Filed 1/22/15 P. v. Wilson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.



        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067960
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF96564911)
                   v.

BUDDY WILSON,                                                                            OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Alan M.
Simpson, Judge.

         Robert Cervantes for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




         *Before Poochigian, Acting P.J., Detjen, J. and Peña, J.
                                       INTRODUCTION
       In 1997, defendant Buddy Wilson was placed on formal probation following a
conviction for a violation of Penal Code1 section 288a, subdivision (k).2 Some 16 years
later, he filed a motion for relief pursuant to section 1203.4. The petition was denied.
       On appeal, Wilson contends he has met all of the statutory conditions entitling him
to relief because he fulfilled the conditions of probation for the entire probationary
period. Further, he argues the trial court failed to properly consider his postprobationary
conduct. In response, the People argue Wilson has failed to make a record suitable for
appellate review, and thus contend the trial court’s ruling should be affirmed. We agree
with the People and will affirm.
                                RELEVANT BACKGROUND
       Following a jury trial and resulting conviction for a violation of section 288a,
subdivision (k), Wilson was granted probation. The probationary period commenced
May 30, 1997, and expired June 30, 2002.
       On May 3, 2013, Wilson filed a motion for relief pursuant to section 1203.4.
       On May 17, 2013, the parties appeared for a hearing on the motion. The matter
was taken under submission and continued to June 7, 2013. On June 7, following
stipulation of the parties, the court continued the matter to July 9, 2013.
       On July 1, 2013, the motion was denied and the July 9 hearing date was vacated.
       On August 30, 2013, Wilson filed a notice of appeal.
       On September 19, 2013, a notice of completion of the clerk’s transcript on appeal
was filed with the Fresno Superior Court.



       1All further statutory references are to the Penal Code unless otherwise indicated.

       2Subdivision (k) of section 288a provides as follows: “Any person who commits an act
of oral copulation, where the act is accomplished against the victim’s will by threatening to use
the authority of a public official to incarcerate, arrest, or deport the victim or another, and the
victim has a reasonable belief that the perpetrator is a public official, shall be punished by
imprisonment in the state prison for a period of three, six, or eight years.”


                                                 2.
                                           DISCUSSION
          Wilson complains he was entitled to the relief provided pursuant to section 1203.4,
subdivision (a)3 because he met all statutory requirements. Therefore, he asserts the trial
court was required to grant the requested relief and committed error by denying his
motion. He asks this court to reverse the order and remand with directions that the trial
court grant his motion. The People submit, however, that because the appellate record
fails to affirmatively demonstrate error, we should deny relief and affirm the trial court’s
ruling.
          We do not reach the merits of the issues Wilson has briefed. Rather, because the
record on appeal is inadequate for purposes of meaningful review, we will affirm the trial
court’s ruling.
          We begin with the applicable procedural appellate rules. Rule 8.320 of the
California Rules of Court concerns the normal record in a criminal appeal:

          “(a) Contents. [¶] If the defendant appeals from a judgment of conviction
          … the record must contain a clerk’s transcript and a reporter’s transcript,
          which together constitute the normal record.”
Rule 8.320(c)(6) provides the reporter’s transcript must include “[a]ny oral opinion of the
court” and rule 8.320(c)(8) includes “oral proceedings … [of a] dispositional hearing.”
Significantly, too, rule 8.320(d) provides for the following:




          3Subdivision (a)(1) provides as follows: “In any case in which a defendant has fulfilled
the conditions of probation for the entire period of probation, … or in any other case in which a
court, in its discretion and the interests of justice, determines that a defendant should be granted
the relief available under this section, the defendant shall, at any time after the termination of the
period of probation, if he or she is not then serving a sentence for any offense, on probation for
any offense, or charged with the commission of any offense, be permitted by the court to
withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if
he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of
guilty; and, in either case, the court shall thereupon dismiss the accusations or information
against the defendant and except as noted below, he or she shall thereafter be released from all
penalties and disabilities resulting from the offense of which he or she has been convicted ….”


                                                  3.
              “(d) Limited normal record in certain appeals. If … the defendant
       … appeal[s] from an appealable order other than a ruling on a motion for
       new trial, the normal record is composed of: [¶] … [¶]

              “(2) Reporter’s transcript

            “(A) A reporter’s transcript of any oral proceedings incident to the
       judgment or order being appealed; and

              “(B) If the appeal is from an order after judgment, a reporter’s
       transcript of:

              “(i) The original sentencing proceeding ….” (Italics added.)
       “It is axiomatic that it is the burden of the appellant to provide an adequate record
to permit review of a claimed error, and failure to do so may be deemed a waiver of the
issue on appeal.” (People v. Akins (2005) 128 Cal.App.4th 1376, 1385, citing Maria P. v.
Riles (1987) 43 Cal.3d 1281, 1295-1296; see, e.g., People v. Diaz (1983) 140 Cal.App.3d
813, 824 [failure to include preliminary hearing transcript precluded review of assertion
of trial court error denying motion to set aside information]; People v. Siegenthaler
(1972) 7 Cal.3d 465, 469 [on challenge to denial of motion to set aside information,
defendant who “failed to include as part of the record on appeal the transcript of the
preliminary hearing, … is … precluded from seeking appellate review of the denial of the
motion”]; People v. Scott (1944) 24 Cal.2d 774, 777 [“After reading the transcript of the
preliminary examination, the court denied the motion. This transcript was not brought up
on appeal, and error cannot be assumed in its absence”].)
       In this matter, the record on appeal encompasses a 21-page clerk’s transcript. That
transcript includes Wilson’s motion for relief and accompanying documents filed May 3,
2013, a series of minute orders, and his notice of appeal. It does not contain a reporter’s
transcript of any proceeding.
       With regard to the clerk’s transcript, the minute order of May 17, 2013, indicates
Wilson’s written motion was “taken under submission” on that date. It also reflects the
presence of a court reporter: Heidi Benavides. On June 7, 2013, the proceedings were
apparently recorded by reporter Wendy Saffery; the motion was then “continued to

                                             4.
07/09/2013” by stipulation of all parties. Finally, the minute order dated July 1, 2013,
indicates the court denied Wilson’s motion and vacated the proceedings previously
scheduled for July 9, 2013. No reporter’s name appears. The aforementioned
information amounts to the entirety of the appellate record. We find it is inadequate to
permit review of the merits of the appeal.
       There is no information before this court that would permit us to assess whether
the trial court erred in denying Wilson’s motion. Other than a bare assertion that the
motion was denied, the record is utterly devoid of information in that regard. Notably,
too, Wilson’s opening brief4 sheds no light on the matter, never identifying the reason
given by the trial court for its denial of his motion.
       Wilson has failed to show error by an adequate record, and we will not engage in
speculation given the state of this record. (In re Kathy P. (1979) 25 Cal.3d 91, 102;
People v. Siegenthaler, supra, 7 Cal.3d at p. 469; see People v. Barton (1978) 21 Cal.3d
513, 519-520 [“counsel has a duty to insure that there is an adequate record before the
appellate court from which those contentions may be resolved on their merits”].)
Nothing in the record supports the inference that defendant’s motion was erroneously
denied.
       This court recognizes that a defendant who has successfully completed probation
and met the associated terms is entitled to the benefits of section 1203.4 resulting in
dismissal. (People v. Covington (2000) 82 Cal.App.4th 1263, 1266.) However, given
this inadequate record, we are unable to make any determination, one way or another,
about Wilson’s compliance with the terms of his probation, or any other circumstance
that may have been considered by the trial court, or otherwise affected its resolution of
the motion. All we know is that Wilson claims he successfully complied with his
probationary term and its conditions, and that the trial court denied his motion in spite of
those assertions. On this record, it is impossible to determine whether the trial court

       4Wilson did not file a reply brief.



                                               5.
erred. In such circumstances, we presume the trial court acted properly. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.)
                                   DISPOSITION
      The judgment is affirmed.




                                            6.
