Opinion
A109149, Super. Ct. No. 962101-2.
ORDER MODIFYING OPINION AND DENYING REHEARING.
THE COURT:
It is ordered that the opinion filed herein on May 29, 2007, be modified in the following particulars:
1. Footnote , on page 15 is modified by an addition to the end of that footnote so that the footnote will now read:
The record of the Faretta hearing is not a “silent” one, which reveals the absence of advisements, but rather an unavailable and missing record. “Truly silent-record cases are those that show no express advisement or waiver of [constitutional] rights . . . .” (People v. Mosby, supra, 33 Cal.4th 353, 361–362.) For the benefit of the parties this court attempted to obtain the reporter’s transcript of the hearing on May 20, 1996; we have been advised that it is not available due to the lengthy passage of time. We also observe that when a transcript of proceedings in the trial court is unavailable, rule 8.130(g) of the California Rules of Court provides that a party “may then substitute an agreed or settled statement for that portion of the designated proceedings by complying with either (A) or (B).” Following notice given, a “party may move in superior court to use a settled statement. If the court grants the motion, the statement must be served, filed, and settled as rule 8.137 provides, but the order granting the motion must fix the times for doing so.” (Cal. Rules of Court, rule 8.130(g)(1)(B).) Pursuant to California Rules of Court, rule 8.137(a)(1), an “appellant wanting to proceed” with a “settled statement” must file a motion in superior court “to use a settled statement” instead of a reporter’s transcript; the motion must be supported by a showing that the “designated oral proceedings were not reported or cannot be transcribed . . . .” (Cal. Rules of Court, rule 8.137(a)(2)(B).) Defendant’s proper remedy for the unavailability of portions of the transcript was to obtain “a settled statement of the oral proceedings prepared by the parties and settled by the judge who heard the matter[,] or an agreed statement prepared by the parties” and “consisting of a condensed statement of the relevant proceedings.” (Le Font v. Rankin (1959) 167 Cal.App.2d 433, 436–437.) His failure to utilize the settled statement procedure has left this court with a “record which is wholly inadequate to enable it to review the error complained of.” (Ehman v. Moore (1963) 221 Cal.App.2d 460, 463.)
There is no change in the judgment.
The petition for rehearing is denied.
Stein, Acting P. J.