What is the legal test for a motion for a new trial in a criminal case?

In People v. Serrato (1973) 9 Cal.3d 753, 760, 109 Cal.Rptr. 65, 512 P.2d 289, we confirmed, albeit in dictum, that "the power of a California trial court to hear and decide a motion for a new trial in a criminal case is strictly limited to the authority granted by Penal Code section 1181." In People v. Fosselman, supra, 33 Cal.3d 572, 583, footnote 1, 189 Cal.Rptr. 855, 659 P.2d 1144, however, we disapproved that dictum "to the extent that" it conflicted with a limited nonstatutory ground for the motion recognized in Fosselman. The justification and authority for our judicial recognition of that nonstatutory ground is crucial to both the factors to be considered in ruling on a postconviction

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[6 Cal.4th 700] In People v. Fosselman, supra, 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d [863 P.2d 203] 1144, we did not question the legislative limits on the trial court's authority to grant a motion for new trial except to the extent that it might be "read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law." (Id., at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144.) That duty, we held, included ensuring that the trial is conducted with respect for the defendant's essential rights, including the right to competent counsel.

We did not hold, however, that this duty extended beyond ensuring that the proceedings before the court were conducted competently. Rather, we said: "It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them. [Citation.] Thus, in appropriate circumstances justice will be expedited by avoiding appellate review, or habeas corpus proceedings, in favor of presenting the issue of counsel's effectiveness to the trial court as the basis of a motion for new trial. If the court is able to determine the effectiveness issue on such motion, it should do so." (People v. Fosselman, supra, 33 Cal.3d at pp. 582-583, 189 Cal.Rptr. 855, 659 P.2d 1144, italics added.) We held that in the context of a motion made on the basis of trial counsel's failure to make appropriate objections, a case in which the judge had called counsel into chambers during trial to inquire about his omission to object, and where the judge had expressed doubts after conviction about counsel's competence. The motion was based on matters observed by the court.

Fosselman does not support an assumption that it is permissible and appropriate for a court to grant a new trial motion predicated on acts or omissions of counsel which did not occur in the presence of the trial court. It did not hold that the court's responsibility to ensure " 'the trial is conducted' " (People v. Fosselman, supra, 33 Cal.3d 572, 582, 189 Cal.Rptr. 855, 659 P.2d 1144) with proper regard to the defendant's rights extends to making inquiry about matters that do not occur during the trial itself. Due process does not compel expanding the motion for new trial to the point where it becomes a substitute for habeas corpus. ⁵