Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD195250, Howard H. Shore, Judge.
HALLER, J.
After a jury trial, Mark Groce was convicted of numerous offenses, including receiving stolen property, burglary, forgery, grand theft, unlawful taking or driving of a vehicle, receiving a stolen vehicle, and attempting to dissuade a witness from reporting a crime and testifying. On appeal, he raises various challenges to his convictions. He also contends the trial court erred in refusing to consider a motion for new trial which he attempted to file at his sentencing hearing. The Attorney General agrees the trial court erred in this regard and the matter should be remanded to allow consideration of the new trial motion.
We agree the court should have allowed the motion to be filed and ruled upon it. Thus, we conditionally reverse the judgment to give Groce an opportunity to file the new trial motion that he sought to file at his sentencing hearing, and for the court to consider and rule on this motion. In the event a new trial is not ordered and the judgment is reinstated, this appeal shall also be reinstated and consolidated with the appeal (if any) from the trial court's denial of the new trial motion.
Because the only matter we are addressing in this appeal is the procedural issue relating to the new trial motion, we confine our factual summary to the presentation of the new trial motion.
Groce was sentenced on August 14, 2006. At the sentencing hearing, the trial court heard arguments from counsel, stated its reasons for its sentencing choices, and delineated the sentence it had selected for Groce. After the court orally pronounced the sentence, but before the clerk entered the judgment in the minutes, the court inquired whether Groce wished to address the court. Groce stated that he wanted the court to consider his motion for new trial. The court responded that a written motion was necessary. Defense counsel advised the court that she had a written motion. The court refused to allow the motion to be filed, stating that it was untimely because a new trial motion had to be filed before sentencing and could not be filed on the date of sentencing.
The record suggests that the written new trial motion was prepared by Groce himself, not by defense counsel.
DISCUSSION
It has long been established that a criminal defendant has a right to ask for a new trial before he is sentenced after a guilty verdict. Penal Code section 1200 provides: "When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." Section 1201 elaborates that the defendant "may show, for cause against the judgment: [¶] (a) That he or she is insane . . . . [or] [¶] (b) That he or she has good cause to offer, either in arrest of judgment or for a new trial; in which case the court may, in its discretion, order the judgment to be deferred, and proceed to decide upon the motion in arrest of judgment or for a new trial." (Italics added.)
Subsequent statutory references are to the Penal Code.
As explained by the California Supreme Court, "[i]n felony cases the defendant must be present when the judgment is rendered, and when he appears for judgment 'he must be informed by the court, or by the clerk under his direction, of the nature of the charge against him, and of his plea, and the verdict, if any, thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.' ([§] 1200.) These provisions are mandatory, and a substantial compliance therewith is essential, for they affect important rights of the defendant, who, when thus called upon, may show either that he is insane or that there are grounds for a new trial, or for arrest of judgment." (People v. Walker (1901) 132 Cal. 137, 140-141.)
The defendant's new trial motion may be made either orally or in writing (People v. Braxton (2004) 34 Cal.4th 798, 807, fn. 2; People v. Simon (1989) 208 Cal.App.3d 841, 847), and it is timely if it is made before the clerk enters the judgment on the sentence (People v. Jaramillo (1962) 208 Cal.App.2d 620, 625-627; see also People v. Sainz (1967) 253 Cal.App.2d 496, 500; § 1182). Thus, as conceded by the Attorney General, the trial court's oral pronouncement of the sentence did not preclude Groce from filing a new trial motion, and the trial court erred in refusing to allow Groce to file the motion. (People v. Jaramillo, supra, 208 Cal.App.2d at p. 627.)
Section 1202 provides that if the trial court refuses to hear a defendant's new trial motion, the defendant is entitled to a new trial. In People v. Braxton, supra, 34 Cal.4th at pages 815-817, the court concluded that this section did not create an automatic right to a new trial in the event of an erroneous failure to rule on a new trial motion. Rather, Braxton directs appellate courts to evaluate whether the failure to hear the motion caused prejudice to the defendant. Alternatively, if the issue of prejudice cannot be determined from the record, the appellate court may remand the matter for a belated hearing on the new trial motion, absent a showing that a fair hearing on the motion is no longer possible. (Id. at pp. 817-820.) Here, because the new trial motion was not accepted for filing by the trial court and is not part of the record on appeal, it is not possible to assess the prejudice issue. Thus, a limited remand is appropriate.
Accordingly, we conditionally reverse the judgment to give Groce an opportunity to file the new trial motion that he sought to present at his sentencing hearing and for the court to rule on that motion. We decline the Attorney General's request that we address the merits of Groce's challenges to the judgment, while still remanding the matter for a ruling on the new trial motion.
DISPOSITION
The judgment is conditionally reversed and the matter remanded with directions to allow the defendant, within 30 days of the remittitur, to again present his new trial motion. If the trial court grants the new trial motion, it shall set the case for retrial. If the court denies the new trial motion, or if defendant fails to present his new trial motion in timely fashion, the court shall reinstate the judgment.
If the judgment is reinstated, the remittitur issued in this case is automatically recalled and this appeal is reinstated. (See Cal. Rules of Court, rules 8.272 (c)(2), 8.366.) In the event there is a denial of the new trial motion and a timely appeal from this ruling, the two appeals are consolidated.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.