Does the "reasonable diligence" requirement apply to a retrial?

Unless I am missing something, this is tantamount to a holding that the statutory "reasonable diligence" requirement is unconstitutional to the extent that it would bar a retrial under the circumstances which the majority describes. As the majority acknowledges (see discussion, ante, at p. 854 of 205 Cal.Rptr., p. 1205 of 685 P.2d), well-established principles already require, as a condition of entitlement to a new trial, that the newly discovered evidence " 'be such as to render a different result probable on a retrial of the cause.' " (People v. Sutton (1887) 73 Cal. 243, 247-248, 15 P. 86.) Therefore, unless the requirement for a determination that a defendant did not have a "fair trial on the merits" is intended to impose an additional limitation, the circumstances described in the majority holding effectively eliminate the "reasonable diligence" requirement except where the lack of diligence is attributable[685 P.2d 1210] to the defendant himself, rather than to his counsel.

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