People v. Braxton

• Decision Date: 13 December 2004
• Docket Number: No. S114375.,S114375.
• Citation: 22 Cal.Rptr.3d 46,34 Cal.4th 798,101 P.3d 994
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Glenn BRAXTON, Defendant and Appellant.

22 Cal.Rptr.3d 46

34 Cal.4th 798

101 P.3d 994

The PEOPLE, Plaintiff and Respondent, v. Michael Glenn BRAXTON, Defendant and Appellant.

No. S114375.

Supreme Court of California.

December 13, 2004.

Rehearing Denied February 23, 2005.

Richard C. Neuhoff, New Britain, CT, under appointment by the Court of Appeal, for Defendant and Appellant.

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.

KENNARD, J.

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 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."

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."

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 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, 256 Cal.Rptr. 373) 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 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, 161 P.2d 934.) 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...