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2014 California Rules of Court

Rule 8.868. Record when trial proceedings were officially electronically recorded

(a) Application

This rule applies only if:

(1)The trial court proceedings were officially recorded electronically under Government Code section 69957; and

(2)The electronic recording was prepared in compliance with applicable rules regarding electronic recording of court proceedings.

(b) Transcripts from official electronic recording

Written transcripts of an official electronic recording may be prepared under rule 2.952. A transcript prepared and certified as provided in that rule is prima facie a true and complete record of the oral proceedings it purports to cover, and satisfies any requirement in these rules or in any statute for a reporter's transcript of oral proceedings.

(c) Use of official recording as record of oral proceedings

If the court has a local rule for the appellate division permitting this, on stipulation of the parties or on order of the trial court under rule 8.869(d)(6), the original of an official electronic recording of the trial court proceedings, or a copy made by the court, may be transmitted as the record of these oral proceedings without being transcribed. Such an electronic recording satisfies any requirement in these rules or in any statute for a reporter's transcript of these proceedings.

(Subd (c) amended effective July 1, 2010.)

(d) Contents

Except in appeals when either the parties have filed a stipulation under rule 8.860(b) or the trial court has ordered that any of these items is not required for proper determination of the appeal, rules 8.865 and 8.867 govern the contents of a transcript of an official electronic recording.

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

(e) When preparation begins

(1)If the appellant files an election under rule 8.864 to use a transcript of an official electronic recording or a copy of the official electronic recording as the record of the oral proceedings, unless the trial court has a local rule providing otherwise, preparation of a transcript or a copy of the recording must begin immediately if either:

(A)The defendant was represented by appointed counsel at trial; or

(B)The appellant is the People.

(2)If the appellant is the defendant and the defendant was not represented by appointed counsel at trial:

(A)Within 10 days after the date the defendant files the election under rule 8.864(a)(1), the clerk must notify the appellant and his or her counsel of the estimated cost of preparing the transcript or the copy of the recording. The notification must show the date it was mailed.

(B)Within 10 days after the date the clerk mailed the notice under (A), the appellant must do one of the following:

(i)Deposit with the clerk an amount equal to the estimated cost of preparing the transcript or the copy of the recording;

(ii)File a declaration of indigency supported by evidence in the form required by the Judicial Council;

(iii)Notify the clerk by filing a new election that he or she will be using a statement on appeal instead of a transcript or copy of the recording. The appellant must prepare, serve, and file a proposed statement on appeal within 20 days after serving and filing the notice and must otherwise comply with the requirements for statements on appeal under rule 8.869;

(iv)Notify the clerk by filing a new election that he or she now elects to proceed without a record of the oral proceedings in the trial court; or

(v)Notify the clerk that he or she is abandoning the appeal by filing an abandonment in the reviewing court under rule 8.855.

(C)If the trial court determines that the appellant is not indigent, within 10 days after the date the clerk mails notice of this determination to the appellant, the appellant must do one of the following:

(i)Deposit with the clerk an amount equal to the estimated cost of preparing the transcript or the copy of the recording;

(ii)Notify the clerk by filing a new election that he or she will be using a statement on appeal instead of a reporter's transcript. The appellant must prepare, serve, and file a proposed statement on appeal within 20 days after serving and filing the notice and must otherwise comply with the requirements for statements on appeal under rule 8.869;

(iii)Notify the clerk by filing a new election that he or she now elects to proceed without a record of the oral proceedings in the trial court; or

(iv)Notify the clerk that he or she is abandoning the appeal by filing an abandonment in the reviewing court under rule 8.855.

(D)Preparation of the transcript or the copy of the recording must begin when:

(i)The clerk receives the required deposit under (B)(i) or (C)(i); or

(ii)The trial court determines that the defendant is indigent and orders that the defendant receive the transcript or the copy of the recording without cost.

(Subd (e) amended and relettered effective March 1, 2014; adopted as subd (d).)

(f) Notice when proceedings were not officially electronically recorded or cannot be transcribed

(1)If any portion of the oral proceedings to be included in the transcript was not officially electronically recorded under Government Code section 69957 or cannot be transcribed, the trial court clerk must so notify the parties by mail. The notice must:

(A)Indicate whether the identified proceedings were reported by a court reporter; and

(B)Show the date it was mailed.

(2)Within 15 days after this notice is mailed by the clerk, the appellant must serve and file a notice with the court stating whether the appellant elects to proceed with or without a record of the identified oral proceedings. When the party elects to proceed with a record of these oral proceedings:

(A)If the clerk's notice under (1) indicates that the proceedings were reported by a court reporter, the appellant's notice must specify which form of the record listed in rule 8.864(a) other than an official electronic recording or a transcript prepared from an official electronic recording the appellant elects to use. The appellant must comply with the requirements applicable to the form of the record elected.

(B)If the clerk's notice under (1) indicates that the proceedings were not reported by a court reporter, the appellant must prepare, serve, and file a proposed statement on appeal within 20 days after serving and filing the notice.

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

Rule 8.868 amended effective March 1, 2014; adopted effective January 1, 2009; previously amended effective July 1, 2010.

Advisory Committee Comment

Subdivision (d). If the appellant was not represented by the public defender or other appointed counsel in the trial court, the appellant must use Defendant's Financial Statement on Eligibility for Appointment of Counsel and Reimbursement and Record on Appeal at Public Expense (form MC-210) to show indigency. This form is available at any courthouse or county law library or online at www.courts.ca.gov/forms.

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