People v. Cervantes

Opinion

GILBERT, P. J.

Wilfredo Arias Cervantes intends to appeal a judgment following his conviction of drug crimes. (Health & Saf. Code, §§ 11350, subd. (a), 11364.) He faces an insurmountable obstacle. The court reporter is unable to prepare a trial transcript. Current defense counsel did not try the case. The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling. We vacate the order approving the settled statement and remand for further proceedings.

FACTS

Deputy Sheriff Michael Rowland saw Cervantes riding a bicycle at night without a lit headlight. He stopped Cervantes, who appeared to be intoxicated. After handcuffing him, Rowland retrieved items he believed Cervantes had thrown away nearby—tar heroin wrapped in plastic, hypodermic syringes, a spoon wrapped in a paper towel, and a rolled-up newspaper.

At trial in March, 2005, Rowland was the only prosecution witness. After the jury’s guilty verdicts, Cervantes appealed and requested preparation of a reporter’s transcript. The court reporter prepared transcripts of pretrial pro

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ceedings, jury instructions, and counsel’s closing argument. But she filed an affidavit stating that the portion of trial involving Rowland’s testimony could not be transcribed. She said “due to a technical malfunction,” no “stenographic notes are available for transcription.”

In February, 2006, Cervantes filed a motion in this court for summary reversal because of the missing transcript. We denied the motion, but remanded the case to the trial court “for a determination of whether a settled statement can be obtained.”

More than a year after the trial, the trial court held hearings on the preparation of a settled statement. The prosecutor prepared a proposed eight-page settled statement that summarized opening statements of counsel and Rowland’s testimony.

Richard Lennon, of the California Appellate Project, and Michael McMahon, of the public defender’s office, appeared on behalf of Cervantes. Lennon and McMahon told the court that Mark Stein, Cervantes’s trial counsel, was unavailable and could not participate in preparing a settled statement. McMahon said, “Mr. Stein is not currently with our office. I believe he took a health-related leave of absence on short notice.” Neither Lennon nor McMahon were present at the trial.