2009 California Penal Code - Section 1179-1182 :: Chapter 6. New Trials

SECTION 1179-1182

1179.  A new trial is a reexamination of the issue in the same
Court, before another jury, after a verdict has been given.

1180.  The granting of a new trial places the parties in the same
position as if no trial had been had. All the testimony must be
produced anew, and the former verdict or finding cannot be used or
referred to, either in evidence or in argument, or be pleaded in bar
of any conviction which might have been had under the accusatory

1181.  When a verdict has been rendered or a finding made against
the defendant, the court may, upon his application, grant a new
trial, in the following cases only:
   1. When the trial has been had in his absence except in cases
where the trial may lawfully proceed in his absence;
   2. When the jury has received any evidence out of court, other
than that resulting from a view of the premises, or of personal
   3. When the jury has separated without leave of the court after
retiring to deliberate upon their verdict, or been guilty of any
misconduct by which a fair and due consideration of the case has been
   4. When the verdict has been decided by lot, or by any means other
than a fair expression of opinion on the part of all the jurors;
   5. When the court has misdirected the jury in a matter of law, or
has erred in the decision of any question of law arising during the
course of the trial, and when the district attorney or other counsel
prosecuting the case has been guilty of prejudicial misconduct during
the trial thereof before a jury;
   6. When the verdict or finding is contrary to law or evidence, but
if the evidence shows the defendant to be not guilty of the degree
of the crime of which he was convicted, but guilty of a lesser degree
thereof, or of a lesser crime included therein, the court may modify
the verdict, finding or judgment accordingly without granting or
ordering a new trial, and this power shall extend to any court to
which the cause may be appealed;
   7. When the verdict or finding is contrary to law or evidence, but
in any case wherein authority is vested by statute in the trial
court or jury to recommend or determine as a part of its verdict or
finding the punishment to be imposed, the court may modify such
verdict or finding by imposing the lesser punishment without granting
or ordering a new trial, and this power shall extend to any court to
which the case may be appealed;
   8. When new evidence is discovered material to the defendant, and
which he could not, with reasonable diligence, have discovered and
produced at the trial. When a motion for a new trial is made upon the
ground of newly discovered evidence, the defendant must produce at
the hearing, in support thereof, the affidavits of the witnesses by
whom such evidence is expected to be given, and if time is required
by the defendant to procure such affidavits, the court may postpone
the hearing of the motion for such length of time as, under all
circumstances of the case, may seem reasonable.
   9. When the right to a phonographic report has not been waived,
and when it is not possible to have a phonographic report of the
trial transcribed by a stenographic reporter as provided by law or by
rule because of the death or disability of a reporter who
participated as a stenographic reporter at the trial or because of
the loss or destruction, in whole or in substantial part, of the
notes of such reporter, the trial court or a judge, thereof, or the
reviewing court shall have power to set aside and vacate the
judgment, order or decree from which an appeal has been taken or is
to be taken and to order a new trial of the action or proceeding.

1182.  The application for a new trial must be made and determined
before judgment, the making of an order granting probation, the
commitment of a defendant for observation as a mentally disordered
sex offender, or the commitment of a defendant for narcotics
addiction or insanity, whichever first occurs, and the order granting
or denying the application shall be immediately entered by the clerk
in the minutes.

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