Forfeiture by Failure to Object
Category > Forfeiture by Failure to Object
Updated 7/27/2023Equal protection issue regarding the a waiver of jury trial rights in an SVP case was not forfeited where counsel sought to proceed with a court trial. Defendant in a sexually violent predator case, argued the failure to obtain a proper waiver of his jury trial waiver violated equal protection given the different result in cases regarding other civil commitments. The state argued the issue was forfeited since it was not raised in the trial court. However, the issue could be heard where his defense counsel wanted to proceed with a court trial. The matter was remanded to allow the defendant an opportunity to assert the equal protection challenge. id: 27728
Failure to object to ability to pay fees on Duenas grounds did not forfeit the issue on appeal. Defendant argued that under People v. Duenas (2019) 30 Cal.App.5th 1157, the assessments and fees imposed by the trial court should be reversed due to the lack of a hearing on his ability to pay. Contrary to the prosecutor’s argument, the issue was not forfeited for lack of an objection where Duenas had not yet been decided at the time of defendant’s sentencing, and it was not something he could reasonably have anticipated. The matter was remanded for a hearing on defendant’s ability to pay the fines, fees and assessments imposed by the court.id: 26120
Prosecution forfeited equitable estoppel by failing to raise it during the suppression motion hearing in the trial court. Defendant argued the trial court erred in denying his Penal Code section 1538.5 motion based on the lack of reasonable suspicion to detain and pat search. The Attorney General argued on appeal that defendant was estopped from arguing the search was unlawful because he lied when he told the told the police he was not on probation. However, because the prosecution did not raise the equitable estoppel issue in the trial court, it was forfeited on appeal.id: 25978
The court erred at the penalty phase by allowing the victim’s family members to offer an opinion as to whether death was appropriate.The trial court erred by allowing the prosecutor to ask the victim’s relatives at the penalty phase whether they believed death was the appropriate sentence. The issue was not forfeited despite the lack of a specific objection where defense counsel said the evidence was inappropriate. The error was harmless where the statements by the family members were a small part of the prosecution’s penalty phase case.id: 25682
The failure to object to the lack of findings on ability to pay fines did not forfeit the issue, but there was no harm given defendant’s past and present earning capacity and the low amount of the fines.Defendant argued the trial court erred by imposing fines and fees without making a finding regarding his ability to pay. Contrary to the prosecution’s claims, the issue was not forfeited due to the lack of an objection in the trial court since the ruling required such a finding published in People v. Duenas (2019) 30 Cal.App.5th 1157, was not reasonably foreseeable. However, no hearing was necessary given defendant’s past earnings capacity, his current prison job and the fact the he has eight years to pay off the $370 obligation.id: 26180
The trial court violated defendant’s Sixth Amendment right to a jury trial by reviewing the preliminary hearing transcript to find his prior assault involved the use of a deadly weapon and therefore justified the higher terms. The trial court violated defendant’s Sixth Amendment right to a jury trial when it found (after reviewing the preliminary hearing transcript) a disputed fact about the conduct underlying defendant’s prior assault conviction that had not been established by virtue of the conviction itself. The previous approach described in People v. McGee (2006) 38 Cal.4th 682, is no longer controlling. Defendant’s failure to object to the sentence on this basis did not amount to a waiver or forfeiture where he could not have anticipated the change in the law.id: 25470
The detective’s aggressive questioning and the minor’s inexperience and distraught state rendered the statement involuntary. The 15 year-old minor’s confession was involuntary given his inexperience and emotional state as well as the detective’s aggressive questioning that overbore his will. The aggressive detective used maximization tactics including accusative questioning, reference to a lie detector, and then the detective switched to minimization, which led to the statement. The detective’s overbearing tactics combined with the minor’s youth made him susceptible to pressures that rendered his statement involuntary. The court exercised its discretion to decide this issue on appeal despite the lack of an objection in the trial court. id: 25386
The trial court erred by failing to specify the statutory basis for the fines and fees it imposed.The trial court erred by failing to specify the statutory basis for the $704 fines and penalty assessments imposed on the defendant. This was a legal error at sentencing that could be reviewed even absent an objection in the trial court. The matter was remanded so that the trial court could specify the appropriate statutory basis for any fine, fee or penalty assessment that it imposes.id: 24767
The prosecutor committed misconduct by referring to imperfect self-defense as a “loophole” but the defense forfeited the issue by failing to object. Defendant argued the prosecutor committed misconduct when he commented during closing argument that imperfect self-defense was a “loophole” that would allow defendant to avoid responsibility for murder. The comment was improper but defendant forfeited the issue by failing to object. Following an objection, the trial court would have informed the jury that imperfect self-defense was not a loophole but rather a legitimate theory of voluntary manslaughter.id: 24090
Police could properly seize a package that smelled like marijuana but could not search the package without a warrant.Defendant sent a package that smelled like marijuana and Fed Ex employees notified police. The subsequent warrantless search of the package violated the Fourth Amendment. While a container’s mobility may constitute an exigent circumstance sufficient to justify a warrant less seizure, it cannot alone justify a search once the package is seized. The officers should have obtained a warrant to search the package. The prosecution on appeal also argued the search was justified by plain smell, similar to the plain view doctrine, but that issue was forfeited by the DA’s failure to raise it during the suppression hearing.id: 23228
The prosecutor violated defendant’s privilege against self-incrimination by introducing evidence of his post arrest, pre-Miranda silence as proof of guilt.Defendant was convicted of vehicle manslaughter with gross negligence. He was under de facto arrest when he was driven from the scene of the accident in a patrol car and was not given Miranda warnings. The prosecutor erred at trial by eliciting testimony from the officers in the patrol car that defendant never asked about the welfare of the occupants of the other vehicle. The prosecution offered this evidence of defendant’s post-arrest, pre-Miranda silence as substantive evidence of guilt in violation of defendant’s Fifth Amendment right against self-incrimination. The error required reversal of the conviction. The court also found the issue was not forfeited on appeal despite the lack of an objection on this ground where counsel did object to the related issue of the lack of Miranda warnings.id: 22634
Defense counsel’s objections to a simulated strangulation of the prosecutor, and to the lack of similarity using a mannequin, were sufficient to challenge the use of the mannequin to reenact the killing. Defense counsel offered an Evidence Code section 352 objection to a proposal to reenact the crime through a simulated strangulation of the prosecutor by the defendant, but seemed to assent to the use of a mannequin instead. When the prosecutor presented a dressed female mannequin, counsel offered a “352 objection” to the lack of similarity between the mannequin and the male victim. On appeal, defendant sought to challenge the demonstration with the mannequin. Counsel’s objections while not perfectly detailed were sufficient to allow the appellate challenge.id: 22510
The trial court erred by not recording the true finding on the verdict and ordered the jury back to deliberate further, and trial counsel rendered ineffective assistance by failing to object. The jury found the weapon use allegation not true, but changed its mind after the court sent it back for further deliberations. However, Penal Code section 1161 required the entry of a verdict or finding indicating the jury’s decision to acquit. The issue was not forfeited for lack of an objection because defendant’s substantial rights were violated. Assuming an objection was required, then trial counsel rendered ineffective assistance by failing to object. id: 22398
Prosecution forfeited standing issue by not raising it at the suppression hearing.The defense successfully moved to suppress evidence taken during the search of the vehicle after an arrest. As part of the prosecution’s appeal, it argued that one defendant had no reasonable expectation of privacy in the contents of the other defendant’s cell phone. However, when opposing the suppression motion in the trial court, the prosecution failed to make that argument, so the issue was forfeited on appeal.id: 22397
Probation conditions were modified to prohibit knowing possession of weapons and property known to be stolen. Defendant argued two probation conditions - prohibiting him from possessing firearms and stolen property were vague and overbroad. The conditions were modified to prohibit him from possessing property he knows is stolen, and knowingly possessing firearms. The court addressed the issue without an objection in the trial court because it presented a pure question of constitutional law that was easily remedied on appeal.id: 21274
CALCRIM No. 2671 erroneously implies a defendant is not authorized to use force in certain circumstances when responding to a custodial officer’s force.Defendant was convicted of battery
against a custodial officer in violation of Penal Code section 243.1. The court exercised its discretion to decide the instructional issue despite the lack of an objection. It ruled the trial court erred by instructing with
CALCRIM No. 2671 because it authorizes a custodial officer to use
reasonable force in four situations but erroneously limits to the first
situation (to restrain a person) the prohibition against the defendant’s use of force to resist reasonable force and the authorization of defendant’s use of reasonable force to defend against excessive force. However, reversal was not required under the Guiton or Green rule where the jurors decided
adversely to defendant the issue of whether his actions were an involuntary reaction to the pepper spray or a battery on the officer.id: 20991
The prosecutor waived the legality of the stop issue by conceding it at the suppression hearing, and given the change in the law on probation searches, the grounds he relied on are now invalid.Defendant who was charged with drug offenses filed a motion to suppress under Penal Code section 1538.5. The prosecutor conceded the initial stop was conducted without reasonable suspicion but argued defendant's status as a probationer rendered the validity of the stop irrelevant. After the court's ruling in this case, the law was changed and police must now be aware of a defendant's Fourth Amendment waiver before conducting a warrantless search. The prosecutor argued that because he reasonably relied on the law at the time, remand of the suppression hearing was required so that he could address the legality of the stop. However, the prosecutor's initial concession constituted a waiver of the issue of whether the initial stop was justified.id: 18601
The prosecution could not assert the forfeiture by wrongdoing doctrine on appeal where they did not raise it at trial.On appeal, defendant argued Crawford v. Washington violation in admitting the victim’s statements to a paramedic and police officer. The Attorney General argued the issue was forfeited under the forfeiture by wrongdoing principle because defendant caused the victim’s unavailability. The Supreme Court in Giles v. California (2008) ___ U.S. ___ , recently ruled the doctrine only applies where the witness is killed in order to make her/him unavailable at trial, which was not the case here. Moreover, the prosecutor’s failure to raise the doctrine at trial precluded it from raising it on appeal.id: 20480
Court's reduction of failing to register as a sex offender to a misdemeanor was authorized and the prosecution's failure to object waived any claim of error.Defendant was charged with failing to register a change of address by a sex offender under Penal Code section 290, subdivision (g)(2), and a strike prior was also alleged. The trial court reduced the charged offense to a misdemeanor pursuant to Penal Code section 17. The prosecution appealed arguing section 290, subdivision (g)(2) is not a wobbler offense subject to reduction. Because the Legislature included an alternative sentence of no more than one year in county jail the offense was a wobbler and the county jail sentence was therefore authorized. Because there was no objection by the prosecution, any claim of error was waived.id: 9942
A trial objection on Evidence Code section 352 grounds may preserve the argument that admitting the evidence violated the defendant's federal due process rights.A trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial. A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. A defendant may, however, argue that the asserted error in overruling the trial objection had the legal consequence of violating due process. id: 18823
Defendant need not move for a jury trial on the aggravating factors to preserve Blakely/Cunningham issue.Defendant did not forfeit his Blakely/Cunningham challenge by failing to request in the trial court a jury trial on the aggravating factors.id: 19761
Minor's challenge to her probation condition as facially vague and overbroad presents a pure question of law and can be made for the first time on appeal. The minor sought to challenge the constitutionality of the probation condition that she not associate with anyone disapproved of by probation. The challenge was not forfeited despite the minor's failure to object on that ground at the time the condition was imposed by the juvenile court.id: 19496
Defense counsel's request to unshackle one arm was sufficient to preserve for appeal the issue of the improper shackling of a defendant at trial.On appeal, defendant argued the trial court erred in ordering physical restraints on him during trial. The prosecution argued the issue was waived for lack of an objection. Defense counsel at trial did request unshackling of at least one of defendant's arms. This request was sufficient to trigger the trial court's already existing mandatory duty to find a manifest need for shackling a defendant.id: 19286
A motion in limine to exclude evidence is sufficient to preserve an issue for appeal.A motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e. (1) a specific legal ground is advanced; (2) the motion is directed to a articular identifiable body of evidence; (3) the motion is made at a time before or during trial when the judge can determine the question in the proper context. However, if a motion in limine does not satisfy these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal.id: 14748
The appellate issue was not waived by the defense's failure to present further authority as requested.At defendant's vehicular manslaughter trial the trial court moved to exclude any mention that the victim was not wearing a seatbelt. The defense objected arguing that if the boy was properly belted, no death would have occurred. The court tentatively ruled the evidence would not be admitted but gave the defense an opportunity to provide further authority and agreed to revisit the issue. The appellate issue was not waived by the defense's failure to present further authority as requested.id: 14750
Court reviewed a new theory that was not raised in the trial court where it was likely to be raised in the future.Defendant argued a non-theft related burglary cannot be used to elevate petty theft to a felony. The issue was raised for the first time on appeal. Because the issue is one of first impression and is likely to be raised in the future the court exercised its discretion to review the argument.id: 14749
Prosecutor's failure to object to the court's failure to state reasons for not imposing restitution fines constituted a waiver of the issue on appeal.The trial court failed to state on the record its reasons for not imposing the restitution fines. The prosecutor's failure to object to the court's omission at the time of sentencing constituted a waiver of the issue for purposes of appeal.id: 16340
Defendant did not waive the due process issue by failing to object where he objected to the admission of gang evidence under section 352.Defendant argued the admission of inflammatory gang evidence violated his due process rights. The Attorney General argued the issue was waived for lack of an objection at trial. However, the issue was not waived. First, the question raised a pure question of law on undisputed facts. Next, a due process objection would have been futile since the defendant raised the Evidence Code section 352 objection, and there is not realistic possibility the due process objection would have been more persuasive.id: 18018
People failed to preserve the issue of the purported denial of their right present evidence.The contention that the prosecution denied its right to present all relevant evidence may not be raised for the first time on appeal.id: 14737
Use of the gun to aggravate the carjacking and enhance the sentence was improper.Defendants were sentenced to a nine-year upper term for carjacking, based solely on their use of a gun during the crime. Both received a 10-year term for their use of a firearm under Penal Code section 12022.53, subd.(b). This was an impermissible dual use of the facts. The issue was not waived for the lack of an objection where the record did not show defendants knew of the court's intended sentence and the probation report did not list use of the weapon as an aggravating circumstance. The matter was remanded for resentencing.id: 16764
There was no basis for ordering an AIDS test for a juvenile and the issue was not waived where the ruling was made with little chance to object.The juvenile court found the minor committed attempted murder and assault with a firearm. The court erred at the disposition hearing by ordering him to undergo an AIDS test because no statutory provision authorizing such a test applied to the minor. The Attorney General argued the issue was waived for lack of an objection under <i>People v. Scott</i> (1994) 9 Cal.4th 331. However, there was no waiver where the court's order was made at the end of its ruling and there was little opportunity to react.id: 16195
Minor could challenge probation condition for the first time on appeal since the challenge was constitutional and involved a pure question of law.In In re Tanya B. (1996) 43 Cal.App.4th 1, the court held a minor may challenge probation conditions for the first time on appeal. In the present case, the court overruled Tanya B., and held that to preserve for appeal the issue of the reasonableness of a probation condition, a minor must object in juvenile court, unless an exception applies. However, an exception applied in the present case where the minor argued the probation conditions prohibiting "delinquent behavior" and gang association were unconstitutional in that they were vague and violated due process. These were pure questions of law that could be resolved without reference to the sentencing record.id: 16559
Defendant may challenge an HIV testing order under section 1202.1 for the first time on appeal where the challenge is directed to sufficiency of the evidence.Since involuntary HIV testing is strictly limited by statute and Penal Code section 1202.1 conditions a testing order upon a finding of probable cause, a defendant may challenge the sufficiency of the evidence even in the absence of an objection. Without evidentiary support the order is invalid.id: 17645
The trial court's failure to impose a sex offender fine pursuant to section 290.3 is not an unauthorized sentence subject to correction on appeal absent an objection by the prosecutor.The omission of a sex offender fine pursuant to Penal Code section 290.3 on a silent record does not constitute an unauthorized sentence that may be corrected on appeal. Instead, it is presumed that the trial court made the requisite findings to support its judgment. In the present case, the trial court's implied findings were supported by substantial evidence.id: 17758
The trial court erred by modifying the reasonable doubt instruction during jury selection and equating it to the jurors' everyday lives.During jury selection the court discussed the concept of reasonable doubt and equated the concept with everyday decision-making in the jurors' lives. The prosecutor used the examples given by the court in his argument to the jury. The court's tinkering with the statutory definition of reasonable doubt, no matter how well intended, lowered the prosecutor's burden. The issue was reviewable even absent an objection from trial counsel since instructional errors do not require objection, and an appellate court may address an issue that has not otherwise been preserved. The instructional error required reversal.id: 17955
Any error in instructing that defendant was the person in the 969b packet at the priors trial was harmless in light of the overwhelming evidence of identity.Defendant argued he had a constitutional right to a jury trial on the identity of the person in the Penal Code section 969b packet at the trial on the priors, and the court's instruction that he was the person in the packet violated due process and section 1025. While noting a possible problem, the court did not decide the issue since evidence of identity was overwhelming. Moreover, since the issue involved a fundamental constitutional right, the failure to raise it in the trial court did not waive the issue on appeal.id: 17203
Updated 9/14/2023Unauthorized sentence exceptions to the forfeiture doctrine did not apply where the sentence in question could legally have been imposed.The trial court resentenced defendant and imposed the upper term after he violated probation. Defendant argued on appeal that he was entitled to a new resentencing where the court could apply SB 567 or AB 124 to reach a lower term. However, the issue was forfeited due to the failure to raise the issue at sentencing. The unauthorized sentence exception to the forfeiture doctrine did not apply and defendant failed to show that an objection would have been futile.id: 27900
Updated 8/8/2023Good faith exception justified the officer’s warrantless entry into the defendant’s home after hot pursuit since California case law supported the action before it was prohibited in Lange v. California. Defendant’s case was on remand following the U.S. Supreme Court’s decision in Lange v. California (2021) 141 S.Ct. 2011, where the Court found that flight of a suspected misdemeanant does not always justify a warrantless entry into a home. On remand, the prosecution argued an alternative theory - the good faith exception to the exclusionary rule. Contrary to the defendant’s claim, that theory was not forfeited due to the failure to raise it in the trial court. Where binding precedent supported the search, the prosecution was not required to further allege good faith. Moreover, the good faith exception applied given appellate case law supporting a warrantless entry into a home following hot pursuit. The prosecution was not required to prove the officer was aware of the law since its an objective test, and a reasonably well-trained officer would have known the law.id: 27742
Defendant forfeited the Sanchez error claim by failing to make a specific objection in the trial court.Defendant argued the trial court erred by allowing the prosecution’s gang expert to relay testimonial hearsay to the jurors in violation of Crawford and Sanchez. However, the issue was forfeited because trial counsel failed to make a specific objection on the grounds now raised. The boilerplate in limine motions filed before trial containing only a vague reference to the confrontation clause and the oral arguments at the hearing where the confrontation clause was not mentioned were insufficient to preserve the issue for review. Numerous cases published before the trial made the change in the law in Sanchez reasonably foreseeable, alerting counsel of the need for an objection. Counsel did not render ineffective assistance by failing to object as it was not unreasonable to forego an objection to background hearsay, and the case-specific hearsay relayed by the expert was not shown to be prejudicial.id: 25630
The fact that defendant’s minimum parole eligibility date was greater after the jury rejected the premeditation finding did not render the sentence unconstitutional, and defendant forfeited the issue anyway by failing to object.Defendant argued his sentence was unconstitutional, as impermissibly unusual under the state constitution because the jury rejected the premeditation enhancement for the attempted murder charge, but his sentence resulted in a longer prison term than if the jury had found the enhancement to be true. The difference between what he might have received and what he did receive was an indeterminate life term with the possibility of parole after 15 years versus a determinate term of 16.5 to 19 years. However, defendant forfeited the issue by failing to raise it in the trial court. In any event, a longer parole eligibility date despite the not true finding on the premeditation allegation did not render the sentence unconstitutional.id: 26424
The section 1170.95 petitioning procedure applies to juveniles whose murder allegation was sustained by the juvenile court on a natural and probable consequences theory.Where the juvenile court has sustained a murder allegation in a natural an probable consequences theory, a juvenile may, pursuant to the provisions of Penal Code section 1170.95, petition the court to have the conviction vacated and the corresponding commitment recalled.id: 26181
Failure to object in trial court forfeited the challenge to fees and fines based on ability to pay.Defendant argued the trial court erred in failing to determine his ability to pay before imposing certain fines or fees. However, he failed to object in the trial court so the issue was forfeited. id: 26156
Failure to object to the fines based on inability to pay forfeited the issue on appeal.Defendant argued the trial court erred by imposing assessments and fines without considering his ability to pay. However, his trial counsel failed to object on this basis and he therefore forfeited the challenge on appeal. id: 26139
Sanchez error was forfeited due to the lack of an objection even though the trial preceded the Sanchez opinion. Defendants who were convicted of murder and gang-related charges argued that much of the gang expert’s testimony consisted of case-specific hearsay, which is inadmissible under People v. Sanchez (2016) 63 Cal.4th 665. However, the defendant forfeited the issue by failing to raise it below. Even though the case was tried before Sanchez was decided, other cases had indicated that an expert’s testimony to hearsay was objectionable. If anything, Sanchez narrowed the scope of a meritorious objection by limiting it to case-specific hearsay.id: 25402
Sanchez error was forfeited for lack of an objection even though the case was tried before Sanchez was decided. Defendant argued the gang expert’s testimony consisted of case-specific hearsay, which was inadmissible under People v. Sanchez (2016) 63 Cal.4th 665. However, trial counsel forfeited the issue by failing to object on that basis. It did not matter that the case was tried before Sanchez was decided because previous cases had held that an expert’s testimony to hearsay was objectionable.id: 25613
That defendant objected to the hearsay statement at the preliminary hearing did not preserve the issue where there was no objection at trial.Defendant argued the trial court erred by admitting statements under the coconspirator hearsay exception described in Evidence Code section 1223. However, the issue was forfeited for the lack of an objection at trial. The fact that counsel objected at the preliminary hearing was insufficient to preserve the issue for trial. id: 24797
Defendant forfeited the challenge that the probation condition banning him from seeing his probationer girlfriend was unreasonable by failing to object when it was imposed. Defendant was on probation for a sex offender registration violation. One condition of his probation barred him from associating with other probationers. He associated with a probationer, his girlfriend, and was found to be in violation. He argued he couldn’t reasonably have been found to violate his probation by seeing his girlfriend. However, defendant forfeited his challenge by failing to object to that condition on reasonableness grounds when it was imposed.id: 24911
Defendant forfeited the ability to challenge the manner in which the court conducted the 352 analysis, and the fact that the prior threat didn’t result in a conviction added to the prejudice.Defendant was convicted of making criminal threats against his mother. He argued the trial court abused its discretion in allowing evidence of threats under Evidence Code section 1109. He complained about flaws in the court’s balancing analysis but forfeited those claims by not specifically raising them in the trial court. The prior threats were relevant and highly probative of his propensity to abuse elders and place victims in fear. Moreover, defendant argued the lack of a conviction for the prior offense reduced its probative value, but really that fact added to its prejudice as it showed the victims fear of the defendant.id: 24690
Erroneous combination of instructions that created a permissive inference that defendant was aware of his guilt when he made the false statements was forfeited for lack of an objection.Defendant argued the trial court prejudicially erred by instructing the jury during the guilt phase of the trial, with CALCRIM 362, on consciousness of guilt, along with CALCRIM 3428 on the limited use of evidence of mental illness or impairment. Defendant failed to object to either instruction at trial. While the instructions were erroneous by creating a permissive inference that defendant was aware of his guilt when he made the false statements, the error did not affect defendant’s substantial rights. Therefore, the claim was forfeited.id: 24671
An objection to the prosecutor’s allegedly improper argument was required despite defendant’s claim the misconduct was incremental. Defense counsel failed to object to several asserted instances of prosecutorial misconduct but defendant argued on appeal the issue of prosecutorial misconduct was not forfeited because of the incremental nature of the allegedly improper comments during argument. However, this was not a situation where an objection would have been futile or the problem became clear after one last improper comment. A timely objection here would have cured the harm.id: 24271
The defendant forfeited the issue relating to his incompetent interpreter by failing to object at trial.Defendant argued he was denied a fair trial because of translation mistakes made by his interpreter. However, the issue was forfeited on appeal due to the lack of an objection by the defense at trial.id: 24146
Defendant forfeited the issue of the trial court’s ruling improperly forcing him to choose between his right to present a defense and his right to remain silent. Defendant argued the trial court erred by requiring him to testify that he believed the victim was affiliated with a gang before it would allow a witness to testify about such an affiliation. He claimed the ruling improperly forced him to choose between exercising his constitutional right not to testify and his constitutional right to present a defense. However, defendant forfeited the issue by failing to object at trial. His objection to the prosecution’s motion to exclude gang evidence was not sufficient to preserve the present issue.id: 24089
Supreme Court finds failure to preserve claim that lesser-included offense instruction should have been given.On appeal from his capital murder conviction, defendant claimed that the trial court erred in failing to instruct the jury that it curl find him guilty of lesser-included homicide offenses. In support of that argument, he cited three state cases and he relied primarily on a non-capital case. The state appellate court rejected the argument by citing a prior state non-capital decision. The Supreme Court granted certiorari to determine whether a state court erred in refusing to allow the jury to find defendant guilty of lesser-included offense. However, the Court decided to reach that issue because it found that defendant had not preserved a federal claim in the state courts.id: 20125
Defendant forfeited the issue of having his original sentencing judge consider his petition for resentencing under the Three Strikes Reform Act. Defendant who was seeking a resentencing under the Three Strikes Reform Act argued he was entitled to have the original sentencing judge consider his petition. However, he forfeited the issue by not objecting in the trial court. Defendant also forfeited the issue of failure to provide a supplemental probation report for purposes of the petition. id: 23888
Defendant seeking resentencing under the Three Strikes Reform Act was not entitled to a determination of “risk of danger” under the new Prop 47 standard. The trial court denied defendant’s request for resentencing under the Three Strikes Reform Act after finding he posed an unreasonable risk to public safety. Contrary to defendant’s claim, he was not entitled to a determination of “unreasonable risk of danger” using the standard recently developed in Proposition 47. id: 23922
Defendant’s failure to challenge fees imposed at sentencing in the trial court precluded him from doing so on appeal.The appellate forfeiture rule applies to challenges to fees imposed at sentencing, here probation-related costs and an order for reimbursement of the fees paid to appointed counsel. Defendant’s failure to challenge the fees in the trial court precluded him from doing so on appeal.id: 23945
Defendant forfeited the challenge to probation supervision and presentence investigation fees by failing to challenge them in the trial court.The sentencing court ordered that defendant pay probation supervision and presentence investigation fees under Penal Code section 1203.1 b, which prescribes specific procedures for the imposition of such fees. Defendant’s failure to challenge the order in the trial court prevented him from doing so on appeal.id: 23946
Trial court must instruct the jury to view with caution a defendant’s statements that are criminal threats, but the court no longer has a sua sponte duty to give the instruction. A trial court has the duty to instruct a jury to consider a defendant’s out-of-court statements with caution when the statements at issue form the basis of a prosecution for making criminal threats. However, the trial court is no longer required to give the instruction absent a request from counsel.id: 24035
Defendant forfeited the claim that his confession was involuntary by failing to include the trial court’s crucial factual findings in his analysis.Defendant argued the trial court erred by denying his motion to suppress the involuntary confession. However, defendant forfeited the appellate issue by omitting from his analysis several crucial findings concerning the facts. Moreover, the confession was not involuntary where defendant was not in custody at the time of the interview at the police station as the doors were unlocked and he was repeatedly told he was free to leave. Finally, because this was not a close case on the issue, the trial court did not abuse its discretion in excluding expert testimony on false confessions.id: 23535
Defendant forfeited the challenge regarding the amendment to the information by failing to object at trial.Defendant argued that the trial court erred when it permitted the prosecution to amend the information to conform to evidence produced at trial. However, defendant forfeited the right to complain about the amendment by not objecting at trial.id: 23190
Defendant’s relevance objection did not preserve the issue of a Fifth Amendment violation by admitting evidence of defendant’s precustody silence reflected by her failure to keep interview appointments with a police investigator. Defendant argued the trial court prejudicially erred by admitting evidence of her lack of cooperation with police, i.e. that she failed to keep at least one appointment or otherwise talk to the police about the charged offenses prior to her arrest. However, she objected at trial on relevance grounds and therefore forfeited the Fifth Amendment claim. Moreover, any error was harmless in light of the overwhelming evidence of guilt.id: 23181
Defendant failed to object and therefore forfeited the right to challenge expert testimony that marijuana was possessed for sales.Defendant, who claimed that he legally possessed marijuana for medical purposes, challenged the expert’s testimony that he unlawfully purchased it for the purpose of sales. However, by failing to object at trial, he forfeited appellate review of whether the officer was qualified to testify as an expert. Moreover, the evidence was sufficient to support the conviction as he possessed several bags with identical amounts packaged for sale, he had no paraphernalia associated with personal use and he had a prior conviction of possession for sale.id: 23321
Defendant forfeited the issue regarding inability to pay fees by failing to object in the trial court. Defendant argued at sentencing that the trial court erred by imposing various fees, including attorney fees, without making the requisite finding of ability to pay. However, defendant forfeited the issue by failing to object on that basis in the trial court.id: 23341
Defendant forfeited the issue of sufficiency of evidence to pay probation fees by failing to object in the trial court.Defendant argued the evidence was insufficient to show he had the ability to pay the $736 presentence investigative report fee and the $164 per month probation supervision fee. However, defendant forfeited this contention by failing to object to the imposition of those fees in the trial court.id: 23342
Because defendant failed to demur to the information, he forfeited the issue of whether he was allegedly convicted of a 288(a) offense that occurred during the same time period as was alleged for the continuous sexual abuse. Defendant argued that he was illegally convicted of a discrete sexual offense against one of his nieces because that offense occurred during the same time period as was alleged for the continuous sexual abuse under Penal Code section 288.5. However, because he failed to demur to the information, defendant forfeited the issue of whether he was illegally convicted of a discrete sexual offense that occurred during the time period alleged for continuous sexual abuse. Defense counsel was not ineffective for failing to demur because it wasn’t reasonably probable that defendant would have received a better result if counsel had done more.id: 23574
Defendant cannot challenge the booking fee for insufficient evidence of ability to pay without raising the issue at the sentencing hearing.A defendant who failed to object that the evidence was insufficient to support a finding of his ability to pay a booking fee when the court imposed it has forfeited the right to challenge the fee on appeal. id: 23161
Defendant’s objection that the gang evidence was irrelevant, cumulative and lacking in foundation did not preserve the issue that it violated section 1101, subd.(a).Defendant argued the trial court erred in admitting certain gang evidence including photos of gang tattoos, gang graffiti, and gang members throwing signs. Defendant’s argument that the admission of the evidence was erroneous under Evidence Code section 1101 was forfeited for lack of an objection, despite his general objection that the evidence was irrelevant, cumulative, lacking in foundation and prejudicial. Moreover, contrary to defendant’s claim, he did not offer to stipulate to all elements of the gang statute.id: 22853
Defendant forfeited his contention, not raised in the trial court, that the magistrate erred by admitting hearsay evidence resulting in the denial of his motion to suppress. Defendant argued the magistrate erred by considering hearsay evidence (written consent to search) in denying the motion to suppress. However, the issue was forfeited for appeal because it was not raised in the subsequent Penal Code section 995 motion filed in the trial court.id: 22972
Booking fee does not violate equal protection due to the lack of an ability to pay requirement. Defendant challenged the imposition of a $129 “criminal justice fee” under Government Code section 29550.1, also known as a “booking fee.” His failure to object in the trial court did not preclude review where the court found it is a legal issue that is being frequently raised. The provision does not violate equal protection principles even without an ability to pay requirement because defendant was not similarly situated to the local arrestees to whom he compared himself. Moreover, the statute does not require a finding by the sentencing court of the actual costs in which the fee originated.id: 22731
Defendant forfeited the claim that the indictment failed to allege the attempted murders were deliberate and premeditated. Defendant argued that he was improperly sentenced to life imprisonment for each count of attempted murder (to go along with his capital conviction) because the indictment failed to allege that the attempted murders were premeditated, deliberate and willful. Defendant failed to object earlier and so the claim was forfeited. In any event, it was established beyond a reasonable doubt that the attempted murders were deliberate and premeditated and the jury made that express finding. id: 22836
While Danis, has been overruled, the prosecution may appoint mental health experts under section 730, and Defendant forfeited the issue by failing to object on statutory grounds.In People v. Danis (1973) 31 Cal.App.3d 782, the court authorized the prosecution experts to examine defendants who place their mental states at issue. In Verdin v. Superior Court (2008) 43 Cal.4th 1096, the court found Danis did not survive the enactment of the discovery statutes in 1990. However, there is a separate statutory basis for appointing mental health experts in Evidence Code section 730. Defendant here did not argue in the trial court that the prosecutor’s request to appoint a mental health expert violated section 730 and therefore she could not raise the issue on appeal. Moreover, she clearly placed her mental state in issue by claiming her actions were a product of battered woman syndrome.id: 22213
Defendant forfeited the challenge to the probation condition that he seek employment even though he was a student.Defendant argued the trial court erred by requiring him to seek and maintain employment as a condition of his probation because he was a student at the time of sentencing. However, defendant forfeited the issue by failing to object at sentencing.id: 22108
Defendant forfeited any Witt/Witherspoon error by stipulating to the excusal of prospective jurors based on answers in the juror questionnaires.Defendant argued the trial court improperly excused five prospective jurors who expressed doubts, in their juror questionnaires, about their willingness to impose the death penalty. However, because defendant agreed to and participated in the process whereby some prospective jurors were excused through stipulations, he forfeited his right to challenge the issue. Moreover, because none of the jurors were dismissed for cause, there was no basis for a court to exercise appellate review.id: 22006
By failing to object at sentencing, defendant forfeited his claim regarding the trial court’s failure to advise him about the penal consequences of his admission of a prior conviction.Defendant forfeited the argument that the trial court erred by failing to advise him of the penal consequences of his admission. Unlike the admonition required for a waiver of constitutional rights, advisement of the penal consequences of admitting a prior conviction is not constitutionally required. Consequently, the error is forfeited if not raised at or before sentencing.id: 22283
Defendant forfeited his claim that the trial court erred in failing to state reasons for imposing consecutive sentences. Defendant argued the trial court erred by failing to state reasons for imposing consecutive sentences. He claimed his failure to object at sentencing did not forfeit the argument because the court when stating its tentative decision gave reasons for certain choices but not consecutive sentences. However, to the extent the court did not articulate at that time that the aggravating factors supported both imposition of the upper term and consecutive sentences, it was incumbent on trial counsel to seek clarification. id: 22282
Defendant forfeited the claim that the jury should not have viewed the entire 25 minute child pornography video. Defendant was charged with possession of child pornography. He argued the trial court erred by allowing the jury to view the entire 25 minute video because there were evidentiary alternatives to viewing the video. However, defendant forfeited the issue by failing to proffer a specific excerpt or any other specific evidentiary alternative at trial. Because no alternatives were suggested, the court could not perform the Evidence Code section 352 analysis. In any event, the presentation of the entire video did not render the trial fundamentally unfair for due process purposes.id: 22551
Defendant’s failure to object at sentencing forfeited the issue of failure to state reasons for imposing the upper term.Defendant argued on appeal that the trial court erred by failing to state reasons for imposing the upper term for the harmful matter conviction. However, defendant forfeited the issue by failing to object at the sentencing hearing.id: 22165
Claim that the statements were coerced did not preserve a challenge as to the adequacy of the Miranda warnings and there was no IAC by failing to object where the defendant represented herself at the retrial. Defendant argued the trial court erred by admitting statements she made to the police because the Miranda warnings were defective. At her first trial where she was represented by counsel, she argued the statements were coerced but did not challenge the adequacy of the warnings. She represented herself following a mistrial, and again argued coercion but did not challenge the warnings. This was not sufficient to preserve the issue of defective Miranda warnings for the appeal. Because she represented herself at the second trial she could not claim ineffective assistance of counsel in failing to make a proper objection. Even though retained counsel failed to object at the first trial, the court at the second trial permitted new arguments.id: 21939
While the court indicated a tentative decision to disallow the expert testimony, the defense forfeited the issue on appeal by not accepting the court’s invitation to argue the issue the next day.Defendant argued on appeal that the trial court erred by excluding his proffered expert testimony about police interrogation of minor child abuse victims. However, the court never refused to allow the evidence. While the tentative decision was to disallow the evidence, the court granted counsel the right to argue the issue the next day, which counsel apparently elected not to do. The issue was therefore forfeited.id: 21891
The trial court prejudicially erred by admitting evidence of the Jus Brothers motorcycle club as a gang. The defendants were members of a motorcycle club who got into a bar fight in which two people were killed. The trial court prejudicially erred at the murder trial by admitting prejudicial gang-type evidence regarding the Jus Brothers motorcycle club. There was no foundation that the club was a gang or a criminal enterprise. The evidence was not probative on motive but was used instead to show criminal disposition. Much of the evidence admitted and argued by the prosecution was inadmissible character evidence and the error was compounded by the prosecutor’s argument comparing the club to the Hells Angels. Finally, the issue was properly preserved for appeal by the original pretrial objection and the defense was not required to object again at trial to save the issue.id: 21910
The court’s failure to preinstruct with CALCRIM No. 101 on the basic law governing the trial was harmless.The trial court erred by failing to preinstruct the jurors with CALCRIM No. 101 which explains some of the basic rules of law and procedure. Defense counsel’s failure to request the instruction did not forfeit the issue on appeal because the court has a sua sponte duty to give it. But the court found that the error was harmless beyond a reasonable doubt in this simple trial where there was no indication of any irregularities.id: 21450
The prosecutor could argue for the first time on appeal that the case was governed by new 10 year statute of limitations which extended the previous statute before it expired. Defendant argued the statute of limitations for the sex offenses lapsed before the present claim was initiated with the filing of the indictment. He claimed the 6 year statute was not tolled by the discovery of DNA evidence and expired before the proceedings began. The AG responded on appeal for the first time that the case was governed by the 10 year statute of limitations specified in Penal Code section 801.1, subd.(b). Contrary to defendant’s claim, the AG is not prevented from relying on the new statute on appeal because the statute of limitations
may be raised at any stage of the proceedings. Moreover, there was no ex post factor violation in
applying the new 10 year statute which did not revive an expired statute, but rather extended one
before it expired.id: 21329
Defendant’s section 352 challenge to part of his statement to police made pretrial did not preserve the challenge at trial regarding a different part of his statement. Defendant argued at a pretrial in limine hearing that a portion of his taped interview should have been excluded under Evidence Code section 352. During trial, he argued another portion of the statement should have been excluded for the same reason. However, the issue was forfeited due to his failure to identify the passage presently at issue in his earlier motion.id: 21690
Prosecutor may have erred by questioning a former prison administrator during the penalty phase about a possible “30 year review procedure” but the error was harmless where the court admonished the jurors and the defense declined the offer to add to the admonition.Defendant argued the prosecutor committed misconduct during the penalty phase by questioning a former prison administrator about the possibility of a “30 year review procedure.” Defendant did not object but later argued the question led jurors to believe that a life without possibility of parole sentence was subject to a review in 30 years. The failure to object did not require forfeiture of the issue on appeal since the topic was discussed by the parties. However, there was no evidence that the question referred to the Governor’s clemency power, and defendant forfeited any claim that the court’s admonition was insufficient by declining the offer to add to the proposed admonition.id: 21593
Defendant did not forfeit the claim regarding sequestered voir dire in the capital case by failing to exercise all peremptory challenges or challenge juror for cause.A defendant’s failure to raise a for cause challenge or to exhaust all peremptory challenges is relevant to the question of whether he has preserved a claim that members of his jury were unacceptable to him. But a defendant who has objected to group voir dire and proposed individual questioning has done all that is necessary to preserve that claim. However, there is no requirement that a trial court conduct sequestered voir dire in a capital case.id: 21527
Defendant's failure to object to the $500 fee the victim's therapist charged to appear at the restitution hearing in response to the subpoena forfeited the issue on appeal.Defendant argued the trial court erred by ordering him to pay as restitution the $500 witness fee the victim's psychotherapist charged to appear at the hearing pursuant to defendant's subpoena. Defendant argued that because the doctor was a percipient witness he was only entitled to the statutory witness fee of $12 per day. However, defendant forfeited his right to challenge the award by not objected at the hearing. id: 21640
Defendant did not preserve claims of prosecutorial misconduct where he failed to impose contemporaneous objections but filed a motion before the argument seeking to restrict various comments.Defendant argued the prosecutor committed misconduct in several respects at the penalty phase. While defendant did not make contemporaneous objections, he did file a motion seeking to restrict the scope of the prosecutor’s argument. However, this motion did not preserve the claims for review especially where he made no post argument objections. In any event, there was no misconduct as the comparison between the jurors oaths and the deputy sheriff/victim’s oath as a peace officer was not an attempt to create an improper allowance between the two. Moreover, the reference to the victim’s status did not suggest the jurors’ lives were in any danger. id: 21317
Defendant did not preserve federal constitutional issues by filing a pretrial motion asking that all objections also include applicable federal constitutional provisions.Defendant argued the trial court erred by excluding various portions of his taped interrogation. He claimed the statements were admissible under the rule of completeness (Evidence Code section 356) and his constitutional right to present a defense. The constitutional issue was forfeited for a lack of an objection and defendant did not preserve the constitutional issue by filing a pretrial motion asking the court to consider each motion and objection as also implicating the various federal constitutional provisions. Specific objections were required. Moreover, any error in excluding the evidence was harmless since it contained damaging information.id: 21313
Defendant’s failure to object to the prosecutor’s use of misdemeanor convictions, rather than conduct, to impeach him forfeited the issue on appeal.Defendant argued that the trial court erred by allowing the prosecutor to attack his credibility with prior misdemeanor convictions, rather than prior conduct in the cases resulting in conviction. However, defendant never objected on this basis, and if he had done so, the prosecutor could have rephrased the questions. This issue is forfeited.id: 20982
The court did not err in excluding testimony that defendant did not speak Spanish, and the issue was forfeited where defendant failed to reraise the objection after the court’s tentative ruling.he evidence showed there were three people at the scene of the murder. Before the shooting one yelled, “Tirale, Tirale” Spanish for “Shoot, Shoot.” The shooting occurred immediately thereafter. Defendant argued the court erred in excluding testimony that he could not speak or understand Spanish. First, he forfeited the issue by failing to reraise it after the court deferred its final ruling. Even if the issue was preserved the court did not abuse its discretion in ruling the testimony was irrelevant. Just because the witness had not heard defendant speak Spanish did not mean that he did not. Even if he did not speak Spanish he might still have understood certain works, including “tirale” which may be common among street gangs.id: 20935
The trial court lacked jurisdiction to grant a new trial based on grounds not raised in the motion and the appellate court could decide the issue where it was raised for the first time in the AG’s reply brief. The trial court lacked jurisdiction to grant a new trial for instructional error where defendant did not raise the issue in his motion for new trial. The Court of Appeal ruled on this issue even though it was raised by the Attorney General for the first time in its reply brief as it was a question of pure law based on uncontested facts.id: 20397
Where the information alleges facts that avoid the statute of limitations bar, defendant must raise the limitations issue in the trial court or it is forfeited.The prosecution pled the Penal Code section 803, subd.(g) statute of limitations extension for the three counts of sodomy, and defendant did not request a jury instruction or otherwise raise the issue below. Defendant forfeited the contention on appeal that the prosecution was untimely. id: 19421
The trial court at defendant’s SVP trial did not err in excluding expert eyewitness identification testimony regarding his 1985 conviction where he did not renew his request to present the expert and pled guilty to the 1985 offense. Before defendant’s SVP hearing he announced his intent to call an eyewitness identification expert to testify about problems with his 1985 conviction. The judge said he would reserve ruling on the issue and counsel, if still interested, should raise the issue later. Defense counsel never raised the issue again. He argued the exclusion of the evidence violated his right to present a defense. However, his failure to re-raise the issue may have waived the issue. The argument also fails on the merits since the court allowed other evidence showing problems with the 1985 offense, defendant pled guilty to that offense and later admitted suffering the conviction. id: 20833
Defendants preserved the instructional issue for appeal where they objected to the instruction but later agreed to it after the objection was denied.Defendants were convicted of murder and attempted murder. They argued the trial court erred by instructing that murder was a natural and probable consequence of misdemeanor assault or breach of the peace. The Attorney General argued the issue was forfeited on appeal because defendants agreed to the instruction. However, defendants only agreed to the instruction after unsuccessfully moving for a judgment of acquittal on the ground that the evidence did not support the instruction. Under the circumstances, the issue was sufficiently preserved for purposes of the appeal.id: 20765
The failure to bring a timely challenge to the wiretap evidence forfeits the claim. Defendant argued the proponent of wiretap evidence must show it is admissible and the trial judge has the duty to review the adequacy of sealing and the propriety of the introduction of recordings about crimes other than those specified in the affidavit, and that he had no obligation to move to object on these grounds. However, the failure to bring a timely challenge to the wiretap evidence forfeits the claim. id: 20677
Counsel’s failure to object to the allegedly inadequate unanimity instruction forfeited the issue and counsel did not render IAC in failing to object.Defendant was convicted of multiple counts of receiving stolen property. She argued the unanimity instruction was inadequate. However, she failed to object to the instruction and the issue was forfeited because defendant’s substantial rights were not affected by the instruction given. (Penal Code section 1259). Moreover, defense counsel was not ineffective in failing to object to the questionable language because the record did not show why counsel failed to object.id: 20555
Defendant forfeited the issue of suitability for outpatient treatment as an MDO by failing to raise the issue at the recommitment hearing. Defendant, who was determined to be a mentally disordered offender argued the trial court erred in failing to exercise its discretion to determine whether he could be safely and effectively treated on an outpatient basis under Penal Code section 2972, subd.(d). However, defendant forfeited the claim by failing to raise it at the recommitment hearing and the trial court had no sua sponte duty to make the determination. Assuming the court had such a duty, defendant did not present sufficient evidence to support a finding that he could be safely and effectively treated on an outpatient basis.id: 20386
Defense counsel’s failure to specifically allege Wheeler error regarding the challenge of a prospective Hispanic juror and the failure to secure a ruling prevented review of the issue.Defendant argued the prosecutor committed Wheeler error by using a peremptory challenge to excuse a Hispanic juror. However, it was not clear that defendant made a Wheeler motion regarding the excusal of the Hispanic juror. Counsel’s comment may have been intended to bolster his argument that the prosecutor was improperly challenging black jurors. Assuming he made a specific Wheeler objection, the issue was nevertheless forfeited due to counsel’s failure to press the court for a ruling as the court addressed the other pending Wheeler motions.id: 20402
Failure to object on Fourth Amendment grounds precluded review of issue of whether the delayed arraignment resulted in an Edwards violation.Defendant argued his statement to police should have been suppressed under Edwards v. Arizona (1981) 451 U.S. 477, because an attorney is provided at the arraignment and the four day delay between his warrantless arrest and arraignment violated the Fourth Amendment. However, defendant forfeited the Fourth Amendment issue by not raising it at trial.id: 20376
An objection to the admissibility of the hair evidence at the first trial did not preserve the issue for review after the retrial.Defendant argued the trial court erroneously admitted evidence of two hairs that were not relevant and lacked proper foundation. Defendant disputed the Attorney General’s forfeiture claim by arguing that her objected to the admission of the evidence at the first trial, even though he did not object at the retrial. However, the rulings made at the earlier trial did not render an objection unnecessary at the retrial. The issue was forfeited.id: 20433
Defendant’s failure to object to the prosecutor’s refusal to grant a witness use immunity forfeited the issue on appeal. Defendant argued the prosecutor erred in failing to offer use immunity to a witness who invoked the Fifth Amendment at trial, or in taking other steps to persuade the witness to testify. However, the issue was forfeited where defense counsel failed to raise it when the witness’s preliminary hearing testimony was offered into evidence. id: 20327
Defendant forfeited the claim of improper denial of challenge for cause of biased jurors by failing to object to the jury as finally constituted.Defendant argued the trial court erred by denying his challenge for cause of two of the jurors who revealed a bias in favor of the death penalty. First, defendant forfeited the claim on appeal by failing to object to the jury as finally constituted. Next, there was no error where the jurors indicated they were strongly in favor of the death penalty but said they would consider the evidence and not vote automatically for death.id: 20249
The trial court erroneously imposed $200 for a sex offender fine that required $300 so the matter was remanded to determine whether defendant had the ability to pay $300.Defendant was convicted of three counts that required imposition of sex offender fines under Penal Code section 290.3. The provision calls for a fine of $300 for the first conviction and $500 for each subsequent conviction. The trial court ordered one fine of $200. The sentence was unauthorized and therefore the prosecutor's failure to object did not forfeit the issue. The matter was remanded to allow the court to impose a $300 fine for the first conviction or determine defendant did not have the ability to pay. No fines were to be imposed for the other two convictions as the court impliedly found defendant did not have the ability to pay.id: 20211
The interpretation of section 1203.066(c)(2) is a question of law that is cognizable on appeal notwithstanding the lack of an objection.Defendant argued Penal Code section 1203.066 should be construed to permit probation when it would have been in the child molest victim's best interest at the time of sentencing (as opposed to the time of the offense). The issue was not forfeited on appeal despite the lack of an objection in the trial court because it involved a question of law.id: 20106
Court of Appeal properly corrected the trial court's omission of the state and county penalties even though the prosecution raised the issue for the first time on appeal.Because the state and county penalties were mandatory under a proper construction of Penal Code section 1464 and Government Code section 76000, the Court of Appeal did not err in correcting the trial court's omission of the penalties even though the prosecution raised the issue for the first time on appeal.id: 16805
Defendant must object at sentencing to issue of noncompliance with probation fee procedures to preserve the issue for appeal.A defendant's failure to object at sentencing to noncompliance with the probation fee procedures of Penal Code section 1203.1b waives the claim on appeal, consistent with the general waiver rules.id: 17183
Defendant's failure to object or request a jury trial waived the challenge to the probation condition requiring reimbursement of marijuana eradication expenses.Defendants pled guilty to cultivating marijuana. On appeal defendants challenged the probation condition requiring them to reimburse the county for the expenses incurred in eradicating the plants. Health and Safety Code section 11470.2 permits a jury trial on the issue of eradication expenses unless waived by consent of all parties. Defendants did not avail themselves of their statutory rights or otherwise contest the eradication expenses. Accordingly, the waiver doctrine precludes appellate review of the issue.id: 16652
The court addressed the merits of a constitutional issue despite the lack of an objection at the dispositional hearing.The minor argued for the first time on appeal that the juvenile court violated Cunningham, due process and equal protection principles by imposing a theoretical maximum term of physical confinement in the Division of Juvenile Justice. Because the issues presented questions of law affecting the minor's substantial rights, the court addressed the merits of the issue.id: 20017
Defendant's general objection to the admissibility of DNA evidence did not preserve the issue of whether there was error in allowing the DNA expert to restrict his analysis to Caucasians.Defendant argued the prosecution's DNA expert's use of a
population frequency calculation for Caucasians alone violated his due process rights by improperly suggesting to the jury that the killer was a member of defendant's race. However,
defendant waived the issue by failing to object on that basis. His general objection to the admissibility of DNA evidence was insufficient to preserve the issue. Moreover, there was
additional evidence showing the killer was Caucasian.id: 19727
Claims of judicial misconduct were forfeited, and any error in the brief jocular comments at penalty phase was harmless. Defendant argued that several remarks made by the trial judge during the penalty phase were inappropriate to the solemnity of a capital case and constituted misconduct. However, defendant forfeited the claim by failing to object. Moreover, most of the court's jocular comments were fleeting and innocuous. Two remarks (referring to Forrest Gump and Oprah) during the defense presentation may have been improper but those references were brief and harmless.id: 19728
The District Attorney's effective concession to the granting of the petition discharging defendant's sex offender registration obligation did not constitute a forfeiture preventing the Attorney General from challenging the order.The trial court granted defendant's habeas corpus petition discharging his duty to register as a sex offender under Penal code section 290 and removing his identity from a sexual offender database. The District Attorney withdrew his opposition thereby effectively stipulating to the action. However, the District Attorney's action did not constitute a forfeiture of the issue on behalf of the state and the Attorney General could oppose the action. Moreover, the Attorney General was not estopped in any other manner from challenging the order.id: 19680
Defendant did not forfeit his Blakely challenge error by failing to object at sentencing since Black was good law at the time. Defendant did not forfeit his Blakely/Cunningham claim by failing to object to the upper terms at the sentencing hearing since the California Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 prior to that time, and any objection would have been futile.id: 19585
Defendant forfeited a Crawford challenge by objecting to the admission of evidence on hearsay grounds only.Defendant argued the trial court violated his Sixth Amendment right of confrontation under Crawford by allowing a police officer to testify as to a witness's statement. However, defense counsel only objected on hearsay grounds which did not
preserve the Sixth Amendment argument for appeal.id: 19494
Defendant forfeited any claim of Griffin error by failing to object to the argument regarding his failure to testify.Defendant argued the prosecutor improperly commented during closing argument on defendant's failure to testify. However, defendant's failure to object to the prosecutor's comments and to request a curative admonition resulted in a forfeiture of any Griffin error. Moreover, defense counsel's failure to object did not constitute ineffective assistance of counsel since defendant could not establish prejudice where the evidence was strong and the comment brief.id: 19335
Defense counsel may have objected to the shackles by stating they were unnecessary but failed to preserve the issue by ignoring the court's invitation for a hearing on the issue.Defendant argued that the use of visible shackles at trial violated his right to due process. While counsel's passing comment that defendant should have "neither" (a leg brace
or chains) may qualify as an objection, the issue was not preserved for review because, despite the court's invitation to resolve the issue at a later hearing, he did not request such a hearing or otherwise press for a ruling on the necessity of leg restraints.id: 19193
Counsel's objection that the evidence was not relevant and speculative did not preserve the claim that it was improper character evidence under section 1103.Defendant argued on appeal that the admission of evidence of the victims' nonaggressive characters violated the rule against use of character evidence to show conduct on a particular occasion. (Evidence Code section 1103.) However, the objection at trial was on relevance grounds which did not alert the court to the claim regarding inadmissible character evidence. Neither did counsel's claims that the evidence was speculative and lacked foundation preserve the issue. Defendant did rely on section 1103 in his motion to strike the testimony several days
later, but that objection was untimely.id: 19145
Defendant forfeited the claim of instructional error by failing to object to the court's response to the jury's request to clarify an instruction.Although defendant initially challenged the court's proposed response to the jury's request for a clarification of the modified version of CALJIC 16.201, he later approved the response and therefore forfeited the appellate claim of instructional error. Defendant further claimed that waiving the issue could create a miscarriage of justice since the instruction given - that misidentifying himself to police constitutes obstruction - created a mandatory conclusive presumption. However, there was no miscarriage of justice and the issue was forfeited.id: 18946
Defendant forfeited his claim regarding the admission of coerced testimony where his only objection at trial was based on hearsay.Defendant argued the admission of coerced testimony violated his right to due process. However, at trial, defendant objected to the admission of the testimony on grounds of hearsay rather than coercion. The issue of coerced testimony was therefore not reviewable. Moreover, even though the witness was granted transactional immunity to testify against the defendant, the agreement did not require that her trial testimony conform to the statements she gave police.id: 18681
Defendant's failure to object to the court's decision to allow the witness to assert his Fifth Amendment privilege waived the issue on appeal.A witness against defendant admitted at the preliminary hearing that he initially lied to police about the identity of defendant's accomplice. Before trial, defense counsel suggested the court should appoint counsel for the witness to advise him on whether to assert the privilege against self-incrimination. The court did so and the witness asserted the privilege. The prosecutor refused to grant immunity and the court later admitted his preliminary hearing testimony. The issue of whether the court erred in permitting the witness to assert the privilege was not cognizable on appeal where defense counsel failed to object to the court's decision to allow the witness to assert the privilege.id: 18641
Defendant waived the issue of lack of foundation by failing to object to the criminalist's failure to properly weigh the drugs for purposes of the weight enhancement.Following a sampling technique that did not involve weighing each brick, the criminalist concluded the cocaine weighed more than 40 kilograms. This was sufficient to support the Health and Safety Code section 11370 enhancement. However, the foundation for the expert's testimony was questionable because she did not weigh all of the bricks (which she could easily have done) and admitted the weight she provided was "approximate" and "relatively accurate." Nevertheless, defendant failed to object to the lack of foundation, which could have been cured by having the police go back and weigh the drugs. The issue was therefore waived.id: 18598
Admission of the audiotape was not an abuse of discretion under section 352 and other asserted errors were waived for lack of a specific objection.Defendant challenged the admission of the audiotape of a post-arrest, wiretapped telephone call with "Sell Dog" in which defendant originally admitted killing one victim and discussed whether another victim would testify against him. Because defendant only objected that admission of the evidence was improper under Evidence Code section 352, he waived his claims of lack of authentication and federal constitutional error. Moreover, the admission of the tape over defendant's section 352 objection was within the court's discretion. Despite the trial court's misstatement, the jury would have understood that the tape - not the transcript - was in evidence. Any error was harmless since there was no reasonable likelihood the tape, or the court's misstatement affected the verdict.id: 18607
Revocation of Prop 36 probation based upon drug related violations of probation conditions requires that the prosecution make three noticed motions.The Proposition 36 statutory scheme requires the state to make three noticed motions before a trial court can properly revoke probation based solely upon drug related violations of probation conditions. The failure of the prosecution to do so rendered the revocation of defendant's Prop 36 probation improper. Finally, defendant did not waive his right to challenge the improper revocation of his Prop 36 probation by failing to make the objection in the trial court since the trial court and all counsel were operating under the mistaken belief that probation would automatically be revoked once he was found to have three drug related violations.id: 18534
State law objection challenging evidence in aggravation did not preserve federal constitutional claims that were not essentially identical.Defendant argued at trial that testimony of a prosecution psychologist at the penalty phase suggesting crimes like the present offense are usually committed by sadistic pedophiles was inadmissible because the evidence could only be mitigating under Penal Code sections 190.3, factors (d) and (k). On appeal he argued the admission of the evidence violated several federal constitutional provisions. However, the federal constitutional claims were waived because they were not identical to his properly preserved state statutory claim.id: 18417
By saying "submit," defense counsel implicitly consented to the reseating of a juror as a remedy for a Batson-Wheeler violation.Defendant argued the trial court prejudicially erred by reseating a juror (rather than dismissing the entire venire) as a remedy for a Batson-Wheeler violation without defendant's consent. However, defense counsel implicitly consented to the alternative remedy where counsel simply said "submit" when the court proposed the procedure.id: 18262
The prosecution's failure to object in the trial court to the late filing of a motion to withdraw a guilty plea did not waive the issue on appeal since it was an issue of pure law.The prosecution argued on appeal that the trial court acted without jurisdiction in granting a motion to withdraw a guilty plea under Penal Code section 1018 which was made five years late. Defendant argued the prosecution waived the issue on appeal by failing to object o that ground in the trial court. However, the court addressed the issue after finding it was one of "law alone."
id: 18181
A habeas corpus petitioner may not raise a claim of error absent an objection regarding the issue in the trial court.In his petition for writ of habeas corpus challenging his capital murder conviction, defendant raised several issues that could not have been raised on direct appeal because of the defendant's failure to raise them in the trial court by way of a pretrial motion. However, the Supreme Court ruled the failure also precluded consideration of the issues in a postconviction habeas proceeding, unless the claim depends substantially on facts the petitioner did not know, and could not have reasonably known, at the time of trial. In situations where petitioner's rights are violated at trial and counsel does not object, petitioner's recourse is to assert in the petition a claim of ineffective assistance of counsel.id: 18066
The appeal of an HIV testing order based on the lack of a probable cause finding or docket notation is subject to the general rule requiring a timely objection.Penal Code section 1202.1 provides that upon conviction of a lewd act with a child under section 288, defendant must submit to an HIV blood test if the court finds there is probable cause to believe body fluid capable of transmitting HIV has been transferred from the defendant to the victim. The court is required to note its findings on the docket and minute order if one is prepared. A defendant may not challenge such an order on appeal if he has failed to object to the absence of an express finding of probable cause or docket notation.id: 17644
Failure to object to sentencing choices precluded appellate review even where the trial court did not issue a tentative decision before the hearing.In People v. Scott (1994) 9 Cal.4th 331, the court held that a party in a criminal case may not challenge the trial court's discretionary sentencing choices on appeal if that party did not object at trial. The case also said trial counsel must have a meaningful opportunity to object. To effectuate that requirement, the trial court need not issue a tentative decision before the sentencing hearing.id: 17542
Defense counsel's failure to secure a ruling on the issue of admissibility of prior incidents waived the issue on appeal.Prior to trial, the defense moved to exclude evidence of two prior criminal incidents the prosecutor intended to use to prove defendant formed the intent to steal before the fatal assault. The court did not rule on the issue pretrial and suggested the evidence "could well" be admissible. The defense failed to preserve the issue for appellate review by not securing a ruling from the court. The only preserved issue is whether the court erred by failing to make the ruling based on the defense offer of proof. While the defense expressed a need for an advance ruling, the court did not abuse it discretion by failing to rule given the failure of the defense to suggest the proposed witness' testimony be taken on voir dire outside the jury's presence. In any event, any error was harmless where it did not significantly affect the defendant's ability to present a defense.id: 17091
Failure to object to ex post facto application of new Evidence Code provision regarding violent character constituted a waiver of the issue.Defendant argued the court erred in applying Evidence Code section 1103 (amended after the crime but before trial) to admit evidence of his character for violence. He claimed that admitting this evidence violated the Ex Post Facto Clause of the United Stated Constitution. However, not only did trial counsel fail to object to use of the amended statute, he urged its application. This permitted the defense to prove specific instances of violence by the victim.id: 16417
The trial court's failure to clearly articulate its sentencing choices could have been cured by an objection and without the objection any error was waived.The trial court clearly apprized defendant before imposition of sentence that is reason for requiring sex offender registration would be that the offense was committed with the intent to commit rape. There was ample meaningful opportunity for him to argue against registration. The court's failure to articulate this reason more clearly is a defect which could have been corrected by a timely objection. He cannot raise the defect for the first time on appeal.id: 16341
Failure to raise in the trial court the issue of the right to a jury trial on the prior prison term allegation constituted a waiver of the issue on appeal.Defendant's claim that he was deprived of his statutory right to a jury trial on the prior prison term allegations does not implicate the state or federal constitutional right to jury trial or the federal due process clause. He was therefore obligated to bring the alleged error to the attention of the trial court in order to preserve the claim for appellate review. Defendant failed to object to the discharge of the jury or otherwise indicate to the trial court his desire for jury trial of the prior prison term allegations. He was thus precluded from arguing for the first time on appeal that the trial court erred by conducting court trial on the truth of the prior prison term allegations without having first obtained from defendant an express, personal waiver of the jury trial.id: 14021
Court's failure to make findings at the time of sentencing under rule 433(b) cannot be raised for the first time on appeal.Defendant argued the sentencing court violated California Rules of Court, rule 433(b) which requires factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked. However, the failure to make findings pursuant to Rule 433(b) is subject to the waiver rule and cannot be raised for the first time on appeal.id: 13865
Trial court was not required to issue a ruling to give defendant an opportunity to object before the issue was waived.Defendant argued that following revocation of his probation, the court erred in failing to state reasons for sentencing him to state prison rather than reinstating probation. The prosecution claims defendant waived the issue on appeal by failing to object at the time of sentencing. Defendant claims the case of <i>People v. Scott</i> (1994) 9 Cal.4th 331 requires the court to announce a tentative ruling in order to give a defendant a meaningful opportunity to object. However, defendant had an opportunity to address the court on the sentencing issue and voiced no objection. A tentative ruling in advance of the sentence was not required.id: 13870
Defendant may not raise the issue of the court's failure to recommend substance abuse counseling for the first time on appeal.Defendant argued the trial court erred by failing to recommend that he participate in a substance abuse counseling or education program while imprisoned pursuant to Penal Code section 1203.096. However, a defendant who fails to request findings pursuant to section 1203.096, subdivision (b), or to object to the trial court's failure to make such findings, thereby waives his or her right to raise the issue for the first time on appeal.id: 13378
Defendant must raise specific objections at sentencing to preserve the issues for appeal.A defendant cannot for the first time on appeal challenge the manner in which the sentencing judge exercises discretion in making sentencing choices or articulates his or her supporting reasons. A defendant's objections regarding claimed sentencing mistakes must be sufficiently specific and meaningful to allow the trial court to correct the errors. Moreover, the sentencing judge has no obligation when faced with an omnibus objection, to inquire further in an effort to ferret out the basis for the objection as it may exist in the mind of defense counsel.id: 13379
Trial counsel must object to a sentencing court's statement of reasons in order to preserve the issue for appeal.Defendant argued the Court of Appeal erred in holding that defects in the trial court's statement of reasons are waived unless challenged at the time of sentencing. However, complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. In reaching its conclusion the Supreme Court articulated a new mandatory sentencing procedure whereby the sentencing court must announce a tentative ruling <U>before</U> arguments and solicit objections from the parties. The ruling must embrace discretionary choices and reasons and a determination as to whether the court intends to adopt the recommendation in the probation report. Such rule is to be applied prospectively only.id: 13395
Admitting testimony of a seven year old did not violate the right of confrontation and court was not required to raise competence issue on its own motion.The murder victim's seven year old son testified at trial. Defendant argued the trial court erred in not raising the issue of competency on its own motion. However, defendant failed to object on this ground in the trial court and may not circumvent the objection requirement by claiming the court should have inquired into the witness' qualifications on its own. Moreover, admission of the testimony did not violate defendant's Sixth Amendment right of confrontation. While the witness' answers contained some inconsistencies, the answers to questions on direct and cross-examination were lucid and responsive and did not reveal an inability to distinguish truth from falsehood or a failure to appreciate his obligation as a witness to tell the truth.id: 12782
Appellant's failure to timely object to the court's cross-examination constituted a waiver of the issue.Appellant argued the trial court's questions were prejudicial cross-examination and plainly based on the assumption that appellant's testimony was false. However, the trial judge has a right to question witnesses. Moreover, appellant, by waiting until the court had concluded its questioning and after the prosecutor had concluded his re-cross-examination, failed to timely object to trial court cross-examination. In any event, the court's questions were not adversarial nor designed to establish reasons to disbelieve appellant.id: 12143
Waiver of the right to appeal included a challenge of the suppression issue.After the denial of his suppression motion appellant waived his right to appeal and entered a guilty plea. He later argued the court did not specifically advise him that the waiver of appeal concerned suppression issues, leaving him to suppose it related to the merits of the charges against him. However, since the sentence imposed was lawful the only issue that could have been appealed was the denial of the suppression motion. That is what he waived. Moreover, a waiver of appeal need not be in writing to be enforceable.id: 11518
Defendant could not object to the enhancement for perjury for the first time on appeal.Defendant argued the trial court erred in failing to make on-the-record findings necessary to enhance defendant's sentence for perjury violations. However, defendant's failure to object at the sentencing hearing barred him from presenting the issue for the first time on appeal.id: 10821
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Geofence search warrants were impermissibly overbroad and violated the particularity requirement of the Fourth Amendment but the good faith exception applied and suppression was not required.Defendants were identified as murder suspects after a geofence search warrant directed to Google revealed cell phones signed in to Google accounts connected to them were in several of the same locations as the victim on the day of the murder. The geofence warrants complied with the California Electronic Communications Privacy Act of 2016 (Cal ECPA) but they violated the particularity requirement of the Fourth Amendment and were impermissibly overbroad as the warrants placed no meaningful restrictions on the police search. However, suppression of the evidence was not required where the officers reasonably relied on the new geofence warrant in good faith.id: 27850