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Name: People v. Cervantes
Case #: B183412
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 05/16/2007

If the lost or destroyed portion of the reporter’s transcripts from the trial proceeding is substantial, such that a meaningful appellate review and defendant’s ability to perfect his appeal are affected, and the record cannot be reconstructed, defendant may be entitled to a new trial. (Pen. Code, sec. 1181.) On the appeal of his jury conviction for drug offenses, appellant filed a motion for summary reversal because the testimony of the sole prosecution witness could not be transcribed. The appellate court denied the motion and remanded for the parties to prepare a settled statement. The trial judge approved a settled statement based only on the prosecuting attorney’s notes, the court having no recollection of the trial and defense counsel being unavailable, but the appellate court rejected the statement as being inadequate. In the meantime the appellate court located an address for defense counsel and again remanded with directions to attempt to prepare an adequate settled statement or, if no statement was possible, to vacate the judgment and order a new trial.