Cal. R. 8.613

As amended through September 20, 2024

Rule 8.613 - Preparing and certifying the record of preliminary proceedings

(a)Definitions

For purposes of this rule:

(1) The "preliminary proceedings" are all proceedings held before and including the filing of the information or indictment, whether in open court or otherwise, and include the preliminary examination or grand jury proceeding;

(2) The "record of the preliminary proceedings" is the court file and the reporter's transcript of the preliminary proceedings;

(3) The "responsible judge" is the judge assigned to try the case or, if none is assigned, the presiding superior court judge or designee of the presiding judge; and

(4) The "designated judge" is the judge designated by the presiding judge to supervise preparation of the record of preliminary proceedings.

(Subd (a) amended effective January 1, 2007.)

(b)Notice of intent to seek death penalty

In any case in which the death penalty may be imposed:

(1) If the prosecution notifies the responsible judge that it intends to seek the death penalty, the judge must notify the presiding judge and the clerk. The clerk must promptly enter the information in the court file.

(2) If the prosecution does not give notice under (1)-and does not give notice to the contrary-the clerk must notify the responsible judge 60 days before the first date set for trial that the prosecution is presumed to seek the death penalty. The judge must notify the presiding judge, and the clerk must promptly enter the information in the court file.

(c)Assignment of judge designated to supervise preparation of record of preliminary proceedings

(1) Within five days after receiving notice under (b), the presiding judge must designate a judge to supervise preparation of the record of the preliminary proceedings.

(2) If there was a preliminary examination, the designated judge must be the judge who conducted it.

(d)Notice to prepare transcript and lists

Within five days after receiving notice under (b)(1) or notifying the judge under (b)(2), the clerk must do the following:

(1) Notify each reporter who reported a preliminary proceeding to prepare a transcript of the proceeding. If there is more than one reporter, the designated judge may assign a reporter or another designee to perform the functions of the primary reporter.

(2) Notify trial counsel to submit the lists of appearances, exhibits, and motions required by rule 4.119.

(Subd (d) amended effective April 25, 2019.)

(e)Reporter's duties

(1) The reporter must prepare an original and five copies of the reporter's transcript in electronic form and two additional copies in electronic form for each codefendant against whom the death penalty is sought. The transcript must include the preliminary examination or grand jury proceeding unless a transcript of that examination or proceeding has already been filed in superior court for inclusion in the clerk's transcript.

(2) The reporter must certify the original and all copies of the reporter's transcript as correct.

(3) Within 20 days after receiving the notice to prepare the reporter's transcript, the reporter must deliver the original and all copies of the transcript to the clerk.

(Subd (e) amended effective April 25, 2019.)

(f)Review by counsel

(1) Within five days after the reporter delivers the transcript, the clerk must deliver the original transcript and the lists of appearances, exhibits, and motions required by rule 4.119 to the designated judge and one copy of the transcript and each list required by rule 4.119 that is not required to be sealed to each trial counsel. If a different attorney represented the defendant or the People in the preliminary proceedings, both attorneys must perform the tasks required by (2).

(2) Each trial counsel must promptly:

(A) Review the reporter's transcript and the lists of appearances, exhibits, and motions to identify any errors or omissions in the transcript;

(B) Review the docket sheets and minute orders to determine whether all preliminary proceedings have been transcribed; and

(C) Review the court file to determine whether it is complete.

(3) Within 21 days after the clerk delivers the transcript and lists under (1), trial counsel must confer regarding any errors or omissions in the reporter's transcript or court file identified by trial counsel during the review required under (2) and determine whether any other proceedings or discussions should have been transcribed.

(Subd (f) amended effective April 25, 2019; previously amended effective January 1, 2007.)

(g)Declaration and request for corrections or additions

(1) Within 30 days after the clerk delivers the reporter's transcript and lists, each trial counsel must serve and file:

(A) A declaration stating that counsel or another person under counsel's supervision has performed the tasks required by (f), including conferring with opposing counsel; and

(B) Either:

(i) A request for corrections or additions to the reporter's transcript or court file. Immaterial typographical errors that cannot conceivably cause confusion are not required to be brought to the court's attention; or

(ii) A statement that counsel does not request any corrections or additions.

(C) The requirements of (B) may be satisfied by a joint statement or request filed by counsel for all parties.

(2) If a different attorney represented the defendant in the preliminary proceedings, that attorney must also file the declaration required by (1).

(3) A request for additions to the reporter's transcript must state the nature and date of the proceedings and, if known, the identity of the reporter who reported them.

(4) If any counsel fails to timely file a declaration under (1), the designated judge must not certify the record and must set the matter for hearing, require a showing of good cause why counsel has not complied, and fix a date for compliance.

(Subd (g) amended effective April 25, 2019; previously amended effective January 1, 2007.)

(h)Corrections or additions to the record of preliminary proceedings

If any counsel files a request for corrections or additions:

(1) Within 15 days after the last request is filed, the designated judge must hold a hearing and order any necessary corrections or additions.

(2) If any portion of the proceedings cannot be transcribed, the judge may order preparation of a settled statement under rule 8.346.

(3) Within 20 days after the hearing under (1), the original reporter's transcript and court file must be corrected or augmented to reflect all corrections or additions ordered. The clerk must promptly send copies of the corrected or additional pages to trial counsel.

(4) The judge may order any further proceedings to correct or complete the record of the preliminary proceedings.

(5) When the judge is satisfied that all corrections and additions ordered have been made and copies of all corrected or additional pages have been sent to the parties, the judge must certify the record of the preliminary proceedings as complete and accurate.

(6) The record of the preliminary proceedings must be certified as complete and accurate within 120 days after the presiding judge orders preparation of the record.

(Subd (h) amended effective January 1, 2007.)

(i)Transcript delivered in electronic form

(1) When the record of the preliminary proceedings is certified as complete and accurate, the clerk must promptly notify the reporter to prepare five copies of the transcript in electronic form and two additional copies in electronic form for each codefendant against whom the death penalty is sought.

(2) Each transcript delivered in electronic form must comply with the applicable requirements of rule 8.144 and any additional requirements prescribed by the Supreme Court, and must be further labeled to show the date it was made.

(3) A copy of a sealed or confidential transcript delivered in electronic form must be separated from any other transcripts and labeled as required by rule 8.45.

(4) The reporter is to be compensated for copies delivered in electronic form as provided in Government Code section 69954(b).

(5) Within 20 days after the clerk notifies the reporter under (1), the reporter must deliver the copies in electronic form to the clerk.

(Subd (i) amended effective April 25, 2019; previously amended effective January 1, 2007, January 1, 2017, and January 1, 2018.)

(j)Delivery to the superior court

Within five days after the reporter delivers the copies in electronic form, the clerk must deliver to the responsible judge, for inclusion in the record:

(1) The certified original reporter's transcript of the preliminary proceedings and the copies that have not been distributed to counsel; and

(2) The complete court file of the preliminary proceedings or a certified copy of that file.

(Subd (j) amended effective April 25, 2019; previously amended effective January 1, 2007, and January 1, 2018.)

(k)Extension of time

(1) Except as provided in (2), the designated judge may extend for good cause any of the periods specified in this rule.

(2) The period specified in (h)(6) may be extended only as follows:

(A) The designated judge may request an extension of the period by presenting a declaration to the responsible judge explaining why the time limit cannot be met; and

(B) The responsible judge may order an extension not exceeding 90 additional days; in an exceptional case the judge may order an extension exceeding 90 days, but must state on the record the specific reason for the greater extension.

(Subd (k) amended effective January 1, 2007.)

(l)Notice that the death penalty is no longer sought

After the clerk has notified the court reporter to prepare the pretrial record, if the death penalty is no longer sought, the clerk must promptly notify the reporter that this rule does not apply.

(Subd (l) amended effective April 25, 2019; previously amended effective January 1, 2007.)

Cal. R. Ct. 8.613

Rule 8.613 amended effective 4/25/2019; adopted as rule 34.2 effective 1/1/2004; previously amended and renumbered as rule 8.613 effective 1/1/2007; previously amended effective 1/1/2017, and1/1/2018.

Advisory Committee Comment

Rule 8.613 implements Penal Code section 190.9(a). Rules 8.613-8.622 govern the process of preparing and certifying the record in any appeal from a judgment of death; specifically, rule 8.613 provides for the record of the preliminary proceedings in such an appeal.

Subdivision (f). As used in subdivision (f)-as in all rules in this chapter-trial counsel "means both the defendant's trial counsel and the prosecuting attorney." (Rule 8.600(e)(2).)

Subdivision (i). Subdivision (i)(4) restates a provision of former rule 35(b), second paragraph, as it was in effect on December 31, 2003.