How to Make a "Motion for a New Trial" in California

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.

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...
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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, go to our article motions for a new trial in Nevada.

Legal References:

1California Penal Code 1181 PC -- Motion for a new trial. 

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.  

5People v. Masotti (2008) 163 Cal.App.4th 504, 508. 

6California Penal Code 1181 

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.

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

10See same.  

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 

18People v. Honeycutt (1946) 29 Cal.2d 52, 61-62. 

19California Penal Code 1181 

20California Penal Code 977 PC -- Presence of defendant; exception; presence of counsel. 

See also California Penal Code 1043 

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. 

24People v. Robarge (1953) 41 Cal.2d 628, 633. 25People v. Trevino (1985) 39 Cal.3d 667 (overruled on other grounds).

26California Penal Code 1181

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

28California Penal Code 1181 

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

30People v. Davis (1973) 31 Cal.App.3d 106, 110-111. 

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 

36California Penal Code 1191 

37In re Weiner (1995) 32 Cal.App.4th 441, 444. 

38California Penal Code 1181 

39California Penal Code 1237 

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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