Braxton

Penal Code section 1202 contains this sentence: “If the court shall refuse to hear a defendant’s motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment or the making of an order granting probation, then the defendant shall be entitled to a new trial.” In this case, on the day set for sentencing, the trial court refused to entertain defendant’s oral motion for a new trial. On defendant’s appeal, the Court of Appeal, relying on the above quoted provision, reversed the judgment and remanded the matter for a new trial.

We granted review to address these issues: (1) Is section 1202 self-executing or must a defendant bring a motion under that provision? (2) If a separate motion is required, may this requirement be excused on the ground that making the motion would have been futile? (3) Does section 1202 require a new trial without regard to whether the trial court’s failure to hear or determine the new trial motion has prejudiced the defendant? (4) If prejudice is required, may the reviewing court avoid any prejudice by remanding the matter to the trial court to hear and determine the defendant’s new trial motion?

We resolve the…