People v. Martin CA3

Filed 6/30/14 P. v. Martin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo) ----

THE PEOPLE,

Plaintiff and Respondent, C072310

v. (Super. Ct. No. CRF958217)

BEN ORLANDO MARTIN,

Defendant and Appellant.

In September 1996, defendant Ben Orlando Martin absconded near the end of his jury trial and was convicted in absentia of two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 a single count of criminal threats (§ 422), and a single count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). Defendant was apprehended in December 2011. In October 2012, he admitted a strike allegation and was sentenced to serve a stipulated term of 11 years in state prison.

1 Undesignated statutory references are to the Penal Code.

1

On appeal, defendant contends the absence of the reporter’s transcript from his trial prevents meaningful appellate review of his conviction, thus entitling him to a new trial. He also contends the court security fee (§ 1465.8) and criminal justice assessment (Gov. Code, § 70373) were improperly imposed. We reject the first contention because defendant is responsible for the court reporter’s inability to prepare a trial transcript. The trial records were lawfully destroyed after 10 years, during the 15-year period where defendant was a fugitive. As to the second contention, we agree imposition of the fee and assessment was improper because defendant was convicted before the effective dates of the statutes. Accordingly, we strike the fee and assessment and affirm the judgment as modified. BACKGROUND2 When the record on appeal was filed in this case, there was no reporter’s transcript of defendant’s trial. Enclosed with the record was a letter from the Yolo County Superior Court deputy clerk stating, “[d]ue to the year that the trial took place the record was unable to be produced.” On January 11, 2013, we granted defendant’s motion to augment the record with the reporter’s transcript of the trial. In response, the court reporter filed a letter with this court stating her notes of the case were destroyed due to the passage of time, making it impossible to prepare a reporter’s transcript. Appellate counsel subsequently filed an application for a settled statement with the Yolo County Superior Court. The People filed an opposition, arguing that “due to the lawful destruction of the trial notes, deterioration of trial counsel’s memory, and unavailability of witnesses due to the defendant’s remaining a fugitive for over fifteen