Taylor

The People appeal from an August 14, 1992, order granting a new trial on the ground of insufficiency of the evidence. This is the trial court’s second order granting a new trial in this case, and the People’s second appeal. Appellant contends that after the issuance of our remittitur in a prior appeal directing the trial court to deny the motions for new trial, the trial court had no jurisdiction to entertain, or abused its discretion in hearing, a second motion for new trial. Appellant also challenges the August 14, 1992, ruling on its merits. We address the jurisdictional issue first and then discuss the merits of the court’s August 14, 1992, order.

*839 Procedural Background

After a jury found defendants guilty of attempted first degree murder of Andre Marshall (count 1) and conspiracy to commit murder (count 2), and found true the allegations that in the commission of each offense each defendant personally inflicted great bodily injury and personally used a firearm, defendant Taylor filed a motion for new trial on the ground of evidentiary error at trial and joined in defendant Atlas’s motion for new trial on the ground of newly discovered evidence. The trial court…

I respectfully dissent. Contrary to the majority’s holding, this case is not controlled by the LevilLindsey rule. Rather, it is a case of first impression. For the reasons discussed below, I conclude the trial court had jurisdiction to entertain the second new trial motion. On the merits of granting defendants a new trial, I would defer to the trial court because I do not find a “manifest and unmistakable abuse of discretion” from reviewing the record in this case. (People v. Cox (1991) 53 Cal.3d 618, 694 [ 280 Cal.Rptr. 692 , 809 P.2d 351 ].)

Discussion

I. The Trial Court Had Jurisdiction to Entertain the Second Motion for New Trial.

In order to resolve the jurisdictional issue in this case, it is necessary to focus on its unique procedural history.

*850 Following a jury trial, defendants were convicted of attempted murder and conspiracy to commit murder. The jury also found each defendant personally used a firearm and personally inflicted great bodily injury on the victim.

Defendants filed timely motions for new trial based on newly discovered evidence and the trial court’s alleged error in disallowing evidence the prosecution’s chief witness was on probation. The trial…

The People appeal from an August 14, 1992, order granting a new trial on the ground of insufficiency of the evidence. This is the trial court's second order granting a new trial in this case, and the People's second appeal. Appellant contends that after the issuance of our remittitur in a prior appeal directing the trial court to deny the motions for new trial, the trial court had no jurisdiction to entertain, or abused its discretion in hearing, a second motion for new trial. Appellant also challenges the August 14, 1992, ruling on its merits. We address the jurisdictional issue first and then discuss the merits of the court's August 14, 1992, order.

After a jury found defendants guilty of attempted first degree murder of Andre Marshall (count 1) and conspiracy to commit murder (count 2), and found true the allegations that in the commission of each offense each defendant personally inflicted great bodily injury and personally used a firearm, defendant Taylor filed a motion for new trial on the ground of evidentiary error at trial and joined in defendant Atlas's motion for new trial on the ground of newly discovered evidence. The trial court having granted…