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Name: People v. Neilson
Case #: B199578
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 09/11/2007

Where the party asserting a position on appeal that contends that the judgment is erroneous, but fails to provide the record to support the position, it is assumed that the record supports the judgment and the party is not entitled to rehearing. Government Code section 68081 provides that before issuing a decision based on an issue that was not proposed or briefed by a party to the proceeding, the appellate court must afford the parties an opportunity to present their views on the issue through supplemental briefing. The purpose of the statute is to prevent decisions based on issues which the parties have had no opportunity for input. However, it is inapplicable in the situation where the party has the responsibility to provide the record to support his claim but fails to do so. Appellant was convicted of an infraction and on appeal claimed that the conviction was error because of bias and sufficiency of the evidence. He failed to provide any record of the lower court proceeding and the appellate court held that because of the lack of record to evaluate the claim, it was presumed that the conviction was valid. Appellant, with the responsibility of providing the record, was provided the opportunity to present his views; therefore, section 68081 was inapplicable and he was not entitled to rehearing.