P. v. Braxton

 

 

 

 

 

 

 

Filed 1/30/07  P. v. Braxton CA1/5

 

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

California Rules of
Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 

 

THE PEOPLE,             Plaintiff and Respondent, v. MICHAEL GLENN BRAXTON,             Defendant and Appellant.

A096083, 110446               (Solano County             Super. Ct. No. FCR 178124)

 

            Following his conviction by jury verdict of attempted murder (Pen. Code,
§§ 187/664^[1]), appellant Michael Glenn Braxton made a timely oral motion for new trial
on grounds of jury misconduct, which
the trial court refused
to hear. (People v. Braxton (2004) 34 Cal.4th 798, 814.)  In his first appeal
(A096083) he contended the refusal of his motion was error.  He also asserted
various evidentiary and instructional errors, which he had not claimed in his motion for new trial.

            We concluded the court's refusal to hear the
motion for new trial was error, and that, under the peculiar facts of the refusal,
appellant was entitled to a new trial.  We addressed the evidentiary issues, as
they were likely to recur on a retrial.  We declined to address the claimed instructional errors as
premature, because the evidence presented at retrial, as yet uncertain, would
govern the appropriate instructions.

            The Supreme Court granted the People's
petition for review to address the issues related to the motion for new trial. (People
v. Braxton, supra, 34 Cal.4th at p. 805.)  It concluded the trial court
erred in not hearing appellant's motion, but it reversed our judgment and
directed us to remand the matter to the trial court for a hearing on appellant's
motion for new trial on the ground of jury misconduct. (Id. at pp. 814, 820.)
 Pursuant to California Rules
of Court, then rule 26(b)(2), now rule 8.272(b)(2), we issued a remittitur
and sent the trial court our remittitur, a copy of the Supreme Court
remittitur, and a file-stamped copy of the Supreme Court opinion.  

            The trial court has now heard and denied appellant's
motion for new trial, and he appeals the order of denial (A110446).

            Subsequent to his appeal in A110446, appellant
asked us to recall the remittitur in our original opinion in order to address
the evidentiary and instructional claims of error, the resolution of which was
not necessary for our conclusion in that opinion.  He also asked that we consolidate
the two appeals.  We granted his request.

BACKGROUND

            Since 1995 or 1996 appellant owned and
lived in a mobile home which he parked in a lot rented from a Vacaville
mobile home park.  Gail Billa and her husband managed the park; Beatrice Bruno
was the assistant manager.  

            In early 1997, Carol Prange and her
teenage son, Adam, moved into the mobile home adjacent to appellant's.  The
relationship between appellant and Prange was strained.  Prange claimed that
appellant became upset about â€