IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S114375
v.
Ct.App. 1/5 A096083
MICHAEL GLENN BRAXTON,
) Solano
County
Defendant and Appellant.
Super. Ct. No. FCR 178124
Penal Code section 12021 contains this sentence: “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.” In this
case, on the day set for sentencing, the trial court refused to entertain defendant’s
oral motion for a new trial. On defendant’s appeal, the Court of Appeal, relying
on the above quoted provision, reversed the judgment and remanded the matter for
a new trial.
We granted review to address these issues: (1) Is section 1202 self-
executing or must a defendant bring a motion under that provision? (2) If a
separate motion is required, may this requirement be excused on the ground that
making the motion would have been futile? (3) Does section 1202 require a new
1
All further statutory references are to the Penal Code, unless otherwise
stated.
1
trial without regard to whether the trial court’s failure to hear or determine the new
trial motion has prejudiced the defendant? (4) If prejudice is required, may the
reviewing court avoid any prejudice by remanding the matter to the trial court to
hear and determine the defendant’s new trial motion?
We resolve the issues in these ways: (1) When a trial court has refused or
neglected to hear a defendant’s new trial motion, a separate motion citing section
1202 is not required (and thus the futility exception does not come into play), but a
defendant may forfeit a claim to the section 1202 remedy by acquiescing in the
trial court’s failure to hear the new trial motion. (2) A reviewing court may order
a new trial under section 1202 only if the trial court’s failure to hear the
defendant’s new trial motion has resulted in a miscarriage of justice (Cal. Const.,
art. VI, § 13). (3) A reviewing court may, in appropriate circumstances, prevent a
miscarriage of justice by remanding the matter to the trial court for a belated
hearing and ruling on the defendant’s new trial motion.
I
On June 14, 2001, a jury returned verdicts finding defendant Michael Glenn
Braxton guilty of the attempted murder of Beatrice Violet Bruno. (§§ 664, 187,
subd. (a).) At the same time, the jury found that in the commission of this
attempted murder defendant had personally and intentionally discharged a firearm
causing great bodily injury to Bruno. (§§ 12022.7, subd. (a), 12022.53, subd. (d).)
The trial court set the matter for sentencing on August 9, 2001.
When the matter was called on that date, defendant’s trial attorney said he
had “affidavits from three of the jurors that indicate there may be possible
misconduct by the jury in reaching their verdicts.” The trial court interrupted to
ask why no motion had been filed. Defense counsel replied: “Your honor, I
haven’t filed a written motion for new trial. I could make it orally, but I prefer to
do it in writing.”
2
The trial court stated: “Let me just state, Counsel, today is the date and
time for sentencing. Normally motions for new trial are filed before the date for
sentencing, and I haven’t received anything. So as far as this Court is concerned,
we are going to proceed to sentencing.”
Defense counsel replied that he “would like to make a motion for new
trial.”
The trial court stated: “I think that, given the seriousness of these charges,
any motion of that magnitude should be done in writing and in advance of today’s
hearing. I will certainly not entertain any oral motion.”
Defense counsel said he wanted to “make a record,” and reiterated that he
had declarations signed by three jurors indicating possible juror misconduct. The
trial court again interrupted, saying that “this all seem[ed] quite out of order,” that
counsel “seem[ed] to be continuing to try to make a motion for new trial,” that
new trial motions must be submitted in writing before a sentencing hearing, and
that the court therefore did not understand what counsel was “trying to do.”
Defense counsel said that he was not certain a new trial motion needed to
be in writing and that he “would prefer that the matter be continued so that the
motion could be—so that [he] could file a written motion.” The trial court replied
that motions to continue required a showing of good cause and needed to be filed
“at least two days before the hearing.”
The prosecutor objected to a continuance, stating that the defense had not
shown good cause for a continuance and that the victims were in the courtroom
expecting to address the court about defendant’s sentence. Defense counsel
replied that he was “sympathetic to the trauma . . . that Mrs. Bruno and her family
have experienced,” and he noted that defendant had been “willing to plead guilty
to charges that would have subjected him to 18-and-a-half years in state prison.”
3
The trial court said that its “sole concern” was whether or not there was
good cause to continue the matter, and that it was “not going to entertain an oral
motion for a new trial, there being no excuse offered for the failure to file a written
motion.” The court added it was “prepared to go forward with sentencing” unless
counsel could “establish some good cause” for not having filed a written new trial
motion.
Defense counsel responded: “My explanation is this: It’s always difficult
to contact jurors, especially when we’re not given the personal identification
information. Secondly, that the issue that I believe is a basis for the new trial has
to do with misconduct. I have researched the issue, and it’s somewhat
complicated. It’s a serious enough case that I—I don’t want to just file a very
quick boilerplate motion. I’d like to—I think it’s necessary that it be briefed
adequately and written properly. [¶] Again, I don’t think that—I think
Mr. Braxton not only has a right to make a motion for new trial, for those reasons,
but—I would just submit it on that issue.”
The court announced its ruling: “The Court will deny defense counsel an
opportunity to make an oral motion for a new trial.” The court then proceeded to
sentencing. The defense requested several changes in the presentence report,
some of which the court agreed to make, and presented argument about the
appropriate sentence. The prosecutor also presented argument about the proper
sentence, after which the victim, Beatrice Violet Bruno, addressed the court, as did
her daughter, and the prosecutor read a statement by the victim’s husband.
When the trial court asked whether there was “any legal cause why
judgment cannot now be pronounced,” defense counsel replied: “No, nothing
other than what was mentioned earlier this morning.” The trial court then denied
probation and sentenced defendant to a term of nine years for the attempted
murder, consecutive to a sentence of 25 years to life for the enhancement under
4
subdivision (d) of section 12022.53 (infliction of great bodily injury by personally
and intentionally discharging a firearm).
On defendant’s appeal, the Court of Appeal reversed the judgment and
remanded the matter for a new trial. In its opinion, the court concluded that the
trial court had erred when it refused to entertain defendant’s oral motion for a new
trial because in criminal cases new trial motions may be made either orally or in
writing (see, e.g., People v. Simon (1989) 208 Cal.App.3d 841, 847) and the only
time limit that section 1182 imposes is that the motion “be made and determined
before judgment.”2
The Court of Appeal further held that the trial court’s error entitled
defendant to a new trial. The court stated that section 1202 was not self-
executing. In other words, the court concluded that when a trial court does not
hear or determine a defendant’s new trial motion, the defendant normally must
“supplement[] the original new trial motion with a second new trial motion
specifying the ground of refusing to hear or decide such a motion as required by
2
Although we do not question the Court of Appeal’s determination that the
trial court erred in refusing to entertain defendant’s oral new trial motion made on
the date set for sentencing, neither do we condone defense counsel’s conduct in
making the motion at this time and in this fashion. Defense counsel has a
professional duty, if not a legal obligation, to notify the court and opposing
counsel whenever feasible that the defense contemplates making a new trial
motion at the time set for sentencing, and to indicate the proposed grounds for the
motion. Providing this notice is particularly appropriate when, as here, a victim is
planning to address the court for sentencing purposes and it is likely that proper
consideration of the new trial motion will require a continuance. Should a
situation of this kind nonetheless arise in the future, we suggest the trial court
consider permitting the victim or victims, should they so desire, to address the
court to memorialize their statements, even though the matter will then be
continued for proceedings on the new trial motion before pronouncement of
judgment.
5
section 1202.” The court also concluded, however, that this “second motion”
requirement was excused in this case. A second or supplemental new trial motion
under section 1202 would necessarily have been an oral motion, and the trial court
had repeatedly stated it would not entertain any oral new trial motion. Thus,
making the second or supplemental motion would have been futile.
The Court of Appeal explained its holding: “In summary, the court erred in
refusing to entertain [defendant]’s timely new trial motion. [Defendant] was not
permitted to create a record that would permit a reviewing court to measure the
harm of that error. (Cal. Const., art. VI, § 13; see People v. Sarazzawski [(1945)]
27 Cal.2d [7,] 11, 17.) He was relieved of any obligation to bring a second motion
for new trial based on the court’s refusal to hear his first motion, given the futility
of such a second motion. For these reasons, [defendant] is entitled to a new trial
under section 1202.”
The Attorney General petitioned for review, raising two issues: “1. Does
Penal Code section 1202 authorize the reversal of a judgment where defendant in
the trial court never sought a new trial based on judicial refusal or neglect to
determine an unnoticed motion for a new trial under Penal Code section 1181
made at the time of sentencing? [¶] 2. If so, does Penal Code section 1202
mandate an exclusive appellate remedy of reversal without a showing of prejudice
or does subsequently enacted law provide the appellate court with authority to
remand for a hearing on the section 1181 motion? (See Cal. Const., art. VI, § 13;
Pen. Code, § 1260.)” Defendant’s answer to the petition for review asked this
court to address an additional issue in the event we granted the Attorney General’s
petition: “When a trial court refuses to entertain a defendant’s properly brought
motion for new trial, is the defendant entitled to a new trial under the second
sentence of Penal Code section 1202 regardless of whether he makes a second new
6
trial motion mentioning section 1202?” We granted the Attorney General’s
petition and also granted review of the additional issue defendant raised.
II
At the outset we are met with defendant’s argument that the Attorney
General has forfeited the issues he seeks to raise on review because he did not
make the same contentions in the Court of Appeal. Defendant raised this
objection in his answer to the petition for review and again in a motion to dismiss
review. We denied defendant’s motion to dismiss and now explain our reasons.
In a letter brief submitted at the Court of Appeal’s request, the Attorney
General argued that a second or supplemental new trial motion based on section
1202 would not have been futile, and that a remand for a hearing on the alleged
jury misconduct was the proper remedy for the trial court’s violation of section
1202 by failing to hear or determine defendant’s new trial motion. Thus, the
Attorney General did present to the Court of Appeal the same issues and
arguments that he raised in his petition for review to this court.
In any event, the rule prohibiting parties from raising new issues in this
court is not absolute. Rule 28(c)(1) of the California Rules of Court reads: “As a
matter of policy, on petition for review, the Supreme Court normally will not
consider an issue that the petitioner failed to timely raise in the Court of Appeal.”
(Italics added.) But rule 29(b) recognizes that this court may decide “any issues
that are raised or fairly included in the petition or answer” and also “an issue that
is neither raised nor fairly included in the petition or answer if the case presents
the issue and the court has given the parties reasonable notice and opportunity to
brief and argue it.” (Cal. Rules of Court, rule 29(b)(1)&(2).)
When this court granted review, by a unanimous vote of its seven justices,
we necessarily determined that the issues the Attorney General raised have
sufficient statewide importance to warrant an opinion from this court, and that this
7
case presents those issues. Even assuming that the Attorney General did not
timely raise in the Court of Appeal the two issues he has presented and briefed
here, this court has authority under rule 29(b)(2) of the California Rules of Court
to decide any issue that the case presents. There is no unfairness to defendant,
who has received a full opportunity in this court to respond to the Attorney
General’s arguments.
III
We consider in this part whether, when a trial court has refused or
neglected to hear a defendant’s new trial motion before pronouncing judgment, the
defendant’s entitlement to a new trial under section 1202 is conditioned on the
making of another new trial motion that expressly relies on section 1202.
When construing a statute, a court seeks to determine and give effect to the
intent of the enacting legislative body. (Esberg v. Union Oil Co. (2002) 28
Cal.4th 262, 268.) Normally, the first step is to examine the statute’s text because
the statutory language is generally the most reliable indicator of legislative intent.
(People v. Trevino (2001) 26 Cal.4th 237, 241.) The words of the statute should
be given their ordinary and usual meaning and should be construed in their
statutory context. (Ibid.; see also Trope v. Katz (1995) 11 Cal.4th 274, 282;
Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570-571.)
Section 1202 consists of two sentences. The first sentence, concerning the
time for sentencing, reads: “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.”
The second sentence, concerning new trial motions, reads: “If the court shall
refuse to hear a defendant’s motion for a new trial or when made shall neglect to
8
determine such motion before pronouncing judgment or the making of an order
granting probation, then the defendant shall be entitled to a new trial.”
By its terms, section 1202 entitles a criminal defendant to a new trial when
the trial court does any of the following: fails to pronounce judgment within the
time allowed by section 1191, refuses to hear the defendant’s new trial motion
before sentencing, or neglects to determine the defendant’s new trial motion
before sentencing. Section 1202 does not expressly require a second or
supplemental motion for new trial to obtain the benefit of its remedy in any of
these situations. Also, it may be significant that the situations described in section
1202 are not among the grounds for a new trial motion listed in section 1181.
Thus, the text of section 1202, viewed in the statutory context of the grounds for
new trial motions specified in section 1181, does not support the proposition that
to obtain section 1202’s new trial remedy a defendant must bring a new trial
motion that is expressly grounded on section 1202.
In concluding that a second or supplemental motion was required, the Court
of Appeal relied primarily on appellate decisions construing the first sentence of
section 1202, which states that “the defendant shall be entitled to a new trial” if the
trial court, without good cause, does not pronounce judgment within the time
required by section 1191. We likewise will review those decisions.
As enacted in 1872, as part of the original Penal Code, section 1202 read:
“If no sufficient cause is alleged or appears to the Court, why judgment should not
be pronounced, it must thereupon be rendered.” In 1909, the Legislature amended
section 1202 by adding the provisions entitling the defendant to a new trial if the
trial court did not pronounce the sentence within the time required by law or
refused to hear or neglected to determine the defendant’s new trial motion. (Stats.
1909, ch. 589, § 2, p. 898.)
9
After the 1909 amendment, this court first construed section 1202 in
Rankin v. Superior Court (1910) 157 Cal. 189. There, after expiration of the time
that section 1191 allowed for pronouncing judgment, the defendant petitioned this
court for a writ of prohibition restraining the superior court from pronouncing
judgment. We denied the petition, with this explanation: “Sections 1191 and
1202 were directed to the end of preventing delay in rendering judgment. For that
purpose the power of the court to extend the time was abridged, and to prevent the
superior courts from arbitrarily ignoring or disobeying the law in that respect, it
was declared that if the time was extended beyond that authorized, the defendant
should perforce be entitled to a new trial. If judgment was not pronounced within
the time limited, a new trial was made imperative if the defendant so desired; he
became ‘entitled’ to it. This does not indicate a legislative intent that the lapse of
time and failure of the court to render the judgment within the time fixed should
oust the court of further jurisdiction to proceed in the case and render a dismissal
necessary. On the contrary, it necessarily implies that the jurisdiction shall
continue and that the court shall retain authority to order the new trial and proceed
therewith to verdict and final judgment. If the court should refuse a new trial and
render judgment against the defendant after the authorized time has passed[,] its
action would be erroneous and the judgment would be reversed on appeal, if an
appeal should be taken. But as it would be a judgment rendered by a court having
jurisdiction of the subject-matter and of the person, it would not be void, nor
subject to collateral attack upon the ground of its untimely rendition. As the court,
even if it does give judgment, as the petitioner alleges it to be about to do, will not
be acting without, or in excess of its jurisdiction, prohibition is not maintainable.
[Citation.]” (Rankin v. Superior Court, supra, at pp. 191-192, italics added.)
The issue arose again in People v. Polich (1914) 25 Cal.App. 464 (Polich).
There, the defendant contended on appeal that he was entitled to a new trial under
10
section 1202 because the trial court had pronounced sentence after expiration of
the time fixed by section 1191. (Polich, supra, at p. 465.) In rejecting this
contention, the Court of Appeal observed: “[I]t does not appear that the defendant
objected to the pronouncing of judgment on April 3rd, or that he demanded a new
trial upon the ground that the five days’ limit had expired.” (Ibid.) Citing Rankin
v. Superior Court, supra, 157 Cal. 189, the court concluded that the trial court
“might rightfully enter the judgment in the absence of a motion or demand for a
new trial based upon the claim of delay in rendering judgment.” (Polich, supra, at
p. 466.)
On similar facts, the Court of Appeal reached the same conclusion a year
later in People v. Okomoto (1915) 26 Cal.App. 568 (Okomoto). There, the court
gave this explanation for rejecting the defendant’s argument: “Here it appears that
the defendant was entitled to a new trial; but it further appears that a new trial was
not refused, inasmuch as he did not ask for it. . . . [I]n the absence of any
objection made by the defendant at the time of pronouncing judgment and in the
absence of any demand made by him for a new trial upon the ground that the legal
time limit had expired, the court might rightfully enter the judgment.” (Okomoto,
supra, at p. 573.)
Consistent with these decisions, it is now well established that to obtain the
new trial remedy that section 1202 provides for a trial court’s failure to timely
pronounce sentence, a defendant must promptly object and demand a new trial on
the ground that the time for sentencing has expired. (People v. Cunningham
(2001) 25 Cal.4th 926, 1044; People v. Von Moltke (1931) 118 Cal.App. 568, 573;
People v. Manes (1930) 104 Cal.App. 493, 497-498; People v. Martinez (1922) 57
Cal.App. 771, 778.)
Here, the Court of Appeal reasoned that if a defendant forfeits a section
1202 untimely sentencing claim by failing to make a demand or motion for a new
11
trial, then “by a parity of reasoning,” when the trial court has refused to hear or
failed to rule upon a new trial motion, a defendant forfeits entitlement to a new
trial under section 1202 if the defendant does not make a second or supplemental
new trial motion expressly relying on section 1202. We are not persuaded that “a
parity of reasoning” supports or compels this conclusion.
As this court explained in Rankin v. Superior Court, supra, 157 Cal. 189,
when the time allowed for sentencing under section 1191 expires, a defendant
becomes entitled to a new trial under section 1202 “if the defendant so desire[s].”
(Rankin, supra, at p. 192.) Although this court did not elaborate on the point in
Rankin, it stands to reason that a defendant will not invariably desire a new trial
when the time for sentencing has elapsed. In particular, a defendant might prefer
untimely sentencing to a new trial if the chances of a more favorable verdict on
retrial are slight, and the defendant prefers to commence service of the sentence so
it can be completed and the defendant returned to free society at the earliest
possible date.
This reasoning does not apply, however, to the situations covered by the
second sentence of section 1202: a trial court’s refusing to hear or neglecting to
rule upon a new trial motion. In these situations, the defendant has already, by
bringing a new trial motion, expressed a preference for a new trial over prompt
sentencing. The new trial motion is itself sufficient proof that the defendant
desires a new trial.
This does not mean, however, that the concept of forfeiture has no
application or significance in this context. If the trial court’s failure to hear or rule
on the new trial motion appears to be inadvertent, the defendant must make some
appropriate effort to obtain the hearing or ruling. (See People v. Cunningham,
supra, 25 Cal.4th at p. 984 [failure to “press for a ruling” on motion to sever
forfeited the issue on appeal]; People v. Bolin (1998) 18 Cal.4th 297, 312-313
12
[same; venue motion]; People v. Pinholster (1992) 1 Cal.4th 865, 931 [same;
motion to sever]; People v. Morris (1991) 53 Cal.3d 152, 195 [objection to
admission of evidence forfeited on appeal by failure to press for a ruling]; People
v. Hayes (1990) 52 Cal.3d 577, 618-619 [same].) “ ‘[W]here the court, through
inadvertence or neglect, neither rules nor reserves its ruling . . . the party who
objected must make some effort to have the court actually rule. If the point is not
pressed and is forgotten, [the party] may be deemed to have waived or abandoned
it, just as if he had failed to make the objection in the first place.’ ” (People v.
Obie (1974) 41 Cal.App.3d 744, 750, quoting Witkin, Cal. Evidence (2d ed. 1966)
§ 1302, p. 1205, disapproved on another ground in People v. Rollo (1977) 20
Cal.3d 109, 120, fn. 4; accord, People v. Brewer (2000) 81 Cal.App.4th 442, 459;
People v. Rhodes (1989) 212 Cal.App.3d 541, 554.)
This is an application of the broader rule that a party may not challenge on
appeal a procedural error or omission if the party acquiesced by failing to object or
protest under circumstances indicating that the error or omission probably was
inadvertent. (People v. Ervin (2000) 22 Cal.4th 48, 73; People v. Vera (1997) 15
Cal.4th 269, 275-276; People v. Saunders (1993) 5 Cal.4th 580, 589-590; see also
People v. Ochoa (2001) 26 Cal.4th 398, 441; People v. Jenkins (2000) 22 Cal.4th
900, 1000.) “ ‘In the hurry of the trial many things may be, and are, overlooked
which would readily have been rectified had attention been called to them. The
law casts upon the party the duty of looking after his legal rights and of calling the
judge’s attention to any infringement of them.’ [Citation.]” (Sommer v. Martin
(1921) 55 Cal.App. 603, 610; accord, In re Seaton (2004) 34 Cal.4th 193, 198.)
Applying these principles to the issue before us, we conclude that when a
trial court has failed to hear a defendant’s motion for a new trial, the defendant
need not bring a second or supplemental motion for new trial under section 1202.
On the other hand, a defendant may forfeit the issue for appellate review by failing
13
to press for a hearing or by acquiescing in the court’s failure to hear the new trial
motion. (See, e.g., People v. Murphy (1962) 207 Cal.App.2d 885, 889-890;
People v. Asher (1969) 273 Cal.App.2d 876, 925-926, overruled on another point
by People v. Satchell (1971) 6 Cal.3d 28, 39.)
On the facts shown here, we conclude, as did the Court of Appeal, that
defendant did not forfeit the issue by acquiescence in the court’s error. The trial
court’s failure to hear defendant’s new trial motion was not the result of
inadvertence; it resulted instead from the court’s repeatedly stated decision not to
entertain any oral motion for a new trial. Defendant did all that could reasonably
be expected or required under the circumstances to obtain a hearing of his new
trial motion.
The Attorney General argues that defendants should be required to bring a
second new trial motion in these situations because a trial court might change its
position if the defendant cites section 1202 and claims an entitlement to a new trial
under its provisions. We disagree. A trial court is presumed to know the
governing law, and litigants generally are not required, on pain of forfeiting
valuable rights, to remind trial courts of relevant statutory provisions.
Moreover, to require a defendant to make a second motion for new trial in
this situation would have the paradoxical result of making defendants worse off
than they would be if section 1202 had never been enacted. Absent section 1202,
a trial court’s error in failing or refusing to hear a defendant’s new trial motion
would be treated like any other procedural error: On appeal, a claim for reversal
on this ground would be subject to rules of forfeiture for inviting or acquiescing in
the procedural error, and it would also be subject, as explained, post, in part IV, to
the constitutional miscarriage-of-justice harmless error standard. Adding a
second-motion requirement to these existing qualifications would not be consistent
with the apparent legislative intent underlying section 1202, which was “to
14
prevent the superior courts from arbitrarily ignoring or disobeying the law” by
expressly acknowledging a defendant’s entitlement to a new trial for these
procedural errors. (Rankin v. Superior Court, supra, 157 Cal. at pp. 191-192.)
IV
We consider next the constitutional rule that a judgment of conviction will
be set aside only when necessary to prevent a miscarriage of justice, and the effect
of this rule on the provision of section 1202 entitling a defendant to a new trial
when a trial court has refused to hear the defendant’s new trial motion before
pronouncing judgment.
In article VI, section 13, the California Constitution provides: “No
judgment shall be set aside, or new trial granted, in any cause, on the ground of
misdirection of the jury, or of the improper admission or rejection of evidence, or
for any error as to any matter of pleading, or for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the evidence,
the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.” (Italics added.) This provision is derived from former
article VI, section 4½, which was added to the state Constitution in 1911. (See
People v. Cahill (1993) 5 Cal.4th 478, 488.) Under this provision, determining
whether a procedural error has resulted in a miscarriage of justice in most
instances “will depend upon an appellate court’s evaluation of the effect of the
error in light of the evidence at trial . . . .” (Id. at p. 491.) In some instances,
however, an error may result in a miscarriage of justice regardless of the strength
of the evidence. (Ibid.) In this latter category are certain structural errors that
deny the defendant a fundamental constitutional right or otherwise do not lend
themselves to ordinary harmless error analysis. (Id. at p. 493.)
It has long been established that application of the constitutional
miscarriage-of-justice standard to the first sentence of section 1202, concerning
15
timely sentencing proceedings, means that “tardy pronouncement of judgment is
reversible error only if the defendant can show prejudice.” (People v. Teddie
(1981) 120 Cal.App.3d 756, 764 (Teddie); accord, People v. Cunningham, supra,
25 Cal.4th at p. 1044; People v. Ford (1966) 65 Cal.2d 41, 47; People v. Williams
(1944) 24 Cal.2d 848, 850; People v. Zuvela (1923) 191 Cal. 223, 224; People v.
Cheffen (1969) 2 Cal.App.3d 638, 642; People v. Fritz (1969) 275 Cal.App.2d
866, 872-873; People v. Palmer (1942) 49 Cal.App.2d 567, 574-575; People v.
Chan Chaun (1940) 41 Cal.App.2d 586, 594.)
In Teddie, supra, 120 Cal.App.3d 756, the Court of Appeal, in an opinion
by then Presiding Justice Otto Kaus, concluded that the miscarriage-of-justice
standard articulated in article VI, section 13, of the state Constitution has a similar
effect on the second sentence of section 1202, stating that a defendant is entitled to
a new trial if the trial court refused to hear or neglects to rule on a new trial
motion, so that reversal is required only if the defendant has been prejudiced. The
court said it could “think of no reason” why the constitutional provision should
not apply in the same manner to both sentences of section 1202. (Teddie, supra, at
p. 764.) Defendant argues, however, that Teddie is wrong on this point and that its
holding conflicts with this court’s decision in People v. Sarazzawski, supra, 27
Cal.2d 7 (Sarazzawski).
In Sarazzawski, the trial court sentenced the defendant to death for the
crime of murder. On his appeal to this court, we reversed on two grounds. The
first ground was the trial court’s error in insisting that defense counsel argue the
defendant’s new trial motion on October 6, 1944, despite the court’s previous
assurance that argument would be heard ten days later, and despite counsel’s
protestations that she was not prepared to argue. (Sarazzawski, supra, 27 Cal.2d at
pp. 11-18.) The second ground was the trial court’s error in instructing the
prospective jurors, during voir dire, that if they honestly forgot anything during
16
voir dire, and then after being sworn to try the case innocently discovered they had
made any mistake or omission in their voir dire answers, it would be their secret
and they should not disclose it to anyone. (Id. at pp. 18-19.) This court concluded
that the giving of this erroneous instruction was prejudicial per se. (Id. at p. 19.)
Regarding the former error, the court stated: “Refusal to permit counsel for the
defendant a reasonable opportunity to both prepare and present a motion for a new
trial is, under the circumstances shown here, more than a mere error in procedure.
It amounts to a deprival of a substantial statutory right and is not covered by
[former section 4½ of article VI of the state Constitution].” (Id. at p. 18, italics
added.)
The proposition that a trial court’s refusal to hear a defendant’s motion for
a new trial is a kind of error that “is not covered by” the constitutional harmless
error provision is unsound. As our more recent decisions have explained, the
constitutional provision—which precludes the reversal of a judgment or the
granting of a new trial for a trial court error unless that error is determined to have
resulted in a miscarriage of justice—applies to state law errors generally. (See
People v. Crayton (2002) 28 Cal.4th 346, 364; People v. Breverman (1998) 19
Cal.4th 142, 173-174; People v. Cahill, supra, 5 Cal.4th at p. 491.) Assuming that
the Legislature intended, when it amended section 1202 in 1909, to require
appellate courts to grant defendants new trials automatically, without any
consideration of prejudice, whenever the trial court refused or neglected to hear a
defendant’s new trial motion, that intention must yield to the later amendment of
the California Constitution, in 1911, imposing the miscarriage-of-justice
limitation. This limitation applies to the state law errors mentioned in section
1202. Insofar as it held or suggested otherwise, People v. Sarazzawski, supra, 27
Cal.2d 7, is overruled.
17
How exactly does the miscarriage-of-justice limitation apply to a trial
court’s error in refusing to hear a defendant’s motion for a new trial? In previous
decisions, we have cited Sarazzawski, supra, 27 Cal.2d 7, for the proposition that
a trial court’s refusal to hear a defendant’s new trial motion is a form of structural
error that constituted a miscarriage of justice regardless of the strength of the
evidence of the defendant’s guilt. (See People v. Superior Court (Zamudio)
(2000) 23 Cal.4th 183, 197; People v. Flood (1998) 18 Cal.4th 470, 488; People v.
Cahill, supra, 5 Cal.4th at p. 495, fn. 11; People v. Superior Court (Marks) (1991)
1 Cal.4th 56, 70; People v. Succop (1967) 67 Cal.2d 785, 790; People v. Modesto
(1963) 59 Cal.2d 722, 730; Spector v. Superior Court (1961) 55 Cal.2d 839, 844.)
On further consideration, we now conclude that this is not necessarily or
universally true.
Section 1202 entitles a defendant to a new trial when the trial court has
refused to hear or neglected to determine a defendant’s motion for a new trial and
a reviewing court has properly determined that the defendant suffered actual
prejudice as a result. This will occur when, for example, the reviewing court
properly determines from the record that the defendant’s new trial motion was
meritorious as a matter of law, or the record shows that the trial court would have
granted the new trial motion and the reviewing court properly determines that the
ruling would not have been an abuse of discretion. (See, e.g., In re Rothrock
(1939) 14 Cal.2d 34, 38, 41.) In these situations, the trial court’s error has resulted
in a miscarriage of justice within the meaning of article VI, section 13, of the
California Constitution.
On the other hand, a judgment of conviction may not be reversed and a new
trial may not be ordered for a trial court’s failure to hear a new trial motion when a
reviewing court has properly determined that the defendant suffered no prejudice
as a result. This will occur when, for example, the record shows that the trial court
18
would have denied the new trial motion and the reviewing court properly
determines that the ruling would not have been an abuse of discretion, or the
reviewing court properly determines as a matter of law that the motion lacked
merit. (See, e.g., Teddie, supra, 120 Cal.App.3d at p. 763; see also People v. Allen
(1986) 42 Cal.3d 1222, 1260, fn. 18 (lead opn. of Grodin, J.); People v. Murphy,
supra, 207 Cal.App.2d at p. 890; People v. Chan Chaun, supra, 41 Cal.App.2d at
pp. 593-594.)
In some cases, a trial court’s refusal to hear a new trial motion will result in
a record from which a reviewing court will be unable to determine with sufficient
certainty whether the new trial motion was meritorious as a matter of law or
whether the trial court would properly have exercised its discretion in favor of
granting or denying the new trial. Here, for example, the trial court did not permit
defense counsel to present the juror declarations he had obtained or to explain the
nature of the claimed juror misconduct, and the trial court expressed no view on
the merits of the proposed motion. We consider these situations in the next part.
V
When a trial court has refused to hear a defendant’s new trial motion before
pronouncing judgment, may a reviewing court remand the matter to the trial court
for a belated hearing and a ruling on the defendant’s new trial motion?
Section 1260 provides that, on an appeal from a judgment of conviction, a
reviewing court “may reverse, affirm, or modify a judgment or order appealed
from, or reduce the degree of the offense or attempted offense or the punishment
imposed, and may set aside, affirm, or modify any or all of the proceedings
subsequent to, or dependent upon, such judgment or order, and may, if proper,
order a new trial and may, if proper, remand the cause to the trial court for such
further proceedings as may be just under the circumstances.” (Italics added.)
19
A limited remand is appropriate under section 1260 to allow the trial court
to resolve one or more factual issues affecting the validity of the judgment but
distinct from the issues submitted to the jury, or for the exercise of any discretion
that is vested by law in the trial court. (See, e.g., People v. Rodriguez (1998) 17
Cal.4th 253, 258-260; People v. Hedgecock (1990) 51 Cal.3d 395, 420-421;
People v. Brooks (1980) 26 Cal.3d 471, 483; People v. McGee (2002) 104
Cal.App.4th 559, 571-573; People v. Von Villas (1992) 11 Cal.App.4th 175, 259-
261.) In one case, this court determined that, because of the passage of time,
remand was not feasible. (People v. Snow (1987) 44 Cal.3d 216, 226-227; see
also People v. Ayala (2000) 24 Cal.4th 243, 296-297 (dis. opn. of George, C. J.).)
Generally, however, if there is any reasonable possibility that the parties can fairly
litigate and the trial court can fairly resolve the unresolved issue on remand,
reviewing courts have ordered the remand with directions that the defendant must
receive a new trial if, for one reason or another, a fair hearing is no longer
possible.
Defendant here has not argued, much less presented evidence, that the
passage of time has resulted in a dimming of memories, destruction of relevant
documents, unavailability of material witnesses, or any other circumstance that
would now preclude a fair hearing on the jury misconduct claim that the trial court
refused to entertain. In short, he has not argued that a remand for a belated
hearing is infeasible. Instead, defendant cites Sarazzawski, supra, 27 Cal.2d 7, for
the proposition that a trial court’s refusal to entertain a new trial is prejudicial per
se and requires a new trial in every instance, or at least in every instance where the
appellate record is inadequate to permit the reviewing court to conclusively
determine that the trial court’s error was not prejudicial. As noted above,
Sarazzawski is unsound to the extent it suggests that a new trial is required
whenever a trial court has refused to entertain a criminal defendant’s motion for a
20
new trial. Moreover, in Sarazzawski this court never considered the feasibility of
a remand for a belated hearing on the defendant’s new trial motion, and an
appellate court’s opinion is not authority for propositions the court did not
consider or on questions it never decided. (People v. Sapp (2003) 31 Cal.4th 240,
262.)
We conclude that when, as here, a trial court has refused to hear a
defendant’s new trial motion, and the appellate record is insufficient to permit a
reviewing court to determine as a matter of law whether the proposed motion was
meritorious, the reviewing court may remand the matter to the trial court for a
belated hearing of the new trial motion, absent a showing that a fair hearing of the
motion is no longer possible.
CONCLUSION AND DISPOSITION
When, as happened in this case, a trial court does not afford a criminal
defendant a hearing on the defendant’s new trial motion, section 1202 entitles the
defendant to a new trial. To exercise this entitlement, the defendant need not
make a second or supplemental new trial motion in the trial court relying on
section 1202. To avoid forfeiture of the claim on appeal, it is sufficient that the
defendant did not acquiesce in the trial court’s failure to hear the motion, but
instead made reasonable efforts to obtain a hearing.
A defendant’s entitlement to a new trial under section 1202 is qualified by
the constitutional command that a new trial should be granted for procedural error
only to prevent a miscarriage of justice. A trial court’s refusal to hear a new trial
motion does not result in a miscarriage of justice if the appellate record allows the
reviewing court to determine, as a matter of law, that the new trial motion lacked
merit or that the trial court would properly have exercised its discretion to deny
the motion. In these cases, the reviewing court should affirm the judgment of
conviction. On the other hand, if the appellate record does not permit the
21
reviewing court to make this determination, then the reviewing court normally
should remand the matter to the trial court for a belated hearing on the defendant’s
new trial motion. If after remand the trial court determines either that the new trial
motion is meritorious, or that a fair hearing of the new trial motion is no longer
feasible for one reason or another, the defendant must receive a new trial.
The Court of Appeal’s judgment is reversed. That court is directed to
remand the matter to the trial court for a hearing on defendant’s motion for a new
trial on the ground of jury misconduct.
KENNARD,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Braxton
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 106 Cal.App.4th 137
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S114375Date Filed: December 13, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: Solano
Judge: Ramona Joyce Garrett
__________________________________________________________________________________
Attorneys for Appellant:
Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys, General, René A.
Chacón, Ronald S. Matthias and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.
23
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard C. Neuhoff11 Franklin Square
New Britain, CT 06051
(860) 229-0433
Bruce Ortega
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-1335
24
Opinion Information
| Date: | Docket Number: |
| Mon, 12/13/2004 | S114375 |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by Bruce Ortega Office Of The Attorney General 455 Golden Gate Ave #11000 San Francisco, CA |
| 2 | Braxton, Michael Glenn (Defendant and Appellant) Represented by Richard C. Neuhoff Attorney at Law 11 Franklin Square New Britain, CT |
| Disposition | |
| Dec 13 2004 | Opinion: Reversed |
| Dockets | |
| Mar 17 2003 | Petition for review filed by Respondent People |
| Mar 18 2003 | Record requested |
| Apr 1 2003 | Received Court of Appeal record Briefs,documents and transcipts in two folders |
| Apr 7 2003 | Answer to petition for review filed By counsel for appellant {Michael G. Braxton}. |
| Apr 23 2003 | Petition for Review Granted (criminal case) Respondent's. Review of the issue raised in defendant's answer to respondent's petition for review is GRANTED. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| May 22 2003 | Request for extension of time filed Respondent asking until June 6, 2003 to file Respondent's Opening Brief on the Merits. |
| May 23 2003 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Richard Neuhoff is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date respondent's opening brief on the merits is filed. |
| May 27 2003 | Extension of time granted To June 6, 2003 to file Respondent's Opening Brief on the Merits. |
| Jun 5 2003 | Opening brief on the merits filed By Respondent {The People}. |
| Jun 20 2003 | Motion to dismiss filed (non-AA) Motion by counsel for appellant Michael G. Braxton to dismiss review as improvidently granted. |
| Jun 27 2003 | Opposition filed By Respondent {The People} to Appellant's Motion to dismiss review as improvidently granted. |
| Jul 7 2003 | Filed: Appellant's Reply to Respondent's Opposition to Motion to Dismiss Review as Improvidently Granted. |
| Jul 7 2003 | Request for extension of time filed Appellant asking for a 30 days from the court's decides appellant's motion to dismiss review. |
| Jul 16 2003 | Extension of time granted Appellant's Brief on the Merits shall be filed within thirty days from the date the court decides appellant's motion to dismiss review as improvidently granted. |
| Jul 23 2003 | Motion to dismiss denied Appellant's "Motion to Dismiss Review as Improvidently Granted" filed on June 20, 2003, is DENIED. |
| Aug 21 2003 | Request for extension of time filed By appellant asking until September 12, 2003 to file Appellant's Answer Brief on the Merits. |
| Aug 26 2003 | Extension of time granted To September 12, 2003 to file Appellant's Answer Brief on the Merits. |
| Sep 15 2003 | Answer brief on the merits filed By appellant {Michael G. Braxton} / 40(K). |
| Sep 29 2003 | Received: Appellant's errata Answer Brief on the Merits. |
| Oct 2 2003 | Request for extension of time filed By counsel for respondent {The People} requesting a 10-day extension to October 15, 2003 to file Respondent's Reply Brief on the Merits. |
| Oct 7 2003 | Extension of time granted To October 15, 2003 to file Respondent's Reply Brief on the Merits. |
| Oct 7 2003 | Received: Appellant's errata to errata to answer brief on the merits. |
| Oct 14 2003 | Reply brief filed (case fully briefed) |
| Oct 15 2003 | Compensation awarded counsel Atty Neuhoff |
| Dec 1 2003 | Received: Appellant's Corrected Answer Brief on the Merits. |
| Sep 1 2004 | Case ordered on calendar 10/5/04 @ 2pm - Los Angeles |
| Sep 24 2004 | Filed: letter from counsel for appellant {Michael Braxton} dated September 23, 2004, re: Additional Authorities. |
| Oct 5 2004 | Cause argued and submitted |
| Oct 27 2004 | Compensation awarded counsel Atty Neuhoff |
| Dec 13 2004 | Opinion filed: Judgment reversed That court is directed to remand the matter to the trial court for a hearing on defendant's motion for a new trial on the ground of jury misconduct. Majority Opinion by Kennard, J., ----- Joined by George, CJ., Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Dec 28 2004 | Rehearing petition filed By counsel for appellant {Michael G. Braxton}. |
| Dec 30 2004 | Time extended to consider modification or rehearing to March 15, 2005. |
| Feb 23 2005 | Rehearing denied |
| Feb 23 2005 | Remittitur issued (criminal case) |
| Feb 23 2005 | Received: Receipt for Remittitur from 1 DCA Div. 5. |
| Mar 23 2005 | Compensation awarded counsel Atty Neuhoff |
| Nov 17 2006 | Note: case record transmitted to court of appeal |
| Briefs | |
| Jun 5 2003 | Opening brief on the merits filed |
| Sep 15 2003 | Answer brief on the merits filed |
| Oct 14 2003 | Reply brief filed (case fully briefed) |
