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Name: People v. Braxton
Case #: S114375
Court: CA Supreme Court
District CalSup
Opinion Date: 12/13/2004

Under Penal Code section 1202, when a court refuses or neglects to hear a defendant’s new trial motion prior to judgment, the defendant is entitled to a new trial. The trial court here refused to entertain the defendant’s oral motion for new trial on the day of sentencing. The court of appeal reversed the order and remanded for a new trial. The Supreme Court reversed the court of appeal, holding that under the circumstances the proper remedy was to remand for a hearing on the motion for new trial. When a trial court has refused or neglected to hear a defendant’s new trial motion, a separate motion citing Penal Code section 1202 is not required, 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. 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. And 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.