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2021 California Rules of Court

Rule 8.395. Record on appeal

(a) Contents

In an appeal under this article, the record must contain:

(1)  A clerk's transcript containing:

(A)  The petition;

(B)  Any informal response to the petition and any reply to the informal response;

(C)  Any order to show cause;

(D)  Any reply, return, answer, denial, or traverse;

(E)  All supporting documents under rule 4.571, including the record prepared for the automatic appeal and all briefs, rulings, and other documents filed in the automatic appeal;

(F)  Any other documents and exhibits submitted to the court, including any transcript of a sound or sound-and-video recording tendered to the court under rule 2.1040 and any visual aids submitted to the court;

(G)  Any written communication between the court and the parties, including printouts of any e-mail messages and their attachments;

(H)  All court minutes;

(I)  Any statement of decision required by Penal Code section 1509(f) and any other written decision of the court;

(J)  The order appealed from;

(K)  The notice of appeal; and

(L)  Any certificate of appealability issued by the superior court or the Court of Appeal.

(2)  A reporter's transcript of any oral proceedings.

(b) Stipulation for partial transcript

If counsel for the petitioner and the People stipulate in writing before the record is certified that any part of the record is not required for proper determination of the appeal, that part need not be prepared or sent to the reviewing court.

(c) Preparation of record

(1) The reporter and the clerk must begin preparing the record immediately after the superior court issues the decision on an initial petition under Penal Code section 1509.

(2) If either party appeals from a superior court decision on a successive petition under Penal Code section 1509.1(c):

(A)  The clerk must begin preparing the clerk's transcript immediately after the filing of the notice of appeal or, if one is required, the superior court's issuance of a certificate of appealability or the clerk's receipt of a copy of a certificate of appealability issued by the Court of Appeal under rule 8.391(b)(5), whichever is later. If a certificate of appealability is required to appeal the decision of the superior court, the clerk must not begin preparing the clerk's transcript until a certificate of appealability has issued.

(B)  The reporter must begin preparing the reporter's transcript immediately on being notified by the clerk under rule 8.392(c) that the notice of appeal has been filed.

(d) Clerk's transcript

(1)  Within 30 days after the clerk is required to begin preparing the transcript, the clerk must complete preparation of an original and four copies of the clerk's transcript.

(2)  On request, the clerk must prepare an extra copy for the district attorney or the Attorney General, whichever is not counsel for the People on appeal.

(3)  The clerk must certify as correct the original and all copies of the clerk's transcript.

(e) Reporter's transcript

(1)  The reporter must prepare an original and the same number of copies of the reporter's transcript as (d) requires of the clerk's transcript, and must certify each as correct.

(2)  As soon as the transcripts are certified, but no later than 30 days after the reporter is required to begin preparing the transcript, the reporter must deliver the original and all copies to the superior court clerk.

(3)  Any portion of the transcript transcribed during superior court habeas corpus proceedings must not be retyped unless necessary to correct errors, but must be repaginated and combined with any portion of the transcript not previously transcribed. Any additional copies needed must not be retyped but, if the transcript is in paper form, must be prepared by photocopying or an equivalent process.

(4)  In a multireporter case, the clerk must accept any completed portion of the transcript from the primary reporter one week after the time prescribed by (2) even if other portions are uncompleted. The clerk must promptly pay each reporter who certifies that all portions of the transcript assigned to that reporter are completed.

(f) Extension of time

(1)  Except as provided in this rule, rules 8.60 and 8.63 govern requests for extension of time to prepare the record.

(2)  On request of the clerk or a reporter showing good cause, the superior court may extend the time prescribed in (d) or (e) for preparing the clerk's or reporter's transcript for no more than 30 days. If the superior court orders an extension, the order must specify the reason justifying the extension. The clerk must promptly send a copy of the order to the reviewing court.

(3)  For any further extension, the clerk or reporter must file a request in the reviewing court showing good cause.

(4)  A request under (2) or (3) must be supported by:

(A)  A declaration showing good cause. The court may presume good cause if the clerk's and reporter's transcripts combined will likely exceed 10,000 pages, not including the supporting documents submitted with the petition, any informal response, reply to the informal response, return, answer, or traverse; and

(B)  In the case of a reporter's transcript, certification by the superior court presiding judge or a court administrator designated by the presiding judge that an extension is reasonable and necessary in light of the workload of all reporters in the court.

(g) Form of record

(1)  The reporter's transcript must be in electronic form. The clerk is encouraged to send the clerk's transcript in electronic form if the court is able to do so.

(2)  The clerk's and reporter's transcripts must comply with rules 8.45-8.47, relating to sealed and confidential records, and rule 8.144.

(h) Sending the transcripts

(1)  When the clerk's and reporter's transcripts are certified as correct, the clerk must promptly send:

(A)  The original transcripts to the reviewing court, noting the sending date on each original; and

(B)  One copy of each transcript to:

(i)  Appellate counsel for the petitioner;

(ii)  The assisting entity or counsel, if designated, or the district appellate project;

(iii)  The Attorney General or the district attorney, whichever is counsel for the People on appeal;

(iv)  The district attorney or Attorney General if requested under (d)(2); and

(v)  The Governor.

(2)  If the petitioner is not represented by appellate counsel when the transcripts are certified as correct, the clerk must send that copy of the transcripts to the assisting entity or counsel, if designated, or the district appellate project.

(i) Supervision of preparation of record

The clerk/executive officer of the Court of Appeal, under the supervision of the administrative presiding justice or the presiding justice, must take all appropriate steps to ensure that superior court clerks and reporters promptly perform their duties under this rule. This provision does not affect the responsibility of the superior courts for the prompt preparation of appellate records.

(j) Augmenting or correcting the record in the Court of Appeal

Rule 8.340 governs augmenting or correcting the record in the Court of Appeal, except that copies of augmented or corrected records must be sent to those listed in (h).

(k) Judicial notice

Rule 8.252(a) governs judicial notice in the reviewing court.

Rule 8.395 adopted effective April 25, 2019.

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