California Case Law On Appeal

I have appealed a conviction in a traffic case in LA County, California. The records from the original trial have been destroyed. The Appellate court is asking for a brief on whether or not the case should be sent back to be retried since the original transcript no longer exists. Does anyone know if there is any case law supporting a position against a retrial?
Thanks,
Hoping to avoid Double Jeopardy

Well, it seems to me that you are in a good position. The first step in your appeal is to write a proposed statement. This is the statement of your recollection of what took place during the trial. The second step is a settled statement hearing. That is where you have a hearing to come up with a "settled statement", which is a summary of the trial events agreed upon by you , the court and the prosecution. Since the prosectution likely was not at trial and there is no transcript, it seems to me that you get to dominate the statement.

My advice would be to write your proposed statement and post it here before you submit it. There are many people here who can offer you constructive comments.

By the way... can you fill us in on what the original case facts were (i.e. the charge, your defense, the evidence presented by the prosecution, etc). We may be able to think of some defenses that you haven't.

I'm confused as to why you think the records from the original trial were destroyed. Generally there are no records, there is no court reporter, and unless there was a pro tem on the bench, there is no tape.

So what records are you claming were destroyed?

And if they WERE destroyed, just how old is the original case? Is the matter still within a window of time allowing for appeal? I am assuming that since the Appeals Court is apparently asking for something that it has not been dismissed outright, so perhaps this is a timely appeal after all.

Plus, CourtClerk has a good point - what records do you believe were destroyed? And how did you determine that they were "destroyed"?

- Carl

I'd be very interested in that answer because in LA County, all tickets and subsequent documents are imaged. There are no paper files. We scan everything.

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Quoting CourtClerk

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I'd be very interested in that answer because in LA County, all tickets and subsequent documents are imaged. There are no paper files. We scan everything.

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It has me wondering what court case records are kept in my county. The only records I see included a little half sheet with a cardboard notice with the court information about the citation, a hard copy of the citation, a DMV printout of the violator's driving history, and a copy of any notice or attachment mailed out in the case. I know that our courtrooms are wired, but i do NOT know if the sessions are recorded at all - or how much coverage is provided. I know there is no court recorder, but I have heard that copies of the audio CAN be made.

There is certainly no transcript of the proceedings, and nothing more than a notation or checkbox made on the cardboard or hardpaper form with regards to the results of the hearing ... so, we wouldn't have much of a record, either. I suppose all that official record would consist of would be the end result of the hearing.


- Carl

Thank you all for your comments. I was cited for an improper left turn in 2006. I filed a Trial by Declaration, followed by a Trial de Novo. My defense was that I was caught in an intersection in rush hour traffic behind a truck that obscured my vision of the road ahead when the light turned yellow. In accordance with California's anti-gridlock law (CA22526), I turned left so as not to block the intersection when the light turned red. The officer testified that my left turn was unsafe. I was found guilty, and appealed. In my Opening Brief, I stated the facts of the case (when and where it occurred and the circumstances), and argued both the anti-gridlock law and the fact that the turn was completed without incident and the officer provided no evidence that the turn was unsafe. There was a Settlement hearing which I attended, and the Judge Pro Tem filed a response brief stating that my testimony had been inconsistent and that is why he had found me guilty. The Appellate Court then directed the Judge to respond to the arguments. The Judge Pro Tem replied stating that the tape of the trial had been destroyed and that the judgment against me was vacated. The Appellate Court denied vacating the judgment for lack of jurisdiction and has asked if the case should be retried, citing People v. Bighinatti, 1975, People v. Jenkins, 1976, and People v. Kirkpatrick, 1991. My response brief is due in less than 2 weeks. I am thinking of saying something along the lines of "The case has already been tried and the prosecution failed in their burden of proof to substantiate the allegations. The trial judge erred in vacating the judgment due to lack of jurisdiction, rather he should have recommended that the judgment be vacated, since the tape of the trial has been destroyed and his original response brief reflects that the original finding was not based on the facts and evidence of the case."
However, I would be very grateful for assistance in crafting a correct response, including appropriate case law to cite in support of the position that the case should NOT be re-tried, if there is any, and anything else that might be appropriate to support my position that I am not guilty. Many thanks. I look forward to your thoughts!
Sincerely,
CJD, hoping to avoid double jeopardy

Wow! Have you looked up the cases cited by the Court? They seem to have all the amunition you need to respond. Here we go:

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Quoting People v. Kirkpatrick, 1 Cal. App. 4th 538 (1991)

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An appeal from the judgment … removes the subject matter thereof from the jurisdiction of the superior court. Pending the appeal the superior court has no jurisdiction to vacate the judgment or make any order affecting it. … The appeal may be subject to dismissal … but until it is disposed of the jurisdiction of the subject matter of the judgment is vested in the appellate tribunal.

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OK, this simply establishes that the lower court did not have the power to vacate the judgement. Be that as it may. Now for the goodies:

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Quoting People v. Jenkins, 55 Cal. App. 3d Supp. 55 (1976)

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A court reporter is not required in a misdemeanor trial. However, if there was no court reporter at the trial and a settled statement cannot be drafted which will afford an adequate basis for appellate review, the defendant is entitled to a new trial as a matter of due process. (See Preston v. Municipal Court (1961) 188 Cal.App.2d 76, 85-87 [10 Cal.Rptr. 301].)

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Quoting People v. Bighinatti, 55 Cal. App. 3d Supp. 5 (1975)

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Given the great delay which has occurred and the relatively minor nature of the infraction involved and the fine imposed, we conclude that in this instance it would not be in the interests of justice to prolong the matter. Accordingly, the judgment is reversed with directions to dismiss the complaint.

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If it were me, I would cite Jenkins, holding that there is no adequate record for appellate review, then Bighinatti, holding that in the interests of justice, the case should be dismissed.

Good luck,
Barry

Thank you so much. By the way, how does one look up the case law? I've tried to find it on the internet without success.
Thanks again!
CJD

Usually just use Google and the name of the case, People v. Bighinatti.