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2014 California Rules of Court

Rule 8.867. Limited normal record in certain appeals

(a) Application and additions

This rule establishes a limited normal record for certain appeals. This rule does not alter the parties' right to request that exhibits be transmitted to the reviewing court under rule 8.870 nor preclude either an application in the superior court under (e) for additions to the limited normal record or a motion in the reviewing court for augmentation under rule 8.841.

(Subd (a) adopted effective March 1, 2014.)

(b) Pretrial appeals of rulings on motions under Penal Code section 1538.5

If before trial either the defendant or the People appeal a ruling on a motion under Penal Code section 1538.5 for the return of property or the suppression of evidence, the normal record is composed of:

(1)Record of the documents filed in the trial court

A clerk's transcript or original trial court file containing:

(A)The complaint, including any notice to appear, and any amendment;

(B)The motion under Penal Code section 1538.5, with supporting and opposing memoranda, and attachments;

(C)The order on the motion under Penal Code section 1538.5;

(D)Any court minutes relating to the order; and

(E)The notice of appeal.

(2)Record of the oral proceedings in the trial court

If an appellant wants to raise any issue that requires consideration of the oral proceedings in the trial court, a reporter's transcript, a transcript prepared under rule 8.868, an official electronic recording under rule 8.868, or a statement on appeal under rule 8.869 summarizing any oral proceedings incident to the order on the motion under Penal Code section 1538.5.

(Subd (b) adopted effective March 1, 2014.)

(c) Appeals from judgments on demurrers or certain appealable orders

If the People appeal from a judgment on a demurrer to the complaint, including any notice to appear, or if the defendant or the People appeal from an appealable order other than a ruling on a motion for new trial or a ruling covered by (a), the normal record is composed of:

(1)Record of the documents filed in the trial court

A clerk's transcript or original trial court file containing:

(A)The complaint, including any notice to appear, and any amendment;

(B)Any demurrer or other plea;

(C)Any motion or notice of motion granted or denied by the order appealed from, with supporting and opposing memoranda and attachments;

(D)The judgment or order appealed from and any abstract of judgment or

commitment;

(E)Any court minutes relating to the judgment or order appealed from and:

(i)If there was a trial in the case, any court minutes of proceedings at the time the original verdict is rendered and any subsequent proceedings; or

(ii)If the original judgment of conviction is based on a guilty plea or nolo contendere plea, any court minutes of the proceedings at the time of entry of such plea and any subsequent proceedings;

(F)The notice of appeal; and

(G)If the appellant is the defendant, all probation officer reports.

(2)Record of the oral proceedings in the trial court

If an appellant wants to raise any issue which requires consideration of the oral proceedings in the trial court:

(A)A reporter's transcript, a transcript prepared under rule 8.868, an official electronic recording under rule 8.868, or a statement on appeal under rule 8.869 summarizing any oral proceedings incident to the judgment or order being appealed.

(B)If the appeal is from an order after judgment, a reporter's transcript, a transcript prepared under rule 8.868, an official electronic recording under rule 8.868, or a statement on appeal under rule 8.869 summarizing any oral proceedings from:

(i)The original sentencing proceeding; and

(ii)If the original judgment of conviction is based on a guilty plea or nolo contendere plea, the proceedings at the time of entry of such plea.

(Subd (c) amended and lettered effective March 1, 2014; adopted as unlettered subd.)

(d) Appeals of the conditions of probation

If a defendant's appeal of the judgment contests only the conditions of probation, the normal record is composed of:

(1)Record of the documents filed in the trial court

A clerk's transcript or original trial court file containing:

(A)The complaint, including any notice to appear, and any amendment;

(B)The judgment or order appealed from and any abstract of judgment or commitment;

(C)Any court minutes relating to the judgment or order appealed from and:

(i)If there was a trial in the case, any court minutes of proceedings at the time the original verdict is rendered and any subsequent proceedings; or

(ii)If the original judgment of conviction is based on a guilty plea or nolo contendere plea, any court minutes of the proceedings at the time of entry of such plea and any subsequent proceedings;

(D)The notice of appeal; and

(E)All probation officer reports.

(2)Record of the oral proceedings in the trial court

If an appellant wants to raise any issue that requires consideration of the oral proceedings in the trial court, a reporter's transcript, a transcript prepared under rule 8.868, an official electronic recording under rule 8.868, or a statement on appeal under rule 8.869 summarizing any oral proceedings from:

(A)The sentencing proceeding; and

(B)If the judgment of conviction is based on a guilty plea or nolo contendere plea, the proceedings at the time of entry of such plea.

(Subd (d) adopted effective March 1, 2014.)

(e) Additions to the record

Either the People or the defendant may apply to the superior court for inclusion in the record under (b), (c), or (d) of any item that would ordinarily be included in the clerk's transcript under rule 8.861 or a reporter's transcript under rule 8.865.

(1)An application for additional record must describe the material to be included and explain how it may be useful in the appeal.

(2)The application must be filed in the superior court with the notice of appeal or as soon thereafter as possible, and will be treated as denied if it is filed after the record is sent to the reviewing court.

(3)The clerk must immediately present the application to the trial judge.

(4)Within five days after the application is filed, the judge must order that the record include as much of the additional material as the judge finds proper to fully present the points raised by the applicant. Denial of the application does not preclude a motion in the reviewing court for augmentation under rule 8.841.

(5)If the judge does not rule on the application within the time prescribed by (4), the requested material-other than exhibits-must be included in the clerk's transcript or the reporter's transcript without a court order.

(6)The clerk must immediately notify the reporter if additions to the reporter's transcript are required under (4) or (5).

(Subd (e) adopted effective March 1, 2014.)

Rule 8.867 amended effective March 1, 2014; adopted effective January 1, 2009; previously amended effective January 1, 2013.

Advisory Committee Comment

Subdivisions (b)(1)(D), (c)(1)(E), and (d)(1)(C). These provisions identify the minutes that must be included in the record. The trial court clerk may include additional minutes beyond those identified in these subdivisions if that would be more cost-effective.

Subdivisions (c)(1)(G) and (d)(1)(E). Rule 8.862(c) addresses the appropriate handling of probation officers' reports that must be included in the clerk's transcript.

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