California Court of Appeal Jul 20, 2015 No. D064514Unpublished
Filed 7/20/15 P. v. Washic CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064514
Plaintiff and Respondent,
v. (Super. Ct. No. SCD243025)
BRUCE CHARLES WASHIC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Peter L.
Gallagher, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P.
Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
In this driving under the influence (DUI) case, although initially the trial court
determined the reporter's transcript had been lost and was not retrievable, in related
posttrial proceedings the court reporter was able to retrieve her transcript of the trial, the
corrected transcript was filed and we ordered that the parties brief their contentions on the
record as corrected by the reporter's transcript. In his brief on appeal, defendant and
appellant Bruce Charles Washic contends neither the trial court nor this court had the
power to correct or augment the record on appeal with the reporter's retrieved transcript.
We reject this contention; the doctrine of res judicata did not prevent the trial court from
correcting the record and, in any event, we have inherent power to order correction and
augmentation of the record before us. Because defendant raises no alternative arguments
on the merits of his conviction, we affirm.
SUMMARY
Within a two week period in September 2012, Washic was stopped twice while
driving under the influence. At the scene of the first incident, a preliminary alcohol
screening breath test indicated Washic's blood alcohol concentration (BAC) was 0.08
percent; a later breath test conducted at a jail showed that Washic's BAC was 0.06
percent. In the second incident, Washic's BAC at the scene of the stop was measured at
0.08 percent; a later breath test conducted at a jail showed that Washic's BAC was 0.08
percent.
A jury convicted Washic of two counts of DUI within the meaning of Vehicle
Code section 23152, subdivision (a) and one count of driving while having a BAC of
0.08 percent or more (Veh. Code, § 23152, subd. (b)). Washic admitted two prior DUI's
within the meaning of Vehicle Code section 23550.5, and the trial court sentenced him to
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two years in prison. Washic filed a timely notice of appeal.
After Washic filed his notice of appeal, the court reporter filed an affidavit in
which she stated she had lost four days of trial testimony because of damage to her
computer. The trial court conducted a hearing to determine whether a settled statement
could be prepared and determined it was not possible to do so. In his initial opening
brief, Washic argued that in the absence of either a complete reporter's transcript or a
settled statement, the judgment of conviction should be reversed because his counsel had
no means of determining whether a reversible error had occurred. (See People v. Jones
(1981) 125 Cal.App.3d 298, 300-301.)
While Washic's appeal was pending, we issued an order to show cause to the court
reporter. In addition to requiring a response from the court reporter with respect to
whether she should be sanctioned, we also directed that she produce her computer hard
drive to the trial court for further inspection. She did so, and the trial court was able to
recover data from the computer hard drive and thereafter the reporter was able to prepare
a complete transcript of the trial. Each volume of the transcript contains an affidavit from
the court reporter in which she attests that the transcript is a full, true and accurate record
of proceedings conducted in the trial court.
The trial court filed the corrected and certified transcript with this court and
notified the parties that the corrected and certified copies were available. The trial court
also afforded the parties the opportunity to inspect the computer hard drive and
documentation the reporter submitted with respect to her efforts to recover data from the
hard drive.
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By separate order, this court struck the five volumes of transcripts that had
previously been submitted by the court reporter and that contained no record of
proceedings, struck the briefs the parties had previously submitted and directed that they
file briefs on the merits on the basis of the corrected record.
DISCUSSION
On appeal, Washic contends that under principles of res judicata, the trial court's
initial order determining that a settled statement was not possible is binding on the
parties, the trial court and this court.
There are a number of problems with Washic's contention. First, by way of its
order directing that the court reporter file the corrected transcript with this court, the trial
court effectively vacated its earlier order determining that a settled statement was not
possible; because the judgment in this case was not final at the time the trial court
effectively vacated its earlier order, the doctrine of res judicata in no sense prevented the
trial court from doing so. (See City of Oakland v. Oakland Police & Fire Retirement
System (2014) 224 Cal.App.4th 210, 227–228 [res judicata applies to final judgments].)
We are aware of no other limitation on the trial court's power over the record of
proceedings before it that would undermine the trial court's power to provide us with a
corrected transcript. Importantly we note that, although the court reporter's corrected
transcript is presumptively correct, following the filing of the certified corrected
reporter's transcript in this court, Washic could have challenged any errors or omissions
he believed appeared in the corrected transcript. (See Code Civ. Proc., § 273, subd. (a);
Cal. Rules of Court, rule 8.155(b)(1) & (c); see also People v. Kronemyer (1987) 189
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Cal.App.3d 314, 354-359.) Washic did not do so.
Second, in any event, it is axiomatic that we have inherent power to "direct the
trial court to conduct proceedings necessary to supplement gaps in the record." (Marks v.
Superior Court (2002) 27 Cal.4th 176, 197; see Cal. Rules of Court, rule 8.155(b)(1) &
(c).)
In sum, the presumptively correct corrected reporter's transcript is a proper part of
the record on appeal.
As we indicated, Washic raises no contentions with respect to the merits of the
judgment of conviction.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a trial court may correct the record on appeal by filing a retrieved reporter's transcript even after an initial finding that a transcript was unavailable, and that the appellate court possesses inherent power to order such augmentation.
Issues
Whether the doctrine of res judicata prevents a trial court from correcting the record on appeal after an initial finding that a transcript was unavailable.
Whether an appellate court has the inherent power to order the correction and augmentation of the record on appeal.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the doctrine of res judicata did not prevent the trial court from correcting the record and, in any event, we have inherent power to order correction and augmentation of the record before us.”
“it is axiomatic that we have inherent power to "direct the trial court to conduct proceedings necessary to supplement gaps in the record."”