(a) Normal contents.
Except in appeals covered by rule 8.867, when the parties have filed a stipulation under rule 8.860(b), or when, under a procedure established by a local rule adopted pursuant to (b), the trial court has ordered that any of these items is not required for proper determination of the appeal, the reporter's transcript must contain:
(1) The oral proceedings on the entry of any plea other than a not guilty plea;
(2) The oral proceedings on any motion in limine;
(3) The oral proceedings at trial, but excluding the voir dire examination of jurors and any opening statement;
(4) Any jury instructions given orally;
(5) Any oral communication between the court and the jury or any individual juror;
(6) Any oral opinion of the court;
(7) The oral proceedings on any motion for new trial;
(8) The oral proceedings at sentencing, granting or denying probation, or other dispositional hearing;
(9) If the appellant is the defendant, the reporter's transcript must also contain:
(A) The oral proceedings on any defense motion denied in whole or in part except motions for disqualification of a judge;
(B) Any closing arguments; and
(C) Any comment on the evidence by the court to the jury.
(Subd (a) amended and lettered effective March 1, 2014; adopted as unlettered subd.)
(b) Local procedure for determining contents.
A court may adopt a local rule that establishes procedures for determining whether any of the items listed in (a) is not required for proper determination of the appeal or whether a form of the record other than a reporter's transcript constitutes a record of sufficient completeness for proper determination of the appeal.
(Subd (b) adopted effective March 1, 2014.)
Rule 8.865 amended effective March 1, 2014; adopted effective January 1, 2009.
Advisory Committee Comment
Subdivision (b)..Both the United States Supreme Court and the California Supreme Court have held that, where the State has established a right to appeal, an indigent defendant convicted of a criminal offense has a constitutional right to a "'record of sufficient completeness' to permit proper consideration of [his] claims." (Mayer v. Chicago (1971) 404 U.S. 189, 193-194; March v. Municipal Court (1972) 7 Cal.3d 422, 427-428.) The California Supreme Court has also held that an indigent appellant is denied his or her right under the Fourteenth Amendment to the competent assistance of counsel on appeal if counsel fails to obtain an appellate record adequate for consideration of appellant's claims of errors (People v. Barton (1978) 21 Cal.3d 513, 518-520).
The Mayer and March decisions make clear, however, that the constitutionally required "record of sufficient completeness" does not necessarily mean a complete verbatim transcript; other forms of the record, such as a statement on appeal, or a partial transcript may be sufficient. The record that is necessary depends on the grounds for the appeal in the particular case. Under these decisions, where the grounds of appeal make out a colorable need for a complete transcript, the burden is on the State to show that only a portion of the transcript or an alternative form of the record will suffice for an effective appeal on those grounds. The burden of overcoming the need for a verbatim reporter's transcript appears to be met where a verbatim recording of the proceedings is provided. (Mayer, supra, 404 U.S. at p. 195; cf. Eyrich v. Mun. Court (1985) 165 Cal.App.3d 1138, 1140 ["Although use of a court reporter is one way of obtaining a verbatim record, it may also be acquired through an electronic recording when no court reporter is available"].)
Some courts have adopted local rules that establish procedures for determining whether only a portion of a verbatim transcript or an alternative form of the record will be sufficient for an effective appeal, including (1) requiring the appellant to specify the points the appellant is raising on appeal; (2) requiring the appellant and respondent to meet and confer about the content and form of the record; and (3) holding a hearing on the content and form of the record. Local procedures can be tailored to reflect the methods available in a particular court for making a record of the trial court proceedings that is sufficient for an effective appeal.