Understanding a California "Motion for a New Trial"

Like everything else in a criminal justice system, California jury trials are subject to mistake, manipulation, and corruption.  Sometimes the judge or jury simply get it wrong.

Fortunately, a motion for a new trial is a remedy that can cure this situation.1

And because we're a law firm that specializes in criminal defense, we know the most effective arguments to help maximize the chances that your motion is granted.

Below, our California criminal defense attorneys2 address the following:

1. What is a Motion for a New
Trial?
2. Grounds for the Motion
3. Procedural Aspects

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on California Jury Trials; Bail Laws; Probation Laws; Mentally Disordered Offender "MDO" Commitment Hearings; and California Sentencing Hearings.

1. What is a Motion for a New Trial?

Let's say that during the course of your trial...or shortly thereafter...you discover

your California criminal defense lawyer will want to file a motion for a new trial.  A motion for new trial is just that ...a request to have a new jury hear and decide your case.3 If granted, you begin the new trial with a completely clean slate, as if no previous trial had ever taken place.4

Let's take a closer look at these issues to gain a better understanding of the appropriate grounds for raising this type of motion.

2. Grounds for the Motion

A motion for a new trial may only be granted if it is raised on one of the following grounds.  In addition, it can only be granted if the grounds are clearly stated in your motion.  This means that even if the judge identifies a different or additional reason why you should benefit from a new trial, he/she cannot raise or address that issue if you (or your attorney on your behalf) failed to do so.5

Jury misconduct

The phrase "jury misconduct" can refer to a variety of issues.6 Perhaps the most common in connection with a California motion for a new trial is that the jury received information outside of the "record"...that is, outside of the admitted evidence.

As Riverside criminal defense attorney Michael Scafiddi7 explains, "If the information was 'inherently and substantially likely' to influence at least one member of the jury in a prejudicial manner towards the defendant, the motion should be granted."8

But regardless of whether the jury

  • received outside information,
  • engaged in improper deliberations (for example and, where applicable, the jury improperly discussed the fact that you chose not to testify),
  • intentionally mislead the attorneys during jury selection, or
  • participated in any other form of jury misconduct,

the critical issue is whether that misconduct led to prejudice against you.  If it did not, it was essentially harmless, and the motion for a new trial will be denied.  If it did, the motion should be granted.9

Prosecutorial misconduct

If the prosecutor engages in prosecutorial misconduct...that is, misconduct to the point of prejudice...you are entitled to a new trial.10

"Prosecutorial misconduct" refers to the use of "deceptive or reprehensible methods to influence the jury".11 Examples of prosecutorial misconduct include (but are not limited to):

  • commenting on inadmissible evidence,12
  • intentionally eliciting inadmissible and/or prejudicial answers from witnesses,13
  • conducting an improper cross-examination of you or other defense witnesses,14 and
  • appeals to passion or prejudice.15

But again, if the misconduct isn't prejudicial, a motion for a new trial will not be granted.  As the California Supreme Court explains, "The ultimate question to be decided is: Had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred?"16

If the answer is yes, you will most likely prevail on the motion.  If the answer is no, the court will likely hold that the misconduct was harmless and deny you a new trial.

An error of law by the court

If the court is guilty of committing a legal error, such as

  • misdirecting the jury on a matter of law, or
  • making an erroneous legal ruling,

you may be entitled to a new trial.17 But like the misconduct grounds described above, this error, too, must have impacted one of your substantial rights.  If it has not, the motion will be denied.18

Along these same lines, if the court commits legal error by proceeding with a trial in your absence, you should prevail on a motion for a new trial.19 The exception to this rule is when you have

  1. legally waived your presence, or
  2. been removed from the courtroom for misconduct.20

It is important to note that a motion for a new trial may be granted even if you were only "mentally absent", as long as the condition was not voluntarily induced.

Example:  A defendant who voluntarily takes drugs or who is in pain is not "mentally absent" for purposes of a motion for a new trial.21 An individual who becomes insane during the trial is.22

A basic rule of thumb is that as long as the defendant is coherent, lucid, and able to communicate with his/her attorney, he/she will be deemed mentally present for the trial.23

Insufficient evidence

California criminal law gives the judge broad discretion when it comes to determining whether the evidence was sufficient to sustain a guilty verdict.24 If the court believes that the evidence was, in fact, insufficient to prove your guilt, the judge will grant your motion for a new trial...even if the jury has found you guilty.

"Insufficient evidence" presents a unique remedy for a motion for a new trial.  If the judge grants this motion, you will not actually receive a new trial, but instead will receive a dismissal of the charges.

This is because once a judge grants a motion for a new trial on this ground, "double jeopardy" prevents the prosecution from retrying the case.   If you were entitled to an acquittal...which you were if there was insufficient evidence to support a guilty verdict...the government does not get a "second bite at the apple".

Newly discovered evidence

If...following the trial...you discover new evidence that probably would result in a more favorable outcome for you if you were to retry the case, you may be entitled to a new trial.26

Factors that the court will consider before granting your California motion for a new trial include:

  1. whether the evidence, and not merely its relevance is new,
  2. whether the evidence is cumulative of what has previously been admitted,
  3. whether the evidence would probably yield a different result during a retrial,
  4. whether the defense could have reasonably been discovered or produced the evidence at trial, and
  5. whether these facts are shown by the best evidence available under the circumstances.27

Loss or destruction of trial record or transcript

Trial records and/or transcripts are preserved so that the attorneys and judges can properly analyze and review appeals.  When those records are lost or destroyed...and you have therefore lost your ability to present an appeal...you may be entitled to a new trial.28

"The test is whether in light of all the circumstances it appears that the lost portion is 'substantial' in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal."29

Other grounds

In addition to the grounds we just reviewed, there are some additional justifications for securing a new trial.  Referred to as "nonstatutory" grounds, these issues have been held by California courts as interfering with a defendant's right to a fair and impartial trial.30

Examples of nonstatutory grounds that justify a new trial include (but are not limited to):

  • ineffective assistance of counsel,31
  • erroneous admission of evidence,32
  • the prosecutor's failure to disclose exculpatory evidence (that is, evidence favorable to the accused),33 and
  • a material change in the law.34
3. Procedural Aspects

In order to be valid, a California motion for a new trial must be submitted prior to

The judge must also rule on the motion prior to any of these events and within 20 days...up to 30 days with a proper extension...of a verdict in a felony case.  The failure to do so will automatically result in a new trial.36

Once the court hears the motion, it has three options.  It may either

  1. grant the motion and order a new trial (which means that you may request to be released on bail under California bail laws37),
  2. deny the motion and pronounce judgment on the verdict, or
  3. modify the verdict to a lesser included offense of the convicted charge or reduce the degree of the charge.38

And even if the judge denies the motion, you can still win a new trial by filing the motion with the California Court of Appeals.39

Call us for help...

For questions about a California "motion for a new trial", or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.

We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to law and motion in Nevada's criminal court system.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.40 For information about motions for a new trial in Nevada, law go to our article motions for a new trial in Nevada.

Legal References:

1California Penal Code 1181 PC -- Motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: 1. When the trial has been had in his absence except in cases where the trial may lawfully proceed in his absence; 2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property; 3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury; 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed; 7. When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed; 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable. 9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.")

2Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.  Please contact us at Shouse Law Group with any questions.

3California Penal Code 1179 PC -- Definition.  ("NEW TRIAL DEFINED. A new trial is a reexamination of the issue in the same Court, before another jury, after a verdict has been given.")

4California Penal Code 1180 PC -- Effect of grant; parties; evidence; former verdict or finding.  ("The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.")

5People v. Masotti (2008) 163 Cal.App.4th 504, 508. ("Here, we will address whether the trial court could grant a new trial based on grounds not raised in the new trial motion, as it is a jurisdictional question of pure law on facts that are uncontested by the parties. A [California] motion for new trial may be granted only upon a ground raised in the motion.  ( People v. Johnston (1940) 37 Cal.App.2d 606, 609, 100 P.2d 307; People v. Skoff (1933) 131 Cal.App. 235, 240, 21 P.2d 118.) "[A] defendant waives his right to a new trial upon all grounds included within the provisions of [section 1181] unless he specifies the grounds upon which he relies in his application therefor." ( Skoff, at p. 240, 21 P.2d 118.) Allowing a court to grant a new trial on a ground not raised by the moving party would be the equivalent of allowing the court to grant a new trial on its own motion, an act which the court is without authority to do.")

6California Penal Code 1181 PC -- California motion for a new trial.  ("("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property; 3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors...")

7Riverside criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville.

8In re Carpenter (1995) 9 Cal.4th 634, 653. ("To summarize, when misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. (E.g., People v. Holloway, supra, 50 Cal.3d at pp. 1110-1112; People v. Marshall, supra, 50 Cal.3d at pp. 951-952.) Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. (E.g., In re Hitchings, supra, 6 Cal.4th at p. 121.) The judgment must be set aside if the court finds prejudice under either test.")

9See California Penal Code 1181 PC - California motion for a new trial, endnote 6, above.

10See same.  ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only... 5...when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury...")

11People v. Strickland (1974) 11 Cal.3d 946, 955.

12People v. Aragon (1957) 154 Cal.App.2d 646.  Prosecutor referred to the defendant failing a lie detector test.

13People v. Williams (1951) 104 Cal.App.2d 323.  Prosecutor continuously tried to elicit hearsay and to illegally impeach his own witness.

14People v. Chandler (1957) 152 Cal.App.2d Supp. 916.  Prosecutor sought to elicit testimony about unrelated arrest and misdemeanor convictions.

15People v. Stansbury (1993) 4 Cal.4th 1017.  Improper for prosecutor to ask jury to view crime from eyes of murder victim, as appeal to sympathy for victim is out of place during an objective determination of guilt.

16People v. Prysock (1982) 127 Cal.App.3d 972, 998.

17California Penal Code 1181 PC -- California motion for a new trial.  ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial...")

18People v. Honeycutt (1946) 29 Cal.2d 52, 61-62.  ("It is true that "In a case where there is a conflict in the instructions and the court erred in the giving of one or more of them, and where it is impossible to determine whether the jury followed the law as correctly or as incorrectly set before them, a new trial will be ordered if by such error the defendant's substantial rights were affected." (8 Cal.Jur. � 608, p. 633; People v. Dail (1943), 22 Cal.2d 642, 653 [140 P.2d 828].) This principle of law will be vigilantly enforced.")

19California Penal Code 1181 PC -- California motion for a new trial.  ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: 1. When the trial has been had in his absence except in cases where the trial may lawfully proceed in his absence...")

20California Penal Code 977 PC -- Presence of defendant; exception; presence of counsel.  ("(b)(1) In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided by subdivision (c). (2) The accused may execute a written waiver of his or her right to be personally present, approved by his or her counsel, and the waiver shall be filed with the court. However, the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof.")

See also California Penal Code 1043 PC -- Presence of defendant; felony cases; misdemeanor cases; procedure.  ("(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial. (b) The absence of the defendant [FN1] in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: (1) Any case in which the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom. (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent. (c) Any defendant who is absent from a trial pursuant to paragraph (1) of subdivision (b) may reclaim his right to be present at the trial as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. (d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977. (e) If the defendant in a misdemeanor case fails to appear in person at the time set for trial or during the course of trial, the court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized his counsel to proceed in his absence pursuant to subdivision (a) of Section 977. If there is no authorization pursuant to subdivision (a) of Section 977 and if the defendant fails to appear in person at the time set for trial or during the course of trial, the court, in its discretion, may do one or more of the following, as it deems appropriate: (1) Continue the matter. (2) Order bail forfeited or revoke release on the defendant's own recognizance. (3) Issue a bench warrant. (4) Proceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held. Nothing herein shall limit the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity.")

21People v. Cox (1978) 81 Cal.App.3d Supp. 1, 4.  ("Where disabilities resulting in either physical or mental absence during the course of trial have been self-induced, the courts have characterized the resulting absences as voluntary and have been uniformly unsympathetic to defendant's due process claims.")

22People v. Williams (1961) 194 Cal.App.2d 523 (California motion for new trial granted because defendant declared insane during trial).

23See same at 525-526. (""The only reasonable interpretation of the above requirement that a defendant be present at every stage of a felony prosecution is that the accused person must be both physically and mentally present. Mere physical presence without mental realization of what was going on would obviously be of no value to the accused. A defendant in such condition would be unable to confer with or assist counsel, unable to testify, and without ability to understand the nature of the accusation or the mechanics or consequences of the trial. An interpretation of the rule as requiring only physical presence would lead to such an absurdity as the purported trial of an imbecile or an insane person without the least understanding of what was taking place in the courtroom. Only in the most unenlightened age could such a so-called trial be countenanced.")

24People v. Robarge (1953) 41 Cal.2d 628, 633.  ("While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on [a California] motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. ( People v. Knutte, 111 Cal. 453, 455 [44 P. 166]; People v. Lum Yit, 83 Cal. 130, 133-134 [23 P. 228]; Estate of Bainbridge, 169 Cal. 166, 168-170 [146 P. 427].)...In passing upon a motion for a new trial the judge has very broad discretion...")

25People v. Trevino (1985) 39 Cal.3d 667 (overruled on other grounds).

26California Penal Code 1181 PC -- California motion for a new trial.  ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.")

27People v. Turner (1994) 8 Cal.4th 137, 212 (overruled on other grounds).

28California Penal Code 1181 PC -- Motion for a new trial.  ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.")

29People v. Holloway (1990) 50 Cal.3d 1098, 1116 (overruled on other grounds).

30People v. Davis (1973) 31 Cal.App.3d 106, 110-111.  ("The power to grant a new trial on such nonstatutory grounds obviously is derived from the trial court's constitutional duty to insure an accused a fair trial. (See In re Saunders, 2 Cal.3d 1033, 1041 [88 Cal. Rptr. 633, 472 P.2d 921].) As said in People v. Lyons, 47 Cal.2d 311, 319 [303 P.2d 329], "It is axiomatic that when an accused is denied that fair and impartial trial guaranteed by law, such procedure amounts to a denial of due process of law ...." And, of course, a constitutional duty may not be abridged by statute.  In the instant case the trial court in its discretion reasonably concluded, on the substantial showing made, that without fault on his part the defendant had not received a fair trial.  In passing on a motion for a new trial the trial court has very broad discretion...")

31People v. Cornwell (2005) 37 Cal.4th 50 (overruled on other grounds).

32People v. Albarran (2007) 149 Cal.App.4th 214.

33Merrill v. Superior Court (1994) 27 Cal.App.4th 1586.

34People v. DeLouize (2004) 32 Cal.4th 1223.

35California Penal Code 1182 PC -- Application; time; entry of order.  ("The application for a new trial must be made and determined before judgment, the making of an order granting probation, the commitment of a defendant for observation as a mentally disordered sex offender, or the commitment of a defendant for narcotics addiction or insanity, whichever first occurs, and the order granting or denying the application shall be immediately entered by the clerk in the minutes.")

36California Penal Code 1191 PC -- Appointment of time for pronouncing judgment; reference to probation officer or placement in diagnostic facility; extension of time.  ("In a felony case, after a plea, finding, or verdict of guilty, or after a finding or verdict against the defendant on a plea of a former conviction or acquittal, or once in jeopardy, the court shall appoint a time for pronouncing judgment, which shall be within 20 judicial days after the verdict, finding, or plea of guilty, during which time the court shall refer the case to the probation officer for a report if eligible for probation and pursuant to Section 1203. However, the court may extend the time not more than 10 days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment, and may further extend the time until the probation officer's report is received and until any proceedings for granting or denying probation have been disposed of. If, in the opinion of the court, there is a reasonable ground for believing a defendant insane, the court may extend the time for pronouncing sentence until the question of insanity has been heard and determined, as provided in this code....")

See also California Penal Code 1202 PC -- Pronouncement of judgment; California motion for a new trial for failure to pronounce judgment at proper time, for refusal to hear motion for new trial, or for neglect to determine motion within time.  ("If no sufficient cause is alleged or appears to the court at the time fixed for pronouncing judgment, as provided in Section 1191, why judgment should not be pronounced, it shall thereupon be rendered; and if not rendered or pronounced within the time so fixed or to which it is continued under the provisions of Section 1191, then the defendant shall be entitled to a new trial. If the court shall refuse to hear a defendant's motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment or the making of an order granting probation, then the defendant shall be entitled to a new trial.")

37In re Weiner (1995) 32 Cal.App.4th 441, 444.  ("After conviction of a noncapital offense, a defendant who has appealed may request the trial court to release him or her on bail. (� 1272.) Bail is a matter of right in misdemeanor cases and cases where only a fine has been imposed. ( Ibid.) In all other cases, release on bail is subject to court discretion. ( Ibid.) However, the court shall order release on bail if the appeal is not for the purpose of delay and raises a substantial legal question that, if decided in the defendant's favor, will likely result in reversal and the defendant demonstrates by clear and convincing evidence both that he or she does not pose a danger to other persons and is unlikely to flee. (� 1272.1.) Upon application for release on bail pending appeal, the trial court must consider the application on its merits.")

38California Penal Code 1181 PC -- California motion for a new trial.  ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed...")

39California Penal Code 1237 PC -- Appeal by defendant.  ("An appeal may be taken by the defendant: (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial.")

See also California Penal Code 1466 PC -- Judgments and orders appealable; people; defendant.  ("An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases...(2) By the defendant: (A) From a final judgment of conviction. A sentence, an order granting probation, a conviction in a case in which before final judgment the defendant is committed for insanity or is given an indeterminate commitment as a mentally disordered sex offender, or the conviction of a defendant committed for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment or an order granting probation the court may review any order denying a motion for a new trial. (B) From any order made after judgment affecting his or her substantial rights.")

40Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas.

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