People v. Grake

Decision Date18 May 1964
Docket NumberCr. 1639
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Gene Glenn GRAKE, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

David K. Kroll, San Diego, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

GRIFFIN, Presiding Justice.

After a jury trial defendant was convicted of one count of burglary and seven counts of forgery. He was alleged to have incurred two prior felony convictions, one of which he admitted, and the other was found to have been incurred by him. The trial court specified in its judgment that the sentences on the eight counts would run consecutively with respect to each other and also with respect to any prior uncompleted sentences which he might be serving.

His first contention arises out of events which occurred at the time of sentencing. Defendant's attorney was asked at that time if he had anything further and he said, 'The only thing he is interested in is: Have a motion on the record for a new trial.' The court then began discussing the probation report and said that probation would be denied, and asked the defendant's attorney if he was ready for sentencing. The attorney replied, 'Yes, your Honor' and the court asked the defendant if he was ready to be sentenced and the defendant said that he was. The clerk arraigned defendant for judgment and his attorney was asked whether there was any legal cause why judgment should not be probounced and defendant's attorney replied, 'No legal cause.' The trial court then imposed the sentence described above. After the court's remarks were concluded, defendant's attorney said, 'If it please the Court, may I move the Court for a new trial in this matter?' The court said, 'Yes.' The deputy district attorney, who had heretofore been silent, inquired about the wording of the court's pronounced sentence. The court explained the wording. The court then referred again to the motion for new trial which had been made by the defendant's attorney. The deputy district attorney then said: 'I would assume, your Honor, we would have to set it [the motion] down for a time for hearing.' The date of August 14 was agreed upon by all the parties present at the time for the hearing of the motion.

An examination of the clerk's transcript indicates that the sentence pronounced by the trial court was entered in the minutes on August 6, the date of the sentencing. The hearing of the motion for a new trial was held on August 13. After determining that all the parties were present, the court said: 'I think it [the motion] was lately made, but we will hear you.' The defendant's attorney then observed that his motion was made too late under the provisions of Penal Code, § 1182. The court agreed with this observation and the deputy district attorney also stated that this was the case. There is some discussion of other matters and then the court said, 'The motion for new trial is denied.'

Defendant now contends that a proper motion for new trial was made before sentence was imposed and that the trial court did not rule on the motion. He therefore contends that Penal Code, § 1202, applies, and that defendant automatically became entitled to a new trial when the court failed to rule on the motion before sentencing. The Attorney General argues that no motion for new trial was made before judgment. He admits that there was some confusion or error during the sentencing procedure, but he says that defendant suffered no prejudice and therefore the case should be affirmed under article VI, section 4 1/2 of the Constitution.

It is apparent that the statement of the attorney before sentence was imposed was not a motion for a new trial. It was merely an expression of an intention to make such a motion in the future. A motion for a new trial in a criminal proceeding must be made orally and the grounds relied upon must be specified. Otherwise, the right to make the motion is waived. See People v. Dillard, 168 Cal.App.2d 158, 167, 335 P.2d 702; People v. Skoff, 131 Cal.App. 235, 21 P.2d 118. The Penal Code does not authorize the court to hear and grant a motion for a new trial after judgment in a criminal proceeding. (Pen.Code §§ 1182 and 1202; People v. Fry, 137 Cal.App. 525, 529, 31 P.2d 204.)

The motion for a new trial is an important right of a defendant in any case involving a conflict in the evidence. In ruling on the motion, the trial court has the duty to determine whether, in his opinion, there is sufficient credible evidence to support the verdict. At this time the trial court has a broad discretion and is not bound by the jury's decision as to conflicts in the evidence or inferences to be drawn therefrom. This gives the trial court a greater power to rule upon the evidence than is afforded appellate courts. (People v. Robarge, 41 Cal.2d 628, 633, 262 P.2d 14.)

The facts of this case appear to be identical with those of the case of People v. Jaramillo, 208 Cal.App.2d 620, 25 Cal.Rptr. 403. In that case, at 208 Cal.App.2d page 627, 25 Cal.Rptr. page 407, the court said:

'In this case it appears that, at the time sentence was pronounced, appellant expressed his desire to make a motion for a new trial and the judge expressed willingness to give him a week's time within...

To continue reading

Request your trial
11 cases
  • People v. Pineda
    • United States
    • California Court of Appeals
    • 11 Agosto 1967
    ...the motion is made in the manner and within the time prescribed by statute the right to make it is waived. (See People v. Grake (1964) 227 Cal.App.2d 289, 292, 38 Cal.Rptr. 666; People v. Jaramillo (1962) 208 Cal.App.2d 620, 626, 25 Cal.Rptr. 403; People v. Fry (1934) 137 Cal.App. 525, 529,......
  • People v. Hales
    • United States
    • California Court of Appeals
    • 29 Agosto 1966
    ...on motion for a new trial. (Citations.)' (People v. Robarge (1953) 41 Cal.2d 628, 633, 262 P.2d 14, 17; and see People v. Grake (1964) 227 Cal.App.2d 289, 292, 38 Cal.Rptr. 666; and People v. Jaramillo (1962) 208 Cal.App.2d 620, 626--627, 25 Cal.Rptr. 403.) It is axiomatic, however, that a ......
  • Warren v. Uribe
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 30 Mayo 2013
    ...Code does not authorize the court to hear and grant a motion for a new trial after judgment in a criminal proceeding." (People v. Grake (1964) 227 Cal.App.2d 289, 292.) It is not necessary that we determine whether the court misunderstood this point of law because the record makes clear tha......
  • People v. Braxton
    • United States
    • California Court of Appeals
    • 4 Noviembre 2002
    ...Court (1957) 49 Cal.2d 17, 19, 314 P.2d 6; People v. Taylor (1967) 250 Cal.App.2d 367, 372, 58 Cal.Rptr. 269; People v. Grake (1964) 227 Cal.App.2d 289, 292, 38 Cal.Rptr. 666.) Although a motion for new trial based on juror misconduct is generally supported by writings, e.g., juror affidavi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT