P. v. England

Filed 11/20/07 P. v. England CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Retired Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobek and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

George Joseph England appeals from a judgment that sentenced him to state prison after a jury found him guilty of felony child molestation. He argues the judgment must be reversed because the record on appeal is insufficient to permit meaningful appellate review. We disagree and affirm.

* * *

England was convicted on October 21, 1977, following a three-day jury trial. When he claimed to be a mentally disordered sex offender, the trial court postponed sentencing, appointed a doctor to examine England, and allowed him to remain out of custody on bail. England failed to appear for a December 7, 1977 hearing. Bail was revoked and a bench warrant issued.

England remained at large until 2005, when he was arrested in Florida for passport fraud. He was convicted, served a 14-month sentence, and was then surrendered to Orange County on the bench warrant.

On September 1, 2006, England was sentenced under the law applicable at the time he committed the offenses. He received one year to life on each of three counts on which he was convicted (he was acquitted on a fourth count), for a total term of three years to life. A timely notice of appeal was filed.

The superior court ordered a reporters transcript to be prepared and filed for the proceedings on October 19, 20, and 21, 1977. The court reporter responded with a declaration that her notes of the proceedings on those dates have been destroyed and there is no record of those dates.

We ordered the clerk of the superior court to file with this court certified copies of all records, if any, that show when and under what authority the reporting notes of the trial in this matter were destroyed, and to serve upon the parties a copy of all documents filed with this court.

At the same time, we notified the parties that the court, on its own motion, was contemplating taking judicial notice of the requested records, if any. (Evid. Code,  452, 459.) We invited the parties to submit letter briefs addressing two issues: (1) the propriety of taking judicial notice of the matter and the substance of the matter to be noticed (Evid. Code,  455, subd (a)), and (2) whether destruction of the reporters notes was authorized by Government Code section 69955 in effect at the time of destruction.

Both sides responded. England agreed that judicial notice is proper. (We address the authorization question shortly.)

We take judicial notice of the official records of the superior court of Orange County as follows. The reporters notes of the trial in this matter were destroyed on March 7, 1983. Destruction was pursuant to a 1973 order of the presiding judge of the court, which directed the county clerk to destroy all reporters noted taken more than five years prior to the date of destruction, unless ordered otherwise by a judge of the court.[1]

* * *

England argues his conviction must be reversed because the absence of a reporters transcript precludes a meaningful appeal. He is mistaken.

A defendant who flees to avoid sentencing and is later recaptured cannot take advantage of the authorized destruction of reporters notes in the interim by arguing an effective appeal is impossible. (People v. Everett (1990) 224 Cal.App.3d 932; People v. Valdez (1982) 137 Cal.App.3d 21.) There is no question that is the law and no real question it applies to England.

Former Government Code section 69955, subdivision (d) in effect at the time the instant reporters notes were destroyed in 1983 case provided as follows: No official or pro tempore court reporter may destroy the reporting notes taken by him, and no clerk of the court may destroy the reporting notes delivered to him until after five years from the taking of the notes and upon the order of the court.[2] (Stats. 1974, ch. 223, p. 420,  1.)

England cannot complain of the lawful destruction of the reporters notes while he was a fugitive. England fled to avoid justice following his conviction in 1977 and remained at large until 2005. During the time he was on the lam, the reporters notes were destroyed upon order of the superior court, as authorized by the law in effect at the time. (Former Gov. Code,  69955, subd. (d).) Defendant is solely responsible for the predicament with which he is faced. But for his culpable misconduct in fleeing the jurisdiction, his appeal would have been processed and a transcript prepared long before the authorized destruction of the notes. (People v. Valdez, supra, 137 Cal.App.3d at p. 27.) As we said in People v. Everett, supra, 224 Cal.App.3d at p. 937, the current state of the record is of [defendants] own making. He cannot be heard to complain of a due process violation.

England concedes destruction of the notes was authorized by statute. Nonetheless, he argues, his due process rights are still affected because meaningful appellate review is impossible absent a complete record on appeal. We disagree. The authorities cited which hold an indigent defendant is entitled appellate review as adequate as provided to those who can pay for a transcript have nothing to do with the instant matter. Due process does not reward a defendant with reversal of his conviction for eluding capture long enough for the notes of his trial to be lawfully destroyed.

In a supplemental brief, England asserts the trial judge should have ordered the notes not destroyed because he had not yet been sentenced in 1983. But the argument was never previously raised, and is offered here without authority, probably because neither appellate counsel nor we have been able to find authority for it. It is both meritless and waived.

Finally, Englands reliance on People v. Jones, supra, 125 Cal.App.3d 298 is misplaced. Jones filed a notice of appeal a week after his sentencing, only to have it returned by a county clerk with a confusing letter. The error was compounded when a prison counselor told Jones he could not appeal until his release. Seven years later, after release, Jones obtained relief from the default in filing a timely notice of appeal, and appealed. In the interim, the court reporter had destroyed her notes as permitted by statute. The court reversed the conviction, explaining that defendant without any fault of his own was deprived of the right to an effective presentation of his appeal due entirely to a failure on the part of an official of the trial court to comply with the law. . . . [Citation.] (People v. Jones, supra, 125 Cal.App.3d at p. 302.)

The instant case is a far cry from Jones. Here, Englands situation is not the result of a trial court mistake, but rather his own flight from justice for 28 years. One cannot abscond after a conviction and then, when captured, take advantage of the normal and legal course of events while he was at large. Jones is inapposite.

Since the reporters notes of the trial were lawfully destroyed while England was a fugitive, he cannot complain the record is inadequate to permit a meaningful appeal. The judgment appealed from is affirmed.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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[1] The People move for judicial notice of two orders by the presiding judge of the superior court that permit destruction of court records, Administrative Order No. 05/1, dated January 3, 2005, and Administrative Order No. 06/1, dated January 17, 2006. Neither has any bearing on the destruction of the reporters notes in issue here, which took place in 1983. Accordingly, the motion for judicial notice filed March 23, 2007 is denied.

[2] Government Code section 69955 was subsequently amended. It now provides that reporting notes may be destroyed after 10 years in criminal proceeding other than capital felony cases, where no reporting notes may be destroyed unless authorized by the Supreme Court. (Gov. Code  69955, subd. (e).)