Penal Code § 1181 PC – Motion for a New Trial

California Penal Code § 1181 PC permits courts to overturn a guilty verdict and grant a new trial on such grounds as newly discovered evidence or misconduct by the jury, prosecutors, or judge.

The entire text of the statute is:

1181. 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.

Legal Analysis

It is common for defendants who are convicted at trial to make a motion for a new trial under California Penal Code 1181 PC. Judges rarely grant these motions because they do not like to admit any trial in their courtroom was flawed.

However, judges may grant a PC 1181 motion in any of the following seven circumstances:

1. The defendant was absent from their own trial, and there was no lawful reason for the defendant to be absent.
2. The jury received evidence outside of what was admitted at trial.
3. The jury left deliberations without court approval, or there was juror misconduct that prevent a “fair and due consideration” of the case, or the verdict was not decided by means of “fair expression of opinion” by the jurors.
4. The judge gave made a mistake of law, or the D.A. committed “prejudicial misconduct.”
5. The verdict is contrary to law or evidence.
6. New material evidence is discovered that the defendant could not have found with reasonable diligence.
7. The defendant cannot get a phonographic record of the trial because the reporter became disabled or passed away.

Example: Jeffrey gets convicted of arson at trial based on circumstantial evidence. After the verdict, a good Samaritan contacts the court and claims they have video footage of the night in question that shows Jeffrey may not be the person who set the fire.

Based on this new evidence, Jeffrey files a PC 1181 motion for a new trial. Since Jeffrey could not have reasonably gotten this video beforehand, the judge vacates the guilty verdict and orders a new trial.

In some cases, it is not necessary for the judge to order an entirely new trial. Instead, the judge can modify the guilty verdict so that the defendant gets convicted of a lesser-included offense. An example would be changing a possession for sale conviction down to simple possession.¹

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Legal References