In a motion for new trial based on newly discovered evidence, defendant must establish that it is probable that at least one juror would have found him not guilty based on the evidence, not that the new evidence would have resulted in a different verdict. Appellant was convicted of numerous crimes resulting from the robbery and shooting of one of the victims. In his first appeal challenging the denial of a motion for new trial, the appellate court reversed, concluding the trial court used an incorrect standard when analyzing the motion, and remanded with directions to reconsider the new trial motion under the correct standard. The trial court again denied the motion, finding that appellant failed to establish that a different verdict would have resulted from the newly-discovered evidence. Appellant again appealed. This time, the court reversed but ordered a new trial where the jury could hear all the evidence. Under People v. Sutton (1887) 73 Cal. 243, to entitle a party to a new trial on the ground of newly-discovered evidence, it must appear that 1) the evidence, and not merely its materiality, is newly discovered; 2) that the evidence is not merely cumulative; 3) that it is such as to render a different result probable on a retrial of the cause; and 4) that the party could not with reasonable diligence have discovered and produced it at the trial. In People v. Martinez (1984) 36 Cal.3d 816, while acknowledging Sutton , the Court found that reasonable diligence on the part of trial counsel may not be controlling, depending on the circumstances. Fundamental principles of due process require a remedy by which a defendant can bring newly-discovered evidence before a court to urge correction of an erroneous judgment. The motion for a new trial serves that purpose in California. It provides speedy review of claims and, because it is a direct attack on the judgment, avoids the limitations of the writs of habeas corpus and coram nobis. A strict enforcement of the diligence requirement would frustrate that remedy and, joined with the various limitations imposed on the reach of collateral writs, would risk that an innocent defendant would not fall within the scope of any remedy. Although the evidence must be newly discovered, the focus of the trial court in considering the motion for new trial should be on the significance and impact of the newly-discovered evidence, and not solely on trial counsels failure to exercise due diligence in developing it. Here, some of the evidence presented by appellant in his motion for new trial could have been discovered and produced at trial with reasonable diligence. There was a question as to other evidence which came to light during the trial. Regardless, the appellate court found the situation in this case akin to that in Martinez and held that the refusal to consider the new evidence would result in a miscarriage of justice. The appellate court then held that the applicable standard to be utilized is whether the evidence would result in at least one juror finding him not guilty, thus causing a hung jury, rather than a different verdict. (The trial court had concluded that appellant was required to show that the new evidence would result in a different verdict, but acknowledged that it would have to “revisit” the issue if it was incorrect.) Finally, the court ruled that the remedy in this case must be a new trial rather than remanding to allow the trial court to apply the correct standard in ruling on the motion for new trial. It based its determination on the age of the case [appellant, a possibly innocent man, had been in custody since 2004; witnesses memories may have faded; crucial evidence may have been lost], the trial judge who heard the case had since been disqualified so there was no advantage in allowing the judge who heard the case to rule on a motion for new trial, and because if remand for reconsideration of the motion again resulted in denial, the appellate court would undoubtedly be faced with another appeal.