Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County Super. Ct. No. MA029479. Robert Perry, Judge.
J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson, and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Defendant and appellant Theresa Kariger appeals from her conviction of the second degree murder of Jeffrey Segale, with whom she was living at the time of the killing. She contends that she is entitled to a new trial because there is no reporter’s transcript for the first day of her five-day trial. We agree.
Defendant was charged with murder and being a felon in possession of a firearm; firearm use enhancements were alleged pursuant to Penal Code section 12022.53, subdivisions (b), (c) and (d). A jury convicted her of second degree murder and possession of a firearm by a felon and found true the enhancements. She was sentenced to 40 years to life in prison, comprised of 15 years to life for the murder, plus a consecutive 25 years to life for the gun use; plus a concurrent 2 years for the firearm possession.
Because we reverse and remand for a new trial, we need not address appellant’s challenge to CALJIC No. 9.35.1, the instruction on battered women’s syndrome. We note that, upon retrial, the jury will be instructed with CALCRIM 8.50, which corrects the defect appellant complains of in CALJIC No. 9.35.1.
FACTS
It is undisputed that defendant shot and killed Segale some time in the middle of July 2004. The theory of defense was that defendant suffered from battered women’s syndrome and, as a result, did not have the requisite mental state at the time of the killing. The evidence adduced at trial included transcripts of defendant’s post arrest interviews with law enforcement in which she described Segale’s violence toward her in the six months they had been living together and the events leading up to the shooting. People who knew defendant and Segale testified that they both used methamphetamines and had a volatile relationship that included mutual violence. There was also evidence that both defendant and Segale had been violent toward partners in past relationships.
Defendant testified that she met and began living with Segale in January 2004. Although they had consensual sex, there were also times when Segale forced her to have sex. Segale was physically violent toward defendant, sometimes hitting her with the metal handle of a mop. In preparation for obtaining a restraining order against Segale, defendant had photographs taken that showed the bruises she sustained on that one occasion. On another occasion, Segale ran over her with his truck. A few days later, she went to the hospital but gave a false name and lied about the cause of her injuries because Segale had said he was sorry and was being nice to her. Defendant went to a battered woman’s shelter twice but was not ready to stay there. Defendant recalled an occasion when she hit Segale in the head with a claw hammer; she claimed this was the only time when she and not Segale was the aggressor. Defendant admitted being violent with people in other relationships, including her father.
On the morning defendant shot Segale, he fell asleep after forcibly sodomizing her. After Segale had been asleep for somewhere between half-an-hour and an hour, defendant retrieved a gun she had gotten earlier that day and had hidden in the kitchen; defendant intended to move the gun to a different hiding place but could not decide where. When Segale woke up suddenly, defendant was standing behind a couch, holding the gun. Afraid that Segale would take the gun and beat her up, defendant shot him. She did not recall pulling the trigger but remembered holding the gun with two hands, hearing the gun fire, and “shooting fast.” Segale’s last words were, “Ow, stop.” Defendant later borrowed a car and shovel. After digging a grave, defendant wrapped Segale’s body in blankets and used the cart to move it outside. She buried Segale in the grave.
PROCEDURAL BACKGROUND
Defendant’s jury trial commenced on Friday, September 9, 2005. According to the minute order of that day, prosecution witnesses Randolf Dye, William Duclos, David Litchko, and Marielene Miller testified. There were evidentiary hearings concerning Duclos’s and Miller’s testimony. People’s Exhibits 1, 2, 3, 4, 5, 6, and 7 were marked for identification and the trial court addressed a jury question. The evidentiary portion of the trial continued on September 12, 13, 14, 15, and 19. Closing arguments were given on September 19 and 20; and on September 20, the jury was instructed. While the jury was deliberating, the trial court informed counsel that, as a result of a damaged computer disc, there could be no reporter’s transcript for September 9. After the guilty verdict was returned and defendant indicated her intention to appeal, the trial court instructed counsel to work together to recreate the testimony adduced on September 9 and directed the prosecutor to draft a summary.
On January 26, 2006, the prosecutor filed a proposed settled statement. Defense trial counsel’s opposition both challenged specific assertions of fact in the proposed statement and also asserted that defense counsel could not “accurately and unerringly re-create a transcript of such crucial witnesses on the opening day of this [m]urder trial. Notes are clearly different than the word-for-word testimony that an [a]ppellate court requires to exercise its diligence in response to issues critical to this trial.”
The trial court subsequently drafted its own proposed settled statement. The trial court summarized the evidence as follows:
· Dye testified that, in 1998 or 1999, he and defendant had a sexual relationship and lived together for about a year. At the time of Segale’s death, Dye was friends with both defendant and Segale. In 2004, Dye lived in a trailer about one mile from the abandoned property at 47637 42nd Street West, where defendant and Segale were living as squatters. Dye testified that defendant and Segale were not in a boyfriend/girlfriend relationship and lived in separate bedrooms. Dye described defendant and Segale as hot headed and their relationship as violent. In June 2004, Dye was at the 42nd Street property to fix a door when Segale walked in and hit defendant for no apparent reason. Dye described two other occasions when he observed defendant and Segale fighting; Dye had the impression that defendant was defending herself. On July 5 or 6, 2004, defendant came to Dye’s trailer and asked to borrow a shovel and wheelbarrow; defendant gave Dye a bullet that she said she found on the kitchen floor; defendant may have said the bullet had “brains” on it. Dye threw the bullet in the trash; Dye later led Deputy Sheriff Litchko to the bullet, which was still in the trash bag. Dye told law enforcement that defendant said she needed the shovel and wheelbarrow to get rid of a body. As Dye accompanied defendant back to the house with a four-wheeled cart, defendant told Dye that Segale had left and “was no longer a problem.” Dye did not go onto the property with defendant. When he came back several days later to retrieve the cart and shovel, he found them in the yard and took them back home. He noticed a grease-like substance in the cart; the substance looked like meat or like someone had been cooking on the cart. Dye noticed that his dogs were licking the cart; when he looked at the cart more closely, Dye thought he observed blood. When Dye asked defendant where Segale was, defendant said Segale was “no longer a problem” and that it was a shallow grave. Dye explained that he had an imperfect memory because he had been in a car accident and suffered a head injury.
· Duclos testified that he and his girlfriend, Natalie Childers, were friends of defendant’s and Segale’s. Duclos, Childers, defendant, Segale, and Dye were all methamphetamine users. Duclos described Segale as soft spoken and nice; Duclos never saw defendant and Segale fight but was aware they had some problems. Duclos recalled defendant saying that Segale had run her over with his pickup truck. Weeks before Segale’s death, Duclos had seen dried blood on Segale’s head and injuries consistent with the imprint of a claw hammer. When defendant was visiting Duclos and his girlfriend in mid-to-late July 2004, defendant confessed that she had committed a murder. Segale never said anything to Duclos about having sex with defendant that sounded improper. Duclos denied having a telephone conversation on August 9, 2004, in which he told Dan Rose that Segale claimed to enjoy rough sex with defendant involving rape; Duclos said he spoke to Rose in person and never made such a statement.
· Miller testified that she was a friend of Segale’s, whom she had known for three or four years. Segale worked as a handyman and did jobs for Miller’s disabled sister. Miller described Segale as calm and soft spoken. Segale got along well with her children. Miller felt that defendant posed a danger to Segale; Miller had seen “claw hammer strike marks on Segale’s head;” Segale’s eyebrow was split open and he used Super Glue to close it. Miller advised Segale to get away from defendant. Miller was aware that Segale used methamphetamine but never saw him doing so around her or her children.
· Deputy Sheriff Litchko testified that the remote desert area he patrolled included the 42nd Street property where defendant and Segale were living. Responding to a call about a possible homicide at 6:52 a.m. on July 25, 2004, Litchko spoke to Duclos and Childers. Duclos said that the day before, Dye told him that defendant had killed Segale; that same night, defendant had come to Duclos’s house and admitted killing Segale. Litchko initiated a missing person search for Segale. Duclos contacted Dye, who told Litchko that defendant borrowed a shovel and wheelbarrow from Dye some time around July 6, 2004, with the explanation that she shot Segale and needed to move the body. Dye told Litchko that, the next day, defendant showed Dye a bullet she said she found on the kitchen floor and it still had “ ‘Jeff’s brains on it.’ ” Dye told Litchko that he put the bullet in the trash. Inside a dumpster, Litchko found a black trash bag in which he found an expended bullet; Dye told Litchko that Dye retrieved the cart and shovel about a week later. Litchko observed what appeared to be a blood stain on the cart. Litchko went to the property to look for defendant and Segale; he found defendant sleeping on the floor of the back house. In response to Litchko’s inquiry, defendant said she had not seen Segale for about a week and she had no idea where he had gone. Litchko arrested defendant. Several hours later, while standing near a large tree on the property, Litchko noticed a foul odor. Litchko and Sergeant Hawksley followed wheel tracks to a mound of dirt covered by a mattress and other debris. Litchko observed a human foot protruding from the ground next to the mattress.
At a hearing on March 22, 2006, defense counsel informed the trial court that, in accordance with his usual habit, he took daily notes of the trial, transferred those notes to his laptop and then discarded the handwritten notes. When the public defender’s information services upgraded his laptop, the notes from the trial were not transferred onto the new computer; as a result, “I don’t have any notes remaining with the exception of three or four small handwritten pages remaining for the day in question. And I wrote those statements out as best I could. [¶] I really can’t disagree with what the court and [prosecutor] wrote because I really don’t have anything substantive to say with regard to that other than whatever the statement is the court puts in place of the actual transcript cannot be a replacement for that, in my opinion, meaning I certainly would not agree that it’s a complete and accurate transcript, meaning question and answer, and certainly is not sequential of by any means of those questions and answers as they were given and they’re not worth the words as they were given and on that I would submit.” Notwithstanding defense counsel’s objection, the trial court ordered its proposed settled statement to be filed. It included the following introductory statement: “Having considered the proposed statements of counsel and the objections made thereto, and after consulting its own notes of the proceedings, the Court files the enclosed settled statement as a reasonably accurate statement of the testimony of Randolph Dye, William Duclos, Marilena [sic] Miller, and David Litchko given on September 9, 2005.”
At the hearing, the trial court agreed to the prosecutor’s suggestion that Dye’s testimony that defendant was tough like Annie Oakley be added to the settled statement, but the final filed version does not include this evidence.
The Appellate Record
Meanwhile, the Reporter’s Transcript (RT) was filed in this court on December 14, 2005, and the Clerk’s Transcript (CT) was filed on December 28, 2005. On February 16, 2006, appellate defense counsel advised the superior court clerk, pursuant to former California Rules of Court, rule 32.1(b) (rule 32.1(b)), that the record was incomplete in several respects. First, the CT did not include the transcripts of the interviews with defendant that had been admitted into evidence as exhibits. Second, the RT did not include transcripts of proceedings on: (1) April 13, 2005; (2) June 7, 2005; (3) July 1, 2005; (4) September 8, 2005 (motions in limine and pre-instruction); (5) September 9, 2005 (the missing reporter’s transcript); (6) October 18, 2005 (posttrial proceedings); (7) transcripts of “all discussions between the court and counsel regarding record settlement;” (8) written statements submitted regarding record reconstruction, as ordered by the trial court on October 21, 2005, and (9) rulings pertaining to record settlement issued after the record was certified.
Former rule 32.1 was amended and renumbered rule 8.340, effective January 1, 2007. Former rule 32.1(b) read: “If, after the record is certified, the superior court clerk or the reporter learns that the record omits a document or transcript that any rule or order requires included, the clerk must promptly copy and certify the document or the reporter must promptly prepare and certify the transcript. Without the need for a court order, the clerk must promptly send the document or transcript -- as an augmentation of the record -- to the reviewing court, the defendant’s appellate counsel, and the Attorney General.”
On April 4, 2006, an RT for the proceedings on April 13, June 7, June 20, July 1, September 8, and a portion of September 9, 2005, was filed. That same day, a supplemental CT was filed, which included copies of the three interview transcripts. The supplemental CT also included the superior court clerk’s certification that “[a]fter a through [sic] search the file Requests #7, 8 & 9 do not exist in the current Superior Court file.”
Pursuant to Former rule 32.1(b), defense counsel once again informed the superior court clerk that the record was incomplete because it was missing: (1) the prosecution’s proposed settlement statement filed January 28, 2006; (2) defense counsel’s opposition to that proposed statement filed February 28, 2006; (3) a letter from the trial court to counsel dated March 15, 2006, regarding its proposed settlement statement; (4) a transcript of the March 22, 2006, proceedings; and (5) the settled statement ultimately filed by the trial court in March 2006.
A second supplemental CT was filed on May 23, 2006. It included certificates from the clerk attesting that there was (1) “no documentation in the superior court file or docket to indicate that a proceeding to settle the record was conducted on March 22, 2006;” and (2) “[n]o documents as to a settled statement being filed.”
On June 26, 2006, defense counsel filed a motion in this court to augment the record on appeal with the following, which were attached as exhibits to the motion: (1) a transcript of the March 22, 2006, record settlement hearing; (2) a letter from trial defense counsel to appellate defense counsel dated June 7, 2006, including exhibits consisting of the prosecutor’s proposed settlement statement; defense counsel’s opposition; a letter to counsel from the trial court attaching a copy of the proposed settlement statement; and the “Settled Statement of Witness Testimony for September 9, 2005,” filed by the court.
We granted the motion except to the extent it requested augmentation with a transcript of the March 22, 2006, hearing, as to which we denied the motion. On July 13, 2006, a reporter’s transcript of the March 22, 2006, hearing was filed in this court.
DISCUSSION
The Missing Reporter’s Transcript Renders the Record Inadequate
Defendant contends the judgment should be vacated and a new trial granted because the record is inadequate to permit meaningful appellate review. She argues that where, as here, defense counsel cannot meaningfully participate in the construction of a settled statement, the loss “of an entire day’s worth of critical testimony [of a five day trial] deprives appellant of an adequate record from which to present effective appellant arguments and it ‘does not advance the cause of justice to require . . . appellants to proceed with such a handicap.’ [Citation.]” We agree.
In pertinent part, Penal Code section 1181, subdivision (9), provides: “When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule . . . because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.” The lost portion is “substantial” if, in light of all the circumstances, it appears that “it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal.” (People v. Pinholster (1992) 1 Cal.4th 865, 921 (internal quotations omitted).)
Even the loss of a substantial part of the reporter’s transcript does not require per se reversal. On the contrary, a settled statement may be an adequate substitute. “To determine whether a settled statement is adequate, we consider the issues defendant raises on appeal and the ability of the parties and the trial court to reconstruct the record. [Citation.] To adequately reconstruct trial testimony in a settled statement we consider: (1) whether the trial judge took ‘detailed notes’ [citation]; (2) whether the court is ‘able to remember’ the missing portion of the record [citation]; and (3) the ability of defendant’s counsel to effectively participate in reconstructing the record. [Citations.]” (People v. Cervantes (2007) 150 Cal.App.4th 1117, 1121 (Cervantes).) In Cervantes, supra, the prosecutor’s proposed settled statement was not an adequate substitute for the missing reporter’s transcript of the sole prosecution witness where the trial court had no recollection of the trial, and the attorney who had represented the defendant at trial had not participated in the creation of it because he was no longer with the public defender’s office. (Id. at pp. 1119-1121.)
In In re Steven B. (1979) 25 Cal.3d 1, 9, our Supreme Court held that a settled statement was not an adequate substitute where defense counsel’s inadequate recollection prevented him from participating in construction of a settled statement. The court reasoned: “The loss or destruction of a court reporter’s notes is an uncommon occurrence. As such it randomly burdens isolated appellants, denying them adequate appellate review. It does not advance the cause of justice to require these appellants to proceed with such a handicap. ‘It is far better that a defendant be retried than that the state should permit itself to be subject to the criticism that it has denied an appellant a fair and adequate record on appeal.’ [Citations.] The burden of requiring a new hearing is small indeed compared to the importance of ensuring that justice is done on an adequate record on appeal.”
Here, the missing transcript represented a substantial portion of the prosecution’s case and of the entire record. Whether defendant suffered from battered women’s syndrome and whether Segale was her batterer were disputed issues at trial. According to the trial court’s proposed settled statement, Dye, Duclos, and Miller all gave evidence probative of that issue on September 9. As to both Duclos and Miller, the minute order of that date indicates that there were “hearings outside the presence of the jury” regarding “prior statements” made by these witnesses. But neither the trial court’s nor the prosecutor’s proposed settled statements even mention what we presume were Evidence Code section 402 hearings. Accordingly, appellate defense counsel would have had no way of determining whether any appealable error occurred during those hearings. Under such circumstances, the lost portion was “substantial” because its absence affected defendant’s ability to perfect his appeal, as well as this court’s ability to conduct a meaningful review. (Pinholster, supra, 1 Cal.4th at p. 921.)
Although we are respectful of the trial court’s effort to recreate the record under difficult circumstances, here a settled statement was not an adequate substitute for the missing reporter’s transcript. This is because, notwithstanding the fact that the trial court apparently took notes and was able to remember the missing portion of the record, the record establishes that defense counsel could not effectively participate in reconstruction of the record. (Cf. Cervantes, supra, 150 Cal.App.4th at p. 1123.) Counsel’s inability was genuine and in good faith based on computer problems in the public defender’s office.
Given the often subtle distinction between guilt and innocence in what might be a cold-blooded murder, on the one hand, or a killing that is the product of battered women’s syndrome, and on the other, we agree with the observation made by the courts in Steven B. and Cervantes: it does not advance the cause of justice to require an appellant to proceed with the handicap of a missing reporter’s transcript under these circumstances. “ ‘It is far better that a defendant be retried than that the state should permit itself to be subject to the criticism that it has denied an appellant a fair and adequate record on appeal.’ ” (Cervantes, supra, 150 Cal.App.4th at p. 1122; Steven B., supra, 25 Cal.3d at p. 9.)
DISPOSITION
The judgment is reversed and the matter remanded for a new trial.
WE CONCUR: COOPER, P. J., FLIER, J.