People v. Ballard

Opinion

STEPHENS, J.

By an information filed on April 13, 1967, defendant was charged with robbery (in violation of Pen. Code, §211) and with kidnaping for the purpose of robbery (in violation of Pen. Code, § 209) in counts I and II, respectively. Defendant pleaded not guilty. The jury was unable to reach verdicts, and the court declared a mistrial. Defendant’s motion to dismiss was denied. A new jury was impaneled.

[604]

Defendant was found guilty on both counts. Probation and a motion for a new trial were denied. Defendant was sentenced to the state prison for the term prescribed by law. The sentence as to count I was stayed until the sentence on count II is satisfactorily completed, upon which the stay was ordered to become permanent. This is an appeal from the judgment of conviction.

A detailed statement of facts is unnecessary because the two contentions of defendant on appeal do not involve the sufficiency of the evidence.

The first issue urged is: “It was error for the trial court to refuse to grant appellant’s request for augmentation of the record on appeal.” There is no merit to this contention. Rule 33(b) provides: “The appellant may request the inclusion of any of the following:

“(1) In the clerk’s transcript: (a) written motions made or notices of motion given by the defendant or by the People, and affidavits filed in support of or in opposition to the motion for new trial or any other motion; (b) any written opinion of the superior court.

“(2) In the reporter’s transcript: (a) proceedings on the voir dire examination of jurors; (b) opening statements; (c) arguments to the jury; (d) any oral opinion of the superior court, and comments on the evidence by the trial judge before the jury.

“(3) To be transmitted as originals: any exhibits admitted in evidence or rejected.

“If the appellant desires such additional record he shall file with his notice of appeal an application describing the material which he desires to have included and the points on which he intends to rely which make it proper to include it. The clerk shall immediately present the request to the judge and notify the reporter. The judge, within five days after the filing of such application, shall make an order directing the inclusion in the record of as much of the additional material as, in his opinion, may be proper to present fairly and fully the points relied on by appellant in his application. If the. judge fails to make any order within five days after the application is filed, the material requested, with the exception of exhibits, shall be included in the clerk’s and reporter’s transcripts without such order.” The court denied defendant-appellant’s request ten days after the request was filed, and thus, the court failed to act within the time specified in subdivision (3) of rule 33(b). In the instant case, this is not determinative of the question, because the request by defendant set forth no “points upon which he intends to rely which make it proper to include it.” The defendant’s request being fatally defective on its face, noncompliance by the court is not reversible error.