Apalatequi

This case is before us on a motion under Penal Code section 1181, subdivision 9, for an order vacating a judgment, which motion was consolidated with an appeal to this court. The motion is based upon the fact that the official court reporter had lost her notes and was unable to provide a transcript of the arguments to the jury. Defendant Apalatequi raised several issues on appeal, including a contention of prosecutorial misconduct in the arguments to the jury. This court denied without prejudice the original motion to vacate the judgment because the defendant had not attempted to obtain a settled statement on appeal. Defendant then submitted a proposed settled statement. That proposed settled statement by the defendant read as follows:

The prosecutor objected to the defendant’s proposed settled statement. A hearing was duly held at which time the trial judge stated that he did not have an independent recollection and that perhaps testimony would ring a bell. Testimony was elicited from the defendant, his trial counsel, the prosecutor, and a juror. Defendant and his trial counsel testified that each of them recalled the statements set forth in the defendant’s proposed…