Filed 6/30/14 P. v. Martin CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C072310

         v.                                                                     (Super. Ct. No. CRF958217)

BEN ORLANDO MARTIN,

                   Defendant and Appellant.


         In September 1996, defendant Ben Orlando Martin absconded near the end of his
jury trial and was convicted in absentia of two counts of assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1)),1 a single count of criminal threats (§ 422), and a single
count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). Defendant was
apprehended in December 2011. In October 2012, he admitted a strike allegation and
was sentenced to serve a stipulated term of 11 years in state prison.




1        Undesignated statutory references are to the Penal Code.


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       On appeal, defendant contends the absence of the reporter’s transcript from his
trial prevents meaningful appellate review of his conviction, thus entitling him to a new
trial. He also contends the court security fee (§ 1465.8) and criminal justice assessment
(Gov. Code, § 70373) were improperly imposed.
       We reject the first contention because defendant is responsible for the court
reporter’s inability to prepare a trial transcript. The trial records were lawfully destroyed
after 10 years, during the 15-year period where defendant was a fugitive. As to the
second contention, we agree imposition of the fee and assessment was improper because
defendant was convicted before the effective dates of the statutes. Accordingly, we strike
the fee and assessment and affirm the judgment as modified.
                                     BACKGROUND2
       When the record on appeal was filed in this case, there was no reporter’s transcript
of defendant’s trial. Enclosed with the record was a letter from the Yolo County Superior
Court deputy clerk stating, “[d]ue to the year that the trial took place the record was
unable to be produced.” On January 11, 2013, we granted defendant’s motion to
augment the record with the reporter’s transcript of the trial. In response, the court
reporter filed a letter with this court stating her notes of the case were destroyed due to
the passage of time, making it impossible to prepare a reporter’s transcript.
       Appellate counsel subsequently filed an application for a settled statement with the
Yolo County Superior Court. The People filed an opposition, arguing that “due to the
lawful destruction of the trial notes, deterioration of trial counsel’s memory, and
unavailability of witnesses due to the defendant’s remaining a fugitive for over fifteen




2      We dispense with the facts of defendant’s crimes because they are unnecessary to
resolve this appeal.


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years, a settled statement cannot be created.” The Yolo County Superior Court denied
defendant’s motion.
       After defendant filed his opening brief, we granted the Attorney General’s motion
to augment the record with a Yolo County Superior Court order authorizing the
destruction of the court reporter’s notes for defendant’s trial pursuant to Government
Code section 68152, and a declaration from the superior court’s operation supervisor
confirming the notes were destroyed.
                                       DISCUSSION
                                              I
                              Lack of Reporter’s Transcript
       Defendant contends the inability to get a reporter’s transcript of his trial deprives
him of meaningful appellate review, which requires reversing his conviction.
       A criminal defendant has a due process right to an appellate record “sufficient to
permit adequate and effective appellate review.” (People v. Rogers (2006) 39 Cal.4th
826, 857-858.) Section 1181, subdivision (9), provides that a reviewing court “shall have
[the] power” to order a new trial of an action “because of the loss or destruction, in whole
or in substantial part,” of the reporter’s notes. To reverse a conviction due to the
unavailability of a reporter’s transcript, a defendant first must show the lack of a
reporter’s transcript adversely affected the appellate court’s ability to conduct meaningful
review. (People v. Holloway (1990) 50 Cal.3d 1098, 1116, disapproved on another
ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) A defendant also must
show it is impossible to get an adequate substitute for the missing transcript, such as a
settled statement. (People v. Moore (1988) 201 Cal.App.3d 51, 56.) Finally, a defendant
must show he or she is not responsible for the unavailability of the transcript. (People v.
Valdez (1982) 137 Cal.App.3d 21, 25 (Valdez).)




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       Government Code section 68152 authorizes the destruction of a court reporter’s
notes “10 years after the notes have been taken in criminal . . . proceedings.” (Gov.
Code, § 68152, subd. (j)(7); see also Gov. Code, § 69955, subd. (e) [reporting notes in
criminal proceedings may be destroyed after 10 years on court order].) Here, the court
reporter’s notes for defendant’s trial were validly destroyed after 10 years. Had
defendant not absconded for 15 years, defendant would have been sentenced in 1996 and
a reporter’s transcript of the trial would have been prepared for his appeal. Since
defendant’s unlawful action made it impossible to obtain a transcript of his trial, he is not
entitled to a new trial. (Valdez, supra, 137 Cal.App.3d at p. 27; accord, People v. Everett
(1990) 224 Cal.App.3d 932, 936 (Everett).)
       While defendant admits he cannot distinguish Valdez and Everett, he asserts this
court should exercise its discretion to grant a new trial. Defendant argues we should
disregard Valdez and Everett because they are relatively old, isolated in their holdings,
and were decided by other appellate districts. He is wrong.
       Valdez, supra, 137 Cal.App.3d 21 and Everett, supra, 224 Cal.App.3d 932 are still
good law. Both involve a defendant who absconds after being convicted but not
sentenced, and is caught and sentenced after the lawful destruction of trial records. The
defendants argued they were deprived of meaningful appellate review because the court
reporter’s notes had been destroyed. In declining to exercise its discretion to vacate the
judgment and order a new trial, the Valdez court explained, the 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.
Consequently, we decline to exercise our discretion to vacate the judgment and order a




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new trial.” (Valdez, supra, 137 Cal.App.3d at pp. 27-28; accord, Everett, supra, 224
Cal.App.3d at p. 936.)
       Here, defendant is responsible for the lack of a reporter’s transcript because he
broke the law by absconding and succeeded in hiding from the courts for 15 years.
Under these circumstances, we decline to order a new trial.
                                             II
                  Court Security Fee and Criminal Justice Assessment
       The abstract of judgment includes a section 1465.8, subdivision (a)(1), court
security fee of $160 and a Government Code section 70373 criminal justice assessment
of $120 even though the court did not impose them at sentencing. Defendant asserts, and
the Attorney General agrees, the fee and assessment are invalid. We agree.3
       The Legislature intended to apply the section 1465.8 fee to defendants convicted
on or after its effective date. (People v. Alford (2007) 42 Cal.4th 749, 754 (Alford).) The
Legislature intended the same as to the Government Code section 70373 assessment.
(People v. Castillo (2010) 182 Cal.App.4th 1410, 1414 (Castillo).)
       Defendant was convicted when found guilty by the jury in 1996. (People v. Davis
(2010) 185 Cal. App. 4th 998, 1001.) Section 1465.8 was enacted with an operative date
of August 17, 2003. (Alford, supra, 42 Cal.4th at p. 753, fn. 2.) Government Code
section 70373 became operative on January 1, 2009. (Castillo, supra, 182 Cal.App.4th at
p. 1413.) Since defendant was convicted before the operative dates of the statutes, we
strike the court security fee and criminal justice assessment.




3     Since the fees are mandatory, they were not improper because the court did not
impose them when pronouncing judgment. (People v. Talibdeen (2002) 27 Cal.4th 1151,
1157 [mandatory fees can be imposed at any time].)


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                                       DISPOSITION
       The judgment is modified to strike the Penal Code section 1465.8 court security
fee and the Government Code section 70373 criminal justice assessment. As modified,
the judgment is affirmed. The trial court is directed to prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation.



                                                       HOCH        , J.



We concur:



   NICHOLSON          , Acting P. J.



       DUARTE         , J.




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