If a certified felony Court of Appeal record appears to omit an entire hearing or testimony that should be part of the record, identify the exact proceeding and tell appellate counsel. California’s rules provide a way for a clerk or reporter to correct an omitted required record after certification. A missing item does not automatically establish trial error or win the appeal.

Identify exactly what is missing

Compare the record index and transcript volumes with the dates shown in the case calendar, minutes, and orders. Write down the case and appeal numbers, hearing date and department, witness or proceeding, and the transcript pages or volume you received. Keep the certified index and any correspondence with the reporter or clerk. Do not describe a whole proceeding as missing if the actual problem is a disputed word or passage in a transcript.

For a felony appeal, California Rules of Court, rule 8.320 describes the normal record, including specified reporter’s transcript proceedings, clerk’s transcript material, and exhibits. Not every hearing or item a party would like to have is automatically part of that normal record. (California Rules of Court, rule 8.320)

Ask counsel to address an actual omission

Rule 8.340 provides that when, after certification, the clerk or reporter learns that a required document or transcript was omitted, it must be prepared, certified, and sent as an augmentation to the record. The reviewing court may also direct correction or augmentation under the applicable rules. (California Rules of Court, rule 8.340) For this required-record omission procedure, the clerk sends the missing material without needing a new court order. Give appellate counsel the specific dates and documents so counsel can determine whether the material belongs in the normal record and what request is appropriate.

An omitted proceeding is different from an inaccurate transcript of testimony that appears in the record. That may require a different showing and correction path. Do not assume an omission entitles you to a new trial; whether it matters to an appeal depends on what the record should contain and the appellate issues.

This page concerns felony appeals in the California Court of Appeal. Misdemeanor appeals in an appellate division use different procedures. For help with a criminal appeal record, contact the Law Offices of David S. Chesley at (800) 755-5174.