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1 Stephen M. Lathrop (S.B.

#126813)
900 Wilshire Boulevard, Suite 924
2 Los Angeles, California 90017-4710
Tel. (213) 455-8100, ext. 3
3 Fax (213) 455-8101

4 Attorney for Defendant/Appellant


GERARDO ROMERO
5

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 FOR THE COUNTY OF LOS ANGELES

10
THE PEOPLE OF THE STATE OF CASE NO. BA102638
11 CALIFORNIA,
Hon. Charles E. Horan, Judge
12 Plaintiff and Respondent,
Cal. Supreme Ct. No. S070686
13 v.
DEATH PENALTY CASE
14 GERARDO ROMERO,
VERIFIED APPLICATION OF
15 Defendant and Appellant. APPELLANT GERARDO ROMERO TO
CORRECT, COMPLETE, AND
16 SETTLE THE RECORD ON APPEAL;
MEMORANDUM OF POINTS AND
17 AUTHORITIES; DECLARATION OF
STEPHEN M. LATHROP AND
18 EXHIBITS ATTACHED THERETO
19 TO THE HONORABLE CHARLES E. HORAN, JUDGE OF THE SUPERIOR
20 COURT FOR THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:
21 Defendant and appellant Gerardo Romero respectfully submits
22 this verified application to correct, complete, and settle the
23 record on appeal in this automatic appeal from a judgment and
24 sentence of death.
25 This application is made pursuant to Penal Code sections
26 190.6 through 190.9, inclusive, and 1240.1, subdivision (e)(2),
27 and California Rules of Court, rules 33, 33.5, 35, and 39.50
28 through 39.56, inclusive, and is made on the grounds that each

1 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 TOPICAL INDEX
Page
2
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 1
3
LEGAL AND CONSTITUTIONAL BASES FOR RECORD COMPLETION . . . . 2
4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5
I. THE PROCESS OF CERTIFICATION FOR ACCURACY, AND
6 COMPLETION AND SETTLEMENT OF THE RECORD IN A CAPITAL
APPEAL, AND APPELLANT’S REQUEST FOR A HEARING TO
7 ADDRESS THE COMPLETENESS AND ACCURACY OF THE RECORD . . 5

8 II. APPELLANT REQUESTS CORRECTION OF THE REPORTER’S AND


CLERK’S TRANSCRIPT FOR ACCURACY . . . . . . . . . . . . 7
9
A. THE REPORTER ’S TRANSCRIPT . . . . . . . . . . . . . . . 8
10
B. THE CLERK ’S TRANSCRIPT . . . . . . . . . . . . . . . 12
11
III. APPELLANT REQUESTS THAT THE MATERIAL DESCRIBED BELOW BE
12 INCLUDED IN THE RECORD ON APPEAL; THE MATERIAL IS PART
OF THE “ENTIRE RECORD” (I.E., NORMAL RECORD) IN A
13 CAPITAL APPEAL BUT WAS ERRONEOUSLY OMITTED . . . . . . 14

14 A. THE “ENTIRE RECORD ” IN A CAPITAL APPEAL . . . . . . . . 14

15 B. OMITTED “ENTIRE RECORD ” MATERIAL . . . . . . . . . . . 17

16 IV. APPELLANT REQUESTS AUGMENTATION OF THE RECORD ON APPEAL


WITH THE MATERIAL DESCRIBED BELOW AS THIS MATERIAL WILL
17 BE USEFUL TO APPELLANT ON APPEAL . . . . . . . . . . . 22

18 V. APPELLANT REQUESTS PERMISSION TO PREPARE A SETTLED


STATEMENT TO SETTLE AMBIGUITIES IN THE REPORTED ORAL
19 PROCEEDINGS AND TO SETTLE UNREPORTED ORAL PROCEEDINGS 26

20 A. INTRODUCTION . . . . . . . . . . . . . . . . . . . 26

21 B. RECORD SETTLEMENT PROCEDURE . . . . . . . . . . . . . 29

22 C. REQUEST TO PREPARE A SETTLED STATEMENT WHETHER APPELLANT


WAS ABSENT DURING PORTIONS OF THE TRIAL PROCEEDINGS ;
23 STATEMENT OF FACTS IN SUPPORT THEREOF . . . . . . . . . 31

24 D. REQUEST TO PREPARE A SETTLED STATEMENT OF THE


UNREPORTED , IN -COURT DISCUSSIONS IN THE PRESENCE OF THE
25 JURY BETWEEN COURT INTERPRETERS AND TESTIFYING
WITNESSES ; STATEMENT OF FACTS IN SUPPORT THEREOF . . . . . 34
26
E. REQUEST TO PREPARE A SETTLED STATEMENT OF PHYSICAL
27 DEMONSTRATIONS , INCOMPLETE DESCRIPTIONS , AND NON -VERBAL
GESTURES DURING TRIAL THAT ARE NOT DESCRIBED FOR THE
28 RECORD ; STATEMENT OF FACTS IN SUPPORT THEREOF . . . . . . 38

VERIFIED APPLICATION TO CORRECT, COMPLETE, -i-


AND SETTLE THE RECORD ON APPEAL
1 VI. APPELLANT REQUESTS AN ORDER SECURING HIS PERSONAL
PRESENCE AT ALL RECORD SETTLEMENT PROCEEDINGS RELATING
2 TO WHETHER APPELLANT WAS ABSENT DURING A PORTION OF THE
TRIAL PROCEEDINGS . . . . . . . . . . . . . . . . . . 40
3
VII. REQUEST FOR COPIES OF CERTAIN REPRODUCIBLE EXHIBITS TO
4 EXPEDITE THE REVIEW OF THE RECORD, FACILITATE REFERENCE
TO THE RECORD, AND ELIMINATE THE COST OF COUNSEL HAVING
5 TO TRAVEL TO THE TRIAL COURT MERELY TO EXAMINE THE
EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . 43
6
VIII. REQUEST THAT THE “ENTIRE RECORD” ON APPEAL
7 INCLUDE ALL DOCUMENTS LODGED AND/OR FILED IN
CONNECTION WITH THE INSTANT APPLICATION TO
8 CORRECT, COMPLETE, AND SETTLE THE RECORD ON
APPEAL, INCLUDING THE REPORTER’S NOTES OF ALL
9 ORAL PROCEEDINGS RELATING THERETO . . . . . . . . 46

10 IX. REQUEST FOR ORDER THAT THE COMPLETED RECORD NOT BE


CERTIFIED UNTIL 20 DAYS AFTER DELIVERY OF ALL REQUESTED
11 MATERIAL TO APPELLATE COUNSEL . . . . . . . . . . . . 46

12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 47

13 DECLARATION OF STEPHEN M. LATHROP . . . . . . . . . . . . . 48

14 EXHIBITS

15 Juror Questionnaire, Juror No. 7835 . . . . . . . . . . . 53

16 Juror Questionnaire, Juror No. 6991 . . . . . . . . . . . . 78

17 Reporter’s Transcript, August 2, 1995 . . . . . . . . . . 103

18 Subpena Duces Tecum and Application for


Subpena Duces Tecum Criminal, June 18, 1996 . . . . 106
19
Superior Court file, Case No. BA084773 . . . . . . . . . . 107
20
People v. Watson, Cal. Supreme Court No. S024471,
21 order filed May 14, 1997 . . . . . . . . . . . . . . 239

22 People v. Alfaro, Cal. Supreme Court No. S027730,


letter to trial court clerk, May 9, 1997 . . . . . . 240
23

24

25

26

27

28

-ii-
VERIFIED APPLICATION TO CORRECT, COMPLETE, AND SETTLE THE RECORD ON APPEAL
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 INTRODUCTION

3 Defendant and appellant Gerardo Romero respectfully submits

4 this verified application to correct, complete, and settle the

5 record on appeal in connection with the automatic appeal from a

6 judgment and sentence of death imposed by this court on May 22,

7 1998. [CT 11:2812.]1

8 On April 12, 2002, the California Supreme Court appointed

9 Stephen M. Lathrop as counsel for appellant in the above

10 automatic appeal. (Declaration of Stephen M. Lathrop (“Lathrop

11 Decl.”), p. 48, ¶ 3.)

12 The record on appeal was delivered to appellate counsel on

13 April 18, 2002. The reporter’s transcript is comprised of

14 eighteen volumes consisting of 1,932 pages. The clerk’s

15 transcript is comprised of (1) two volumes of section 987.9

16 documents filed under seal consisting of 431 pages, (2) eleven

17 volumes consisting of 2,873 pages, and (3) one volume entitled

18 “Supplemental Two” consisting of 6 pages. (Lathrop Decl., p. 48,

19 ¶ 4.)

20 On July 3, 2002, this Court denied appellant’s timely

21 application, filed June 28, 2002, for a 90-day extension of time

22 to file appellant’s motion to correct, augment and/or settle the

23 record on appeal, but granted appellant a 60-day extension to

24 and including September 13, 2002, to file the request for

25 corrections or additions to the record. (Lathrop Decl., pp. 48-

26
1
“CT” refers to the clerk’s transcript and “RT” refers
27 to the reporter’s transcript. Except where otherwise indicated,
citations to CT and RT are followed by the applicable volume and
28 page number in the format “vol:page”.

1 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 49, ¶ 5.) On September 12, 2002, this Court granted appellant’s

2 timely application, filed September 12, 2002, for an additional

3 extension of time of 5 court days, to and including September

4 20, 2002, to file appellant’s motion to correct, augment and/or

5 settle the record on appeal. (Lathrop Decl., p. 49, ¶ 5.)

6 LEGAL AND CONSTITUTIONAL BASES FOR RECORD COMPLETION

7 A complete and accurate record is an essential component of

8 appellate review and due process and a requirement for the

9 effective assistance of appellate counsel. (People v. Barton

10 (1978) 21 Cal.3d 513.) Former Justice Goldberg explained that

11 the most basic and fundamental tool of an

12 appellate advocate’s profession is the

13 complete transcript, through which his

14 trained fingers may leaf and his trained

15 eyes may roam in search of an error, a lead

16 to an error, or even a basis upon which to

17 urge a change in the established law.

18 Anything short of a complete transcript is

19 incompatible with effective appellate

20 advocacy. [Hardy v. United States (1964)

21 375 U.S. 277, 282.]

22 Appeals are likely to involve issues which turn on the very

23 specific words contained in the transcript (e.g., the propriety

24 of excluding a prospective juror pursuant to Witherspoon v.

25 Illinois (1968) 391 U.S. 510 and Wainwright v. Witt (1985) 469

26 U.S. 412), or on matters conducted in an “off the record”

27 / / /

28 / / /

2 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 proceeding, Penal Code section 190.9 notwithstanding.2 (See,

2 e.g., People v. Gzikowski (1982) 32 Cal.3d 580.) Furthermore,

3 counsel’s failure to provide the reviewing court with a record

4 adequate to permit resolution of a claim on appeal may result in

5 waiver of the claim. (People v. Malabag (1997) 51 Cal.App.4th

6 1419, 1425.)

7 The reasons for requiring a complete and accurate record of

8 all the proceedings in the lower court also include the

9 constitutional role which appellate review plays in capital

10 cases, and California’s independent interest in the reliability

11 of its death judgments. (Pulley v. Harris (1984) 465 U.S. 37,

12 53; People v. Stanworth (1969) 71 Cal.2d 820, 832-834.)

13 The United States Supreme Court recognizes the special need

14 for an accurate and complete record in a capital case. In

15 Parker v. Dugger (1991) 498 U.S. 308, 321, for example, the

16 court emphasized the “crucial role of meaningful appellate

17 review in ensuring that the death penalty is not imposed

18 arbitrarily or irrationally,” and held that “meaningful

19 appellate review requires that the appellate court consider” the

20 “actual” accurate record of defendant’s trial. In Dobbs v. Zant

21 (1993) 506 U.S. 357, the court relied on this principle in

22 holding that the federal habeas court erred in refusing to

23 consider the newly discovered transcript of trial counsel’s

24 closing arguments in assessing Dobbs’ claim of ineffective

25 assistance of trial counsel.

26

27 2
Except where otherwise indicated or clear from the
context, all further statutory references are to the Penal Code.
28 References to rules are to the California Rules of Court.

3 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 The California Supreme Court recognizes the “critical role

2 of a proper and complete record in facilitating meaningful

3 appellate review.” (People v. Hawthorne (1992) 4 Cal.4th 43,

4 63.) The importance of a complete and accurate record in a

5 capital case is also reflected in sections 190.6 through 190.9,

6 and in rule 39.51, which entitles a capital defendant to the

7 “entire record” of the proceedings in the lower court. The

8 “entire record” in a capital appeal includes “all documents

9 filed or lodged in the municipal and superior court files in the

10 case,” juror questionnaires, and transcripts of all proceedings

11 in the lower court, including discussions in chambers, jury voir

12 dire, and municipal court proceedings. (Rule 39.51(a), (b).)

13 A complete and accurate appellate record is necessary to

14 ensure appellant’s rights to due process under the Fifth and

15 Fourteenth Amendments, effective assistance of counsel under

16 Sixth and Fourteenth Amendments, meaningful appellate review as

17 mandated by the Eighth Amendment, as well as the corollary state

18 constitutional rights (Cal. Const., art. 1, §§ 7, 15 and 17),

19 and the right to have the record on appeal prepared in

20 conformity with state statutory requirements and rules of court

21 as set forth above. (See Marks v. Superior Court (2002) 27

22 Cal.4th 176; People v. Welch (1999) 20 Cal.4th 701; Chessman v.

23 Teets (1957) 354 U.S. 156; Evitts v. Lucey (1985) 469 U.S. 387;

24 Parker v. Dugger (1991) 498 U.S. 308, 321 [defining meaningful

25 appellate review, in part, upon review of the full trial

26 record]; Gregg v. Georgia (1976) 428 U.S. 153, 167, 198 (joint

27 opinion of Stewart, Powell and Stevens, JJ.) [Complete

28 transcript and record is important “safeguard against

4 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 arbitrariness and caprice”]; Douglas v. California (1973) 372

2 U.S. 353, 358 [noting the benefit of “counsel’s examination into

3 the record, research of the law, and marshaling of arguments on

4 [client’s] behalf”].) Access to “the entire [trial] transcript”

5 is essential for effective appellate advocacy. (Hardy v. United

6 States (1964) 375 U.S. 277, 282; see id. at p. 288 (Goldberg,

7 J., concurring) [“an appointed lawyer ... needs a complete trial

8 transcript to discharge his full responsibility ....”]; People

9 v. Barton (1978) 21 Cal.3d 513, 518-519.)

10 ARGUMENT

11 I.

12 THE PROCESS OF CERTIFICATION FOR ACCURACY, AND COMPLETION AND

13 SETTLEMENT OF THE RECORD IN A CAPITAL APPEAL, AND APPELLANT’S

14 REQUEST FOR A HEARING TO ADDRESS THE COMPLETENESS AND ACCURACY

15 OF THE RECORD

16 Rule 39.55 governs certification of the record for

17 accuracy. (See also § 190.8, subd. (g).) Following delivery of

18 the record, “appellate counsel shall file any request for

19 corrections or additional transcripts” within a specified time.

20 (Rule 39.55(b).) This rule applies to both defense counsel and

21 the prosecutor. (§ 190.8, subd. (I).)

22 Not later than 15 days after the request is filed, the

23 trial court holds a hearing to “address the completeness and

24 accuracy of the record, in accordance with the procedures and

25 timelines set out in rule 39.54(d).” (Rule 39.55(c).)

26 Appellant respectfully requests a hearing to address the

27 completeness and accuracy of the record. (Rule 39.55(c); Marks

28 v. Superior Court, supra, 27 Cal.4th at p. 187 [trial court

5 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 “holds a hearing ‘to address the completeness and accuracy of

2 the record, in accordance with the procedures and timeliness set

3 out in rule 39.54(d)’ (rule 39.55(c))”].)

4 When the record has been completed and corrected, the

5 trial court certifies the record as accurate and redelivers the

6 record to the clerk. (Rule 39.55(d).)

7 The trial court’s authority to make orders for the

8 correction and augmentation of the record in capital cases is

9 derived from the statutes and court rules governing preparation

10 of capital case records. Rule 39.51(c), for example, states

11 that the rule describing the contents of the clerk’s and

12 reporter’s transcript in capital cases “does not affect the

13 power of the Supreme Court or superior court to order inclusion

14 of additional matter.” Rule 35(h) confirms the “superior

15 court’s responsibility for the prompt preparation of records on

16 appeal in capital cases,” and section 190.8 requires the trial

17 court to monitor the preparation of the record in a capital

18 case. (See also Rules 39.54 and 39.55.) Section 1240.1,

19 subdivision (e)(2), provides that the duties imposed on trial

20 counsel in a capital appeal to ensure that the entire record is

21 prepared and to check for errors and omissions “shall not

22 foreclose the defendant's appellate counsel from requesting

23 additions or corrections to the entire record on appeal in

24 either the trial court or the Supreme Court.”

25 Lapses in trial and settled statement procedures reflect an

26 inattention to the critical role of a proper and complete record

27 in facilitating meaningful appellate review. (People v.

28 Hawthorne (1992) 4 Cal.4th 43, 62-63.)

6 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 II.

2 APPELLANT REQUESTS CORRECTION OF THE REPORTER’S AND CLERK’S

3 TRANSCRIPT FOR ACCURACY

4 The reporter’s and clerk’s transcript contain several

5 errors, including inaccurate or incomplete transcriptions of

6 questions or answers and misnumbered, illegible, or missing

7 pages. Appellant may propose corrections to errors in a

8 transcript, and then “it shall be the duty of the trial judge to

9 finally determine the record.” (People v. Chessman (1950) 35

10 Cal.2d 455, 461.)

11 When the trial court determines that the record is

12 incorrect it must order the reporter to correct it. (Williams

13 v. Davis (1946) 27 Cal.2d 746, 753; Rules 39.54(d), 39.55(c).)

14 The fact that trial counsel may have previously reviewed the

15 record and either requested corrections or indicated that it was

16 correct does not foreclose appellate counsel from requesting

17 additional corrections, nor does it relieve the court from

18 making those corrections. (§ 1240.1, subd. (e)(2); Rule

19 39.55(b), (c).)

20 Appellant recognizes that corrections to the record are not

21 required to include “immaterial typographical errors that cannot

22 conceivably cause confusion.” (§ 190.8, subd. (c).) At this

23 early stage in the appeal, however, appellant cannot be certain

24 what issues will be raised on appeal or in state and federal

25 postconviction proceedings, and therefore what typographical

26 errors and mistranscriptions may ultimately be important. In

27 order to provide the reviewing court with an accurate

28 transcript, and consistent with counsel’s responsibility to

7 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 preserve an adequate record for review in both the state and

2 federal courts, appellant has listed all errors and requests

3 that this Court order the correction of all errors. However,

4 the errors that may be merely “immaterial typographical errors”

5 are identified below by an asterisk next to the page cite for

6 the error.

7 A. THE REPORTER ’S TRANSCRIPT

8 Appellant requests that the following errors and/omissions

9 in the reporter’s transcript be corrected for accuracy:

10 1. The transcript of the proceedings on December 20,

11 1995, in Department 100, reported by Raquel A.

12 Rodriguez, concludes without a statement that the

13 proceedings were concluded. [RT 1:8.] A statement

14 should be included whether the proceedings were

15 concluded;

16 2. There are two sets of pages numbered 1016 through

17 1023, inclusive, reported by Yvonne Gallegos [RT

18 2:1016-1023];

19 3. The reporter’s transcript at page 1356, line 6,

20 reported by Deborah D. Couwenberg, incorrectly states

21 that defendant is present with counsel [RT Vol. 4,

22 1356:6]. Defendant was not present [RT Vol. 4,

23 1356:18-20];

24 4. The indices are incomplete as they fail to include an

25 index of proceedings (e.g., pretrial discussions, jury

26 voir dire, pretrial jury instructions, opening

27 statement, etc.); and,

28 / / /

8 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 5. Typographical errors and missing transcriptions due to

2 poor photocopying, as listed in the following table:3

3 RT page:line Error Proposed Correction


4 Master Index Vol 3, Page 1036 Vol. 3, Page 1046
Pre-Trial
5 Phase Index;
January 17,
6 1997 hearing
date
7
Vol. 4 of 18 June 6, 1997 June 9, 1997
8 (cover)

9 Vol. 10 of 18 February 10, 1998 February 19, 1998


(cover)
10 18:26* READY REALLY
11 36:5* DENOVO DE NOVO
12 37:1* ON AND

13 39:1* HELD HOLD


1014:7* WORDS WORST
14
1020:13* GE BE
15
1356:6 THE DEFENDANT WITH HIS DEFENSE
16
1358:4 CASTELLO BROUGHAM
17 1368:26 CASTELLO BROUGHAM
18 1380:1 CASTELLO BROUGHAM
19 1454:19 BROUGHAM WHITE

20 1512:27 [line missing due to I DON'T WANT TO SAY


poor photocopy – see ANYTHING THAT
21 RT Computer Disks for
correction]
22 1512:28 [line missing due to MAKES A JUROR FEEL
poor photocopy – see THAT IT IS THEIR DUTY
23 RT Computer Disks for FOR A
correction]
24

25
3
26 Court reporters Cheryl Duarte (RT 12-29), Misty L.
Wyatt (RT 33-1000), Katherine Parker-Rijke (RT 1003-1015), Mark
27 A. Peterson (RT Vol. 3), Deborah D. Couwenberg (RT 1356-1445,
1454), Jennifer S. Row (RT 1610), and Yvonne Gallegos (RT Vols.
28 4 and 10, and RT 1016-1045, 1512-1531, 1922-3547).

9 SETTLE THE RECORD ON APPEAL


VERIFIED APPLICATION TO CORRECT, COMPLETE, AND
1 1521:3 BONNIE, BRAE BONNIE BRAE,
2 1526:5 AS AX
3 1526:6 AS AX

4 1527:25 AKW ADW


1610:15 14 13
5
1922:13* DO AT DO IT
6
1938:11 THE COURT PROSPECTIVE JUROR NO.
7 9

8 1946:2 PERSONAL PENALTY


1986:16 PRISONERS PARISHIONERS
9
1993:15* LAWYER LAWYERS
10
2014:1* ASSUME AS SOON
11
2021:8 NO. 10 NO. 9
12 2021:17 NO. 10 NO. 9
13 2028:17* MEATED METED
14 2038:16 PROSPECTIVE JUROR NO. THE COURT:
6:
15
2060:18* TO THE
16 2105:9* DOWN TOWN
17 2264:10* PROTECTED PROTRACTED
18 2271:3* VIEW TRUE

19 2296:3* CASE IN THIS CASE


2305:13* ATTEMPT ATTEMPTED
20
2314:19* ARE OR
21
2350:16* THE THEN
22
2363:5 WERE YOU YOU WERE
23 2377:1* PEER PIER
24 2377:2* PEER PIER

25 2390:21* WALLSTREET WALL STREET


2417:21* ASSUME AS SOON
26
2438:13* HEAR HERE
27
2395:7* DOW DOWN
28

VERIFIED APPLICATION TO CORRECT, COMPLETE, 10


AND SETTLE THE RECORD ON APPEAL
1 2401:7 JUROR NO. 4 JUROR NO. 3
2 2417:2 JUROR NO. 4 JUROR NO. 3
3 2418:4 JUROR NO. 4 JUROR NO. 3

4 2419:2 JUROR NO. 4 JUROR NO. 3


2438:13* HEAR HERE
5
2452:1* PROSPECTIVE ALTERNATE ALTERNATE
6
2487:1 SAVED SHAVED
7
2490:1 GAME GANG
8 2536:24* SEEN SCENE
9 2538:25* DECENT DESCENT
10 2539:16* NOISE NOSE

11 2543:13* [Incorrect line [correct line


numbering and numbering and delete
12 erroneous iconic iconic symbols]
symbols]
13 2587:5 IN DEPTH ADEPT
14 2658:25 TEMPTED ATTEMPTED
15 2788:6* MAY MY

16 2868:11 THE COURT MR. BROUGHAM


2890:5* I W THE
17
2974:13 GAME GANG
18
2991:5 THAT YOU YOU THAT
19
3004:9* THEY THERE
20 3013:9* DOING DURING
21 3024:14* ND AND
22 3026:12 ENTERED EXITED

23 3031:8* NOON EVENING


3041:8* NOON EVENING
24
3042:8* 1T AT
25
3052:14 PASENCIO PICENO
26 3069:23* MS. MR.
27 3305:13 YES, I DO. THE WITNESS: YES I DO.
28 3316:25 HOW HAU

VERIFIED APPLICATION TO CORRECT, COMPLETE, 11


AND SETTLE THE RECORD ON APPEAL
1 3336:6* MTHEY’RE THEY’RE
2 3341:25* GOD GOOD
3 3354:4* STATE YOU, MUST STATE, YOU MUST

4 3355:5* ADJUST A JUST


3359:10* FOOLING FOLLOWING
5
3359:22 DEUK AHN DUK AN
6
3360:19 DEUK AHN DUK AN
7
3372:6 PASENCIO PICENO
8 3375:15 PASENCIO PICENO
9 3375:19 PASENCIO PICENO
10 3375:26 DEUK AHN DUK AN

11 3376:14* SLRUG SLUG


3384:1* JOT GOT
12
3389:27* HEARDER HEARD
13
3395:7* BALDARAM BALDARAMMA
14
3396:3* LATIOS LATINOS
15 3400:14* SWAR SWEAR
16 3405 3405 - 4545 3405 - 3545
[pagination] [pagination]
17
3547:8 NOON EVENING
18

19 B. THE CLERK ’S TRANSCRIPT

20 Appellant requests that the following errors and/omissions


21 in the clerk’s transcript be corrected for accuracy:
22 1. The index omits reference to the document entitled
23 Notice of Motion to Continue and Declaration, filed
24 June 13, 1995, which appears out of chronological
25 order at CT 2:286;
26 2. The index erroneously lists “Notice of Motion to
27 Continue and Declaration 6/13/95" at CT 3:586 [CT
28 Index, page 9]; this document does not appear there;

VERIFIED APPLICATION TO CORRECT, COMPLETE, 12


AND SETTLE THE RECORD ON APPEAL
1 3. The index is missing an entry for Juror Questionnaire

2 No. 9891 [CT Index, page 10] at CT 6:1449;

3 4. The index listing of “JUROR QUESTIONNAIRES” omits

4 identifying information (i.e., the juror number

5 corresponding to the particular questionnaire) so that

6 the questionnaires can be separately identified;

7 5. The index to penalty phase exhibits omits reference to

8 People’s Exhibits 27A through 27M, inclusive, and 28A

9 through 28I, inclusive [CT 11:2784];

10 6. The index omits the minute order for May 22, 1998 [CT

11 11:2823];

12 7. The index contains an entry for “Juror Note” and a

13 corresponding filed date of “5/5/98" [CT Index, page

14 14]. This appears to be incorrect. The clerk’s stamp

15 on appellant’s copy is illegible, but the juror note

16 was received by the court on February 19, 1998, not

17 May 5, 1998 [CT 11:2757, 11:2872];

18 8. There is an unnumbered single page immediately after

19 CT 2:285, which should be numbered 285A to preserve

20 pagination;

21 9. There are multiple, duplicate minute orders for May

22 22, 1998 [CT 11:2820-2841];

23 10. There is an unnumbered page between CT 4:1074 and CT

24 4:1075, which is page 25 of Juror Questionnaire No.

25 3242; to preserve pagination, this page should be

26 numbered 1074A;

27 11. The Juror Questionnaire for Juror No. 2736 is

28 partially illegible. [CT 9:2349-2373.] The juror was

VERIFIED APPLICATION TO CORRECT, COMPLETE, 13


AND SETTLE THE RECORD ON APPEAL
1 seated as Juror No. 1. [RT 8-1:2157.] Appellant does

2 not have a better copy;

3 12. The Juror Questionnaire for Juror No. 7835 is

4 illegible. [CT 9:2399-2423.] This juror was seated

5 as Juror No. 3. [RT 8-2:2336.] A legible copy is

6 attached hereto at pages 53-77; and,

7 13. The Juror Questionnaire for Juror No. 6991 is

8 partially illegible. [CT 10:2623-2647.] This juror

9 was seated as Juror No. 12. [RT 8-2:2353.] A legible

10 copy is attached hereto at pages 78-102.

11 III.

12 APPELLANT REQUESTS THAT THE MATERIAL DESCRIBED BELOW BE INCLUDED

13 IN THE RECORD ON APPEAL; THIS MATERIAL IS PART OF THE “ENTIRE

14 RECORD” (I.E., THE NORMAL RECORD) IN A CAPITAL APPEAL BUT WAS

15 ERRONEOUSLY OMITTED

16 A request for additional record which should have been

17 included as part of the “entire record” is a request for

18 documents to which appellant is entitled by statute and rule

19 without any particularized showing as to how those materials may

20 be useful on appeal. (See § 190.7; rule 39.51(a), (b)).4

21 A. THE “ENTIRE RECORD ” IN A CAPITAL APPEAL

22 The record on appeal in a capital case consists of all the

23 reporter’s transcripts5 and a clerk’s transcript. (§ 190.7,

24
4
25 Appellant has made a diligent search for copies of all
documents requested in this application, but except where
26 attached hereto as exhibits has been unable to locate the
documents. (Lathrop Decl., pp. 49, ¶ 6.)
27
5
Section 190.9, subdivision (a)(1), requires, “In any
28 case in which a death sentence may be imposed, all proceedings

VERIFIED APPLICATION TO CORRECT, COMPLETE, 14


AND SETTLE THE RECORD ON APPEAL
1 subd. (a)(1); see rule 39.51(a).) “The clerk’s transcript shall

2 include all documents filed or lodged in the municipal and

3 superior court files in the case, including all items listed in

4 rule 33(a)6 and juror questionnaires of all potential jurors,

5 regardless of whether the jurors were selected to sit on the

6 case.” (Rule 39.51(a)(1).) The statute also requires the

7 inclusion of “[a] copy of any other paper or record on file or

8 lodged with the superior or municipal court and a transcript of

10 conducted in the municipal and superior courts, including all


conferences and proceedings, whether in open court, in
11 conference in the courtroom, or in chambers, shall be conducted
on the record with a court reporter present. The court reporter
12 shall prepare and certify a daily transcript of all proceedings
commencing with the preliminary hearing. Proceedings prior to
13 the preliminary hearing shall be reported [and transcribed when
14 the municipal or superior court receives notice that the death
penalty is being sought].” (See Rule 39.52.)
15 6
Rule 33(a)(1) lists the following items to be included
16 in the clerk’s transcript in an appeal by the defendant: “(a)
the notice of appeal, any certificate of probable cause executed
17 and filed by the court, and any request for additional record
and any order made pursuant thereto; (b) the indictment,
18 information or accusation with any amendments; (c) any demurrer;
(d) any motion for a new trial, with supporting and opposing
19 memoranda and affidavits; (e) all minutes of the court relating
to the action; (f) the verdict; (g) the judgment or order
20 appealed from and any abstract of judgment – commitment; (h) all
written instructions given or refused indicating on each
21 instruction the party requesting it; (i) all written
communications, formal or informal, between the court and the
22
jury or any individual jurors; (j) any written opinion of the
23 court; (k) any transcript of an electronic sound or
sound-and-video recording that was provided to the jury or
24 tendered to the court under rule 203.5[;] ... (l) each written
motion made by defendant and denied in whole or in part, with
25 supporting and opposing memoranda and related affidavits, search
warrants and returns, and the transcript of any preliminary
26 examination or grand jury hearing related thereto; (m) the
report of the probation officer; [and,] (n) any certified
27 records of a court or of the Department of Corrections
introduced in evidence to prove a prior conviction or prior
28 prison term.”

VERIFIED APPLICATION TO CORRECT, COMPLETE, 15


AND SETTLE THE RECORD ON APPEAL
1 any other oral proceeding reported in the superior or municipal

2 court pertaining to the trial of the cause.” (§ 190.7, subd.

3 (a)(1).)

4 Additionally, “all documents filed confidentially under

5 Penal Code section 987.9 or 987.3 shall be sealed and copies

6 provided only to the reviewing court and to counsel for the

7 defendant to whom the documents relate. All transcripts of in

8 camera proceedings shall be sealed and copies provided only to

9 the reviewing court and to counsel for those parties present at

10 the proceedings.” (Rule 39.51(b).)

11 The California Supreme Court recently emphasized that

12 neither the trial court nor counsel may

13 decline to include any portion of the

14 proceedings in the record on appeal. [Marks

15 v. Superior Court, supra, 27 Cal.4th at p.

16 190.]

17 Moreover, if at any time after transmittal to the reviewing

18 court the clerk of the trial court or the reporter learns that a

19 document required to be included in the record on appeal was

20 inadvertently omitted, the clerk is required to copy the

21 document or the reporter is required to prepare the transcript.

22 The clerk is then required to certify and transmit the document

23 or transcript to the reviewing court as an augmentation to the

24 record without the necessity of an order of the court. The

25 clerk also must give notice of the transmittal and provide

26 copies of the documents to the parties. (Rule 35(e).)7

27
7
Rule 35(e) provides, in part:
28 If at any time the clerk or reporter

VERIFIED APPLICATION TO CORRECT, COMPLETE, 16


AND SETTLE THE RECORD ON APPEAL
1 B. OMITTED “ENTIRE RECORD ” MATERIAL

2 Appellant’s review of the reporter’s transcript reveals

3 that the following material is missing from the normal record on

4 appeal:

5 DATE NATURE OF PROCEEDINGS/REPORTER’S NAME


6 1. 12/19/96 Transcript of oral proceedings; pretrial
7 conference. (C/R Yvonne Gallegos.)
8 Note: The minute order for this hearing states
9 that a pretrial conference hearing was “held
10 and continued to 1-17-97.” [CT 2:425.]
11 2. 6/9/97 Transcript of sealed oral proceedings held in

12 the presence of appellant and defense counsel,

13 but outside the presence of the prosecutor.

14 [RT 4:1386-1397; CT 2:454.] (C/R Deborah D.

15 Couwenberg.)

16 / / /
17 / / /
18 / / /
19 / / /
20 / / /
21
learns that a document or transcript
22
required by rule 33, 34, or 39.5 to be
23 included in the record on appeal was
inadvertently omitted, the clerk shall copy
24 the document or the reporter shall prepare
the transcript, and the clerk shall certify
25 and transmit the document or transcript to
the reviewing court as an augmentation to
26 the record without the necessity of a court
order. The clerk shall give the parties
27 prompt notice of the transmittal and send
copies as provided in this subdivision and
28 in subdivision (c).

VERIFIED APPLICATION TO CORRECT, COMPLETE, 17


AND SETTLE THE RECORD ON APPEAL
1 3. 9/30/97 Transcript of oral proceedings. (C/R Unknown.)
2 Note: Appellant is not in possession of a
3 minute order for this date. The transcript of
4 the proceedings on August 28, 1997, reported by
5 Deborah D. Couwenberg, shows a time waiver to
6 September 30, 1997 (as zero of thirty days),
7 and concludes with the court’s statement that
8 the next hearing is set for September 30, 1997;
9 the reporter’s notes also state that the case
10 is continued to September 30, 1997. [RT
11 4:1459.]
12 4. 11/26/97 Transcript of oral proceedings. (C/R Yvonne
13 Gallegos.)
14 Note: The minute order for this hearing states
15 that the case was called for jury trial and
16 then continued with time waivers, but the
17 reporter’s notes states that no hearing was
18 held. [CT 2:470; RT 4:1497.]
19 Appellant’s review of the clerk’s transcript reveals that
20 the following material is missing from the normal record on
21 appeal:
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28

VERIFIED APPLICATION TO CORRECT, COMPLETE, 18


AND SETTLE THE RECORD ON APPEAL
1 DATE DOCUMENT DESCRIPTION
2 5. 10/10/94 Transcription of the audio taped interview of
3 appellant by Detective Salazar on October 10,
4 1994, and the audiotape thereof. Counsel has a
5 copy of the audiotape, but not a transcription
6 thereof [RT 1:26, 2:1025-1026, 11:2751-2754,
7 11:2783-2784 (citations in the record to the
8 tape and transcript); Rule 33(a)(1)(K).]
9 6. 12/21/94 Reporter’s transcript of hearing held pursuant

10 to People v. Marsden (1970) 2 Cal.3d 118;

11 transcript sealed; Patricia McNeal, CSR No.

12 4458, court reporter. [CT 1:2, 1:15-16, 1:234

13 (motion denied).] (Rules 33.5(a), 39.52(f).)

14 7. 8/2/95 Reporter’s transcript of proceedings in the

15 municipal court, a copy of which is attached

16 hereto at pages 103-105. (§ 190.9, subd.

17 (a)(1); Rule 39.52.)


8. 6/3/96 The “Property Report” [CT 363] attached to the
18
Notice of Motion and Motion to Suppress
19
Evidence Pursuant to Penal Code, § 1538.5;
20
Points and Authorities in Support Thereof. [CT
21
2:362-366; Rule 33(a)(1)(l).]
22
9. 6/7/96 The “Murder Book” on victim “Afable” [CT 403]
23
referred to in the People’s Response to
24
Defendant’s Motion to Suppress Defendant’s
25
Statement. [CT 402-403; Rule 33(a)(1)(l).]
26
/ / /
27
/ / /
28

VERIFIED APPLICATION TO CORRECT, COMPLETE, 19


AND SETTLE THE RECORD ON APPEAL
1 10. 6/7/96 The “Murder Book” on victim “Hau” [CT 2:403]
2 referred to in the People’s Response to
3 Defendant’s Motion to Suppress Defendant’s
4 Statement. [CT 2:402-403; Rule 33(a)(1)(l).]
5 11. 6/7/96 The “Arrest Report” [CT 2:403] referred to in
6 the People’s Response to Defendant’s Motion to
7 Suppress Defendant’s Statement. [CT 2:402-403;
8 Rule 33(a)(1)(l).]
9 12. 6/7/96 The “Follow-Up Investigation Report” [CT 403]

10 referred to in the People’s Response to

11 Defendant’s Motion to Suppress Defendant’s

12 Statement. [CT 402-403; Rule 33(a)(1)(l).]

13 13. 6/7/96 The “Arrest Report Continuation Sheet” [CT

14 2:407] referred to in the People’s Response to

15 Defendant’s Motion to Suppress Evidence

16 Pursuant to Penal Code Section 1538.5. [CT

17 2:404-408; Rule 33(a)(1)(l).]


14. 6/7/96 The “Investigator’s Final Report” [CT 2:407]
18
referred to in the People’s Response to
19
Defendant’s Motion to Suppress Evidence
20
Pursuant to Penal Code Section 1538.5. [CT
21
2:404-408; Rule 33(a)(1)(l).]
22
15. 6/7/96 The “Murder Book” [CT 2:407] referred to in the
23
People’s Response to Defendant’s Motion to
24
Suppress Evidence Pursuant to Penal Code
25
Section 1538.5. [CT 2:404-408; Rule
26
33(a)(1)(l).]
27
/ / /
28

VERIFIED APPLICATION TO CORRECT, COMPLETE, 20


AND SETTLE THE RECORD ON APPEAL
1 16. 6/18/96 All documents contained in that certain
2 envelope in the clerk’s file with a face page
3 entitled Subpena Duces Tecum and Application
4 for Subpena Duces Tecum Criminal; a copy of the
5 face page is attached hereto at page 106. (§
6 190.9, subd. (a)(1); Rule 39.52.)
7 17. 2/18/98 The entire contents of the Superior Court file
8 in Case No. BA084773 [RT 9:2460 (judicial
9 notice of contents of entire file)], a copy of
10 which is attached hereto at pages 107-238. (§
11 190.9, subd. (a)(1); Rule 39.52.)
12 18. 2/24/98 The written jury instructions given and/or

13 refused in the guilt-phase of the trial, which

14 were ordered filed [CT 11:2777]. [Rule

15 33(a)(1)(h)).]

16 On August 14, 2002, appellant’s counsel reviewed the


17 superior court file and trial exhibits in the above-entitled
18 case. While reviewing the superior court file, counsel spoke
19 with Clerk Eva (tel. 213-974-5932/31), who identified herself as
20 the trial clerk responsible for maintaining the Romero superior
21 court file. Counsel requested that clerk Eva provide him with
22 (1) a copy of the transcripts of the sealed proceedings
23 identified above in item numbers 2 and 6 (rules 33.5(a),
24 39.52(f)), (2) a copy of the contents of the envelope identified
25 above in item number 16, and (3) and a copy of the written jury
26 instructions identified above in item number 18. Clerk Eva told
27 counsel that she could not provide the requested transcripts
28 and/or documents absent a court order directing that counsel be

VERIFIED APPLICATION TO CORRECT, COMPLETE, 21


AND SETTLE THE RECORD ON APPEAL
1 provided copies, except for the written jury instructions which

2 she could not immediately locate in the clerk’s file. (Lathrop

3 Decl., p. 49, ¶ 7.)

4 The transcript of the sealed proceedings identified above

5 in item number 2 also should be provided in the form of a

6 computer disk. (Rules 39.54(f), 39.55(e) [“Each transcript of a

7 confidential proceeding shall be placed on a separate disk and

8 clearly labeled as confidential.”].)

9 IV.

10 APPELLANT REQUESTS AUGMENTATION OF THE RECORD ON APPEAL WITH THE

11 MATERIAL DESCRIBED BELOW AS THIS MATERIAL WILL BE USEFUL TO

12 APPELLANT ON APPEAL

13 In the preceding section, appellant requests that the court

14 order that certain material be included in the record on appeal

15 which is part of the “entire record” in a capital appeal but

16 erroneously omitted from the record sent to counsel. (Ante, §

17 III.B.)

18 The material identified in the preceding section in item

19 numbers 5 and 8 through 15, inclusive, was considered by the

20 trial court at various stages of the proceedings and relied upon

21 by either the prosecution or defense or both, and appears to

22 have been either lodged or filed in the trial court (Lathrop

23 Decl., p. 50, ¶ 8). The material appears, therefore, to be part

24 of the “entire record” on appeal. (Rule 39.51(a)(1); § 190.7,

25 subd. (a)(1).) However, if the court determines that any of

26 these items are not part of the “entire record” on appeal, then

27 appellant requests that they be included in the record by

28 augmentation.

VERIFIED APPLICATION TO CORRECT, COMPLETE, 22


AND SETTLE THE RECORD ON APPEAL
1 The California Supreme Court has affirmed that, in general,

2 “‘the rules [regarding the augmentation procedure] impliedly

3 call for great liberality in its exercise.’” (People v. Gaston

4 (1978) 20 Cal.3d 476, 482). Rule 39.51(c) states that its

5 delineation of the record in a capital appeal “does not affect

6 the power of the Supreme Court or superior court to order

7 inclusion of additional matter” not specified in that section.

8 A request for augmentation of the record requires an

9 explanation from counsel how the material “may be useful on

10 appeal” (People v. Gaston, supra, 20 Cal.3d at p. 482). The

11 standard is very liberal, however, and favors inclusion of

12 additional material. (See People v. Brooks (1980) 26 Cal.3d

13 471, 484.) As the California Supreme Court explained, “the

14 litigant need only establish with some certainty how the

15 materials he requests may be useful to him on appeal. The

16 showing of ‘some certainty’ must be made as to the manner in

17 which the materials may be useful, not as to the contents of the

18 materials themselves.” (People v. Gaston, supra, 20 Cal.3d at

19 p. 482 (emphasis in original).)

20 Each of the items described above may be useful to

21 appellant on appeal. The transcript of the tape-recorded

22 interview of appellant by Detective Salazar on October 10, 1994,

23 identified above in the preceding section in item number 5,

24 contains potentially exculpatory evidence relating to

25 intoxication. During a trial conference, the prosecutor asserts

26 that the tape reveals appellant’s statement that “he does not

27 remember any details because he was drunk out of his mind ....”

28 [RT 11:2752 (emphasis added).] The court subsequently asks the

VERIFIED APPLICATION TO CORRECT, COMPLETE, 23


AND SETTLE THE RECORD ON APPEAL
1 prosecutor, “You really want to put that on?” [RT 11:2753.]

2 The prosecutor replies,

3 Well, the thing that it does, and I realize

4 that it brings in other factors or defenses,

5 the only thing it does is ties him directly

6 to the robbery. [RT 11:2753 (emphasis

7 added).]

8 This evidence may be useful to appellant on appeal because

9 intoxication may show that appellate was incapable of forming

10 the specific intent necessary to sustain his convictions of the

11 various offenses. (§ 22.) Evidence of intoxication also may be

12 relevant penalty-phase mitigation evidence. (CALJIC No. 8.85.)

13 Trial defense counsel’s failure to present a defense of

14 intoxication and/or his failure to present evidence of

15 intoxication as penalty phase mitigation evidence may raise an

16 issue whether appellant was denied his Sixth Amendment right to

17 effective assistance of counsel.

18 The documents identified in the preceding section in item

19 numbers 8 through 15, inclusive, were either attached to, or

20 explicitly referenced in, the trial motions (and opposition

21 papers) to which they correspond. The defense motion to

22 suppress evidence pursuant to section 1538.5 was denied. [CT

23 2:362-366; RT 9:2469-2470.] The documents referenced in the

24 motion and opposition papers identified above in item numbers 8

25 and 13 through 15, inclusive, may be useful to appellant on

26 appeal because they may reveal evidence that tends to show that

27 the trial court committed error when it denied the motion.

28 / / /

VERIFIED APPLICATION TO CORRECT, COMPLETE, 24


AND SETTLE THE RECORD ON APPEAL
1 The defense motion to suppress defendant’s statement was

2 never ruled on, and it became moot when the prosecution decided

3 not to use the statement and appellant did not testify in either

4 the guilt or penalty phases of the trial. [CT 2:367-369; RT

5 11:2783-2784.] Nevertheless, the documents referenced in the

6 prosecution’s opposition to the motion, identified above in item

7 numbers 9 through 12, inclusive, may be useful to appellant on

8 appeal in connection with the issue whether defense counsel’s

9 failure to obtain a ruling on the motion constituted ineffective

10 assistance of counsel. The presence of the statement, which the

11 prosecutor stated contained inculpatory evidence [RT 11:2752-

12 2753], prevented appellant from testifying at either phase of

13 the trial without the threat of the statement being used against

14 him as impeachment and/or rebuttal evidence. Substantial

15 evidence supported the defense motion to suppress defendant’s

16 statement on the grounds that (1) the statement was made during

17 custodial interrogation and was not preceded by an effective

18 waiver of Miranda rights, (2) appellant’s mental state at the

19 time the statement was given, which may have been affected by

20 intoxication, sleep deprivation, and diminished mental capacity,

21 rendered him incapable of waiving his Miranda rights in a

22 voluntary, knowing, and intelligent manner, and/or (3) the

23 statement was involuntary and unreliable because it was coerced

24 by police conduct. Although only the first ground identified

25 above was urged as a basis for the motion to suppress [CT 2:367-

26 369], there is a potential issue on appeal whether appellant was

27 denied his Sixth Amendment right to effective assistance of

28 / / /

VERIFIED APPLICATION TO CORRECT, COMPLETE, 25


AND SETTLE THE RECORD ON APPEAL
1 counsel where defense counsel failed to assert all meritorious

2 bases for suppression of the statement.

3 V.

4 APPELLANT REQUESTS PERMISSION TO PREPARE A SETTLED STATEMENT TO

5 SETTLE AMBIGUITIES IN THE REPORTED ORAL PROCEEDINGS AND TO

6 SETTLE UNREPORTED ORAL PROCEEDINGS

7 A. INTRODUCTION

8 Appellant makes verified application for permission to

9 prepare a settled statement to ensure a complete and accurate

10 record on appeal. (Rules 7, 36(b); Lathrop Decl., pp. 2, 50, ¶¶

11 2, 9-10.)

12 A capital defendant has a right to a reporter's transcript

13 of all proceedings:

14 In any case in which a death sentence may be

15 imposed, all proceedings conducted in the

16 municipal and superior courts, including all

17 conferences and proceedings, whether in open

18 court, in conference in the courtroom, or in

19 chambers, shall be conducted on the record

20 with a court reporter present. The court

21 reporter shall prepare and certify a daily

22 transcript of all proceedings commencing

23 with the preliminary hearing. Proceedings

24 prior to the preliminary hearing shall be

25 reported but need not be transcribed until

26 / / /

27 / / /

28 / / /

VERIFIED APPLICATION TO CORRECT, COMPLETE, 26


AND SETTLE THE RECORD ON APPEAL
1 the municipal or superior court receives

2 notice .... [§ 190.9, subd. (a)(1).]8

3 As part of the preparation of the record in a criminal

4 appeal, appellant may apply to the trial court for settlement of

5 a statement of any part of the “oral proceedings” of which a

6 transcript “cannot be obtained for any reason.” (Rule 36(b);

7 People v. Gzikowski (1982) 32 Cal.3d 580.) An “oral proceeding”

8 subject to settlement is an “unreported matter, the contents of

9 which may be useful on appeal” (Id. at p. 585, fn. 2), and

10 includes missing documents and other matters. (See People v.

11 Bradford (1997) 15 Cal.4th 1229, 1331-1332 [defendant’s absence

12 from an in-camera hearing]; People v. Jones (1997) 15 Cal.4th

13 119, 148-149 [fact that defendant was seen by trial counsel to

14 be sitting erect with eyes closed on various occasions during

15 the trial, and judge’s lack of independent recollection of such

16 incidents other than those brought to his attention by counsel –

17 relevant to issue of over-medication of defendant with

18 psychotropic drugs during trial]; People v. Osband (1996) 13

19
8
In People v. Morris (1991) 53 Cal.3d 152, the
20 California Supreme Court noted its “disapproval of unreported
conferences on matters of substantial controversy in capital
21 cases,” and directed that proceedings in capital cases be
conducted on the record “to remove any conceivable doubt as to
22 what took place and to preclude unnecessary disputes and delays
23 in settling the record for further proceedings.” (Id. at p.
210, fn. 11; People v. Seaton (2001) 26 Cal.4th 598, 700 [trial
24 court should meticulously comply with the section 190.9
requirement that all proceedings in a capital trial be
25 reported]; People v. Hawthorne (1992) 4 Cal.4th 43, 63 [because
of the “critical role of a proper and complete record in
26 facilitating meaningful appellate review,” the Court “cannot
urge too strongly that trial judges assiduously preserve a
27 detailed account of all proceedings regardless of their
perceived significance, particularly in capital cases, to
28 minimize the need to reconstruct events.”].)

VERIFIED APPLICATION TO CORRECT, COMPLETE, 27


AND SETTLE THE RECORD ON APPEAL
1 Cal.4th 622, 661-662 [missing trial exhibits]; St. George v.

2 Superior Court (1949) 93 Cal.App.2d 815 [map used by witness in

3 connection with his testimony but not marked or introduced into

4 evidence].)

5 The rules authorizing settlement, augmentation, and

6 correction of the record are intended to ensure that the record

7 transmitted to the reviewing court preserves and conforms to the

8 proceedings actually undertaken in the trial court. (See, e.g.,

9 People v. Pinholster (1992) 1 Cal.4th 865, 922 [settled

10 statement of unreported bench conferences between court and

11 counsel]; People v. Wright (1990) 52 Cal.3d 367, 401, fn. 6

12 [settled statement of unreported bench discussion between court

13 and juror]; People v. Holloway (1990) 50 Cal.3d 1098, 1116

14 [settled statement of unreported in-chambers discussion between

15 court and counsel].)

16 An application for “permission to prepare a settled

17 statement” must have some bearing on the appeal; appellant must

18 establish “with some certainty how the [additional] materials he

19 requests may be useful to him on appeal.” (People v. Gaston

20 (1978) 20 Cal.3d 476, 482.) Our California Supreme Court has

21 held, however, that

22 [i]n deciding whether to grant permission to

23 prepare a settled statement, the trial court

24 should accept appellant’s version of its

25 expected contents. [People v. Gzikowski,

26 supra, 32 Cal.3d at p. 586, fn. 2.]

27 Appellate counsel has a duty to settle the record where

28 appropriate, and failure to undertake such an effort can result

VERIFIED APPLICATION TO CORRECT, COMPLETE, 28


AND SETTLE THE RECORD ON APPEAL
1 in a waiver of appellate issues. (In re Kathy P. (1979) 25

2 Cal.3d 91, 102.) Where a death judgment has been imposed, as

3 here, counsel’s obligation to reconstruct unrecorded events is

4 all the more evident. (See People v. Holloway (1990) 50 Cal.3d

5 1098, 1115-1116; People v. Gzikowski, supra, 32 Cal.3d at pp.

6 585-586, fn. 2.) Accordingly, appellant requests permission to

7 settle the record as set forth below.

8 B. RECORD SETTLEMENT PROCEDURE

9 The process of settling the record is governed by rules 7

10 and 36(b).

11 Strict compliance with rule 7 assumes

12 particular significance in capital cases by

13 avoiding questions as to the sufficiency of

14 the appellate record [citations] and

15 obviating delays if insufficiencies arise

16 after briefing. [Citation omitted.]

17 Collaterally, proper settlement of the

18 record also preserves a death penalty

19 defendant’s interests with respect to the

20 investigation of potentially meritorious

21 habeas corpus claims. [Marks v. Superior

22 Court, supra, 27 Cal.4th 176, 197.]

23 The process was recently clarified by the California

24 Supreme Court in Marks v. Superior Court, supra, 27 Cal.4th 176:

25 First, the appellant shall “serve and

26 file an application for permission to

27 prepare a settled statement,” which “shall

28 be verified and shall contain a statement of

VERIFIED APPLICATION TO CORRECT, COMPLETE, 29


AND SETTLE THE RECORD ON APPEAL
1 the facts or a certificate of the clerk

2 showing that a reporter’s transcript cannot

3 be obtained.” (Rule 36(b); see also rule

4 4(e).)

5 Second, the judge “shall decide the

6 application ..., and, if the showing is

7 sufficient, shall make an order permitting

8 the preparation of a settled statement” of

9 the oral proceedings in question. (Rule

10 36(b).)

11 Third, upon such an order, the

12 appellant must “serve and file a condensed

13 statement [thereof] in narrative form ....”

14 (Rule 7(b); see rule 36(b).) ....

15 Fourth, the respondent may “serve and

16 file proposed amendments” to the proposed

17 settled statement. (Rule 7(b).)

18 Fifth, the superior court’s clerk

19 “shall set a time ... for settlement of the

20 statement” and “give ... notice to all

21 parties of the time set ....” (Rule 7(d).)

22 Sixth, at this hearing “the judge who

23 tried the case” “shall settle the statement

24 and fix the time within which the appellant

25 shall engross it as settled.” (Rule 7(d).)

26 Seventh, “the appellant shall engross

27 the statement in accordance with the order

28 / / /

VERIFIED APPLICATION TO CORRECT, COMPLETE, 30


AND SETTLE THE RECORD ON APPEAL
1 of the judge,” and “serve and file the

2 engrossed statement.” (Rule 7(d).)

3 Eighth, if the respondent thereafter

4 serves and files timely objections, the

5 judge must determine whether the statement

6 was prepared in accordance with the order;

7 if not, changes are required. (Rule 7(d).)

8 Finally, once the statement is

9 determined to conform to the order, the

10 judge then certifies it. (Rule 7(d).) [Id.

11 at p. 193.]

12 C. REQUEST TO PREPARE A SETTLED STATEMENT WHETHER APPELLANT WAS ABSENT

13 DURING PORTIONS OF THE TRIAL PROCEEDINGS ; STATEMENT OF FACTS IN

14 SUPPORT THEREOF

15 Appellant requests permission to prepare a settled

16 statement whether appellant was absent during portions of the

17 trial proceedings held on February 13, 1998 [RT 7-1:1833-1836],

18 February 24, 1998 [RT 12:2901-2909], February 25, 1998 [RT

19 13:3032-3038], and March 6, 1998 [RT 17:3548-3556].

20 Settlement of the record to settle an ambiguity whether

21 appellant was absent during portions of the trial proceedings is

22 a type of unreported matter within the definition of proceedings

23 subject to settlement. (See People v. Bradford, supra, 15

24 Cal.4th at pp. 1331-1332 [defendant’s absence from an in-camera

25 hearing].)

26 The oral proceedings on February 13, 1998, were reported by

27 Yvonne Gallegos. There is an ambiguity whether appellant was

28 absent during the portion of the hearing held outside the

VERIFIED APPLICATION TO CORRECT, COMPLETE,31


AND SETTLE THE RECORD ON APPEAL
1 presence of the jury where counsel and the court discuss

2 stipulations relating to four prospective jurors – Alex Melgun,

3 Charlene Wesley, Mr. West, and Rodney Best. [RT 7-1:1833-1836.]

4 Although the minute order for February 13, 1998, states that the

5 defendant is present in court [CT 2750],9 the reporter’s notes

6 for February 13, 1998, which begin at RT 1833, reflect that

7 appellant is not announced present in court until RT 1837.

8 The oral proceedings on February 24, 1998, were reported by

9 Yvonne Gallegos. There is an ambiguity whether appellant was

10 absent during the portion of the hearing held outside the

11 presence of the jury where counsel and the court discuss

12 proposed guilt-phase jury instructions. [RT 12:2901-2909.]

13 Although the minute order for February 24, 1998, states that the

14 defendant is present in court [CT 2762], the reporter’s notes

15 for February 24, 1998, which begin at RT 2901, reflect that

16 appellant is not announced present in court until RT 2909.

17 The oral proceedings on February 25, 1998, were reported by

18 Yvonne Gallegos. The hearing begins outside the presence of the

19 jury with a discussion of a note received from the jury

20 foreperson during guilt-phase deliberations raising a question

21 about the evidence. Counsel and the court discuss the note,

22 agree upon a response, and then in the presence of the jury the

23 court reads the note and gives a response. The court and Juror

24

25
9
The trial transcript, being more complete and accurate
26 of the two records, generally prevails over an irreconcilable
and inconsistent minute order prepared by the clerk. (People v.
27 Smith (1983) 33 Cal.3d 596, 599 [reporter’s transcript will
generally prevail over the clerk’s transcript when the two are
28 in conflict].)

VERIFIED APPLICATION TO CORRECT, COMPLETE,32


AND SETTLE THE RECORD ON APPEAL
1 No. 8 then engage in a colloquy concerning the court’s response

2 to the note. [RT 13:3032-3038; CT 11:2761.] The record is

3 ambiguous whether appellant was absent during these proceedings,

4 although it appears that he is absent during the portion of

5 these proceedings held in the presence of the jury. [RT

6 13:3035-3036.] Moreover, although the minute order for February

7 25, 1998, states that “defendant is present in court,” the same

8 minute order states that “defendant is not present ....” [CT

9 2764.]

10 The oral proceedings on March 6, 1998, were reported by

11 Yvonne Gallegos. The ambiguity whether appellant was absent

12 exists during the reading of the verdict of death, polling of

13 the jurors, and dismissal of the jurors. [RT 17:3548-3556.]

14 Although the minute order for March 6, 1998, states that the

15 defendant is present in court [CT 2797], the reporter’s notes

16 for March 6, 1998, which begin at RT 3548, reflect that

17 appellant is not announced present in court until RT 3558.

18 Except where otherwise indicated, the transcript of the

19 oral proceedings identified above does not reflect whether

20 appellant was personally present during the proceedings.

21 Moreover, it appears that appellant was absent during each of

22 these proceedings because at all other times during the superior

23 court proceedings appellant’s presence or absence was

24 specifically noted for the record. (Lathrop Decl., p. 50, ¶ 9.)

25 Each of the oral proceedings identified above occurred

26 during trial – a critical stage of the criminal proceedings.

27 (See People v. Dagnino (1978) 80 Cal.App.3d 981, 986-987.)

28 Appellant’s absence during a critical stage of the criminal

VERIFIED APPLICATION TO CORRECT, COMPLETE,33


AND SETTLE THE RECORD ON APPEAL
1 proceedings raises a potential appellate issue because it

2 implicates defendant’s “constitutional right to personal

3 presence at all critical stages of his trial ....” (People v.

4 Wright (1990) 52 Cal.3d 367, 402.)

5 The United States Supreme Court has long recognized that

6 “[o]ne of the most basic of the rights guaranteed by the

7 Confrontation Clause is the accused’s right to be present in the

8 courtroom at every stage of his trial.” (Illinois v. Allen

9 (1970) 397 U.S. 337, 338 [90 S.Ct. 1057; 25 L.Ed.2d 353]; accord

10 United States v. Gagnon (1985) 470 U.S. 522, 526 [105 S.Ct.

11 1482; 84 L.Ed.2d 486]; see also Lewis v. United States (1892)

12 146 U.S. 370, 372 [13 S.Ct. 136; 36 L.Ed. 1011] [“A leading

13 principle that pervades the entire law of criminal procedure is

14 that, after indictment, nothing shall be done in the absence of

15 the prisoner”].)

16 D. REQUEST TO PREPARE A SETTLED STATEMENT OF THE UNREPORTED , IN -COURT

17 DISCUSSIONS IN THE PRESENCE OF THE JURY BETWEEN THE COURT

18 INTERPRETERS AND TESTIFYING WITNESSES ; STATEMENT OF FACTS IN SUPPORT

19 THEREOF

20 Appellant requests permission to prepare a settled

21 statement of the following unreported, in-court discussions

22 between the court interpreters and testifying witnesses, which

23 were held in the presence of the jury:

24 1. Discussion between prosecution witness Gabriel Hau

25 Cruz and Spanish language interpreter Marisa Mares

26 during the prosecutor’s direct examination of Gabriel

27 Hau Cruz on February 19, 1998; court reporter Yvonne

28 / / /

VERIFIED APPLICATION TO CORRECT, COMPLETE,34


AND SETTLE THE RECORD ON APPEAL
1 Gallegos present but discussion not reported [RT

2 2638:27-2639:1];

3 2. Discussion between prosecution witness Francisco

4 Piceno and Spanish language interpreter Raymundo Del

5 Rio during the prosecutor’s direct examination of

6 Francisco Piceno on February 23, 1998; court reporter

7 Yvonne Gallegos present but discussion not reported

8 [RT 2727:3-8];

9 3. Discussion between prosecution witness Francisco

10 Piceno and Spanish language interpreter Raymundo Del

11 Rio during the prosecutor’s direct examination of

12 Francisco Piceno on February 23, 1998; court reporter

13 Yvonne Gallegos present but discussion not reported

14 [RT 2731:7-11];

15 4. Discussion between prosecution witness Victor Manuel

16 Can and Spanish language interpreter Manena Fayos

17 during the prosecutor’s direct examination of Victor

18 Manuel Can on March 2, 1998; court reporter Yvonne

19 Gallegos present but discussion not reported [RT

20 3123:2-6];

21 5. Discussion between prosecution witness Victor Manuel

22 Can and Spanish language interpreter Manena Fayos

23 during the prosecutor’s direct examination of Victor

24 Manuel Can on March 2, 1998; court reporter Yvonne

25 Gallegos present but discussion not reported [RT

26 3123:17-3124:2];

27 6. Discussion between prosecution witness Victor Manuel

28 Can and Spanish language interpreter Manena Fayos

VERIFIED APPLICATION TO CORRECT, COMPLETE,35


AND SETTLE THE RECORD ON APPEAL
1 during the prosecutor’s direct examination of Victor

2 Manuel Can on March 2, 1998; court reporter Yvonne

3 Gallegos present but discussion not reported [RT

4 3124:19-26]; and,

5 7. Discussion between prosecution witness Enrique Gabriel

6 Diaz and Spanish language interpreter Bush Schabes

7 preceding the prosecutor’s direct examination of

8 Enrique Gabriel Diaz on March 2, 1998; court reporter

9 Yvonne Gallegos present but discussion not reported

10 [RT 3169:25-26].

11 Rule 984.4(b) requires a complete and accurate

12 interpretation of “everything that is said” during the testimony

13 of a witness. Rule 984.4(b) states:

14 [Complete and accurate interpretation] An

15 interpreter shall use his or her best skills

16 and judgment to interpret accurately without

17 embellishing, omitting, or editing. When

18 interpreting for a party, the interpreter

19 shall interpret everything that is said

20 during the entire proceedings. When

21 interpreting for a witness, the interpreter

22 shall interpret everything that is said

23 during his or her testimony. [Emphasis

24 added.]

25 The discussions identified above are “unreported matter, the

26 contents of which may be useful on appeal” because the

27 discussions (1) relate to material testimony of key prosecution

28 witnesses and (2) suggest potential issues relating to the

VERIFIED APPLICATION TO CORRECT, COMPLETE, 36


AND SETTLE THE RECORD ON APPEAL
1 quality of the translation and the witness’ ability to understand

2 the translation. (Lathrop Decl., p. 51, ¶ 11.)

3 The discussion in paragraph 1 between Gabriel Hau Cruz and

4 Marisa Mares occurred during testimony about the murder of

5 Reynaldo Hau (charged in count 2) and the robbery of Gabriel Hau

6 Cruz (charged in count 5). The discussion in paragraph 2 between

7 Francisco Piceno and Raymundo Del Rio occurred during testimony

8 about a photo identification of appellant. The discussion in

9 paragraph 3 between Francisco Piceno and Raymundo Del Rio

10 occurred during testimony about the identification of Reynaldo

11 Hau’s killer. The discussions in paragraphs 4 and 5 between

12 Victor Manuel Can and Manena Fayos occurred during testimony

13 concerning eyewitness identification. The discussion in

14 paragraph 6 between Victor Manuel Can and Manena Fayos occurred

15 during testimony about contact with police officers. The

16 discussion in paragraph 7 between Enrique Gabriel Diaz and Bush

17 Schabes preceded Mr. Diaz’ testimony implicating appellant in an

18 assault upon him while in county jail [RT 3169-3176]. (Lathrop

19 Decl., p. 51, ¶ 11.)

20 The discussions also suggest potential issues relating to

21 the quality of the translation and the witness’ ability to

22 understand the translation. An incompetent translation affects

23 both the substance of the witness’ testimony and the witness’

24 credibility, and therefore may provide a basis for reversal of

25 the judgment on the ground appellant was denied due process under

26 the Fifth and Fourteenth Amendments to the federal Constitution.

27 (See Perez-Lastor v. Immigration and Naturalization Service (9th

28 Cir. 2000) 208 F.3d 773, 778 [“It is long-settled that a

VERIFIED APPLICATION TO CORRECT, COMPLETE, 37


AND SETTLE THE RECORD ON APPEAL
1 competent translation is fundamental to a full and fair

2 hearing.”].)10 Moreover, because “[i]t is extremely difficult to

3 pinpoint direct evidence of translation errors without a

4 bilingual transcript of the hearing,” and there is no bilingual

5 transcript of the hearing in this case, settlement of the record

6 of the several unreported, in-court discussions between the court

7 interpreters and testifying witnesses is critical to appellant’s

8 ability to fully develop a claim of incompetent translation.

9 (Ibid.)

10 Nor can it be successfully argued that appellant’s failure

11 to object to the unreported, in-court discussions constituted an

12 implicit waiver his right to a translation of those discussions.

13 (See People v. Aguilar, supra, 35 Cal.3d at p. 791 [waiver of

14 constitutional right to an interpreter requires explicit

15 “personal waiver” by the defendant]; § 190.9, subd. (a)(1) [where

16 “a death sentence may be imposed, all proceedings ... shall be

17 conducted on the record with a court reporter present”].)

18 E. REQUEST TO PREPARE A SETTLED STATEMENT OF PHYSICAL DEMONSTRATIONS ,

19 INCOMPLETE DESCRIPTIONS , AND NON -VERBAL GESTURES DURING TRIAL THAT

20 ARE NOT DESCRIBED FOR THE RECORD ; STATEMENT OF FACTS IN SUPPORT

21 THEREOF

22 Appellant requests permission to prepare a settled statement

23 of the following physical demonstrations, incomplete

24 descriptions, and non-verbal gestures that are not described for

25 the record:

26
10
The right to an interpreter to interpret the
27 witnesses’ testimony is guaranteed by the California
Constitution. (Cal. Const., art. I, § 14; People v. Aguilar
28 (1984) 35 Cal.3d 785, 790.)

VERIFIED APPLICATION TO CORRECT, COMPLETE, 38


AND SETTLE THE RECORD ON APPEAL
1 1. Prosecutor’s demonstration to the jury during guilt

2 phase opening statement of appellant holding a gun to Francisco

3 Piceno’s head [RT 2483];

4 2. Trial Court’s statement to the jury that defendant had

5 a haircut over the weekend [RT 3124:11-14]; and,

6 3. Non-verbal gestures of trial witnesses Ismael

7 Magallanes [RT 2508-2509, 2512:16-17, 2513-2514, 2530, 2531],

8 John Freitas [RT 2546], Felix David Callejas [RT 2606, 2608,

9 2612, 2613-2614, 2621:22], Gabriel Hau Cruz [RT 2645, 2646,

10 2648:9-10, 2649, 2661:21-28], Joaquin Hau Cruz 2677:17-22,

11 2695:24-25, 2696:1-2, 2697-2698, 2700:4-6], Francisco Piceno [RT

12 2711:23-25, 2716-2717, 2718-2719, 2720:10, 2720:12-24], Victor

13 Can [RT 3112, 3119, 3120:8-10, 3122:8-11], Kevin Burke [RT

14 3164:6-9], and Enrique Diaz [RT 3210:25-27, 3267:7-8].

15 A capital defendant is entitled to an appellate record that

16 accurately reflects what was done and said in the trial court.

17 (See People v. Jones, supra, 15 Cal.4th at pp. 148-149

18 [settlement of defendant’s non-verbal behavior during trial].)

19 The physical demonstrations and non-verbal gestures identified

20 above constitute “unreported matter, the contents of which may be

21 useful on appeal” (see ante, § V.A) because they relate to the

22 identification of appellant, his alibi defense to the charges,

23 and material issues concerning the relative positions of the

24 homicide victims and eyewitnesses, location of injuries to the

25 various victims, and the handling of the firearm(s) used during

26 the commission of the charged offenses. (Lathrop Decl., pp. 51-

27 52, ¶ 12.)

28 / / /

VERIFIED APPLICATION TO CORRECT, COMPLETE, 39


AND SETTLE THE RECORD ON APPEAL
1 VI.

2 APPELLANT REQUESTS AN ORDER SECURING HIS PERSONAL PRESENCE AT ALL

3 RECORD SETTLEMENT PROCEEDINGS RELATING TO WHETHER APPELLANT WAS

4 ABSENT DURING A PORTION OF THE TRIAL PROCEEDINGS

5 In the preceding section, appellant requests permission to

6 prepare a settled statement whether appellant was absent during

7 portions of the trial proceedings held on February 13, 24, and

8 25, 1998, and March 6, 1998. (Ante, § V.C.)

9 Appellant requests his personal presence at the record

10 settlement proceedings relating to whether appellant was absent

11 during a portion of the trial proceedings. This request is made

12 on the grounds that (1) appellant’s personal presence will

13 materially contribute to his opportunity to defend himself

14 against the charges because he has personal knowledge whether he

15 was present at the trial proceedings, thereby establishing a

16 right under the confrontation clause of the Sixth Amendment and

17 the due process clause of the Fifth and Fourteenth Amendments to

18 be present at record settlement proceedings related thereto (see

19 United States v. Gagnon, supra, 470 U.S. at p. 526), and (2)

20 appellant’s personal presence is necessary to secure his

21 constitutional right to effective assistance of counsel (U.S.

22 Const., 6th and 14th Amends.; Cal. Const., art. I, § 15) because

23 appellate counsel was not present during the trial proceedings,

24 trial defense counsel does not have an independent recollection

25 whether appellant was absent during a portion of the trial

26 proceedings, and appellant has a recollection of the trial

27 proceedings which will materially aid counsel in the competent

28 / / /

VERIFIED APPLICATION TO CORRECT, COMPLETE, 40


AND SETTLE THE RECORD ON APPEAL
1 representation of appellant at record settlement proceedings.

2 (Lathrop Decl., p. 50, ¶ 10.)

3 Due process of law affords every defendant the “right to be

4 present at a proceeding ‘whenever his presence has a relation,

5 reasonably substantial, to the fulness of his opportunity to

6 defend against the charge.’” (United States v. Gagnon, supra,

7 470 U.S. at p. 526, quoting Snyder v. Massachusetts (1934) 291

8 U.S. 97, 105-106 [54 S.Ct. 330; 78 L.Ed. 674].)

9 In Kentucky v. Stincer (1987) 482 U.S. 730, 107 S.Ct. 2658,

10 96 L.Ed.2d 631, the Supreme Court explained that although

11 this privilege of presence is not guaranteed

12 “when presence would be useless, or the

13 benefit but a shadow,” due process clearly

14 requires that a defendant be allowed to be

15 present “to the extent that a fair and just

16 hearing would be thwarted by his absence.”

17 Thus, a defendant is guaranteed the right to

18 be present at any stage of the criminal

19 proceeding that is critical to its outcome if

20 his presence would contribute to the fairness

21 of the procedure.

22 (Id. at p. 745, quoting Snyder v. Massachusetts, supra, 291 U.S.

23 at pp. 106-107; see also Faretta v. California (1975) 422 U.S.

24 806, 819, fn.15 [95 S.Ct. 2525; 45 L.Ed.2d 562] [“an accused has

25 a right to be present at all stages of the trial where his

26 absence might frustrate the fairness of the proceedings”].)

27 Pursuant to the constitutional principles enumerated above,

28 appellant has a right to be present at the post-conviction record

VERIFIED APPLICATION TO CORRECT, COMPLETE, 41


AND SETTLE THE RECORD ON APPEAL
1 settlement proceedings because the proceedings relate to a matter

2 within appellant’s personal knowledge and his presence will

3 materially contribute to his defense against the charges.

4 In Terry v. Cross (E.D. Va. 2000) 112 F.Supp.2d 543, for

5 example, on a petition for a writ of habeas corpus in connection

6 with a post-conviction record correction hearing following

7 defendant’s conviction for statutory rape, the district court

8 held that the state violated petitioner’s due process right to be

9 present during post-sentence record correction proceedings by

10 holding a hearing in those proceedings in his absence. (Id. at

11 pp. 549-550.) Appellate counsel sought correction of the trial

12 transcript on the grounds that the victim’s birth date as it

13 appeared in the original transcript supported a motion to vacate

14 on actual innocence grounds. At the record correction hearing

15 trial counsel had no independent recollection of the victim’s

16 testimony, but stated that his trial notes indicated that the

17 victim testified to an earlier birth date, which supported the

18 statutory rape charge. Appellate counsel was not present at

19 trial and so was in no position to contradict trial counsel.

20 Petitioner asked to be present at the hearing and claimed to have

21 independent recollection of the victim testifying to the same

22 birth date that appeared in the transcript. (Id. at pp. 548-

23 549.) The district court held petitioner had a constitutional

24 right to be present at the post-sentencing hearing to correct the

25 trial transcript, stating:

26 Terry’s Due Process right to be present

27 during essential proceedings was violated

28 when a hearing to correct the trial

VERIFIED APPLICATION TO CORRECT, COMPLETE, 42


AND SETTLE THE RECORD ON APPEAL
1 transcript was held in his absence and the

2 testimony at that hearing directly conflicted

3 with Terry’s independent recollection of what

4 was said at trial. [Id. at pp. 549-550.]

5 Finally, it is not unusual in a capital case for a defendant

6 to be personally present during post-conviction record settlement

7 proceedings relating to a matter within the defendant’s personal

8 knowledge. (See People v. Phillips (2000) 22 Cal.4th 226, 240-

9 241 [death penalty case: defendant personally present and

10 testified at post-conviction hearing to settle the record whether

11 an untranscribed hearing occurred at the time of trial concerning

12 a funding request filed by defendant].)

13 Accordingly, appellant respectfully requests an order

14 securing his personal presence at all record settlement

15 proceedings relating to whether appellant was absent during a

16 portion of the trial proceedings.

17 VII.

18 REQUEST FOR COPIES OF CERTAIN REPRODUCIBLE EXHIBITS TO EXPEDITE

19 THE REVIEW OF THE RECORD, FACILITATE REFERENCE TO THE RECORD, AND

20 ELIMINATE THE COST OF COUNSEL HAVING TO TRAVEL TO THE TRIAL COURT

21 MERELY TO EXAMINE THE EXHIBITS

22 The record on appeal includes “all exhibits admitted in

23 evidence, refused, or lodged.” (Rule 5(a)(5); see also Rules 18,

24 33(a)(3), 33(b)(3), 39.51(a)(1); People v. Osband (1996) 13

25 Cal.4th 622, 663). Rule 33 provides only for the transmission of

26 exhibits as originals to the reviewing court and not for copies

27 for counsel, except for transcripts of electronic sound or

28 sound-and-video recording provided to the jury or tendered to the

VERIFIED APPLICATION TO CORRECT, COMPLETE, 43


AND SETTLE THE RECORD ON APPEAL
1 court. (Rule 33(1)(k).) However, some exhibits may fall within

2 the definition of the “entire record” in a capital appeal under

3 rule 39.51, which includes “all documents filed or lodged in the

4 municipal and superior court files in the case,” as well as

5 unspecified “additional matter.” (Rule 39.51(a)(1), (c).)

6 Appellant requests that the court order that copies of the

7 following exhibits be provided to appellant:

8 EXHIBIT NUMBER DATE DESCRIPTION


9 1. People’s Exh. 1 8/8/95 Photo Identification Card
10 (Municipal Court)
11 2. People’s Exh. 2 8/8/95 Photo Identification Card

12 (Municipal Court)

13 3. People’s Exh. 3 8/8/95 Authorization to Search

14 (Municipal Court)
4. People’s Exh. 6 8/8/95 Photo Display Folder
15
(Municipal Court)
16
5. People’s Exh. 7 8/8/95 Photo Identification Report
17
(Municipal Court)
18
6. People’s Exh. 8 8/8/95 Photo Identification Report
19
(Municipal Court)
20
7. People’s Exh. 4 2/23/98 Photo Display Folder
21
(Superior Court)
22 8. People’s Exh. 5 2/23/98 Posterboard containing three
23 (Superior Court) photographs of defendant,
24 marked A, B, and C.
25 9. People’s Exh. 7 unknown Booking photograph
26 (Superior Court)
27 10. People’s Exh. 8 unknown Photograph of defendant’s

28 (Superior Court) tattoo (back of head)

VERIFIED APPLICATION TO CORRECT, COMPLETE, 44


AND SETTLE THE RECORD ON APPEAL
1 11. People’s Exh. 9 unknown Photograph of defendant’s
2 (Superior Court) tattoo (below lip)
3 12. People’s Exh. 10 unknown Photograph of defendant’s
4 (Superior Court) tattoo (left ear)
5 13. People’s Exh. 11 unknown Photograph of defendant’s

6 (Superior Court) tattoo (below lip, close-up)

7 14. People’s Exh. 12 unknown Photograph of defendant’s

8 (Superior Court) tattoo (right leg)


15. People’s Exh. 15 unknown Posterboard containing three
9
(Superior Court) photographs of defendant,
10
marked A, B, and C.
11
16. People’s Exh. 17 2/23/98 Photographic Identification
12
(Superior Court) General Guidelines
13
17. People’s Exh. 23 2/23/98 One-page document entitled
14
(Superior Court) Continuation Sheet
15
The few selected exhibits identified above relate to
16
potential appellate issues, including both the out-of-court and
17
in-court identifications of defendant, authorization to search
18
defendant’s residence, and presentation of gang evidence.
19
(Lathrop Decl., p. 52, ¶ 13.)
20
Appellant requests, therefore, that the court order the
21
custodian of the exhibits to release the exhibits identified
22
above to a copy service for reproduction at court expense and
23
that the copies be forwarded to appellant’s counsel. (See People
24
v. Watson, Cal. Supreme Court No. S024471, order filed May 14,
25
1997, attached hereto at page 239 [superior court directed “to
26
allow appellant’s counsel to cause reproductions of the items in
27
/ / /
28

VERIFIED APPLICATION TO CORRECT, COMPLETE, 45


AND SETTLE THE RECORD ON APPEAL
1 question to be made on such terms and conditions as the superior

2 court deems reasonable”].)

3 VIII.

4 REQUEST THAT THE “ENTIRE RECORD” ON APPEAL INCLUDE ALL DOCUMENTS

5 LODGED AND/OR FILED IN CONNECTION WITH THE INSTANT APPLICATION TO

6 CORRECT, COMPLETE, AND SETTLE THE RECORD ON APPEAL, INCLUDING THE

7 REPORTER’S NOTES OF ALL ORAL PROCEEDINGS RELATING THERETO

8 Appellant requests that all pleadings filed during these

9 record completion proceedings be made part of the record on

10 appeal and included as additional record in a supplemental

11 clerk’s transcript. (Rule 39.51(a)(1).)

12 In addition, appellant requests that a reporter’s transcript

13 of any hearings in these proceedings be prepared and included in

14 the record on appeal. (Rule 39.51(a)(2).)

15 IX.

16 REQUEST FOR ORDER THAT THE COMPLETED RECORD NOT BE CERTIFIED

17 UNTIL 20 DAYS AFTER DELIVERY OF ALL REQUESTED MATERIAL TO

18 APPELLATE COUNSEL

19 Appellate counsel needs time to review for completeness

20 additional records prepared and furnished during the

21 pre-certification record completion process. (See, e.g., People

22 v. Alfaro, Cal. Supreme Court No. S027730, letter to trial court

23 clerk, May 9, 1997, attached hereto at pages 240-241.)

24 In order to protect against the record being certified while

25 appellate counsel is still preparing corrections to additional

26 records, appellant requests that the trial court order that the

27 completed record not be certified until 20 days has elapsed after

28 delivery of all the requested material to appellant’s counsel.

VERIFIED APPLICATION TO CORRECT, COMPLETE, 46


AND SETTLE THE RECORD ON APPEAL
1 DECLARATION OF STEPHEN M. LATHROP

2 I, STEPHEN M. LATHROP, declare:

3 1. I am an attorney at law licensed to practice in the

4 State of California and I am admitted to practice before this

5 Court. I am appointed appellate counsel for defendant and

6 appellant Gerardo Romero. I have personal knowledge of the facts

7 herein and if called as a witness could and would testify

8 competently thereto.

9 2. The matters stated in the VERIFIED APPLICATION OF

10 APPELLANT GERARDO ROMERO TO CORRECT, COMPLETE, AND SETTLE THE

11 RECORD ON APPEAL are true of my own knowledge, except as to those

12 matters which are therein stated on information and belief, which

13 I believe to be true.

14 3. On April 12, 2002, I was appointed by the California

15 Supreme Court to represent appellant Gerardo Romero for the

16 direct appeal in the above automatic appeal.

17 4. The record on appeal was delivered to me on April 18,

18 2002. The reporter’s transcript is comprised of eighteen volumes

19 consisting of 1,932 pages. The clerk’s transcript is comprised

20 of (1) two volumes of section 987.9 documents filed under seal

21 consisting of 431 pages, (2) eleven volumes consisting of 2,873

22 pages, and (3) one volume entitled “Supplemental Two” consisting

23 of 6 pages.

24 5. On July 3, 2002, the trial court denied appellant’s

25 timely application, filed June 28, 2002, for a 90-day extension

26 of time to file appellant’s motion to correct, augment and/or

27 settle the record on appeal, but granted appellant a 60-day

28 extension to and including September 13, 2002, to file the

VERIFIED APPLICATION TO CORRECT, COMPLETE, 48


AND SETTLE THE RECORD ON APPEAL
1 request for corrections or additions to the record. On September

2 12, 2002, I was informed the trial court’s clerk that the trial

3 court granted appellant’s timely application, filed September 12,

4 2002, for an additional extension of time of 5 court days, to and

5 including September 20, 2002, to file appellant’s motion to

6 correct, augment and/or settle the record on appeal.

7 6. I have reviewed the reporter’s and clerk’s transcript.

8 I have reviewed the superior court file and trial exhibits. I

9 have reviewed appellant’s trial counsels’ files and I have spoken

10 with defense counsel Mark Zavidow and trial defense counsel Ray

11 Clark. I have made a diligent search for copies of all documents

12 requested in this application and have attached hereto as

13 exhibits those requested documents that are in my possession.

14 7. On August 14, 2002, while reviewing the superior court

15 file, I spoke with Clerk Eva (tel. 213-974-5932/31), who

16 identified herself as the trial clerk responsible for maintaining

17 the Romero superior court file. I requested that clerk Eva

18 provide me with a copy of the following documents identified in

19 section III.B of appellant’s memorandum of points and

20 authorities: (1) a copy of the transcripts of the sealed

21 proceedings identified in item numbers 2 and 6, (2) a copy of the

22 contents of the envelope identified in item number 16, and (3)

23 and a copy of the written jury instructions identified in item

24 number 18. Clerk Eva told me that she could not provide the

25 requested transcripts and/or documents absent a court order

26 directing that counsel be provided copies, except for the written

27 jury instructions which she could not immediately locate in the

28 clerk’s file.

VERIFIED APPLICATION TO CORRECT, COMPLETE, 49


AND SETTLE THE RECORD ON APPEAL
1 8. I have reviewed the reporter’s and clerk’s transcript.

2 The material identified in item numbers 5 and 8 through 15,

3 inclusive, in section III.B of appellant’s memorandum of points

4 and authorities, was considered by the trial court at various

5 stages of the proceedings and relied upon by either the

6 prosecution or defense or both, and appears to have been either

7 lodged or filed in the trial court.

8 9. The reporter’s notes of the oral proceedings on February

9 13, 1998 [RT 7-1:1833-1836], February 24, 1998 [RT 12:2901-2909],

10 February 25, 1998 [RT 13:3032-3038], and March 6, 1998 [RT

11 17:3548-3556] do not reflect whether appellant was personally

12 present during the proceedings. It appears that appellant was

13 absent during each of these proceedings because at all other

14 times during the trial proceedings appellant’s presence or

15 absence was specifically noted for the record.

16 10. Appellant specifically requests that he be personally

17 present during all record settlement proceedings relating to

18 whether appellant was absent during a portion of the trial

19 proceedings held on February 13, 24, and 25, 1998, and March 6,

20 1998. (See ante, § VI.C.) Appellant’s personal presence will

21 materially contribute to his opportunity to defend himself, and

22 it will aid appellate counsel in the competent representation of

23 him, because appellant was present at the trial and has a

24 recollection of whether he was present and/or absent during the

25 trial proceedings. I was not present during the trial

26 proceedings, and trial defense counsel Ray Clark has informed me

27 that he does not have an independent recollection whether

28 appellant was absent during a portion of the trial proceedings.

VERIFIED APPLICATION TO CORRECT, COMPLETE, 50


AND SETTLE THE RECORD ON APPEAL
1 11. The several in-court discussions between the court

2 interpreters and testifying witnesses (ante, § V.D.) are

3 unreported matter that may be helpful to appellant on appeal

4 because the discussions (1) relate to material testimony of key

5 prosecution witnesses and (2) suggest potential issues relating

6 to the quality of the translation and the witness’ ability to

7 understand the translation. The discussion identified in

8 paragraph 1 (ante, § V.D) between Gabriel Hau Cruz and Marisa

9 Mares occurred during testimony about the murder of Reynaldo Hau

10 (charged in count 2) and the robbery of Gabriel Hau Cruz (charged

11 in count 5). The discussion identified in paragraph 2 (ante, §

12 V.D) between Francisco Piceno and Raymundo Del Rio occurred

13 during testimony about a photo identification of appellant. The

14 discussion identified in paragraph 3 (ante, § V.D) between

15 Francisco Piceno and Raymundo Del Rio occurred during testimony

16 about the identification of Reynaldo Hau’s killer. The

17 discussions identified in paragraphs 4 and 5 (ante, § V.D)

18 between Victor Manuel Can and Manena Fayos occurred during

19 testimony concerning eyewitness identification. The discussion

20 identified in paragraph 6 (ante, § V.D) between Victor Manuel Can

21 and Manena Fayos occurred during testimony about contact with

22 police officers. The discussion identified in paragraph 7 (ante,

23 § V.D) between Enrique Diaz and Bush Schabes preceded Mr. Diaz’

24 testimony implicating appellant in an assault upon him while in

25 county jail.

26 12. The physical demonstrations, incomplete descriptions,

27 and non-verbal gestures that are not described for the record may

28 be useful on appeal because they relate to the identification of

VERIFIED APPLICATION TO CORRECT, COMPLETE, 51


AND SETTLE THE RECORD ON APPEAL
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