, it is important that the record be completely and correctly prepared. To this end, California courts have held that appellate attorneys have a duty to ensure the adequacy of the record on appeal.14

Whether the record is adequate will depend on both the type of appeal and the issues presented by the case. Courts look primarily at whether the record permits “meaningful appellate review.”15

The Record in Felony Appeals

In felony appeals, the record is composed of two parts: (1) the clerk’s transcript16 and (2) the reporter’s transcript.17 The clerk’s transcript is a collection of documents from the superior court’s file (e.g., motions, court minutes, verdict forms). The reporter’s transcript is a word-for-word transcription of the oral proceedings in the superior court. Those items, together, are referred to as the “normal” record on appeal.18

Each type of transcript must contain certain materials for the record to be considered complete.

The Clerk’s Transcript

If the appealing party is the defendant, the clerk’s transcript must contain the items listed below.19 If, however, the prosecution is the appealing party—or if the defendant is appealing from an appealable order (rather than a final judgment) other than a motion for a new trial—the clerk’s transcript will be more limited in scope.20

The important items to look for are:

  • The accusatory pleading and any amendment21
  • Any demurrer or other plea22
  • All court minutes—no exceptions23
  • All jury instructions submitted by any party24
  • Any written jury instructions given by the court25
  • Any written communication between the court and the jury or any individual juror26
  • Any verdict27
  • Any written opinion of the court28
  • The judgment or order appealed from29
  • Any abstract of judgment or commitment30
  • Any motion for new trial with supporting and opposing memoranda and attachments31
  • The notice of appeal32
  • Any certificate of probable cause33
  • Transcripts of any sound or sound-and-video recording furnished to the jury or tendered to the court34
  • Any application for additional record and any order on the application35
  • Any written defense motion denied in whole or in part with supporting and opposing memoranda and attachments36
  • Any search warrant and the reporter’s transcript of any preliminary examination or grand jury hearing if related to any written defense motion denied in whole or in part37
  • Any document admitted in evidence to prove a prior juvenile adjudication, criminal conviction, or prison term38
  • The probation officer’s report39
  • Most court-ordered diagnostic or psychological reports.40

In ensuring that these records are included in the normal record on appeal, keep a special eye out for commonly omitted items, including: written motions to suppress evidence, those filed pursuant to People v. Marsden41 (i.e., motions made by defendants challenging the adequacy of their attorney’s performance), those filed pursuant to Faretta v. California42 (i.e., motions made by defendants wishing to represent themselves), or other written motions that resulted in in camera proceedings (“in camera” is a legal term referring to proceedings that take place in the judge’s chambers).43

The Reporter’s Transcript

If the appealing party is the defendant, the reporter’s transcript must contain the items listed below.44 If, however, the prosecution is the appealing party—or if the defendant is appealing from an appealable order (rather than a final judgment) other than a motion for a new trial—the reporter’s transcript will be more limited in scope.45

The important items to look for are:

  • The oral proceedings on the entry of any plea other than not guilty46
  • The oral proceedings on any motion in limine47 (a “motion in limine” is a preliminary motion made at the start of trial; it usually concerns evidence to be introduced or some specific procedural aspect of trial)
  • The oral proceedings at trial except for the voir dire examination of jurors and any opening statement48 (“voir dire” is a Latin phrase used to describe the questioning of prospective jurors by the judge or attorneys)
  • All jury instructions given orally49
  • Any oral communication between the court and the jury or any individual juror50
  • Any oral opinion of the court51
  • The oral proceedings on any motion for a new trial52
  • The oral proceedings at sentencing, granting or denying of probation, or other dispositional hearing53
  • The oral proceedings on any defense motion denied in whole or in part except motions for disqualification of a judge and motions under Penal Code section 99554
  • The closing arguments55
  • Any comment on the evidence by the court to the jury.56

Other Items to Consider Adding

Depending on the issues involved in the case, it may be a good idea to add some of the following files from the superior court to the record on appeal. This can help avoid situations where relevant portions of the record are missing, even though legal arguments need those portions of the record for support.

Importantly, this list is not comprehensive. The records relevant to any appeal will depend on the issues presented in each case.

Clerk’s Transcript Items

  • Records related to Pitchess motions57 (a “Pitchess” motion is a request by a defendant to obtain misconduct-related information from a police officer’s personnel file)
  • Any jury questionnaires, if a jury selection issue might be arguable on appeal58
  • Any item not mentioned above that was withheld from a party because the trial court determined it was confidential59

Reporter’s Transcript Items

  • Any hearing in which a jury trial waiver occurred60
  • Any examination of the jurors during jury selection61
  • The parties’ opening statements
  • Any confidential in camera proceeding from which a party was excluded.62

It is normally possible to add these files to the record on appeal by filing a motion to augment in the appellate court. This type of motion is explained in greater detail below.

A Simple Checklist

I personally find it helpful to refer to a checklist when I review a record. I like to use a fillable checklist that can be downloaded here: Criminal Appeals Record Checklist (California).

Adding Exhibits to the Record

Criminal Trial Exhibit in Record on Appeal

The California Rules of Court consider all exhibits to be part of the normal record on appeal.63 However, unlike other parts of the normal record, they are not automatically transmitted to the parties or the appellate court.64

If a party would like to view a specific exhibit, they normally must either view them at the superior court or request that they be specifically augmented to become part of the appellate record before the appellate court.

If a party wants the court of appeal to consider any exhibits, they must serve and file a notice in superior court designating those exhibits.65 That notice must be filed within ten days of when last respondent’s brief is filed (or when it could have been filed, if no respondent’s brief is filed).66 Additionally, the requesting party must serve a copy of that notice on the appellate court.67

Several organizations have free samples of exhibit notices available online:

The other party will then have ten days to serve and file a notice in superior court designating any exhibits that they want the appellate court to review.68

If these deadlines have expired, a party may still obtain permission from the appellate court to send an exhibit to that court.69 There is no guarantee, however, that the court will grant the party’s request.

Limited Record in Certain Felony Appeals

The vast majority of criminal appeals are brought by the defendant (the person accused of a crime) following a final judgment of conviction. In 2013, for example, defendants filed 4,593 appeals in California.70 While prosecuting agencies in California brought only 110 appeals in the same period.71

In appeals that are not brought by the defendant following a final judgment of conviction, the record on appeal will be more limited than in a normal felony appeal.72

Prosecution’s Appeal from an Order Granting a New Trial

The prosecution has a right to file an appeal following an order granting a new trial.73 If the prosecution files such an appeal, the normal record on appeal will be almost the same as that listed above for normal felony appeals.74 However, the following items are not automatically considered part of the normal record in this kind of appeal:

  • Written defense motions denied in whole or in part and their related documents75
  • Documents admitted in evidence to prove a prior juvenile adjudication, criminal conviction, or prison term76
  • The probation officer’s report77
  • Certain court-ordered diagnostic or psychological reports78
  • The oral proceedings on any rejected defense motion79
  • The closing arguments80
  • Comments on the evidence by the court to the jury.81

Appeals from Orders Other than a Final Judgment

The normal record on appeal will also be limited in cases in which a party appeals from an order other than (1) a final judgment of conviction or (2) a ruling on a motion for a new trial.82

These same limitations will apply where the prosecution appeals from a judgment on a demurrer to the accusatory pleading.83 A “demurrer” is a motion brought by the defense that challenges whether the charging document is legally sufficient.84

In these kinds of cases, the normal record on appeal will be composed of the following:

Clerk’s Transcript

  • The accusatory pleading and any amendments85
  • Any demurrer or other plea86
  • Any written motion (or notice of motion) granted or denied by the order appealed from, with supporting and opposing memoranda and attachments87
  • The judgment or order appealed from and any abstract of judgment or commitment88
  • Any court minutes relating to the judgment or order appealed from89
  • Any court minutes of proceedings at the time the original verdict is rendered if there was a trial in the case and any subsequent proceedings90
  • Any court minutes of the proceedings at the time of the entry of the plea if the original judgment of conviction is based on a guilty plea (or no contest plea) and any subsequent proceedings91
  • The notice of appeal92
  • All probation officer reports and certain court-ordered diagnostic reports if the party appealing is the defendant.93

Reporter’s Transcript

  • A reporter’s transcript of any oral proceedings related to the judgment or order being appealed from.
  • A reporter’s transcript of the original sentencing proceeding if the appeal is from an order after judgment.
  • A reporter’s transcript of the proceedings at the time of the entry of the plea if the appeal is from an order after judgment and the original judgment of conviction is based on a guilty plea (or no contest plea).

Deadline to Prepare the Record in Felony Appeals

In most cases, the clerk and reporter in the superior court immediately begin preparing the record on appeal after a person is found guilty of a felony or after they file a notice of appeal.94 The normal due date to complete preparing the record on appeal is 20 days from the date the notice of appeal is filed.95 The appellate court may extend this due date for up to 60 days.96

Fixing Problems with the Record in Felony Appeals

Litigating record omissions

In many cases, the record on appeal will need to be fixed in some way. This might mean adding new documents to the record, or it could mean correcting errors in existing documents. The procedure for correcting record-based problems will depend on the nature of the omitted or mistaken material.

The three most common procedures are explained below.

Obtaining Omitted Parts of the Normal Record (Rule 8.340(b) Notices)

The most common record-related issue occurs when the clerk or reporter in the superior court mistakenly omits part of the normal record on appeal.97

For example, it is common for court clerks to accidentally forget to include exhibits used to prove the prior criminal convictions of a defendant.98 Alternately, the court reporter might forget to include a transcript of the preliminary motions made at the start of trial.99 These records would ordinarily be considered part of the “normal” record on appeal.100

In such situations, the easiest solution is to notify the clerk or reporter in the superior court of the omission. Specifically, Rule 8.155 of the California Rules of Court allows any party to serve and file a notice of the omission in the superior court.101 Rule 8.340 imposes a duty on clerks and reporters to promptly prepare and send any omitted records to the parties and the appellate court as soon as they learn of the omission.

Importantly, an omissions notice is only available when the missing part of the record is supposed to be part of the normal record on appeal under Rule 8.320 of the California Rules of Court. Parties seeking to add documents or transcripts that are not part of the normal record should explore alternative procedures, like a motion to augment.

If an omissions notice is the correct procedure, the notice should:

  • Specify, in as much detail as possible, the omitted portion of the record102
  • Request that the omitted portion be prepared, certified, and sent to the reviewing court.103

Normally, this kind of notice should be sent to the superior court before the first extension of time is requested in the appellate court. Copies should also be served on the appellate court and all parties involved in the appeal.104

California’s court rules do not specify the form that this kind of notice must take. In most courts, sending a letter to the superior court clerk notifying him or her of the omitted record is sufficient. Still, any party wanting to file this kind of notice should check their local rules, confer with a local appellate attorney, or speak with local court clerks to make sure that an informal letter will suffice. Some courts might require a formal captioned motion to be filed.

Several organizations have free samples of omissions notices available online:

  • First District Appellate Project: View as a PDF or MS Word file
  • California Appellate Project, Los Angeles (for use in the Second District): View as a PDF or MS Word file (Note: These samples are out of date. They reference a “Rule 32.1(b),” which has been amended and renumbered as Rule 8.340.)
  • Central California Appellate Program (for use in the Third and Fifth Districts): View as a PDF or MS Word file
  • Appellate Defenders, Inc. (for use in the Fourth District): View as a PDF or MS Word file
  • Sixth District Appellate Program: View as a PDF or MS Word file

Depending on the appellate district or division, this kind of notice might automatically extend the deadline for filing the next brief. Parties planning to send an omissions notice should check their local rules or speak with the appellate clerk about their specific district’s policies.

Adding New Materials under Rule 8.340(c) (“Augmenting” the Record)

When it is necessary to add materials to the record on appeal, but the omissions notice procedures are unavailable, a motion to augment the record should be considered.105 A motion to augment asks the appellate court to order that certain materials be included in the record on appeal.

Motions to augment are used to add documents or transcripts that are not considered part of the “normal” record on appeal.106 Sometimes, this kind of motion can be useful if the clerk of the superior court has incorrectly rejected an omissions notice.

In most cases, a motion to augment cannot seek to add new documents that were not filed in the superior court.107 So, although documents in a motion to augment were not included as part of the normal record on appeal, they still must be part of the superior court’s case file.108

Unlike an omissions notice, a motion to augment is a formal motion and it should be filed in the appellate court.109 Because it is a formal motion, it must comply with the requirements of the California Rules of Court concerning motions and formatting.110

In preparing a motion to augment, it is important to specify the requested record in as much detail as possible. If the party making the request (the “moving party”) has a copy of the materials they want to add to the record, they must attach a copy of those materials to their motion.111

If not, the moving party will be required to provide certain information to help the clerk or reporter identify the materials to be added to the record on appeal.112 The specifics of that information will depend on whether the document should be part of the clerk’s transcript or the reporter’s transcript:

  • Clerk’s Transcript. A request to add materials to the clerk’s transcript must identify each document by its title and filing date, if that information is available to the party.113
  • Reporter’s Transcript. A request to add materials to the reporter’s transcript must specify the date of each proceeding to be included in the transcript and may specify portions of the proceedings that are not to be included.114 It is also helpful to provide a citation to the clerk’s transcript or reporter’s transcript that references the hearing.

A motion to augment must include an explanation of how the requested materials may be useful on appeal.115 This explanation is not required to be detailed or lengthy, but it must show with “some certainty” why the moving party thinks the materials might be useful.116

The California Supreme Court has directed that “a reviewing court should not normally resolve the underlying substantive issues in ruling on a motion to augment,” so appellate courts will often lean in favor of granting the motion to augment.117

If a party is planning to file both a motion to augment and an omissions notice, some districts allow the two documents to be combined into one motion to augment. It is always a good idea to talk with the appellate clerk and research local rules before filing either document.

As with the omissions notice procedures, a motion to augment should normally be filed in the appellate court before the first extension of time is requested.

Several organizations have free samples of augment motions available online:

  • First District Appellate Project: View as a PDF or MS Word file
  • California Appellate Project, Los Angeles (for use in the Second District): View as a PDF or MS Word file (Note: These samples are out of date. They reference court rules that have been amended and renumbered.)
  • Central California Appellate Program (for use in the Third and Fifth Districts): View as a PDF or MS Word file
  • Appellate Defenders, Inc. (for use in the Fourth District): View as a PDF or MS Word file
  • Sixth District Appellate Program: View as a PDF or MS Word file

Depending on the appellate district or division, this kind of motion might automatically extend the deadline for filing the next brief. Parties planning to file a motion to augment should check their local rules or speak with the appellate clerk about their specific jurisdiction’s policies.

Reconstructing the Record (Called “Settling” the Record)

Sometimes, the record on appeal references proceedings that were unreported or were not properly transcribed. In these situations, it may be necessary to “settle the record.”118 Settling the record involves reconstructing what happened in the lower court and then preparing a settled statement.119

The purpose of record settlement procedures is to ensure that the record on appeal preserves the proceedings as they actually happened in the trial court.120 California courts have emphasized that this procedure cannot be used to create new proceedings, make new records, or litigate new issues.121 So, settling the record serves a somewhat limited function in appeals; it helps fill gaps in the appellate record.122

Here are some examples of circumstances in which it would be appropriate to settle the record:

  • An unreported in-chambers discussion occurred between the trial judge and counsel in which legal arguments were made123
  • An unreported conversation occurred at the bench between the trial judge and a juror124
  • One or more unreported sidebar discussions occurred between the trial judge and the attorneys125
  • Unreported physical gestures were made by a witness during testimony, if those gestures have some significance regarding a potential appellate issue126
  • Part of an audiotape was played for the jury, and the record does not make clear which portions were played127
  • The court reporter’s notes have been lost, and, as a result, one or more proceedings were not properly transcribed128
  • The superior court clerk lost relevant exhibits.129

Each example involves a situation in which a type of communication (or “oral proceeding”) was not properly transcribed or a part of the record was not properly preserved.130

The California Supreme Court has noted that thought processes (whether those of the judge, jury, or attorneys) are not an appropriate subject for record settlement procedures—unless the thought process was communicated in the trial court.131

Before attempting to settle the record, parties should first be sure that the omitted proceeding was, in fact, not properly transcribed. If it is possible that the proceeding was transcribed by the court reporter, then a motion to augment the record should be filed before a party seeks to settle the record. The process of settling the record can be time-consuming, so it should normally be undertaken only when a party is confident that no properly-recorded transcription exists.

The first step in settling the record is to serve and file an application for permission to prepare a settled statement.132 This application must be made “[a]s soon as a party learns that any portion of the oral proceedings cannot be transcribed.”133

The application must explain why the matter must be reconstructed (or why the oral proceedings cannot be transcribed).134 This explanation could be in the form of a statement of the facts or a certificate of the superior court clerk showing that a part of the record cannot be obtained.135 It should also include an explanation of how the matter might be useful on appeal.136

The court rules state that the application should be filed in the superior court.137 However, some appellate courts require that a motion should first be filed with them. It is therefore always a good idea to check the local rules, confer with a local appellate attorney, or talk with the appellate court clerk about local practices before filing an application to settle the record.

It is also a good idea to check whether the filing of an application to settle the record will extend the due date for the brief.

A few organizations have free samples of applications to settle the record available online:

  • Central California Appellate Program (for use in the Third and Fifth Districts): View as a PDF file
  • Appellate Defenders, Inc. (for use in the Fourth District): View as a PDF or MS Word file
  • Sixth District Appellate Program: View as a PDF or MS Word file

After the application to settle the record is filed in the superior court, the judge must rule on it within five days.138 Trial court judges sometimes overlook this five-day requirement, so the moving party might need to follow up with the court.

If the judge grants the application, the moving party must serve and file, in superior court, a condensed narrative of the oral proceedings that they believe are necessary for the appeal.139 The deadline for filing this narrative is 30 days from the date the judge grants the application.140

If the narrative does not describe the entire proceeding, the moving party must state the issues that it plans to raise on appeal.141 It is important that all potential issues are stated, because the appeal might be limited to those issues.142

After the moving party files its proposed narrative, the non-moving party will have 20 days to serve and file proposed changes.143

The superior court clerk will then set a date for a settlement hearing by the trial judge.144 That hearing must be no later than 10 days after the non-moving party files its proposed changes (or the time to do so expires).145 The clerk must give the parties at least five days’ notice of the hearing date.146

At the hearing, the superior court judge will settle the statement and set a deadline for the moving party to prepare, serve, and file the now-settled statement in the superior court.147

After the moving party files the settled statement, the non-moving party will have five days to object to the statement.148

If no objection is made, the statement will be deemed properly prepared, and the clerk must present it to the superior court judge for certification.149 If an objection is made, the judge must determine whether the statement was prepared in accordance with the order; if not, changes will be required.150

Once the statement is determined to conform to the order, the judge then certifies it.151

Finally, the moving party will need to include the settled statement in the record on appeal. If the superior court clerk does not automatically send it to the parties as a supplement to the record, then the moving party will need to either send an omissions notice to the trial court or file a motion to augment the record in the appellate court.

Of note, the parties can sometimes avoid many of these steps by simply stipulating to a settled statement. Rule 8.137 of the California Rules of Court provides that “[t]he parties’ stipulation that the statement . . . is correct is equivalent to the judge’s certification.”152 This suggests that there is no need for a hearing or a judge’s certification where the parties agree on a settled statement.

The Record on Appeal in Misdemeanor and Infraction Appeals

By default, the record on appeal in misdemeanor cases is more limited than the record in felony cases.153 Presumably, this is due to the fact that low-level offenses are normally less litigated than felony offenses. Additionally, the liberty interests at stake, although important, are usually not as great as those involved in felonies.

The required parts of the record in these types of appeals will depend on a number of factors. For example, the clerk’s transcript might be replaced by the original trial court file depending on the court’s local rules,154 or the reporter’s transcript might be replaced by an official electronic recording of the proceedings.155 It is also possible that the record on appeal will not include any transcript or recording of the oral proceedings,156 or the parties could stipulate that certain parts of the record are not needed on appeal.157

Because the circumstances will vary from case-to-case, the record on appeal in misdemeanor or infraction cases should be carefully reviewed in light of the following court rules:

  • Misdemeanors: Rules 8.860 through 8.870 of the California Rules of Court
  • Infractions: Rules 8.910 through 8.921 of the California Rules of Court

As with felony cases, if an important part of the record is not included in the “normal” record on appeal, a party may move to augment or correct the record.


  1. People v. Jenkins (2000) 22 Cal.4th 900, 952 [emphasizing that a review on direct appeal is limited to the appellate record]; People v. Peevy (1998) 17 Cal.4th 1184, 1207–1208 [“[A]n appellate court generally is not the forum in which to develop an additional factual record . . . .”]; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267 [declining to entertain a claim where the issue required factual findings that were outside the record].

    Footnote 1
  2. Cal. Const., art. VI, § 1.

    Footnote 2
  3. Cal. Const., art. VI, § 4.

    Footnote 3
  4. Cal. Const., art. VI, § 3.

    Footnote 4
  5. Leone v. Medical Board (2000) 22 Cal.4th 660, 666 [“[T]he ordinary and widely accepted meaning of the term ‘appellate jurisdiction’ is simply the power of a reviewing court to correct error in a trial court proceeding.”].

    Footnote 5
  6. Cal. Const., art. VI, § 4; Cal. Rules of Court, rule 8.500.

    Footnote 6
  7. Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791 [“‘[U]nlike trial, the purpose of an appeal is not to determine the case on its merits, but to review for trial court error.”].

    Footnote 7
  8. Sanborn v. Pacific Mut. Life Ins. Co. (1940) 42 Cal.App.2d 99, 105 [“An appeal is not a trial but simply a method given litigants of rectifying errors, legal or factual, that may have occurred at a preceding hearing generally referred to as a trial.”].

    Footnote 8
  9. Id. at p. 105 [“The jurisdiction of an appellate tribunal is generally confined to the correction of errors committed in the trial court . . . .”].

    Footnote 9
  10. See Cal. Rules of Court, rules 8.320, 8.407, 8.610, 8.860, and 8.910.

    Footnote 10
  11. Tyrone v. Kelley (1973) 9 Cal.3d 1, 13 [“Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules of Court, the authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, no such findings should be made.”]; Cal. Rules of Court, rule 8.252.

    Footnote 11
  12. People v. Peevy, supra, 17 Cal.4th 1184, 1207–1208.

    Footnote 12
  13. Nick v. City of Lake Forest (2014) 232 Cal.App.4th 871, 879 [“We do not consider factual assertions lacking evidentiary support in the appellate record.”]; People v. Barton (1978) 21 Cal.3d 513, 519 [counsel in appointed criminal appeals has a duty to prepare a legal brief containing citations to the appellate record]; Cal. Rules of Court, rule 8.204, subd. (a)(1)(C) [“Each brief must . . . [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.”], 8.360, subd. (a) [“[B]riefs in criminal appeals must comply as nearly as possible with rules 8.200 and 8.204.”].

    Footnote 13
  14. People v. Barton, supra, 21 Cal.3d 513, 519–520; People v. Harris (1993) 19 Cal.App.4th 709, 714 [“[A]ppellate counsel must provide an adequate appellate record . . . .”].

    Footnote 14
  15. People v. Howard (1992) 1 Cal.4th 1132, 1164–1165.

    Footnote 15
  16. Cal. Rules of Court, rule 8.320, subd. (b).

    Footnote 16
  17. Cal. Rules of Court, rule 8.320, subd. (c).

    Footnote 17
  18. Cal. Rules of Court, rule 8.320, subd. (a).

    Footnote 18
  19. Cal. Rules of Court, rule 8.320, subd. (b).

    Footnote 19
  20. Cal. Rules of Court, rule 8.320, subds. (b)(13), (d).

    Footnote 20
  21. Cal. Rules of Court, rule 8.320, subd. (b)(1).

    Footnote 21
  22. Cal. Rules of Court, rule 8.320, subd. (b)(2).

    Footnote 22
  23. Cal. Rules of Court, rule 8.320, subd. (b)(3).

    Footnote 23
  24. Cal. Rules of Court, rule 8.320, subd. (b)(4).

    Footnote 24
  25. Id.

    Footnote 25
  26. Cal. Rules of Court, rule 8.320, subd. (b)(5).

    Footnote 26
  27. Cal. Rules of Court, rule 8.320, subd. (b)(6).

    Footnote 27
  28. Cal. Rules of Court, rule 8.320, subd. (b)(7).

    Footnote 28
  29. Cal. Rules of Court, rule 8.320, subd. (b)(8).

    Footnote 29
  30. Id.

    Footnote 30
  31. Cal. Rules of Court, rule 8.320, subd. (b)(9).

    Footnote 31
  32. Cal. Rules of Court, rule 8.320, subd. (b)(10).

    Footnote 32
  33. Id.

    Footnote 33
  34. Cal. Rules of Court, rule 8.320, subd. (b)(11).

    Footnote 34
  35. Cal. Rules of Court, rule 8.320, subd. (b)(12).

    Footnote 35
  36. Cal. Rules of Court, rule 8.320, subd. (b)(13)(A).

    Footnote 36
  37. Cal. Rules of Court, rule 8.320, subd. (b)(13)(B).

    Footnote 37
  38. Cal. Rules of Court, rule 8.320, subd. (b)(13)(C).

    Footnote 38
  39. Cal. Rules of Court, rule 8.320, subd. (b)(13)(D).

    Footnote 39
  40. Cal. Rules of Court, rule 8.320, subd. (b)(13)(E); see Pen. Code, §§ 1203.03, subd. (b), 1369.

    Footnote 40
  41. People v. Marsden (1970) 2 Cal.3d 118

    Footnote 41
  42. Faretta v. California (1975) 422 U.S. 806

    Footnote 42
  43. See Cal. Rules of Court, rule 8.47.

    Footnote 43
  44. Cal. Rules of Court, rule 8.320, subd. (c).

    Footnote 44
  45. Cal. Rules of Court, rule 8.320, subds. (c)(9), (d).

    Footnote 45
  46. Cal. Rules of Court, rule 8.320, subd. (c)(1).

    Footnote 46
  47. Cal. Rules of Court, rule 8.320, subd. (c)(2).

    Footnote 47
  48. Cal. Rules of Court, rule 8.320, subd. (c)(3).

    Footnote 48
  49. Cal. Rules of Court, rule 8.320, subd. (c)(4).

    Footnote 49
  50. Cal. Rules of Court, rule 8.320, subd. (c)(5).

    Footnote 50
  51. Cal. Rules of Court, rule 8.320, subd. (c)(6).

    Footnote 51
  52. Cal. Rules of Court, rule 8.320, subd. (c)(7).

    Footnote 52
  53. Cal. Rules of Court, rule 8.320, subd. (c)(8).

    Footnote 53
  54. Cal. Rules of Court, rule 8.320, subd. (c)(9)(A).

    Footnote 54
  55. Cal. Rules of Court, rule 8.320, subd. (c)(9)(B).

    Footnote 55
  56. Cal. Rules of Court, rule 8.320, subd. (c)(9)(C).

    Footnote 56
  57. Pitchess v. Superior Court (1974) 11 Cal.3d 531; People v. Rodriguez (2011) 193 Cal.App.4th 360, 366 [“[T]o the extent that an appellant’s claim is dependent upon appellate review of the sealed transcript and the confidential personnel documents, appellate counsel is required to apply to the superior court for an order that the record include such materials . . . .”]; Cal. Rules of Court, rules 8.45, 8.46.

    Footnote 57
  58. See Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.

    Footnote 58
  59. Cal. Rules of Court, rule 8.47, subd. (c).

    Footnote 59
  60. People v. Ernst (1994) 8 Cal.4th 441, 444–445 [reversal required where defendant has not personally waived his right to a jury trial]. This may sometimes be part of the normal record. Depending on the circumstances, an omissions notice may be more appropriate than augmentation.

    Footnote 60
  61. See Batson v. Kentucky, supra, 476 U.S. 79; People v. Wheeler, supra, 22 Cal.3d 258.

    Footnote 61
  62. Cal. Rules of Court, rules 8.45, subd, (d)(2), 8.46. Keep a special eye out for in-camera proceedings on Pitchess motions. (Pitchess v. Superior Court, supra, 11 Cal.3d 531; People v. Mooc (2001) 26 Cal.4th 1216, 1231.)

    Footnote 62
  63. Cal. Rules of Court, rule 8.320, subd. (e).

    Footnote 63
  64. There are some exceptions to this rule, however. A transcript of a sound recording, for example, would be part of the normal record on appeal if it was presented to the jury, and it would be included as part of the clerk’s transcript, even if it were submitted to the jury as an exhibit. (Cal. Rules of Court, rule 8.320, subd. (b)(11).)

    Footnote 64
  65. Cal. Rules of Court, rule 8.224, subd. (a)(1).

    Footnote 65
  66. Id.

    Footnote 66
  67. Cal. Rules of Court, rule 8.224, subd. (a)(3).

    Footnote 67
  68. Cal. Rules of Court, rule 8.224, subd. (a)(2).

    Footnote 68
  69. Cal. Rules of Court, rule 8.224, subd. (c).

    Footnote 69
  70. Jud. Council of Cal., 2014 Court Statistics Report, Statewide Caseload Trends, at p. 69.

    Footnote 70
  71. Id.

    Footnote 71
  72. Cal. Rules of Court, rule 8.320, subds. (b)(13), (c)(9), (d).

    Footnote 72
  73. Pen. Code, § 1238, subd. (a)(3).

    Footnote 73
  74. Cal. Rules of Court, rule 8.320, subd. (a).

    Footnote 74
  75. Cal. Rules of Court, rule 8.320, subds. (b)(13)(A), (b)(13)(B).

    Footnote 75
  76. Cal. Rules of Court, rule 8.320, subds. (b)(13)(C).

    Footnote 76
  77. Cal. Rules of Court, rule 8.320, subds. (b)(13)(D).

    Footnote 77
  78. Cal. Rules of Court, rule 8.320, subds. (b)(13)(E).

    Footnote 78
  79. Cal. Rules of Court, rule 8.320, subds. (C)(9)(A).

    Footnote 79
  80. Cal. Rules of Court, rule 8.320, subds. (C)(9)(B).

    Footnote 80
  81. Cal. Rules of Court, rule 8.320, subds. (C)(9)(C).

    Footnote 81
  82. Cal. Rules of Court, rule 8.320, subd. (d).

    Footnote 82
  83. Id.

    Footnote 83
  84. Pen. Code, § 1004; Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1090.

    Footnote 84
  85. Cal. Rules of Court, rule 8.320, subd. (d)(1)(A).

    Footnote 85
  86. Cal. Rules of Court, rule 8.320, subd. (d)(1)(B).

    Footnote 86
  87. Cal. Rules of Court, rule 8.320, subd. (d)(1)(C).

    Footnote 87
  88. Cal. Rules of Court, rule 8.320, subd. (d)(1)(D).

    Footnote 88
  89. Cal. Rules of Court, rule 8.320, subd. (d)(1)(E).

    Footnote 89
  90. Cal. Rules of Court, rule 8.320, subd. (d)(1)(E)(i).

    Footnote 90
  91. Cal. Rules of Court, rule 8.320, subd. (d)(1)(E)(ii).

    Footnote 91
  92. Cal. Rules of Court, rule 8.320, subd. (d)(1)(F).

    Footnote 92
  93. Cal. Rules of Court, rule 8.320, subd. (d)(1)(G); Pen. Code, § 1203.03, subd. (b).

    Footnote 93
  94. Cal. Rules of Court, rule 8.336, subds. (a)(1), (c)(1), (d)(1).

    Footnote 94
  95. Cal. Rules of Court, rule 8.336, subds. (c)(2), (d)(3).

    Footnote 95
  96. Cal. Rules of Court, rule 8.336, subd. (e)(2).

    Footnote 96
  97. See Cal. Rules of Court, rule 8.320.

    Footnote 97
  98. Cal. Rules of Court, rule 8.320, subd. (b)(13)(C); see also Pen. Code, § 969b.

    Footnote 98
  99. Cal. Rules of Court, rule 8.320, subd. (c)(2).

    Footnote 99
  100. See Cal. Rules of Court, rule 8.320.

    Footnote 100
  101. Cal. Rules of Court, rules 8.155, subd. (b)(1), 8.340, subds. (b)(c).

    Footnote 101
  102. Cal. Rules of Court, rules 8.155, subd. (b)(1).

    Footnote 102
  103. Id.

    Footnote 103
  104. Id.

    Footnote 104
  105. See Cal. Rules of Court, rules 8.155, subd. (a), 8.340, subds. (c), (d).

    Footnote 105
  106. Cal. Rules of Court, rule 8.320; see People v. Gaston (1978) 20 Cal.3d 476, 482.

    Footnote 106
  107. Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [“Augmentation does not function to supplement the record with materials not before the trial court.”].

    Footnote 107
  108. People v. Brooks (1980) 26 Cal.3d 471, 484 [“Augmentation is not available . . . for the purpose of adding material that was not a proper part of the record in the trial court.”].

    Footnote 108
  109. Cal. Rules of Court, rules 8.155, subd. (a), 8.340, subd. (c).

    Footnote 109
  110. See Cal. Rules of Court, rules 8.40, 8.54.

    Footnote 110
  111. Cal. Rules of court, rule 8.155, subd. (a)(2).

    Footnote 111
  112. Cal. Rules of Court, rules 8.122, subd. (a)(1), 8.130, (a)(1), 8.155, subd. (a)(3), 8.340, subds. (c), (d).

    Footnote 112
  113. Cal. Rules of Court, rules 8.122, subd. (a)(1), 8.155, subd. (a)(3).

    Footnote 113
  114. Cal. Rules of Court, rules 8.130, subd. (a)(1), 8.155, subd. (a)(3).

    Footnote 114
  115. People v. Hill (1967) 67 Cal.2d 105, 124 [“All that is required of [the moving party] is that he signify with some certainty how materials not included in the normal transcript may be useful to him on appeal.”].

    Footnote 115
  116. People v. Gaston, supra, 20 Cal.3d 476, 482–484.

    Footnote 116
  117. People v. Silva (1978) 20 Cal.3d 489, 493, fn. 4.

    Footnote 117
  118. Cal. Rules of court, rule 8.346.

    Footnote 118
  119. Cal. Rules of court, rule 8.346, subd. (a).

    Footnote 119
  120. People v. Tuilaepa (1992) 4 Cal. 4th 569, 585.

    Footnote 120
  121. People v. Virgil (2011) 51 Cal.4th 1210, 1266.

    Footnote 121
  122. Marks v. Superior Court (2002) 27 Cal.4th 176, 192–193.

    Footnote 122
  123. People v. Freeman (1994) 8 Cal.4th 450, 509–510; People v. Holloway (1990) 50 Cal.3d 1098, 1116, overruled on other grounds as stated in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn.1.

    Footnote 123
  124. People v. Wright (1990) 52 Cal.3d 367, 403, overruled on other grounds as stated in People v. Williams (2010) 49 Cal.4th 405, 459.

    Footnote 124
  125. People v. Pinholster (1992) 1 Cal.4th 865, 921–922, overruled on other grounds as stated in People v. Williams, supra, 49 Cal.4th 405, 459.

    Footnote 125
  126. People v. Harris (2008) 43 Cal.4th 1269, 1280–1281.

    Footnote 126
  127. People v. Anderson (2006) 141 Cal.App.4th 430, 440.

    Footnote 127
  128. People v. Apalatequi (1978) 82 Cal.App.3d 970.

    Footnote 128
  129. People v. Osband (1996) 13 Cal.4th 622, 661–663.

    Footnote 129
  130. Cal. Rules of court, rule 8.346, subd. (a) [applying only to “oral proceedings”]. The phrase “oral proceeding” has been construed broadly to include anything that was before the trial court that needs to be reconstructed.

    Footnote 130
  131. People v. Williams (1988) 44 Cal.3d 883, 921–922.

    Footnote 131
  132. Cal. Rules of Court, rule 8.346, subd. (a); Marks v. Superior Court, supra, 27 Cal.4th 176, 193.

    Footnote 132
  133. Cal. Rules of Court, rule 8.346, subd. (a).

    Footnote 133
  134. Id.

    Footnote 134
  135. Marks v. Superior Court, supra, 27 Cal.4th 176, 193.

    Footnote 135
  136. People v. Gzikowski (1982) 32 Cal.3d 580, 584–585, fn.2.

    Footnote 136
  137. Cal. Rules of Court, rule 8.346, subd. (a).

    Footnote 137
  138. Cal. Rules of Court, rule 8.346, subd. (b).

    Footnote 138
  139. Cal. Rules of Court, rules 8.137, subd. (b)(1), 8.346, subd. (b); Marks v. Superior Court, supra, 27 Cal.4th 176, 193.

    Footnote 139
  140. Cal. Rules of Court, rule 8.137, subd. (b)(1).

    Footnote 140
  141. Cal. Rules of Court, rule 8.137, subd. (b)(2).

    Footnote 141
  142. Id.

    Footnote 142
  143. Cal. Rules of Court, rule 8.137, subd. (b)(4).

    Footnote 143
  144. Cal. Rules of Court, rule 8.137, subd. (c)(1).

    Footnote 144
  145. Id.

    Footnote 145
  146. Id.

    Footnote 146
  147. Cal. Rules of Court, rule 8.137, subd. (c)(2).

    Footnote 147
  148. Cal. Rules of Court, rule 8.137, subd. (c)(3).

    Footnote 148
  149. Id.

    Footnote 149
  150. Marks v. Superior Court, supra, 27 Cal.4th 176, 193.

    Footnote 150
  151. Cal. Rules of Court, rule 8.137, subd. (c)(3); Marks v. Superior Court, supra, 27 Cal.4th 176, 193.

    Footnote 151
  152. Cal. Rules of Court, rule 8.137, subd. (c)(4).

    Footnote 152
  153. Compare Cal. Rules of Court, rule 8.320 with Cal. Rules of Court, rules 8.860, 8.910.

    Footnote 153
  154. Cal. Rules of Court, rules 8.860, subd. (a)(1)(B), 8.910, subd. (a)(1)(B).

    Footnote 154
  155. Cal. Rules of Court, rules 8.860, subd. (a)(2)(B), 8.910, subd. (a)(2)(B).

    Footnote 155
  156. Cal. Rules of Court, rules 8.860, subd. (a)(2) [requiring a record of oral proceedings only if an appellant wants to raise an issue that requires consideration of the oral proceedings], 8.910, subd. (a)(2) [same].

    Footnote 156
  157. Cal. Rules of Court, rules 8.860, subd. (b), 8.910, subd. (b).

    Footnote 157
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