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Motion for a New Trial – Frequently Asked Questions

Our knowledgeable lawyers Wallin & Klarich want to share some common questions we have received regarding making a California Motion for a New Trial under Penal Code section 1181.

What acts can qualify as jury misconduct that would warrant granting a new trial?

Any act that is contrary to judge issued jury instructions or court mandated codes of conduct can constitute jury misconduct. Under California Penal Code section 1181, jury misconduct can occur in a number of situations including juror intoxication, receiving evidence outside of the courtroom, and intentionally misleading the court or attorneys during jury selection. Although jury misconduct occurs quite frequently, a new trial will only be granted if the prejudice to your case is so severe that it can only be remedied by ordering a new trial on the merits.

Can I make a motion for a new trial even if my attorney fails to object to the prosecutorial misconduct or legal error when it occurred?

Generally, a motion for new trial must be made prior to the sentencing hearing. However, your attorney must object to the misconduct or error at the time it occurs in order to preserve your right to challenge it upon appeal or in a motion for new trial. If your attorney fails to object to the error in a timely fashion, you can still make a motion for a new trial based on ineffective assistance of counsel. In order to prevail on these grounds, you must be able to show that the outcome of your case would have been more favorable had your attorney properly objected to the misconduct.

Do I have any other options if my motion for new trial is denied?

Yes. Even if the judge denies your motion for a new trial, you can still file an appeal challenging that ruling with a California Appellate Court. Such an appeal can only occur after your sentencing hearing and therefore you may be required to serve time while you await the results of your appeal.

Your attorney can submit an appeal to a California Appellate Court or a writ of habeus corpus requesting your release from unlawful confinement as a result of legal error or improper misconduct.

How long does it take for the judge to rule on my motion for a new trial?

Under California Penal Code section 1191, the judge must rule on your motion for a new trial prior to the sentencing hearing and within 20 days after the guilty verdict has been issued. This timeframe can be extended to up to 30 days if you need more time to prepare the motion or gather evidence in support of its allegations. If the judge fails to rule on the motion for a new trial within the specified timeframe, you will automatically be granted the right to a new trial.

Are there other circumstances in which a judge will order a new trial without filing a motion with the court?

Yes. If the jury is unable to reach a unanimous verdict after an extended period of deliberation (also known as a “hung jury”) the court can order a new trial. If a new trial is ordered under these circumstances, you can only be charged with the same offense and a failure to convict during the new proceedings will result in a dismissal of your case under the double jeopardy principle.

To file a California motion for a new trial Penal Code section 1181, who should I call?

Felony Attorneys
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Drawing from extensive years of experience, Wallin & Klarich is available to answer any questions you have and are willing to go the extra mile in your defense.

With offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, Victorville and West Covina, Wallin & Klarich has over 30 years of experience in successfully representing Southern California residents who have been charged with a variety of criminal offenses.

Call our professional defense attorneys today at (877) 466-5245. We will be there when you call.

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