Monday, January 26, 2026
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Court of Appeal:
Judge Who Didn’t Preside at Trial Wrongly Acted on Motion
Opinion Says Jurist Foreclosed From Granting New Trial Based on Ineffective Assistance of Counsel
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has found that a judge erred in granting a motion for a new trial in a criminal case on the ground of ineffective assistance of counsel because another judicial officer, who died, had presided over the defendant’s trial.
Although the panel found in its unpublished opinion filed Thursday that Orange Superior Court Judge Lewis W. Clapp was not in a position to assess the trial performance of the defense lawyer, it declared that he did not abuse his discretion in granting a new trial to Thomas Pail Briles—convicted by a jury on two counts of driving under the influence of a controlled substance, causing bodily injury—based on new evidence.
Jurors learned that Briles, following a 2018 traffic accident in which his heavy-duty pickup truck collided with two cars and a pedestrian, had flunked field sobriety tests. But they were not advised of the opinion on the part of Dr. Michael Gerhardt, who performed hip-replacement surgery on the defendant in 2020, that in light of effects of earlier hip surgery in the 1990s, Briles could not have passed a field sobriety test even with no drugs in his system.
The effects included a limp.
Doctor’s Declaration
A declaration executed by Gerhardt was presented to Clapp on the day set for sentencing—Nov. 17, 2023—by the defendant’s new lawyer, John D. Barnett, a practitioner in Tustin. Briles had fired his trial lawyer, Andrew M. Stein, an unsuccessful candidate for the Los Angeles Superior Court in 2014 and for the Orange Superior Court in 2016.
Barnett subsequently brought a new-trial motion and Clapp granted it, finding that Stein denied his client a fair trial by failing to call the doctor as a witness.
Justice Martha K. Gooding, in Thursday’s opinion, said that the “circumstances…negate the possibility Stein did not know about Dr. Gerhardt,” but wrote that Clapp still should not have acted on the motion to the extent that it called for a pronouncement that there was ineffective assistance of counsel.
She explained that “[a]lthough there is no statutory authorization for granting a new trial on that basis,” the California Supreme Court held in its 1983 decision in People v. Fosselman that trial judges may do so pursuant to their “constitutional duty...to ensure that defendants be accorded due process of law.” However, the jurist noted that the high court clarified in its 2005 opinion in People v. Cornwell that such power is to be exercised only when a judge’s “own observation of the trial would supply a basis for the court to act expeditiously on the motion.”
Gooding’s Opinion
Gooding wrote:
“Because Judge Clapp did not preside over Briles’s trial, he did not witness defense counsel’s performance or possess any special insight into the case. Therefore, Judge Clapp was not in a position to expedite justice by ruling on Briles’s ineffective assistance of counsel claim. Fosselmari’s rationale for allowing trial judges to adjudicate such claims in the context of a new trial motion simply does not apply here.
“Our analysis of this issue might be different if Briles’s motion had been supported by a declaration or testimony from Stein explaining why he did not call Dr. Gerhardt as a witness at trial. But Briles did not present any evidence of the reasons for, or the reasonableness of. Stein’s trial tactics. Therefore, Judge Clapp was no better situated than any other judge to assess the effectiveness of Stein’s trial performance. That being the case, Judge Clapp should have refrained from deciding whether Stein’s failure to call Dr. Gerhardt as a witness constituted ineffective assistance of counsel so as to justify a new trial.”
The justice pointed out that Briles is not precluded from raising the issue of Stein’s alleged inadequate performance via the more conventional means of a petition for a writ of habeas corpus.
New Trial Appropriate
Setting forth why a new trial was properly granted based on the surgeon’s declaration, Gooding said:
“The California Supreme Court has made clear that, where a trial court finds asserted newly discovered evidence is so material that its absence at trial deprived the defendant of his constitutional right to a fair trial, the court has discretion to grant a new trial, even if the evidence was known, or with reasonable diligence could have been known, at the time of trial. With that principle in mind—and in light of Judge Clapp’s conclusion, after a long and thoughtful hearing on the issue, that Briles did not receive a fair trial absent the doctor’s opinion regarding the debilitating effects of his hip injury—we cannot say Judge Clapp abused his discretion by granting Briles a new trial.”
The case is People v. Briles, G065030
Controversial Lawyer
Stein now practices with the Bellflower firm of Stein & Markus. He is a controversial member of the legal community.
The lawyer has received two public reprovals from the State Bar: one on June 7, 1985, for accepting money from a client for work he was purportedly doing but was, in fact, neglecting, and another on March 12, 1993, for undertaking a dissolution of marriage case despite a lack of competence in the area. The Fair Political Practices Commission in 2022 socked him with a $15,000 fine for money-laundering in the course of his 2014 campaign.
In that campaign, his proposed ballot designation of “Gang/Homicide Attorney” was disallowed by then-Los Angeles Superior Court Judge Joanne B. O’Donnell who found it to be deceptive because it implied that he was a prosecutor.
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