Stanford Law School - Robert Crown Law Library

Filed 5/24/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S108119
v.
Ct.App. 1/4 A093574
ROBERT DELOUIZE,
) Mendocino
County
Defendant and Appellant.
Super. Ct. No. CR99-30477-02

May the trial court in a criminal case reconsider an order granting the
defendant’s motion for a new trial after the time for the prosecution to appeal the
order has expired? Here, the Court of Appeal held that a trial court retains
jurisdiction to reconsider an order granting a new trial, and to reinstate a jury’s
verdicts. We agree, and thus we affirm the Court of Appeal’s judgment.
I
Because the circumstances of the offenses are not relevant to the issue
raised on appeal, this statement of facts is limited to the procedural history of the
case.
The District Attorney of Mendocino County, by information, charged
defendant Robert DeLouize with three counts of lewd acts with a minor (Pen.
Code, § 288, subd. (a)), and one count of continuing sexual abuse of a minor (id.,
§ 288.5). The information alleged, for sentencing purposes (id., §§ 667, subds.
1

---

(a), (d)-(e), 1170.12, subd. (c)(1)), that defendant had previously been convicted of
the felony of robbery.
At the trial, after the prosecution had presented its case, the defense moved
for a judgment of acquittal (Pen. Code, § 1118.1) on the count charging continuing
sexual abuse of a minor. The court granted the motion, finding the evidence
insufficient to sustain the charge. The remaining three counts were submitted to
the jury. Because the prosecution had presented evidence that defendant had
committed an earlier uncharged and unadjudicated offense of sexual molestation,
the trial court instructed the jury, using the pre-1999 version of CALJIC No.
2.50.01, on the proper use of that evidence. The jury returned verdicts finding
defendant guilty as charged of three counts of lewd acts with a minor. Defendant
then waived a jury trial on the prior conviction allegation, and, after presentation
of evidence, the trial court found the allegation true.
On July 6, 1999, the defense filed a motion for a new trial on the ground
that the trial court had committed reversible error by instructing the jury in the
language of CALJIC No. 2.50.01. The defense cited what was then a recently
published Court of Appeal decision holding that the instruction unconstitutionally
lowered the prosecution’s burden of proof and that giving the instruction was
structural error requiring reversal. On July 19, 1999, the day set for
pronouncement of judgment, the trial court granted the defense motion for a new
trial. Although the prosecution could have appealed the order granting a new trial
(Pen. Code, § 1238, subd. (a)(3)), it did not do so.
On November 19, 1999, after the expiration of the 60 days within which the
prosecution could have filed a timely notice of appeal (see Cal. Rules of Court,
rule 31(a)), the prosecution brought a motion requesting reconsideration of the
order granting a new trial. The prosecution pointed out that on September 24,
1999, a Court of Appeal had issued a published decision holding that CALJIC No.
2

---

2.50.01 was valid (People v. Van Winkle (1999) 75 Cal.App.4th 133 (Van
Winkle)); that on October 20, 1999, this court had ordered depublication (see Cal.
Rules of Court, rule 979(c)) of the Court of Appeal opinion upon which the
defense had relied in support of the motion for a new trial; and that on November
1, 1999, this court had published a decision stating that CALJIC No. 2.50.01, as
revised in 1999, “adequately sets forth the controlling principles under section
1108” (People v. Falsetta (1999) 21 Cal.4th 903, 924 (Falsetta)). On November
29, 1999, the court granted the prosecution’s motion to reinstate the jury verdicts.
On October 17, 2000, the trial court sentenced defendant to a term of 17
years in state prison, with 716 days of presentence custody credits. Defendant
filed a timely notice of appeal from the judgment.
The Court of Appeal affirmed in a partially published opinion. It
concluded that the trial court had authority to reconsider its ruling granting a
motion for a new trial, that it properly exercised its discretion to do so, and that the
pre-1999 version of CALJIC No. 2.50.01, when viewed in the context of the entire
body of instructions given the jury, did not impermissibly lighten the
prosecution’s burden of proof.
We granted defendant’s petition for review, limiting the issue to be briefed
and argued to whether the superior court retained jurisdiction to vacate its order
granting defendant’s motion for a new trial and to enter an order denying the
motion.
II
This court has held that, in a criminal case, a trial court that has denied a
motion for a new trial lacks authority to consider and grant a second or renewed
motion for a new trial. (People v. Martin (1926) 199 Cal. 240; People v. Fice
3

---

(1893) 97 Cal. 459; see also In re Levi (1952) 39 Cal.2d 41, 45, fn. *.)1 But we
have not previously decided whether, in a criminal case, a trial court is similarly
prohibited from reconsidering an order granting a new trial. This issue has
divided the Courts of Appeal.
In People v. Paysen (1932) 123 Cal.App. 396 (Paysen), the Court of
Appeal applied the rule that this court had established prohibiting a trial court
from entertaining a second motion for new trial. But the court’s opinion
suggested, unnecessarily and without citation of authority, that the same rule
governed a motion to reconsider an order granting a new trial. The court said:
“Once a motion for a new trial has been ruled upon in a criminal case and an
order made either granting or denying such application, the only remedy for the
party deeming himself aggrieved is by an appeal from such order, for the court is
without authority to entertain a subsequent motion the object of which is to change
or vacate its former order.” (Id. at p. 399, italics added.) This language was
repeated with apparent approval in People v. Hanks (1939) 35 Cal.App.2d 290
(Hanks) and People v. Collins (1950) 97 Cal.App.2d 552 (Collins), both of which,
like Paysen, concerned a defendant’s second or renewed motion for a new trial,
not a motion by the prosecution for reconsideration of an order granting a new
trial. (Collins, supra, at pp. 554-555; Hanks, supra, at p. 300.)
In People v. Lindsey (1969) 275 Cal.App.2d 340 (Lindsey), after a jury had
convicted the defendant of assault with a deadly weapon, the trial court granted
the defendant’s motion for new trial limited to the issue of his sanity at the time of
the offense. The prosecution did not appeal the order granting a new trial. On the
date set for the new trial on sanity, the trial court granted a defense motion to

1
Later decisions have recognized certain exceptions to this general rule.
(See People v. Stewart (1988) 202 Cal.App.3d 759.)
4

---

vacate the order granting a new trial and to withdraw the plea of not guilty by
reason of insanity. The trial court suspended criminal proceedings while the
defendant was committed to a state hospital for purposes of determining his
competency. When criminal proceedings resumed, the defendant moved again for
a new trial on the issue of his sanity at the time of the offense and also to enter a
new plea of not guilty by reason of insanity, but the trial court denied these
motions. (Id. at pp. 341-343.)
On the defendant’s appeal from the judgment of conviction, the Lindsey
Court of Appeal affirmed, reasoning that once the trial court had granted the
motion for a new trial on sanity, “jurisdiction was no longer present in the trial
court to upset its prior ruling.” (Lindsey, supra, 275 Cal.App.2d at p. 343.) As
authority for this proposition, the court cited In re Levi, supra, 39 Cal.2d 41,
which said nothing about a trial court’s authority to reconsider an order granting a
new trial, and Collins, supra, 97 Cal.App.2d 552, which addressed the issue only
in dictum. The Court of Appeal went on to hold that although “the attempted
reconsideration of the motion for new trial was ineffective,” the court’s error in
purporting to vacate the new trial order was harmless because “the remaining issue
was resolved by the withdrawal of the insanity plea.” (Lindsey, supra, 275
Cal.App.2d at p. 344.) The trial court properly denied defendant’s second motion
for a new trial on sanity and to enter an insanity plea because “these further
motions were ineffective.” (Ibid.)
In People v. Hernandez (1988) 199 Cal.App.3d 768 (Hernandez), the
defendant was convicted of two counts of assault with a firearm. The defense
moved for a new trial on the ground of newly discovered evidence, and the trial
court granted the motion. Two days later, however, the court on its own motion
vacated the ruling and held a further hearing, after which it denied the motion for a
new trial. (Id. at pp. 770-771.) On the defendant’s appeal from the resulting
5

---

judgment, the Court of Appeal reversed, holding that the trial court lacked
jurisdiction to reconsider its order granting a new trial. The court relied on what it
termed “the Levi/Lindsey rule” as prohibiting a trial court, subject to “some limited
exceptions,” from entertaining a motion to reconsider or vacate a prior order either
granting or denying a new trial. (Id. at p. 771.)
In People v. Snyder (1990) 218 Cal.App.3d 480 (Snyder), after the
defendant had been convicted of certain offenses involving the manufacture and
possession of controlled substances, the trial court granted the defendant’s motion
for a new trial. The prosecution then moved for reconsideration. The trial court
granted the motion, vacated its order granting a new trial, and entered a new order
denying the motion. After pronouncement of sentence, the defendant appealed.
(Id. at pp. 486-487.)
The Snyder Court of Appeal agreed with the defendant that the trial court
“was without authority to reconsider its previous order granting a new trial.”
(Snyder, supra, 218 Cal.App.3d at p. 489.) The court stated that, subject to certain
limited exceptions, a court is without authority to change or vacate an order either
granting or denying a motion for a new trial. (Id. at pp. 489-490.) According to
the court, “[a]n order on a motion for new trial may be reconsidered (1) where the
ruling is immediately reconsidered before it has been fixed by entry in the minutes
and before any further proceedings have transpired [citation]; (2) in a furcated
trial, where certain policy considerations render the general rule inapplicable
[citation]; or (3) where the order is entered inadvertently or prematurely
[citation].” (Id. at p. 489, fn. 5.)
The Snyder Court of Appeal rejected the People’s argument that the
original order granting a new trial was “a nullity” because the trial court had
“failed to perform its duty independently to reweigh the evidence, and also failed
to provide the People with their due process right to be heard on the merits.”
6

---

(Snyder, supra, 218 Cal.App.3d at p. 490.) The Court of Appeal reasoned that
although the court’s ruling “may well have been erroneous, and perhaps
constituted an abuse of discretion justifying reversal . . . it was not void ab initio.”
(Ibid.) The Court of Appeal concluded that “the trial court’s order granting a new
trial exhausted its authority on that issue, and the People’s remedy was to pursue
the appellate rights provided by statute [citation] rather than seek to vacate the
previously entered order.” (Id. at p. 491.)
A different view was expressed in People v. Rose (1996) 46 Cal.App.4th
257 (Rose). There, after the defendant was convicted of 10 counts of lewd acts on
a minor, the trial court granted the defendant’s motion for a new trial, the
prosecution moved for reconsideration, and the trial court reversed itself by
vacating its previous order and denying the motion for a new trial. On the
defendant’s appeal from the resulting judgment, the Court of Appeal affirmed.
(Id. at pp. 260-261.)
Noting that “[i]n a criminal case, no statute permits or prohibits a trial court
from amending its ruling on a motion for new trial before judgment,” the Rose
Court of Appeal reviewed the previously mentioned decisions in Lindsey, supra,
275 Cal.App.2d 340, and Snyder, supra, 218 Cal.App.3d 480. (People v. Rose,
supra, 46 Cal.App.4th at p. 262.) The court acknowledged that “[a] trial court
obviously cannot reconsider its new trial motion ruling after it has lost jurisdiction
over the case” (id. at p. 263), but it asserted that if the trial court has such
jurisdiction, “the policy of judicial economy would be thwarted by not allowing
the trial court to proceed in correcting an error of law” (id. at pp. 263-264).
III
Generally speaking, courts may correct judicial error in the making of
interim orders or in limine rulings until pronouncement or entry of a judgment.
(See People v. Jackson (1996) 13 Cal.4th 1164, 1205; People v. Eggers (1947) 30
7

---

Cal.2d 676, 692.)2 On the other hand, judicial error in the making of a final order
or judgment “may not be corrected except pursuant to statutory procedures” or on
the limited grounds available for a collateral attack. (Minardi v. Collopy (1957)
49 Cal.2d 348, 353; accord, Gill v. Epstein (1965) 62 Cal.2d 611, 615; Estate of
Doane (1964) 62 Cal.2d 68, 71; Smith v. Superior Court (1981) 115 Cal.App.3d
285, 288-290.) Is an order granting a new trial an interim order or a final order for
purposes of these rules?
An order granting a new trial is not final in the sense of being a final
resolution of the case or a final determination of the defendant’s guilt or
innocence. On the contrary, an order granting a new trial “does not finally dispose
of the matter.” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) In a
criminal case, “[t]he granting of a new trial places the parties in the same position
as if no trial had been had.” (Pen. Code, § 1180.) Thus, an order granting a new
trial is an interim order in the sense that it requires further proceedings before the
case may be resolved and judgment may be pronounced.
Although courts have sometimes used appealability as a test for
distinguishing final orders from interim orders (see, e.g., Robbins v. Los Angeles

2
Some Courts of Appeal have stated that the power to correct judicial error
in interim orders before judgment is an inherent judicial power derived from the
California Constitution, and therefore this power cannot be impaired by statute.
(See, e.g., Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1451;
Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal.App.4th
197, 210; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 388; Wozniak v.
Lucutz (2002) 102 Cal.App.4th 1031, 1042; Blake v. Ecker (2001) 93 Cal.App.4th
728, 739, fn. 10; People v. Castello (1998) 65 Cal.App.4th 1242, 1247-1250.)
Other Courts of Appeal have held that statutory restrictions on a court’s power to
reconsider its interim rulings, such as the restrictions found in Code of Civil
Procedure section 1008, are valid and constitutional. (See, e.g., Baldwin v. Home
Saving of America (1997) 59 Cal.App.4th 1192, 1200.) As the issue is not before
us, we venture no view on this dispute.
8

---

Unified School District (1992) 3 Cal.App.4th 313, 317; Jones v. Sieve (1988) 203
Cal.App.3d 359, 370), a better approach here, we think, is to analyze the issue in
terms of the policies underlying the general concept of finality. Orders and
judgments are deemed final in the superior court, and not subject to
reconsideration by that court, to preserve confidence in the integrity of judicial
procedures and to avoid the delays and inefficiencies associated with repeated
examination and relitigation of the same facts and issues. (See Custis v. United
States (1994) 511 U.S. 485, 497.) The concept of finality “rests upon the sound
policy of limiting litigation by preventing a party who has had one fair adversary
hearing on an issue from again drawing it into controversy and subjecting the
other party to further expense in its reexamination.” (In re Crow (1971) 4 Cal.3d
613, 622-623; accord, In re Rogers (1980) 28 Cal.3d 429, 438.) This court has
recognized that “[e]ndless litigation, in which nothing was ever finally
determined, would be worse than occasional miscarriages of justice . . . .” (Pico v.
Cohn (1891) 91 Cal. 129, 134; accord, United States v. Throckmorton (1878) 98
U.S. 61, 68-69; Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th
1, 11.)
Because new trials substantially prolong criminal proceedings, allowing
trial courts some authority to reconsider and to vacate orders granting new trials
may lead to earlier resolution of the matter and thereby promote the interests
underlying judicial finality rules. The time required to reconsider an order
granting a new trial is brief in relation to the duration of a new criminal trial. If, as
here, the trial court after reconsideration concludes that it erred in granting a new
trial, and it reinstates the jury verdicts, then reconsideration avoids repetitive
litigation of the charges and permits an earlier resolution of the case in the trial
court by pronouncement of judgment. In this way, reconsideration of an
erroneously granted new trial promotes confidence in the judicial system,
9

---

conserves judicial resources, and spares the parties from the inconvenience and
expense of a second trial. In short, recognizing trial courts’ authority to reconsider
orders granting new trials will often result in less trial court litigation, not more,
and an earlier rather than a later resolution of the case in the trial court.
A party’s failure to file a timely appeal from an appealable order generally
shows acquiescence in the ruling (see American Enterprise, Inc. v. Van Winkle
(1952) 39 Cal.2d 210, 221; United Pacific Ins. Co. v. Handover Ins. Co. (1990)
217 Cal.App.3d 925, 942; People v. Cabral (1975) 51 Cal.App.3d 707, 718), and
this acquiescence may bar a later motion in the trial court seeking reconsideration
of the ruling. But courts should not apply this rationale when grounds for
reconsideration come to light only after the time for appeal has passed. Here,
when the trial court granted defendant’s motion for a new trial, and throughout the
60-day period during which the prosecution could have filed an appeal from the
order granting a new trial, the only appellate decision to consider the issue had
held that CALJIC No. 2.50.01 was defective on constitutional grounds. After the
time for appeal had expired, however, that decision was depublished and another
Court of Appeal published a decision reaching the opposite conclusion. (Van
Winkle, supra, 75 Cal.App.4th 133.) Together, these subsequent developments
constituted a material change in the law undercutting the legal ground for
defendant’s new trial motion, and thus the very purpose for having a new trial. In
this unusual situation, the superior court acted properly in entertaining the
prosecution’s motion to reconsider the order granting a new trial.3

3
At present, there is a conflict in published Courts of Appeal decisions on
the validity of the pre-1999 version of CALJIC No. 2.50.01 that was given in this
case. (Compare, e.g., Van Winkle, supra, 75 Cal.App.4th 133 [holding the
instruction valid] with People v. Vichroy (1999) 76 Cal.App.4th 92, 99 [holding to
the contrary].) Because it concerned a later version of the same instruction, our
(Footnote continued on next page.)
10

---

For these reasons, we hold that, in this case, the order granting a new trial
was an interim order that the trial court could reconsider, even after the time for
the prosecution to take an appeal had expired.4
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

(Footnote continued from previous page.)

decision in Falsetta, supra, 21 Cal.4th at page 924, did not directly address or
resolve this conflict.

We did not grant review in this case to determine the validity of the pre-
1999 version of CALJIC No. 2.50.01, and we express no opinion on that issue.
We hold only that the trial court had a proper basis to reconsider its decision
granting a new trial.
4
To the extent they are inconsistent with this holding, we disapprove Snyder,
supra, 218 Cal.App.3d 480; Hernandez, supra, 199 Cal.App.3d 768; Lindsey,
supra, 275 Cal.App.2d 340, 343; Collins, supra, 97 Cal.App.2d 552; Hanks,
supra, 35 Cal.App.2d 290; and Paysen, supra, 123 Cal.App. 396.
11

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. DeLouize
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 98 Cal.App.4th 887
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S108119
Date Filed: May 24, 2004
__________________________________________________________________________________

Court:

Superior
County: Mendocino
Judge: Ronald Brown

__________________________________________________________________________________

Attorneys for Appellant:

George O. Benton, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Ronald A. Bass,
Assistant Attorney General, Gerald A. Engler, Acting Assistant Attorney General, Catherine A. Rivlin,
Matthew P. Boyle and Gregg E. Zywicke, Deputy Attorneys General, for Plaintiff and Respondent.

12

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

George O. Benton
1535 Farmers Lane, No. 231
Santa Rosa, CA 95405
(707) 538-7716

Gregg E. Zywicke
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5975

13

---

Opinion Information

Date:	Docket Number:
Mon, 05/24/2004	S108119

Disposition
May 24 2004	Opinion: Affirmed

Dockets
Jul 8 2002	Petition for review filed   By counsel for appellant {Robert Bernard DeLouize}.
Jul 8 2002	Record requested
Jul 12 2002	Received Court of Appeal record   file jacket/briefs/sealed envelope/envelope of exhibits/2 accordian files
Aug 14 2002	Petition for Review Granted; issues limited (criminal case)   The issue to be briefed and argued shall be limited to whether the superior court retained jurisdiction to vacate its order granting defendant's motion for a new trial and to enter an order denying the motion. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Sep 4 2002	Counsel appointment order filed   George Benton to represent aplt. Aplt's brief on the merits due on or before 30 days from this order.
Sep 12 2002	Note: Mail returned and re-sent   to appellant the counsel appointment letter dated 9/5/02.
Oct 1 2002	Request for extension of time filed   by appellant to 11/3/2002, to file the opening brief on the merits.
Oct 2 2002	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the Opening Brief on the Merits is extended to and including November 3, 2002.
Nov 1 2002	Request for extension of time filed   for aplt to file the opening brief on the merits, to 12-3-02.
Nov 4 2002	Opening brief on the merits filed   appellant Robert DeLouize
Nov 7 2002	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's brief on the merits is extended to and including December 3, 2002.
Nov 22 2002	Request for extension of time filed   for resp to file the brief on the meits, to 1-6-03.
Dec 6 2002	Extension of time granted   to 1-6-03 for resp to file the answer brief on the merits.
Dec 18 2002	Compensation awarded counsel   Atty Benton
Jan 3 2003	Request for extension of time filed   for resp to file the answer brief on the merits, to 1-16-03.
Jan 14 2003	Extension of time granted   to 1-16-03 for resp to file the answer brief on the merits.
Jan 15 2003	Answer brief on the merits filed   by counsel for resp.
Feb 5 2003	Reply brief filed (case fully briefed)   by aplt (timely per CRC 40k)
Mar 10 2004	Case ordered on calendar   4-6-04, 9am, L.A.
Apr 6 2004	Cause argued and submitted
May 24 2004	Opinion filed: Judgment affirmed in full   Majority opinion by Kennard, J. -----------------joined by George, C.J., Baxter, Werdegar, Chin, Brown, Moreno, JJ.
Jun 9 2004	Compensation awarded counsel   Atty Benton
Jun 24 2004	Remittitur issued (criminal case)
Sep 10 2004	Received:   Receipt for remittitur signed for by Channing Hoo, Deputy Celrk

Briefs
Nov 4 2002	Opening brief on the merits filed
Jan 15 2003	Answer brief on the merits filed
Feb 5 2003	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website