Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. SC031304A, Jerold L. Turner, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
INTRODUCTION
In 1989, appellant Kenneth Aaron Frank, a physician, was convicted of two counts of rape for luring the victims to his apartment, causing them to drink coffee laced with a drug, and having intercourse with them during the hours they were drugged. Frank was out of custody throughout the three-year criminal proceedings. The court denied the prosecution’s motion to take him into custody after the jury’s guilty verdicts, Frank failed to appear for the 1990 sentencing hearing, and the court issued a bench warrant for his arrest. He was not found and the court never sentenced him.
Frank remained at large until July 2006, when he was arrested in Israel while living under an assumed name. In 2007, he was extradited to the United States and returned to Kern County for the sentencing hearing. He filed a motion for new trial and asserted that sentence could not be imposed because the court reporters’ notes for his 1989 trial had been destroyed without being transcribed. The trial court denied his new trial motion and imposed an aggregate term of 12 years in state prison.
On appeal, Frank contends the trial court should have granted his new trial motion because the court reporters’ notes from his 1989 trial were destroyed in violation of statute and his due process rights. We will affirm.
FACTUAL AND PROCEDURAL HISTORY
Given the unique history of this case, we rely upon the California Supreme Court’s “detailed statement of the facts” from Frank’s April 1986 preliminary hearing, which constitutes, then as now, “the only evidentiary record before us” as to the two counts of rape. (Frank v. Superior Court (1989) 48 Cal.3d 632, 636 (Frank).)
As we will explain, post, the California Supreme Court issued an opinion in this matter based upon its resolution of Frank’s pretrial severance motion. (Frank, supra, 48 Cal.3d at p. 635.)
“Count 1. On Friday, February 7, 1986, Dr. Ilene P., a clinical psychologist and teacher at a local college, went to Todd’s Bar. There she saw Frank whom she recognized as a physician she had met at a reception for a local judge and whom she had spoken to on business matters. She approached Frank, joined him, and had two drinks. When she declined his invitation to go to a movie, Frank decided to accompany her to temple. Frank then took Dr. P. to a meeting at the medical center where he worked. After dinner, Dr. P. accepted Frank’s invitation to watch a video at his apartment but made it clear she was not interested in sex. They arrived at his apartment about 11:30 p.m.
“Dr. P. declined Frank’s offer of wine but accepted some Cafe Vienna. She expressed distaste at its sweetness. Frank twice urged her to drink the whole cup which she eventually did. Shortly thereafter, Dr. P. became very drowsy and fell asleep on the couch while watching the video. She remembered the two of them leaving his apartment about 1:30 a.m. but was not fully conscious until 6 p.m. on Saturday, when she was awakened by the ringing of the telephone and, to her surprise, found herself naked in bed with Frank. Frank left shortly thereafter and Dr. P., too groggy to work as planned, slept until 7 a.m. the next morning, Sunday.
“Dr. P. cancelled a date for hiking with Frank but agreed to have breakfast with him and told him she suspected she had been drugged or gotten food poisoning. Throughout the day Dr. P. continued to feel tired, nauseous, and ‘headachy.’ In the late afternoon, Frank told her that they had had sexual relations and that he put a drug in her coffee thinking it would relax her.
“The following morning, Dr. P. could not recall the name of the drug Frank had mentioned. She called his office; he told her it was Ativan. She submitted to a urine and blood test that afternoon; the test was negative for Ativan.
“Dr. P. subsequently recalled several things that happened between 1:30 a.m. and 6 p.m. on Saturday: She recalled being in a shower with Frank and being in bed with him. She also remembered Frank lying on top of her with his penis in her vagina.
“When police investigated Dr. P.’s complaint, Frank admitted being with her but denied any use of drugs. He admitted using Cafe Vienna with tranquilizers to quiet his dogs and put them to sleep. Cafe Vienna was seized from Frank’s apartment with his consent, but tested negative for Ativan. There were no dogs in the apartment.
“Count 2. On October 12, 1985, Ms. Beverly R., a student at San Joaquin Valley College, and a female friend went to a local bar for a glass of wine. About 2:20 a.m. they went to another bar where the friend introduced Ms. R. to Frank and his brother. Shortly thereafter Frank agreed to drive Ms. R. home but stopped first at his apartment ‘to get something.’ At Frank’s suggestion, they smoked a pipeful of marijuana. When Ms. R. commenced coughing, Frank fixed her a drink that tasted like coffee but was very sweet and which he told her contained cognac.
“A half hour later Ms. R. began to feel dizzy; she told Frank she was ill and wanted to go home. Frank asked her how much she weighed; she told him. Her vision became blurred and she fell over, striking her head on the arm of the couch. She felt herself being carried toward the bedroom. She then lost consciousness. It was about 4 a.m. on October 13.
“Ms. R. was shaken awake by Frank at 7 a.m. on October 14. She was in bed with him, naked; the sheets were covered with menstrual blood; she had vaginal pain; and semen was running down her legs. She was unable to recall anything that happened during the 27-hour period between the time she passed out and the time Frank awakened her.
“Ms. R. asked Frank if they had had intercourse, and he told her that they had and that she enjoyed it. He said he had given her a drug called Ativan to put her mind to sleep.
“A month after the incident, Ms. R. went to a doctor to make sure she did not have venereal disease but did not report the incident to police until three months after the incident because she was afraid of Frank. She testified that he had threatened her.
“Ativan, the drug Frank told both victims they had ingested, is normally prescribed for anxiety or insomnia. A large dose can cause an extended period of unconsciousness. Alcohol adds to this effect. Ativan’s half life in the human body is about 18 hours. A sensitive blood or urine test should be able to detect the residue from a large dose of Ativan taken two and a half days earlier.” (Frank, supra, 48 Cal.3d at pp. 636-638.)
Frank was charged with two counts of rape in violation of Penal Code section 261, subdivision (3). He initially posted bail and then he was released on his own recognizance (OR). He remained out of custody for the entirety of the three-year case and appeared at all court proceedings.
At the time of the proceedings, Penal Code section 261 provided in pertinent part: “‘Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: [¶] (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, administered by or with the privity of the accused.’” (Frank, supra, 48 Cal.3d at p. 635.)
Pretrial Severance Motion
Prior to trial, Frank moved for severance of the two rape counts, and argued separate trials should be held as to each count because the charges were based on separate victims and unrelated incidents. The trial court denied the motion, and this court denied Frank’s petition for writ of prohibition and/or mandate. The California Supreme Court granted review and transferred the cause to this court with directions to issue an alternative writ. (Frank, supra, 48 Cal.3d at p. 635.)
Thereafter, this court issued a peremptory writ of mandate, directing the trial court to sever the two rape counts. This court found the proffered evidence for each count would not be admissible in the trial on the other count if separately tried, and that Frank would be prejudiced by the joinder of the two offenses. (Frank, supra, 48 Cal.3d at p. 635.)
The California Supreme Court granted the Attorney General’s petition for review and held the counts should not be severed because Frank failed to meet his burden to show potential prejudice from joinder. (Frank, supra, 48 Cal.3d at pp. 635, 641.)
“This is not a case in which the evidence of the defendant’s guilt on one of the joined offenses is weak, while evidence on the other was strong. The offenses appear to be of relatively equal strength. The prosecution’s evidence, as is frequently the case when rape is the charge, consists primarily of the testimony of the victims. Frank’s concession of identity adds significantly to the prosecution’s case. The victims, whose credibility will be a matter for the jury, appear to be equally coherent, and neither case can be described as weak. Further, neither offense is particularly inflammatory in comparison with the other. Combining the above considerations with the often-stated benefits of joinder [citation], we conclude that Frank has not made an adequate showing of potential prejudice and that the trial court did not abuse its discretion in denying severance.” (Id. at p. 641.)
The California Supreme Court thus remanded the matter for a joint trial to be held on both rape counts. (Frank, supra, 48 Cal.3d at p. 641.)
Trial and Posttrial Motions
In November and December 1989, Frank’s jury trial was held in the Kern County Superior Court before Judge Lewis King. Frank was represented by retained counsel, Stanley Simrin. On December 20, 1989, Frank was convicted of both counts. The prosecutor requested the court to remand Frank into custody. The court denied the request and allowed Frank to remain on OR release.
On January 3, 1990, Frank filed a motion for new trial and argued the court should have granted his motion to suppress the results of Dr. P.’s blood test because of chain of custody and discovery issues, the prosecution failed to establish the corpus delicti for the admission of Frank’s statements to the victims, alleged discovery violations by the prosecution, and prosecutorial misconduct.
According to the 1990 new trial motion, the prosecution tested Dr. P.’s blood and urine samples after the preliminary hearing, they were positive for Ativan, and the blood sample was not preserved for the defense to conduct its own tests.
On January 17, 1990, Frank failed to appear for the scheduled sentencing hearing. The court revoked his OR release and issued a bench warrant. The court never sentenced Frank and he remained at large. As we will discuss post, the court reporters’ notes for his trial were never transcribed.
Frank’s Arrest
In July 2006, Frank was arrested in Tel Aviv, Israel, living under the name of “Yonatan Efrat.” The record is silent as to how Frank was found. It was later determined that he traveled to Israel under a legal passport, changed his name through the Israeli judicial process, practiced medicine there, married, and fathered a child. Frank was extradited to the United States and returned to Kern County on July 31, 2007. The court granted Mr. Simrin’s motion to be relieved and appointed the public defender to represent Frank.
Court Records Order
It is undisputed that the court reporters’ notes for Frank’s 1989 trial were destroyed and never transcribed. The issue in the instant appeal is whether the destruction of those notes, and the absence of a reporter’s transcript for Frank’s trial, required the trial court to grant his motion for new trial. The following declarations and orders, filed in support of the parties’ motions and oppositions on this issue, provide the background for this action.
On January 17, 1996, Kern County Superior Court Presiding Judge Richard Oberholzer signed a miscellaneous order entitled “RETENTION/DESTRUCTION OF COURT REPORTERS’ NOTES.” The order stated:
“Pursuant to the provisions of Government Code Section 69955, it is hereby ORDERED that court reporters’ notes taken of proceedings in court for civil matters MAY BE DESTROYED five years from the date taken ... and that court reporters’ notes taken of proceedings in criminal and juvenile matters MAY BE DESTROYED ten years from the date taken, except where an order was entered by a court directing longer retention of said notes.” (Italics added.)
Unless otherwise indicated, all further statutory citations are to the Government Code unless otherwise indicated.
As we will discuss, post, section 69955, subdivision (e) provides that in criminal cases reporters’ notes may be destroyed pursuant to court order after 10 years, except in capital felony cases. (§ 69955, subd. (e).)
The order excepted the destruction of reporters’ notes from capital cases. It further stated:
“This is a standing court order and has present and future application until revoked or modified by this court subject to annual January review for legislative modifications to Government Code Section 69955.”
Kathy Foster, a court reporter, declared she reported part of Frank’s trial, she turned over all her trial notes to the Kern County Superior Court’s Record Center, and all court reporter notes were stored at that center. Foster further declared that Martin Brantley supervised the center, she asked Brantley if her notes still existed, and she was informed that the notes were destroyed “per code.” Rae Foreman declared she transcribed part of Frank’s trial, and her notes were subject to Judge Oberholzer’s destruction order.
The record also contains a declaration from Martin Brantley, the Supervising Superior Court Clerk for Auxiliary Court Services/Court Reporters/Interpreters for the Kern County Superior Court, who was responsible for the storage of court reporter notes. Brantley declared that prior to 2001 the notes were stored in the superior court clerk’s office. In 2000 or 2001, a decision was made to store the notes in an off-site facility. Brantley declared:
“That rather than move hundred’s [sic] of boxes of notes, a decision was made to destroy notes that met the statutory requirements of Government Code section 69955(e), in that they were over ten years old.”
Brantley declared he drafted a standing court order that carried out the provisions of section 69955, subdivision (e), and it was signed by Presiding Judge Oberholzer. Thereafter, “all court reporters’ notes that were over 10 years old were destroyed in 2001.” Brantley declared that Kathy Foster’s notes were included in this group, and all reporters’ notes were stored and/or destroyed in the same fashion, except for those from capital cases. Brantley declared he personally searched the records and determined the court reporter’s notes for Frank’s 1989 trial did not exist.
Frank’s Renewed Motion for New Trial
On October 29, 2007, Frank filed a motion for new trial based upon the destruction of the court reporters’ notes and the lack of a reporter’s transcript for his 1989 trial. Frank’s current defense attorney, the deputy public defender, declared that he determined the court reporters destroyed their notes from Frank’s trial, pursuant to the superior court’s standing order, and the notes were never transcribed. Mr. Simrin, his previous defense counsel, declared he did not have trial notes or an adequate recollection to assist in the compilation of a settled statement in lieu of a reporter’s transcript. It was determined that Judge King, who presided over the trial, was unavailable.
In the course of these proceedings, the parties were unsure whether Judge King was seriously ill or had died. The court and the parties ultimately agreed that Judge King was unavailable to participate in a settled statement.
On November 8, 2007, the prosecutor filed opposition to Frank’s new trial motion, and argued the destruction of the court reporters’ notes from Frank’s 1989 trial was “due entirely” to Frank’s “culpable misconduct” in absconding for 16 years. The prosecutor noted that after Frank failed to appear at the sentencing hearing, he could have been sentenced in absentia and his time to file an appeal would have expired long before the destruction of the reporters’ notes. The prosecutor argued Frank should not benefit “merely because of the fortuitous circumstance that the judge did not sentence him or that he managed to avoid capture for 16 years.”
Lisa Green, the deputy district attorney who handled the 1989 prosecution, declared that her case file still existed and consisted of the preliminary hearing transcript, the police report, notes regarding the testimony of the prosecution and defense witnesses, notes of the defendant’s closing argument and her rebuttal argument, and the entirety of her closing argument on behalf of the prosecution. Ms. Green further declared she had “an excellent memory of this case” because it was the only time she obtained the conviction of “a doctor of raping two women.”
On November 27, 2007, Frank filed further authorities in support of his new trial motion, and argued the destruction of the court reporters’ notes violated section 69955 and Frank’s due process rights, and required the dismissal of the entire case against Frank. Frank argued that once the court reporters turned over their notes to Brantley, the notes became court records maintained by the court pursuant to section 68152, which prohibited the systematic destruction of the notes until 75 years after the final disposition of a criminal case.
As we will also discuss, post, section 68152 contains potentially conflicting provisions: subdivision (e)(2) states that “court records” in criminal felony cases shall not be destroyed for 75 years after the final disposition of the case, whereas subdivision (j)(7) states that “[c]ourt reporter notes” may be destroyed 10 years after the notes were taken in criminal cases.
Frank further argued that it was impossible to obtain a settled statement because Judge King was unavailable and Mr. Simrin lacked an adequate recollection of the case. Frank acknowledged the prosecutor’s “generous offering of her personal trial notes,” but asserted that she would not recall the prosecutorial misconduct and discovery violations which Frank raised in his original new trial motion.
Hearing on New Trial Motion
On December 3, 2007, the court held a hearing on Frank’s motion for new trial based upon the destruction of the court reporters’ trial notes. Frank argued that once the court reporters transferred their notes to Brantley, the notes became part of the court record and could not be destroyed for 75 years pursuant to section 68152. Frank argued his fugitive status did not eliminate the court’s “INDEPENDENT RESPONSIBILITY TO MAINTAIN ITS RECORDS.”
The prosecutor argued that Brantley’s declaration established the notes were properly destroyed pursuant to statute, and it was well-settled that Frank could not benefit from being a fugitive during the period in which the notes could be destroyed. The prosecutor further argued the court reporters’ notes did not become court records under section 68152 simply because they were transferred to a superior court clerk. The prosecutor asserted that after Frank fled the jurisdiction, his retained defense counsel had the burden to request the preservation of the notes or preparation of the reporter’s transcript, and it was not the district attorney’s duty to preserve the record.
The court made several findings as to the custody and retention of court reporters’ notes. The court stated that Brantley was the supervisor for all court reporters in Kern County, and that court “HAS LONG PROVIDED A CENTRALIZED STORAGE AREA FOR COURT REPORTERS OF THIS COURT.” The court continued:
“THE COURT REPORTERS, AS LONG AS THEY REMAIN EMPLOYED BY THIS COURT, ARE STILL IN CONSTRUCTIVE POSSESSION OF THOSE RECORDS EVEN THOUGH THEY ARE CENTRALLY STORED. THERE IS NO TRANSFER OR ACT THAT CHANGES THE CHARACTER OF THESE COURT REPORTERS’ NOTES TO ANYTHING OTHER THAN COURT REPORTERS’ NOTES SIMPLY BECAUSE THEY ARE STORED IN A FACILITY MAINTAINED BY THE SAME SUPERVISOR AS THE SUPERVISOR FOR THE COURT REPORTER, AND THEY ARE STILL IN THE CONSTRUCTIVE POSSESSION OF THE COURT REPORTER.
“SO THE COURT CAN FIND THAT THERE IS NO CHANGE IN THE CHARACTERIZATION OF THOSE--TO THE EXTENT YOU WANT TO REFER TO THEM AS COURT RECORDS--THAT WOULD HAVE ELEVATED THE NEED FOR THEM TO REMAIN IN THE CUSTODY OF THE COURT LONGER THAN THE PERIOD OF TIME PRESCRIBED BY LAW.”
The court found section 68152, subdivision (j)(7) specifically related to court reporters’ notes as court records, and “SPECIFICALLY PROVIDES THAT THE ONLY LENGTH OF TIME THAT THEY NEED BE MAINTAINED BY THE COURT IN CRIMINAL PROCEEDINGS IS TEN YEARS.” The court reviewed the declarations filed in this case as to the destruction of the court reporters’ notes, and found that section 69955 had been “FULLY COMPLIED WITH AS REQUIRED BY LAW FOR THE DESTRUCTION OF THOSE COURT RECORDS.”
The court acknowledged there might be substantial information from which a settled statement could be produced if such an effort were made, primarily based upon the prosecutor’s recollections. However, the court denied Frank’s motion for new trial:
“… [FRANK] DOESN’T GET THE BENEFIT FROM HIS FLIGHT FROM JUSTICE. HE LEFT THIS COUNTRY. ASSUMED A DIFFERENT IDENTITY AND AVOIDED JUSTICE FROM THIS COURT FOR A SUBSTANTIAL LENGTH OF TIME. [¶] AT THIS PARTICULAR POINT IN TIME, TO ARGUE THAT HE HAS BEEN JEOPARDIZED BECAUSE OF HIS ABSENCE IN PROVIDING FOR HIS DEFENSE IS A LITTLE DISINGENUOUS….”
Thereafter, the court denied probation and sentenced Frank to two fully consecutive middle terms of six years, for an aggregate term of 12 years in prison.
DISCUSSION
Frank contends the court should have granted his motion for new trial because the court reporters’ notes from his 1989 trial were destroyed in violation of statute and it is not possible to obtain a settled statement of the entire trial. Thus, he cannot obtain meaningful appellate review, as a reporter’s transcript is necessary in order for Frank to pursue his original motion for new trial which was filed in 1990, and his inability to obtain a reporter’s transcript has resulted in a violation of his due process rights.
Penal Code section 1181, subdivision (9) permits a reviewing court to set aside a judgment if the reporter’s notes of the proceedings have been lost or destroyed. As a prerequisite to doing so, the defendant must show that loss of the notes would adversely affect the court’s ability to conduct meaningful appellate review. (People v. Holloway (1990) 50 Cal.3d 1098, 1116, disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) There must first be a showing of the impossibility of securing an adequate substitute for the missing transcript, and the presence of substantial issues showing the necessity for such. (People v. Moore (1988) 201 Cal.App.3d 51, 56.)
A settled statement may provide an adequate substitute for a reporter’s transcript. (People v. Holloway, supra, 50 Cal.3d at p. 1116.) “A satisfactory record may ... be prepared through the use of notes taken during the trial by the attorneys and the trial judge; by the memories of attorneys, witnesses, and jurors; by agreement of the parties; and possibly from other sources. [Citations.]” (People v. Moore, supra, 201 Cal.App.3d at p. 56.) “To adequately reconstruct trial testimony in a settled statement we consider: (1) whether the trial judge took ‘detailed notes’ [citation]; (2) whether the court is ‘able to remember’ the missing portion of the record [citation]; and (3) the ability of defendant’s counsel to effectively participate in reconstructing the record. [Citations.]” (People v. Cervantes (2007) 150 Cal.App.4th 1117, 1121 (Cervantes).)
It is clear that the complete absence of a reporter’s transcript and the court reporters’ notes for Frank’s 1989 trial adversely affected the trial court’s ability to conduct meaningful review of his 1990 new trial motion, and for this court to review any appellate issues he might have raised. It is also clear that a settled statement cannot be prepared in this case. While the deputy district attorney still had her own trial notes, the trial judge was unavailable and Frank’s retained defense counsel lacked any notes or recollection of the proceedings, such that they were “unable to effectively ‘participate in the construction of a settled statement’ [Citation.]” (Cervantes, supra, 150 Cal.App.4th at p. 1122; see also People v. Valdez (1982) 137 Cal.App.3d 21, 24, fn. 3 (Valdez).)
However, Frank is not entitled to relief simply because the reporters’ notes have been destroyed or a settled statement cannot be constructed. Penal Code section 1181, subdivision (9) “does not mandate a new trial in every case where reporters’ notes are unavailable; rather, it merely authorizes the [trial] court to order a new trial if justice requires.” (People v. Moore, supra, 201 Cal.App.3d 51, 56.) Reversal is not required where the defendant is responsible for any omissions in the record. (Valdez, supra, 137 Cal.App.3d at p. 27.) When a defendant has absconded and the reporter’s notes are properly destroyed under section 69955, the defendant is disqualified from relief under Penal Code section 1181, subdivision (9). (Valdez, supra, 137 Cal.App.3d at p. 27.)
Valdez and Everett
As noted ante, even though a settled statement cannot be prepared in this case, a defendant’s fault is an important factor in determining whether he should be granted relief in a new trial motion based upon the destruction of court reporters’ notes. Appellant's due process and new trial arguments have already been addressed and rejected in two similar cases--Valdez and People v. Everett (1990) 224 Cal.App.3d 932 (Everett)--which held that the destruction of court reporters’ notes in accordance with the Government Code, while the defendants were fugitives, did not violate their due process rights.
In Valdez, the defendant was convicted of second degree burglary in 1970 and failed to appear for sentencing. He was apprehended in August 1981 and returned to court for sentencing. In February 1981, however, the county clerk had destroyed the court reporter’s notes of his trial pursuant to an order signed by the superior court’s presiding judge, expressly relying on section 69955’s provisions for the destruction of notes from a criminal trial after 10 years. The defendant moved for a new trial because the destruction of the reporter’s notes and the lack of any adequate substitute precluded an effective appeal. (Valdez, supra, 137 Cal.App.3d at p. 24.)
Valdez held that a judgment may only be vacated or reversed “where the fault, if any, for defendant’s predicament could be ascribed to governmental authorities or employees, not to defendant. [Citations.]” (Valdez, supra, 137 Cal.App.3d at p. 25.) Valdez reviewed section 69955 and held the destruction of the reporter’s notes “was statutorily authorized and wholly without fault of the state or any government employee.” (Id. at p. 27.)
“Defendant is solely responsible for the predicament with which he is faced. But for his culpable misconduct in fleeing the jurisdiction, his appeal would have been processed and a transcript prepared long before the authorized destruction of the notes. [¶] We are not persuaded by defendant’s claim that he should be granted a new trial because that destruction precludes the possibility of his effectively appealing his conviction. The trial court could have sentenced defendant in his absence, pursuant to Penal Code section 1193. Even at common law, ‘a defendant waived his right to be personally present when he absconded or ran away from the court after learning of the verdict of the jury.’ [Citation.] Had the court chosen to enter judgment in his absence, defendant’s time for appeal would have expired. Moreover, even if an appeal had been filed, it could have been dismissed since defendant was a fugitive at large. [Citations.]” (Valdez, supra, 137 Cal.App.3d at p. 27.)
Valdez also rejected the defendant’s argument that his due process rights were violated by the destruction of the reporter’s notes. “Defendant has not been deprived of any fundamental right. The destruction of the records did not leave him in any worse position than a fugitive who was sentenced in his absence or fled after his sentence. We are not inclined to treat defendant differently from other fugitives merely because of the fortuitous circumstance that the judge did not sentence him.” (Valdez, supra, 137 Cal.App.3d at pp. 27-28.)
In Everett, the defendant was convicted of forcible rape and assault in 1982, and failed to appear at the sentencing hearing. He was taken into custody in Florida in 1988, and returned to California. In 1987, however, most of the reporter’s notes for his trial were destroyed pursuant to section 69955 and a court administrative order. The defendant moved for new trial based on the lack of an adequate record. (Everett, supra, 224 Cal.App.3d at p. 935.)
Everett held the new trial motion was properly denied because the notes were destroyed in accordance with section 69955. (Everett, supra, 224 Cal.App.3d at pp. 935-936.) While the defendant apparently lived openly in Florida, his lifestyle “once outside of California is irrelevant. He fled to avoid imprisonment for his crimes, an act amounting to culpable misconduct.” (Id. at p. 936.) Everett also rejected the defendant’s due process argument because “[t]he operation of the statute worked a disadvantage on him by virtue of his voluntary absence.” (Id. at p. 936.) “The current state of the record is of [the defendant’s] own making. He cannot be heard to complain of a due process violation.” (Id. at p. 937.)
As in Everett and Valdez, the court reporters’ notes for Frank’s trial were properly destroyed pursuant to statute and court order while Frank was living in Israel as a fugitive under an assumed name. Due process does not reward a defendant with reversal of his conviction for eluding capture long enough for the notes of his trial to be lawfully destroyed.
Frank asserts the trial court should have granted his new trial motion based upon People v. Jones (1981) 125 Cal.App.3d 298 (Jones) and In re Steven B. (1979) 25 Cal.3d 1 (Steven B.), two cases where the courts granted relief because of the destruction of the court reporters’ notes. Frank’s reliance on these cases is misplaced because the defendants therein were blameless as to the destruction of the court reporters’ notes and the lack of reporters’ transcripts. In Jones, the defendant filed a notice of appeal one week after his sentencing hearing but it was returned by the county clerk with a confusing letter. A prison counselor then told the defendant that he could not appeal until he was released. The defendant was released seven years later, obtained relief from the default in filing a timely notice of appeal, and appealed his conviction. In the meantime, however, the court reporter had destroyed her notes as authorized by statute. (Jones, supra, 125 Cal.App.3d at pp. 299-300.) Jones reversed defendant’s conviction and held that “‘without any fault of his own [the defendant] was deprived of the right to an effective presentation of his appeal due entirely to a failure on the part of an official of the trial court to comply with the law. It would be a violation of the fundamental rights of the defendant to hold that an effective possibility of appealing the convictions was properly taken away by the omission of a court official to perform the duties prescribed by our system of justice.’” (Jones, supra, 125 Cal.App.3d at p. 302.)
In Steven B., the court reporter discovered that the hearing notes for part of a juvenile proceeding were inadvertently destroyed. (Steven B., supra, 25 Cal.3d at pp. 3-4.) Steven B. held the minor was entitled to relief since the court employee was solely at fault by breaching the statutory duty and inadvertently authorizing destruction of notes of a juvenile jurisdictional hearing. (Id. at p. 6.)
The instant case is completely inapposite to Jones and Steven B. The destruction of the court reporters’ notes from Frank’s trial did not result from judicial misconduct or an inadvertent mistake by a court employee, but because Frank absconded from his OR release and remained a fugitive, lived under an assumed name in a foreign country for 16 years, and had to be extradited back to the United States one year later. As in Valdez and Everett, we similarly conclude that Frank, not “governmental authorities or employees,” is responsible for his own predicament because he absconded before sentencing. (Valdez, supra, 137 Cal.App.3d at p. 25.)
Frank contends the destruction of the court reporters’ notes violates his due process rights to seek review of the new trial motion he filed in 1990 and appellate review of the entire proceeding. As a convicted felon, however, Frank had no due process right to flee the jurisdiction, abscond to a foreign country, change his name, and raise the claim, 17 years later, that he is entitled to a new trial because the superior court followed lawful procedures in destroying reporters’ notes. (Everett, supra, 137 Cal.App.3d at p. 937; Valdez, supra, 137 Cal.App.3d at p. 27.) As noted in Valdez, the lack of a trial transcript does not leave Frank in any worse position than a defendant who absconds after sentencing or a fugitive sentenced in absentia. (Valdez, supra, 137 Cal.App.3d at p. 27.) “We are not inclined to treat defendant differently from other fugitives merely because of the fortuitous circumstance that the judge did not sentence him.” (Id. at pp. 27-28.)
Section 69955
Frank acknowledges the holdings in Valdez and Everett, but contends the cases were wrongly decided and inapplicable to his situation because section 69955 has been amended several times. A review of the various amendments refutes this argument. At the time of Frank’s 1989 trial, section 69955, subdivision (d) stated:
“No official or pro tempore court reporter may destroy the reporting notes taken by him, and no clerk of the court may destroy the reporting notes delivered to him until after five years from the taking of the notes and upon the order of the court.” (Stats. 1974, ch. 223, § 1, p. 420, italics added; see Jones, supra, 125 Cal.App.3d at p. 301.)
At the time of the superior court’s 1996 miscellaneous order, which provided for the retention and destruction of court reporters’ notes, section 69955, subdivision (a) stated that reporting notes taken by court reporters were “official records” of the court, and shall be kept by the reporter “in a place designated by the court, or, upon order of the court, delivered to the clerk of the court.” (Stats. 1994, ch. 390 (Sen. Bill No. 1671), § 1, p. 2240; see 37 West’s Ann. Gov. Code, § 69955, pp. 137-138.)
Section 69955, subdivision (e) stated:
“Reporting notes ... may be destroyed upon the order of the court after 10 years from the taking of the notes in criminal proceedings and after five years from the taking of the notes in all other proceedings, unless the notes report proceedings in capital felony cases including the preliminary hearing. No reporting notes in a capital felony case proceeding shall be destroyed until such time as the Supreme Court on request by the court clerk authorizes the destruction.” (Stats. 1994, ch. 390 (Sen. Bill No. 1671), § 1, p. 2241, italics added; see 37 West’s Ann. Gov. Code, § 69955, p. 138.)
Section 69955 was amended in 2002 without change to the provisions of subdivisions (a) and (e). (See 37 West’s Ann. Gov. Code, § 69955, Historical and Statutory Notes, pocket supplement, p. 71.)
The destruction of notes under section 69955 is not automatic, and the statute specifically requires a court order before any notes can be destroyed. (Everett, supra, 224 Cal.App.3d at p. 935, fn. 3.) However, section 69955 does not require an independent order in each case. A standing administrative order by the superior court meets the requirements of the statute. The statute places a party on notice to make a request for a preservation order. (Everett, supra, 224 Cal.App.3d at pp. 936-937.)
The various amendments to section 69955 have not undermined Valdez and Everett. Thus, under section 69955, subdivision (e), all that is required for the destruction of notes in a noncapital criminal case is the issuance of a court order and the passage of 10 years. As applicable to the instant case, Frank’s trial was held in 1989, the superior court issued the miscellaneous order for destruction pursuant to section 69955, subdivision (e) in 1996, and the parties learned in 2007 that the court reporters’ notes for Frank’s 1989 trial had been destroyed pursuant to the superior court’s order. Since more than 10 years had passed since Frank’s 1989 trial, the court reporters’ notes were destroyed in accordance with section 69955, subdivision (e) and the superior court’s order.
Section 68152
Frank contends that even if the court reporter's notes were properly destroyed under section 69955, that statute is inconsistent with section 68152. Frank asserts section 68152 supersedes all other statutory provisions as to the preservation of reporter’s notes because it is more specific and was enacted after section 69955.
Frank’s argument is based on the following provisions of section 68152, which provides for the destruction of “court records” when “the following times have expired after final disposition of the case in the categories listed.” Section 68152, subdivision (e)(2) states that in a criminal felony case, “court records” shall not be destroyed for 75 years after the final disposition of the case, except as otherwise specified. Frank thus asserts the court reporters’ notes for his 1989 trial were destroyed in violation of these provisions since he was never sentenced and his case never reached a “final disposition.”
As applicable to section 68152, court records are defined as all filed papers and documents in the case folder, administrative actions filed in an action or proceeding, depositions, paper exhibits, and transcripts, including preliminary hearing transcripts, and “Other records” listed under section 68152, subdivision (j). (§ 68151, subd. (a).) Frank acknowledges that section 68152, subdivision (j) addresses the destruction of “Other records” as follows:
“Court reporter notes: 10 years after the notes have been taken in criminal and juvenile proceedings and five years after the notes have been taken in all other proceedings, except notes reporting proceedings in capital felony cases (murder with special circumstances where the prosecution seeks the death penalty and the sentence is death), including notes reporting the preliminary hearing, which shall be retained permanently, unless the Supreme Court on request of the court clerk authorizes the destruction.” (§ 68152, subd. (j)(7), italics added.)
Despite this subdivision, Frank contends section 68152, subdivision (e)(2) controls because once the court reporters in this case transferred their untranscribed notes to Brantley, those notes became “court records” and were thus protected from destruction for 75 years after the final disposition of the case, the case was never final because he was not sentenced, the reporters’ notes were destroyed in violation of statute, and his motion for new trial should have been granted.
However, the potential conflict between sections 68152 and 69955 must be interpreted based upon the entirety of the statutory language.
“As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning. [Citation.] We do not, however, consider the statutory language ‘in isolation.’ [Citation.] Rather, we look to ‘the entire substance of the statute ... in order to determine the scope and purpose of the provision .... [Citation.]’ [Citation.] That is, we construe the words in question ‘“in context, keeping in mind the nature and obvious purpose of the statute ....” [Citation.]’ [Citation.] We must harmonize ‘the various parts of a statutory enactment ... by considering the particular clause or section in the context of the statutory framework as a whole.’ [Citations.]” (People v. Murphy (2001) 25 Cal.4th 136, 142.)
“[I]f a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
The first paragraph of section 68152 states that the “trial court clerk” may destroy “court records” after the “final disposition of the case,” but it does not address just court reporter notes but covers a long list of “categories.” Those categories describe types of actions that take place in superior court, with varying degrees of specificity depending on the nature of the proceeding. In those actions the court records may be destroyed at specified times “after final disposition of the case in the categories listed.” (§ 68152, subds. (a)-(g).) After subdivision (h), however, the statute addresses not types of proceedings, or case categories, but types of court records. Subdivision (k) does not list any categories at all, but addresses the manner in which the retention period may be extended; thus, its text does not complete the introductory sentence of the statute in any way. The records listed in subdivision (j) do not invariably rely on the opening sentence; many specifically denote or direct attention to the procedural event from which the retention period is measured. Thus, subdivisions (j)(1), (j)(8) and (j)(9) refer to times in relation to the “final disposition of the case,” and (j)(9) supersedes the introductory sentence by allowing destruction “any time either before or after final disposition of the case.” (Italics added.) Subdivision (j)(4) likewise departs from the introductory sentence by allowing records of a bond to be destroyed “three years after exoneration and release.” Most of the remaining specific records listed are to be retained in accordance with the period applicable to the underlying case category.
Thus, it is apparent that the language of the specific subdivision in section 68152, which addresses the court records at issue, controls the retention periods described in the statute. This conclusion comports with the principle that when specific statutory language appears incompatible with general language, the specific language prevails. (People v. Poole (1985) 168 Cal.App.3d 516, 524.) Accordingly, the destruction of court reporter notes was intended to follow the specific language of section 68152, subdivision (j)(7), which prescribes a retention period of 10 years “after the notes have been taken in criminal and juvenile proceedings.” Under Frank’s interpretation of section 68152, court records could remain in a box permanently if a defendant who has absconded before judgment is never apprehended, since there would be no “final disposition” of the matter.
It is well-settled that statutes covering the same subject matter must be harmonized, both internally and with each other, to the extent possible in a way that is consistent with the intent of the Legislature. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) A construction of section 68152, subdivision (j)(7), which allows for the destruction of notes in criminal cases 10 years after they are taken, also renders that provision consistent with section 69955, subdivision (e), which clearly permits reporting notes of criminal proceedings to be destroyed “upon the order of the court after 10 years from the taking of the notes.” Moreover, we presume that in enacting and repeatedly amending section 68152, the Legislature was aware of the existence of section 69955, and that it enacted and amended section 68152 in light of the latter. (See, e.g., People v. Jackson (1998) 66 Cal.App.4th 182, 192.) We therefore cannot interpret section 68152 in such a way that would dictate two potentially conflicting periods, which could engender confusion over whether a reporter may destroy his or her notes 10 years after taking them or wait for the final disposition of a case that may never occur.
As with Frank's other statutory argument, his claims based upon section 68152 are similarly meritless and the statute does not undermine the holdings in Valdez and Everett. Based upon our interpretation of section 68152, subdivision (j)(7) and section 69955, subdivision (e), and the existence of the superior court’s 1996 miscellaneous order for the destruction of notes, the court reporters’ notes for Frank’s 1989 trial were lawfully destroyed while he was a fugitive in Israel for 16 years.
CONCLUSION
The judgment is affirmed.
WE CONCUR: Cornell, J. Gomes, J.