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10
THE PEOPLE OF THE STATE OF CASE NO. BA102638
11 CALIFORNIA,
Hon. Charles E. Horan, Judge
12 Plaintiff and Respondent,
Cal. Supreme Ct. No. S070686
13 v.
DEATH PENALTY CASE
14 GERARDO ROMERO,
VERIFIED APPLICATION OF
15 Defendant and Appellant. APPELLANT GERARDO ROMERO TO
CORRECT, COMPLETE, AND
16 SETTLE THE RECORD ON APPEAL;
MEMORANDUM OF POINTS AND
17 AUTHORITIES; DECLARATION OF
STEPHEN M. LATHROP AND
18 EXHIBITS ATTACHED THERETO
19 TO THE HONORABLE CHARLES E. HORAN, JUDGE OF THE SUPERIOR
20 COURT FOR THE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:
21 Defendant and appellant Gerardo Romero respectfully submits
22 this verified application to correct, complete, and settle the
23 record on appeal in this automatic appeal from a judgment and
24 sentence of death.
25 This application is made pursuant to Penal Code sections
26 190.6 through 190.9, inclusive, and 1240.1, subdivision (e)(2),
27 and California Rules of Court, rules 33, 33.5, 35, and 39.50
28 through 39.56, inclusive, and is made on the grounds that each
20 A. INTRODUCTION . . . . . . . . . . . . . . . . . . . 26
12 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 47
14 EXHIBITS
24
25
26
27
28
-ii-
VERIFIED APPLICATION TO CORRECT, COMPLETE, AND SETTLE THE RECORD ON APPEAL
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 INTRODUCTION
19 ¶ 4.)
26
1
“CT” refers to the clerk’s transcript and “RT” refers
27 to the reporter’s transcript. Except where otherwise indicated,
citations to CT and RT are followed by the applicable volume and
28 page number in the format “vol:page”.
25 Illinois (1968) 391 U.S. 510 and Wainwright v. Witt (1985) 469
27 / / /
28 / / /
6 1419, 1425.)
15 Parker v. Dugger (1991) 498 U.S. 308, 321, for example, the
26
27 2
Except where otherwise indicated or clear from the
context, all further statutory references are to the Penal Code.
28 References to rules are to the California Rules of Court.
23 Teets (1957) 354 U.S. 156; Evitts v. Lucey (1985) 469 U.S. 387;
26 record]; Gregg v. Georgia (1976) 428 U.S. 153, 167, 198 (joint
6 States (1964) 375 U.S. 277, 282; see id. at p. 288 (Goldberg,
10 ARGUMENT
11 I.
15 OF THE RECORD
8 transcript, and then “it shall be the duty of the trial judge to
14 The fact that trial counsel may have previously reviewed the
19 39.55(b), (c).)
6 the error.
15 concluded;
18 2:1016-1023];
23 1356:18-20];
28 / / /
25
3
26 Court reporters Cheryl Duarte (RT 12-29), Misty L.
Wyatt (RT 33-1000), Katherine Parker-Rijke (RT 1003-1015), Mark
27 A. Peterson (RT Vol. 3), Deborah D. Couwenberg (RT 1356-1445,
1454), Jennifer S. Row (RT 1610), and Yvonne Gallegos (RT Vols.
28 4 and 10, and RT 1016-1045, 1512-1531, 1922-3547).
10 6. The index omits the minute order for May 22, 1998 [CT
11 11:2823];
20 pagination;
26 numbered 1074A;
11 III.
15 ERRONEOUSLY OMITTED
24
4
25 Appellant has made a diligent search for copies of all
documents requested in this application, but except where
26 attached hereto as exhibits has been unable to locate the
documents. (Lathrop Decl., pp. 49, ¶ 6.)
27
5
Section 190.9, subdivision (a)(1), requires, “In any
28 case in which a death sentence may be imposed, all proceedings
3 (a)(1).)
16 190.]
18 court the clerk of the trial court or the reporter learns that a
27
7
Rule 35(e) provides, in part:
28 If at any time the clerk or reporter
4 appeal:
15 Couwenberg.)
16 / / /
17 / / /
18 / / /
19 / / /
20 / / /
21
learns that a document or transcript
22
required by rule 33, 34, or 39.5 to be
23 included in the record on appeal was
inadvertently omitted, the clerk shall copy
24 the document or the reporter shall prepare
the transcript, and the clerk shall certify
25 and transmit the document or transcript to
the reviewing court as an augmentation to
26 the record without the necessity of a court
order. The clerk shall give the parties
27 prompt notice of the transmittal and send
copies as provided in this subdivision and
28 in subdivision (c).
15 33(a)(1)(h)).]
9 IV.
12 APPELLANT ON APPEAL
17 III.B.)
26 these items are not part of the “entire record” on appeal, then
28 augmentation.
26 that the tape reveals appellant’s statement that “he does not
27 remember any details because he was drunk out of his mind ....”
7 added).]
26 appeal because they may reveal evidence that tends to show that
28 / / /
2 never ruled on, and it became moot when the prosecution decided
3 not to use the statement and appellant did not testify in either
13 the trial without the threat of the statement being used against
16 statement on the grounds that (1) the statement was made during
19 time the statement was given, which may have been affected by
25 above was urged as a basis for the motion to suppress [CT 2:367-
28 / / /
3 V.
7 A. INTRODUCTION
11 2, 9-10.)
13 of all proceedings:
26 / / /
27 / / /
28 / / /
19
8
In People v. Morris (1991) 53 Cal.3d 152, the
20 California Supreme Court noted its “disapproval of unreported
conferences on matters of substantial controversy in capital
21 cases,” and directed that proceedings in capital cases be
conducted on the record “to remove any conceivable doubt as to
22 what took place and to preclude unnecessary disputes and delays
23 in settling the record for further proceedings.” (Id. at p.
210, fn. 11; People v. Seaton (2001) 26 Cal.4th 598, 700 [trial
24 court should meticulously comply with the section 190.9
requirement that all proceedings in a capital trial be
25 reported]; People v. Hawthorne (1992) 4 Cal.4th 43, 63 [because
of the “critical role of a proper and complete record in
26 facilitating meaningful appellate review,” the Court “cannot
urge too strongly that trial judges assiduously preserve a
27 detailed account of all proceedings regardless of their
perceived significance, particularly in capital cases, to
28 minimize the need to reconstruct events.”].)
4 evidence].)
10 and 36(b).
4 4(e).)
10 36(b).)
28 / / /
11 at p. 193.]
14 SUPPORT THEREOF
25 hearing].)
4 Although the minute order for February 13, 1998, states that the
13 Although the minute order for February 24, 1998, states that the
21 about the evidence. Counsel and the court discuss the note,
22 agree upon a response, and then in the presence of the jury the
23 court reads the note and gives a response. The court and Juror
24
25
9
The trial transcript, being more complete and accurate
26 of the two records, generally prevails over an irreconcilable
and inconsistent minute order prepared by the clerk. (People v.
27 Smith (1983) 33 Cal.3d 596, 599 [reporter’s transcript will
generally prevail over the clerk’s transcript when the two are
28 in conflict].)
9 2764.]
14 Although the minute order for March 6, 1998, states that the
9 (1970) 397 U.S. 337, 338 [90 S.Ct. 1057; 25 L.Ed.2d 353]; accord
10 United States v. Gagnon (1985) 470 U.S. 522, 526 [105 S.Ct.
12 146 U.S. 370, 372 [13 S.Ct. 136; 36 L.Ed. 1011] [“A leading
15 the prisoner”].)
19 THEREOF
28 / / /
2 2638:27-2639:1];
8 [RT 2727:3-8];
14 [RT 2731:7-11];
20 3123:2-6];
26 3123:17-3124:2];
4 3124:19-26]; and,
10 [RT 3169:25-26].
24 added.]
25 the judgment on the ground appellant was denied due process under
9 (Ibid.)
21 THEREOF
25 the record:
26
10
The right to an interpreter to interpret the
27 witnesses’ testimony is guaranteed by the California
Constitution. (Cal. Const., art. I, § 14; People v. Aguilar
28 (1984) 35 Cal.3d 785, 790.)
8 John Freitas [RT 2546], Felix David Callejas [RT 2606, 2608,
16 accurately reflects what was done and said in the trial court.
27 52, ¶ 12.)
28 / / /
22 Const., 6th and 14th Amends.; Cal. Const., art. I, § 15) because
28 / / /
21 of the procedure.
24 806, 819, fn.15 [95 S.Ct. 2525; 45 L.Ed.2d 562] [“an accused has
16 testimony, but stated that his trial notes indicated that the
17 VII.
12 (Municipal Court)
14 (Municipal Court)
4. People’s Exh. 6 8/8/95 Photo Display Folder
15
(Municipal Court)
16
5. People’s Exh. 7 8/8/95 Photo Identification Report
17
(Municipal Court)
18
6. People’s Exh. 8 8/8/95 Photo Identification Report
19
(Municipal Court)
20
7. People’s Exh. 4 2/23/98 Photo Display Folder
21
(Superior Court)
22 8. People’s Exh. 5 2/23/98 Posterboard containing three
23 (Superior Court) photographs of defendant,
24 marked A, B, and C.
25 9. People’s Exh. 7 unknown Booking photograph
26 (Superior Court)
27 10. People’s Exh. 8 unknown Photograph of defendant’s
3 VIII.
15 IX.
18 APPELLATE COUNSEL
26 records, appellant requests that the trial court order that the
8 competently thereto.
13 I believe to be true.
23 of 6 pages.
2 12, 2002, I was informed the trial court’s clerk that the trial
10 with defense counsel Mark Zavidow and trial defense counsel Ray
24 number 18. Clerk Eva told me that she could not provide the
28 clerk’s file.
19 proceedings held on February 13, 24, and 25, 1998, and March 6,
23 § V.D) between Enrique Diaz and Bush Schabes preceded Mr. Diaz’
25 county jail.
27 and non-verbal gestures that are not described for the record may