Yes, if there is a recognized legal ground. Penal Code section 1181 lists statutory grounds, and the California Supreme Court also permits an ineffective-assistance claim in an appropriate new-trial motion. For an ordinary motion, section 1182 requires the application to be made and decided before judgment, an order granting probation, or certain commitments, whichever comes first. Have counsel review the claimed ground, trial record, and court calendar promptly. (Penal Code § 1181; People v. Fosselman; Penal Code § 1182)
Identify the legal ground
Section 1181 addresses specific problems such as qualifying jury irregularity or misconduct, legal error or prejudicial prosecutorial misconduct before the jury, a verdict contrary to law or evidence, and material newly discovered evidence. Disagreement with the result alone is not a ground.
An ineffective-assistance claim requires separate evaluation. In People v. Fosselman, the California Supreme Court held that section 1181 does not prevent a trial court from considering that constitutional claim in an appropriate new-trial motion. That permits consideration; it does not establish that counsel performed inadequately or that a new trial must be granted. (People v. Fosselman)
The remedy also depends on the ground. For some verdicts contrary to law or evidence, the court may consider modifying the verdict or punishment instead of ordering a new trial. A request based on newly discovered evidence must address why the evidence is material and could not have been found earlier with reasonable diligence. The statute requires affidavits from the proposed witnesses at the hearing. (Penal Code § 1181)
Timing is tied to the court’s next steps
For an ordinary motion, section 1182 sets the key limit: the application must be made and determined before judgment, an order granting probation, or the specified commitment, whichever happens first. Ask counsel to check the minutes, sentencing notice, probation order, and any order changing the calendar. A motion’s filing and the court’s decision are both relevant under the statute.
Penal Code section 1191 generally sets a felony sentencing schedule of 20 judicial days, with specified extensions. That is a sentencing schedule, not a universal 20-day deadline to file a new-trial motion. Do not calculate the deadline from an online estimate or assume a motion automatically postpones sentencing. (Penal Code § 1191)
Assemble the record for counsel
Gather the verdict or finding and clerk minutes; current sentencing and probation notices; the relevant transcript pages, exhibits, and jury instructions; and the specific facts tied to the proposed ground. For a newly discovered witness, preserve when and how the person or evidence was found, the steps taken to locate it earlier, why it matters, and the witness’s account for counsel to evaluate. For an alleged jury issue, use lawful court procedures and do not contact jurors privately.
Section 1181(9) is a narrow, different rule for specified reporter unavailability or lost or destroyed notes when the defendant did not waive the right to a phonographic report. It can allow relief after an appeal has been taken or is to be taken. It is not a general route for an incomplete transcript or any missing appeal-record item. Counsel must assess this narrow exception separately. (Penal Code § 1181)
A new-trial motion is separate from an appeal. A denial may be reviewed on an appeal from a final felony judgment under section 1237; the denial does not itself create a separate immediate appeal. (Penal Code § 1237)
The Law Offices of David S. Chesley represents people facing California criminal charges. Call (800) 755-5174 to discuss the verdict, record, and court calendar.