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Nolasco v. Regents of the University of California3/11/2003
udice Regents. Finally, Regents argued it should not be required to respond to "new matter" in the reply brief, and Nolasco's request for additional time to file her reply brief constituted an admission the reply brief would contain new matter. We denied the motion on November 4, 2002.
DISCUSSION
"`A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Under the California Constitution we may set aside a judgment or order only if "after an examination of the entire cause, including the evidence," we are "of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.)
Sixteen witnesses testified at the trial, which lasted more than a month. For reasons best known to her counsel, Nolasco designated the testimony of only two of those witnesses for inclusion in the reporter's transcript on appeal. In the absence of a complete record of the trial, we cannot undertake to review the prejudicial effect, if any, of the alleged errors. (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 858-859, fn. 13 ["respondents did not designate the reporter's transcript of the full trial on the merits thereby precluding effective review of the alleged errors"]; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 [review impossible where appellant does not provide reporter's transcript]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [appellate court cannot evaluate contentions absent transcript or settled statement; party challenging judgment has burden to show reversible error].)
In the face of this well-established rule, Nolasco proffers only a single case, In re Stankewitz (1985) 40 Cal.3d 391, which she characterizes as standing for the proposition that "even the jurors' statements and actions during deliberations are admissible by way of declaration so long as the subjective reasoning processes of the individual jurors are not implicated." Unfortunately for Nolasco, the trial court held that the Isfahani declaration did just that -- implicate the subjective reasoning process by "attempt to get into the mind of the juror." (People v. Hutchinson (1969) 71 Cal.2d 342, 349 [insofar as it implicates "the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved," juror statement is inadmissible under Evid. Code, § 1150, subd. (a).].) More fundamentally, of course, we may not abdicate our constitutional mandate to review "the entire case, including the evidence" in favor of blind adherence to a juror's ipse dixit that he would have voted differently absent the alleged errors.
DISPOSTION
The judgment of the trial court is affirmed. Costs on appeal are awarded to Regents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
JOHNSON, J.
MUNOZ (AURELIO), J.
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