People v. DeLouize

• Decision Date: 24 May 2004
• Docket Number: No. S108119.,S108119.
• Citation: 89 P.3d 733,13 Cal.Rptr.3d 302,32 Cal.4th 1223
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert DELOUIZE, Defendant and Appellant.

13 Cal.Rptr.3d 302

89 P.3d 733

32 Cal.4th 1223

The PEOPLE, Plaintiff and Respondent, v. Robert DELOUIZE, Defendant and Appellant.

No. S108119.

Supreme Court of California.

May 24, 2004.

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

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.

KENNARD, J.

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. (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. 2.50.01 was valid (People v. Van Winkle (1999) 75 Cal.App.4th 133, 89 Cal.Rptr.2d 28 (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, 89 Cal.Rptr.2d 847, 986 P.2d 182 (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, 248 P. 908; People v. Fice (1893) 97 Cal. 459, 32 P. 531; see also In re Levi (1952) 39 Cal.2d 41, 45, 244 P.2d 403, 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, 11 P.2d 431 (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, 11 P.2d 431, italics added.) This language was repeated with apparent approval in People v. Hanks (1939) 35 Cal.App.2d 290, 95 P.2d 478 (Hanks) and People v. Collins (1950) 97 Cal.App.2d 552, 218 P.2d 87 (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, 218 P.2d 87; Hanks, supra, at p. 300, 95 P.2d 478.)

In People v. Lindsey (1969) 275 Cal.App.2d 340, 79 Cal.Rptr. 880 (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 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, 79 Cal.Rptr. 880.)

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, 79 Cal.Rptr. 880.) As authority for this proposition, the court cited In re Levi, supra, 39 Cal.2d 41, 244 P.2d 403, 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, 218 P.2d 87, 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, 79 Cal.Rptr. 880.) 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, 245 Cal.Rptr. 156 (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, 245 Cal.Rptr. 156.) On the defendant's appeal from the resulting 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, 245 Cal.Rptr. 156.)

In People v. Snyder (1990) 218 Cal.App.3d 480, 266 Cal.Rptr. 915 (Snyder), after the defendant had been convicted of certain offenses involving...