Monday, May 21, 2007

People v. Cervantes (Cal. Ct. App. - May 16, 2007)

Wilfredo Cervantes wants to appeal his drug conviction. But the court reporters says that due to a "technical malfunction" (really?!), she can't prepare a transcript of the evidence at trial. The trial court recalls nothing about the case. The appellate counsel for Cervantes weren't trial counsel, so don't know what went on there either. So what to do?

The prosecutor says "Here's what the evidence was . . . ." and prepares a draft settled statement. Appellate counsel for Cervantes make some minor changes, and the trial court then approves the statement.

Justice Gilbert says "Wait a minute. I think not." He does the tiniest bit of digging and discovers that the trial counsel for defendant (Mark Stein), while no longer with the PD's office, is still a member of the Bar. So wisely, in my view, vacates and remands to see if the parties can get Stein's input on the settled statement. And also says that, if they can't, that Cervantes gets a new trial. Yeah, that's a pain, but it happens incredibly rarely, and it's better to retry than to deprive someone of an appeal because the state/court reporter screwed up.

A very short opinion; only five doubled-spaced pages. Eminently reasonable. My only objection is that the last sentence ends with two periods. :-)