In many Contra Costa County felony cases, records on appeal are delayed or late. This is also true for some cases from San Mateo County and can happen in any case in any county. FDAP encourages panel attorneys to track record production in all their cases and file a Motion to Compel Production of a Late Record in long-overdue cases. On our Forms and Samples page, you can find a sample template motion you may adapt for your case. Before filing such a motion, we recommend communicating with the superior court appeals clerk to obtain an estimate for when the record is likely to be completed. While the template motion is designed for criminal cases, it can be easily adapted for use in other types of cases, which may implicate different Rules of Court (e.g., juvenile cases: rules 8.409, 8.416; LPS conservatorship and civil commitment—same as criminal rules: see rules 8.480-8.483, 8.336.) Counsel should become familiar with rules governing record preparation. In criminal cases (subject to the local rule discussed below) preparation of the clerk’s and reporter’s transcripts must be completed within twenty days of the date on which the notice of appeal is filed. (Cal. Rules of Court, rule 8.336(c)(2) & (d)(3).) The reviewing court may grant extensions of time not to exceed sixty total days. (Rule 8.336(e).)
Counsel should pay attention to First District Local Rule 2(b), which grants reporters one automatic extension of time of 30 days to prepare and file the reporter’s transcript where the defendant appeals from a criminal conviction after a bench or jury trial. (Ct. App., First Dist., Local Rules, rule 2(b)(1).)
The Local Rule 2(b) automatic extension does not apply to a People’s appeal or when the defendant appeals from: a postjudgment order; a judgment entered on a plea of not guilty or nolo contendere; a judgment pronounced on resentencing after remand from the appellate court; an order revoking probation or a judgment entered after the revocation of probation; and an order extending a defendant’s term of commitment to a state hospital. (Ibid.)
The Local Rule 2(b) automatic extension does not apply in juvenile cases. In juvenile appeals, the reporter’s transcript is due no more than 20 days after the notice of appeal is filed, pursuant to Rules of Court, rules 8.409(c), 8.416(c)(1). (Ct. App., First Dist., Local Rules, rule 2(b)(3).)
In some cases, if a motion to compel does not result in production of the record, it may be necessary to file a writ of mandate. FDAP is developing a template for such a writ.
If you have any questions about filing a Motion to Compel Production of a Late Record or about other tools for addressing late records, please contact your FDAP consulting attorney.