*1 Nov. S127505. [No. 2005.] PEOPLE,
THE Plaintiff and Respondent, PARTIDA,
JOSE Defendant and Appellant.
Counsel Court, Wefald, for Defendant by Verna Supreme appointment Appellant. Helft, Defender, Chief Hersek, Deputy P. Barry J. State Public
Michael Defender, behalf of Defendant as Amici Curiae on State Public Appellant. Anderson, General, Attorney R. Chief Assistant
Bill Robert Lockyer, Attorney General, General, Hamanaka, E. Donald Attorney Pamela C. Assistant Winters, Nicola, Deputy De Lance R. and Laura J. Gorey Hartquist, E. John General, for Plaintiff and Attorneys Respondent.
Opinion case,
CHIN, court admitted evidence of defendant’s In this J. *4 than over that the evidence was more prejudicial involvement his objection Code, 352.) The concluded (See Evid. Court Appeal probative. § but found the error harmless. erred in some of the evidence admitting when, ever, Code on Evidence objection We review to decide if a trial granted the that argument section 352 the grounds appellate preserves and, if the argu evidence violated a defendant’s federal due process rights ment error of this nature does violate is under what circumstances preserved, due process. a the reason fairly
We conclude that trial must state or the the evidence should be excluded. If reasons defendant believes the that may court overrules the the defendant objection, argue appeal trial. A asserted at court should have excluded the evidence for reason that court should have excluded may defendant not argue appeal however, argue not asserted at trial. A defendant may, evidence for a reason had the conse legal that the asserted error in trial overruling quence violating process. that exclusively,
Defendant argues primarily, perhaps for the reason asserted trial court should have excluded evidence that argues He also trial—that more prejudicial probative. He make that argument. to due right process. asserted error violated extent, exclude the court to To if he that argues process required any, trial objection, for a reason included trial. to the on that basis at forfeited because he did object merits, Court On the we that the trial accept conclusion Appeal’s court erred in defendant’s trial as to some We evidence. also conclude that error of the here kind asserted rises to level of if it only fundamentally violation renders unfair. we also the Court of conclusions Finally, Appeal’s accept error state was harmless under law did not render the perceived unfair. fundamentally History
I. Facts and Procedural 11, 2001, August On Jesse were ordering Moreno three companions food at a Tacos El Unico taco in the A stand area of Los Compton Angeles. van, defendant, Moreno, in a identified as asked are passenger green “Where defendant, you from?” Moreno and a told “We don’t bang.” companion USV, Defendant “Pm from Unos Sin van then responded, Vergüenza.” foot, left but soon turned around. Later defendant Moreno on approached Moreno, a gun. When defendant Moreno holding gun tried pointed flee, so, said, but defendant shot him from behind. he did As “Fuck USV, you, I’m from Unos Sin Moreno died of two Vergüenza.” gunshot wounds in back. trial,
Defendant was with At after a charged Moreno’s murder. pretrial and over defendant’s the court hearing, objection, sheriff’s permitted detective on criminal He testified testify gangs. street expert “Unos Sin English, Vergüenza” means “those without shame” or “ones without shame.” He substantial about provided testimony gangs, including how mark out their they how commit violent crimes they territory, testified, their enhance Just before the detective defense counsel reputation. *5 renewed the record that he was to the evidence on the basis objecting gang of Evidence Code section 352 because it was and at this “unnecessary point it’s cumulative. that is in area evidence this that They gang [because] graffiti there is there and that client as a has been identified member my and from the gang who committed this murder is person gang, that is anything beyond cumulative at this and more point prejudicial than probative.”
A found defendant of Moreno’s murder in the first jury guilty degree found true enhancement The court him to allegation. sentenced weapon a total He years for of 50 to life. prison appealed. that, much It found although the judgment.
The Court of affirmed Appeal admitted, its the court abused was trial of the evidence gang properly some of it. It also 352 in admitting under Evidence Code section discretion more evidence as gang that objection concluded defendant’s Code, 352) for (Evid. preserved than prejudicial § due violated his process that argument erroneously admitting held, however, were not violated that rights It defendant’s rights. process fundamentally did make the trial not gang because the test state it harmless under for unfair. found error Finally, perceived Cal.2d Watson law error established have obtained reasonable defendant would it found no probability excluded. more favorable outcome had the evidence been We defendant’s review. granted petition
II. Discussion A. Forfeiture ground
Defendant to the evidence at objected it was should have been excluded under Evidence Code section because more He did at trial that admitting probative.1 object he argues evidence would violate his due On rights. appeal, error violated court erred in also that asserted objection his which constitutional to due He does right clearly specify process. Constitution, federal, on, but briefing state or he is relying generally we focus on defendant’s discusses federal Constitution. will Accordingly, federal claim.
The first we must decide is whether question petitioner’s Evidence section 352 Code preserved Code section is one of Evidence appeal. statutory interpretation. aside, relevant, nor or shall not be set finding “A verdict provides, reversed, or decision based thereon be reason judgment by shall (a) There of record an of evidence unless: erroneous admission appears [][] timely to or a to exclude or to the evidence motion strike or clear the ground made and so stated as make *6 statute, have motion (Italics added.) . . . .” “In accordance with this we 1 if may exclude evidence provides: Code 352 “The court in its discretion Evidence section substantially its will outweighed by probability that admission its value is (b) danger (a) prejudice, of undue consumption undue of time or create substantial necessitate issues, confusing misleading jury.” of or of held consistently that ‘defendant’s failure to make a timely specific objection’ on the asserted on makes that not ground cogni ground v. Green (People 1, (1980) zable. 27 Cal.3d 609 P.2d Cal.Rptr. [164 468] [objection ground were does not questions leading preserve appellate the evidence was of impermissible other v. Seijas (2005) (People .)” . . . crimes]
A existed, century long before the Evidence Code we ago, explained need for a objection. “To this is matter specific of fairness require simply in justice, order cases tried on may be their merits. Had attention been called court below to the directly which it is particular objection now claimed the general objection of that court appellant would presented, on, had a have concrete legal and counsel for proposition pass plaintiff have would been advised what directly particular against complaint was, and, tenable, he if deemed it could question have withdrawn the inquiry or reframed his to obviate the Trial question particular are objection. judges numerous, varied, supposed rules complex governing admissibility evidence so in mind and of such completely ready applica- tion that under an to a can omnivagant objection they with apply some legal accuracy law which the particular objection does not principle (Bundy v. Sierra Lumber Co. specifically present.” 149 Cal. v. Morris P. see 53 Cal.3d 187-188 Bundy).)
Cal.Rptr. 807 P.2d [citing 949] criminal because requirement necessary cases a “con- rule would trary cure the defect at deprive opportunity trial and would the defendant on an ‘permit gamble his trial acquittal ” secure in the knowledge that a conviction would be reversed on appeal.’ v. (People Rogers 21 Cal.3d Cal.Rptr.
1048].) “The reason for is manifest: a requirement specifically grounded to a defined of evidence serves to It body error. allows the prevent judge excluding consider the evidence or its admission to limiting avoid It possible also allows the of the evidence to prejudice. proponent lay foundation, additional the offer of or take modify proof, other steps designed Morris, (People supra, to minimize the reversal.” 53 Cal.3d at prospect 187-188.) pp.
Thus, of a objection serves requirement important pur But, to further these poses. must be purposes, requirement interpreted Code reasonably, formalistically. “Evidence section 353 does not exalt Morris, form over substance.” 53 Cal.3d at *7 Rather, “the of objection. form any not particular statute does require nature court to the alert the trial as to way must be made in such and to is sought, on which exclusion evidence and the basis of the anticipated (People admissibility.” to establish its an afford opportunity 395].) What Cal.Rptr. Cal.3d Williams court, as well as trial inform the fairly is that the objection is important evidence, or reasons the objecting reason offering party excluded, offering so the party should be believes the evidence party informed fully the court can make can respond appropriately on may argue objection, objecting party If the court overrules ruling. reason asserted excluded for the the evidence should have been appeal have excluded the trial, court should argue but may appeal A cannot the one stated trial. for a reason different from not asked to it was analysis erred in to conduct failing the court argue conduct. case, evidence should be at trial that the gang
In this defendant objected alerted the court to Code section 352. The objection excluded under Evidence on which its exclusion the nature of the evidence and basis anticipated an informed ruling gave It the court to make sought. was permitted the evidence’s On admissibility. appeal, to establish opportunity he not argue erred in its But ruling. may that the court may argue from for a reason different that the court should have excluded the evidence trial, that the trial If he had believed at for example, objection. that was different from in some of due analysis should sort engage have, have, and should he could analysis, the Evidence Code section 352 Accordingly, He did not do so. made this clear as of his objection. part exclusion of the that due required he may argue in his Evidence Code section evidence for reasons other than those articulated 352 argument. believe, however, narrow very
We that defendant make may that the asserted error in argue He appeal. had the additional Evidence Code section 352 objection evidence over his argue a defendant may violating Similarly, legal consequence process. the Watson test that error in a trial Watson, 818) without Watson citing part 46 Cal.2d trial objection.
436 that, matter,
We
concluded
recently
a
no useful
general
purpose
“[a]s
restates,
is served
to consider on
a claim
by declining
that
appeal
merely
claim
under alternative
a
legal
otherwise identical to one that was
principles,
that called
the trial
properly preserved by
timely motion
court
upon
consider the same facts and to
standard similar to that
apply
legal
which
v. Yeoman
would also determine the claim raised on
appeal.” (People
(2003)
accord,
1166];
31 Cal.4th
People v. Cole
117
Cal.Rptr.3d
[2
1158, 1195,
(2004) 33
811].)
fn. 6
P.3d
Cal.Rptr.3d
Here,
II.B.,
evidence,
post,
as discussed in
admission of
even
part
law,
if error under state
violates due
it
if makes the trial
process only
unfair.
the due
fundamentally
Accordingly,
is not identical
process argument
also Duncan v.
(See
to the trial
Henry
(1995)
objection.
When a trial court rules on an decides only whether that evidence should be excluded. particular Potential consequences court, of error in no making this decision. A ruling play part reviewing court, Here, not the trial decides what effect an erroneous has. legal ruling trial court was called on decide whether the evidence was more prejudicial concurring dissenting opinion argument asserts that defendant’s “the evidence, inherently prejudicial evidence was in that it propensity profile was akin to criminal evidence, by parties” evidence of crimes committed third new and included in 441; post, (Cone. under Evidence Code opn., section 352. & dis. see also id. 448-449.) pp. argument, argues In addition to this defendant also that the evidence was very probative, partly because it was cumulative. This is classic Evidence Code section analysis, (hence requires weighing permitting which effect of evidence v. Williams prejudicial) against (E.g., evidence is its value. 153, 191-194 People Champion Cal.Rptr.2d 16 Cal.4th P.2d 9 Cal.4th 922-923 is for the was erroneous ruling Whether its It did so.
than probative. error, it must also court finds If the reviewing to decide. reviewing error, makes if the defendant including, decide the consequences violate due serious as to process. whether the error so argument, ordinarily the trial court error are not something of hypothetical consequences *9 court merely The trial ruling. when the initial making can or should consider cannot, not, base and usually it does Ordinarily, on the actual objection. rules would render the on whether ruling admitting prejudicial in overruling court has found error reviewing unfair. Once the fundamentally is a of law that error violated due process whether objection, court, ruling objection, the trial court in on for the reviewing on ruling of that error. Similarly, determine in assessing consequence whether an erroneous the trial court would not decide the trial objection, Watson, v. 46 supra, under the Watson test. would be ruling Cal.2d it is asked analysis
If the trial informs objection fairly undertake, also to formalistically party no is served by requiring purpose on a claim state of error every legal merely preserve possible consequence had that legal that error in overruling objection consequence. appeal objecting no would be served by requiring Specifically, purpose the actual would overruling inform the court that it believes error in Indeed, Code if a defendant who on Evidence objected violate process. admitting on that the court erred section 352 grounds argues appeal than reason different than that it was more prejudicial or some other general an additional trial invocation of due process probative, trial court of the analysis that did not reasonably principle apprise the argument. asked to undertake would not be sufficient being preserve in which we found a General cites a number of cases Attorney the defendant had not when argument cognizable appeal Heard v. (2003) 31 (E.g., People at trial. objected process grounds 131, Burgener 946, 972, 53]; People 75 P.3d v. Cal.4th fn. 12 Cal.Rptr.3d [4 747, v. 833, 1]; People 62 P.3d (2003) Cal.4th Cal.Rptr.2d 29 869 [129 544, 391]; 381, P.3d 424 58 Boyette (2002) Cal.4th Cal.Rptr.2d 29 [127 377, 238, 273, v. Rowland 4 Cal.4th fn. 14 People (1992) Cal.Rptr.2d 1223, 1240, fn. 2 Gordon 897]; v. 50 Cal.3d read to hold only P.2d Those cases should be Cal.Rptr. extent the defendant argued is forfeited to the constitutional the trial court to exclude the constitutional provisions required evidence for a reason not included in the actual did not objection. They whether, that, consider and do not us from preclude holding argue an additional legal of the asserted error in consequence Evidence Code section 352 is a violation of due (E.g., process.3 Cole, People Cal.4th at fn. 6 under Evid. [trial Code, 352 and 1101 claim that the asserted error violated due preserved §§ People v. Jones verdict]; and the constitutional to a reliable right 17 Cal.4th 305-306 P.2d Cal.Rptr.2d Hawkins 950-952
574].)4
Here, to the extent defendant asserts a different for exclusion than theory trial, he asserted at that assertion is not But he cognizable.5 argues primarily that the court erred in the evidence because it was more prejudicial under Evidence Code section which was precisely *10 trial and which objection, was the basis for the Court of of Appeal’s finding 3 cases, concurring dissenting and opinion heavily also relies they on these but do not question. consider example, For that opinion extensively case discusses most as (conc. Rowland, “typical” 440), 273, opn., post, People & dis. at p. 4 page Cal.4th at 14, only footnote states by denying this: “Defendant claims that his motion bar certain [to 352, testimony], the only court committed error not under Evidence Code section but also Constitution, including the United States process the due clause of the Fourteenth Amendment. He argument any failed to make an below based on federal constitutional Hence, (Italics provision. may argument added.) he not raise such an here.” We reiterate that a may argue not that the court committed error for a not reason included in the trial objection. But neither any opinions dissenting Rowland nor of the other cited and concurring opinion way considered—or held one or the may other—whether the defendant assert overruling that error in the actual was so serious as to violate due process. concurring dissenting opinion and states that these three cases neither reflected that the Attorney General had asserted the claims were forfeited nor cited Evidence Code section 353. 442, (Conc. opn., post, & dis. at p. concurring fn. The same is true of the cases dissenting (Id. opinion supposedly resolving 440.) (In cites as question. People this entire Yeoman, 133, supra, 31 at page argue Cal.4th where we permitted the defendant to admitting certain evidence rendered the death arbitrary sentence and unreliable in violation of Constitution, Eighth argue Amendment to the United the People Eighth States did trial, Amendment claim was forfeited because the defendant had not cited that Amendment argument rejected.) we None of these authority propositions cases are for not considered. cases, why That is we are explaining reconciling just portion all of our a selected Principles them. preclude doing of stare decisis do not us from so. response concurring dissenting In to the opinion’s assertion that we are somehow permitting challenge evidentiary “a ruling to an on an presented based never to the (conc. and, 446) opn., post, court” & dis. at p. accordingly, permitting are defendants to 450, 451), prosecution pp. merely the trial court and “blindsid[e]” we can reiterate what {id. already we have objection, objecting may argue stressed: If the court overrules the trial, appeal that the evidence may should been excluded for the reason asserted at but it argue that the court should have excluded the evidence for a reason different argue from the one stated at A party failing trial. cannot the court erred in to conduct an (Ante, analysis it was not at p. permitting blindsiding. asked to conduct. We are no had the legal consequence that this error argues
error. Defendant also This he do. may his due violating rights. The Merits
B. objec- erroneously defendant to Permitting argue course, not, mean that the argument does tions violated due process meritorious; the argument. it that he make only means abused its discretion held that the trial court
The Court of Appeal evidence. some of the gang under Evidence Code section 352 law of settled We of review this fact-specific application accept purposes Court, (See Rules of rule without ourselves. Cal. deciding or the court 29(b)(3) need not decide issue the raise every parties [“The 1073, (1999) 20 Cal.4th 1076-1077 v. Weiss specifies”]; was so 1257].) Defendant that this error argues 978 P.2d Cal.Rptr.2d evidence, even if But the admission of serious as violate process. law, if makes erroneous under state results in a due violation only (Estelle U.S. v. McGuire fundamentally unfair. 475]; v. Texas 385 U.S. L.Ed.2d 112 S.Ct. Spencer (1999) 21 87 S.Ct. v. Falsetta 563-564 L.Ed.2d of relevant admission 182] [“The evidence will not offend due unless the evidence is so prejudicial *11 unfair”]; Duncan v. to render the defendant’s trial see also fundamentally unfairness, law 513 Absent fundamental state Henry, U.S. supra, test: The error in evidence is traditional Watson subject it the verdict would reasonably court must ask whether is reviewing probable have been more favorable to the defendant absent the error. v. (People Earp 826, 857, 15]; v. (1999) People 20 Cal.4th 878 978 P.2d Cal.Rptr.2d [85 Watson, 46 Cal.2d at no due
The Court of the correct test both when found Appeal applied fairness) it found the law error (fundamental violation and when state process tests is (Watson). the Court of these harmless Because of Appeal’s application its on these points.6 fact we also conclusions accept specific, 6 “likely dissenting opinion that this concurring opinion’s assertion response In to the post, (cone. 449), permitting we believe that defendants opn., to breed confusion” & dis. as to render argue a trial was so serious error nor fundamentally rights particularly complex is neither unfair in violation of their beyond the future courts. comprehension of 440
III. Conclusion
We affirm the of the Court of judgment Appeal. J., J., Moreno, J., C.
George, Werdegar, concurred. BAXTER, J., When a at trial Concurring Dissenting. objects party the admission of certain evidence as more than substantially prejudicial under (section 352), Evidence Code section 352 probative time, for the first argue that the admission of the evidence violated appeal, The answer to that process? is found in the forfeiture general 353, rule set forth in Evidence Code section which bars relief based on the erroneous admission of evidence unless the an aggrieved party presented objection to trial court “that was made and timely so stated as to make clear specific ground (italics added) and the objection” reviewing that the evidence “should have been excluded on the ground agrees (Italics stated.” added.) Because defendant’s section 352 failed to make clear that he was also to the evidence objecting grounds, of the statute the conclusion that he plain language has compels thereby forfeited his due claim. here therefore should be analysis forfei- straightforward. general any
ture rule set forth in Evidence Code section 353 claim “applies equally admitted, that the evidence was other than the stated erroneously v. (People Kennedy (2005) for the trial.” ground objection at 36 Cal.4th 472], added.) 115 P.3d italics In for over Cal.Rptr.3d particular, we have relied on years, section 353 to bar defendants from expanding to evidence that rested on ground—i.e., one the evidence more substantially section 352—into on a different appellate argument ground—-i.e., admission of the evidence v. Heard e.g., People (See, rendered the trial thereby unfair. fundamentally 946, 972, People (2003) 53]; 31 Cal.4th fn. 12 75 P.3d Cal.Rptr.3d Burgener 1]; 29 Cal.4th Cal.Rptr.2d Boyette P3d Cal.Rptr.2d v. Rowland 238, 273, 4 Cal.4th fn. 14 *12 People Raley 897]; 841 P.2d 2 Cal.4th v. Benson 712]; 754, 786, 830 P.2d 52 Cal.3d fn. 7 v. Gordon 1223, 1240, 50 Cal.3d Cal.Rptr. Rowland is case, fn. In that Cal.Rptr. typical. at the aof trial to from objected penalty phase capital testimony victim second on the that her prior kidnapping ground testimony “would be more than under section 352. substantially prejudicial probative” (Rowland, 4 Cal.4th at supra, On the defendant renewed his appeal, section 352 claim but added a new claim of error based on the that theory rights him his deny “inflammatory” witness’s was so testimony second Constitution, clause of the the due including “under the United States 4 Cal.4th at fn. We (Rowland, Amendment.” Fourteenth de- forfeited because claim was held—unanimously—that constitu- federal any below based fendant “failed to make an argument (Ibid.) tional provision.” are section 353 Evidence Code
Rowland and our other cases construing here, involve the admission circumstances which from the indistinguishable the motive for his defendant’s involvement gang explain of evidence of hearing an Evidence Code section 402 murder of Jesse Moreno. At senseless trial, the gang offer of concerning made an proof prior prosecution the motive that evidence tended to show argued and this testimony expert’s of the murderer. Defendant Moreno’s murder as well as the identity evidence, that the evidence was grounds to this but on objected any and without afterthought, irrelevant and cumulative. Almost as elaboration, on the the evidence ground defendant also summarily objected section 352. The trial court was “more prejudicial probative” remainder, that the while excluded evidence and declared part proffered “because, demonstrate motive inadmissible as to could be used to identity, know, did this say, ‘Why hap- are to sit there you jurors going ‘Where . . . what all when someone rolls and says, it means pen?’ up [and] but conceded that from?’ and so forth.” Defendant continued to you object, “if it identification at this then to prove to allow for you’re going point, motive I that it would be limited then.” guess—I guess trial,
At that “Where from?” constitutes you gang expert explained with “no correct answer.” in the culture and is “challenge” gang or do “is to either and claim you say ‘yes’ your gang questioner asking ... a member out which means you deny you’re what is shameful and rank as by identifies his own gang—such When gang.” questioner USV, the victim is sure making “This is Unos Sin saying, Vergüenza”—he territory. that the “claiming” others know nearby gang commit crimes to enhance their reputations, also expert explained gangs community, instill more fear and in the respect more violent crimes himself or his gang that the shooter would thus no need to disguise perceive affiliation in the crime. committing time, a due
On for the first defendant articulated appeal, theory based not on the to this evidence. His due was process objection outweighed by this evidence was substantially value of theory of undue but instead on the danger prejudice evidence, criminal akin in that was inherently propensity evidence, third committed by parties. and evidence of crimes profile *13 concedes, theAs defendant “did not at trial that majority object ante, the evidence his due would violate process rights.” (Maj. opn., 433.) The concedes that the majority likewise trial court had no opportu- nity evaluate the constitutional defendant now arguments urges appeal. id. (See 436-437.) Under the of Evidence Code section pp. plain language context, 353 and our case law that in this construing statute defendant precise forfeited his claim that the admission of violated his due The rights. finds to the majority, remarkably, contrary, although basis for its conclusion precise remains obscure. In the majority particular, does not how an on section 352 makes clear to explain objection grounds trial court that the defendant is also on due objecting process grounds. does our majority try distinguish line of cases long-standing Evidence Code section 353 to bar a defendant from construing claiming error for the first time on but the distinction is a false one. appeal, The majority suggests that these cases “hold that only constitutional is forfeited argument to the extent the defendant argued on appeal constitutional the trial court to exclude the evidence for a provisions required ante, reason not included in the actual objection.” (Maj. opn., But, above, 437-438.) as discussed we pp. the forfeiture rule applied even when the actual was that was objection more than under section 352 and prejudicial probative was that the error in the section 352 allowed in evidence v. process. (E.g., People was so as to “inflammatory” deny Rowland, Cal.4th at 273 & fn. Inasmuch as defendant’s trial here was the evidence more merely under section 352 and is that “the erroneous appellate argument admission of the evidence” denied him inflammatory gang process, case is from those indistinguishable enforcing our long-standing interpretation of section 353.1 words, In other this case is really about stare decisis. The high “
reminds us “often and with that stare decisis ‘is of great emphasis” ” (Patterson McLean Credit fundamental to the rule of law.’ v. importance majority proceeded also cites three cases in which we decide a due process claim though even the face of the opinion ground did not reflect that an on that had been 1158, 532, (2004) made in the trial court. Cole Cal.Rptr.3d fn. 6 [17 811]; v. Jones 95 P.3d Cal.Rptr.2d 17 Cal.4th 305-306 949 P.2d v. Hawkins Cal.Rptr.2d 10 Cal.4th 950-952 897 P.2d cases, however, In none of those did our opinions Attorney reflect General ever asserted that the specific ground claims had been forfeited for failure to articulate that below. importantly, purported More none of those cases even to construe—or cited—Evidence Code General here has invoked the forfeiture rule of section Attorney section 353. Inasmuch (as concedes) here, governs 353 and section 353 those three cases are not (People Barragan authority on the forfeiture issue. 32 Cal.4th 243 ”].) authority propositions are not not considered’ 480] [“ ‘[C]ases
443 132, 164, S.Ct. We 172 L.Ed.2d 109 Union (1989) U.S. 491 [105 court that have echoed that sentiment high with the agreed “[t]he force in decisis with special the doctrine of stare underlying apply principles Leeds (2000) (Barner 24 Cal.4th the context of statutory interpretation.” accord, Patterson, 676, 97, supra, 686, 2 fn. Cal.Rptr.2d [102 “ of stare decisis 172.) from doctrine ‘[A]ny departure 491 U.S. p. ” (Patterson, 172.), supra, U.S. at p. 491 justification’ demands special “ of an the abandonment by advocating therefore the ‘burden borne Court is asked to overrule a point is when the greater established precedent ” 1203, v. Latimer (1993) 5 Cal.4th 1213 construction.’ [23 statutory Patterson, 144, 611], U.S. at supra, 858 491 P.2d quoting Cal.Rptr.2d of stare fails to with doctrine decisis utterly grapple a statutory to construction. necessary point overrule special justification v. United States (2005) 544 13 Shepard (See That is unfortunate. U.S. instance, time L.Ed.2d 125 S.Ct. 1261 this has enhanced [“In Yet, force, even even the usual 15 nearly years having passed”].) precedential if it newly were considered as a of first impression, majority’s to Code 353 coherent any justifica- minted Evidence section lacks exception this tion. Because it is to rationale for essential discover majority’s in order to determine whether it will in other circumstances exception apply cannot future, not—or, least, at the I will endeavor to what is explain be. Is claim identical his trial objection?
1.
defendant’s
No.
v. Yeoman
recent
31
(2003)
our
majority quotes
opinion
“
(Yeoman)—that
a
117
P.3d
72
1166]
‘[a]s
matter, no
general
useful
served
consider on
purpose
by declining
restates,
a claim that
under alternative
a claim
merely
legal principles,
identical
otherwise
to one that was
motion
preserved by
timely
properly
and to
a legal
called
trial court
consider the same facts
upon
apply
standard similar
that which would also determine
claim raised
”
ante,
all,
how,
436)—but
then
if at
appeal’
(maj. opn.,
fails
explain
Yeoman,
here.
that a
rather unremarkable
In
we held
proposition applies
defendant who made a Wheeler2 to the exercise of
peremptory
at trial
to the exercise of that
could assert
Batson3
challenge
belief,
(see
did so on the
since
challenge
superseded
We
appeal.
2
748],
Cal.Rptr.
v. Wheeler
22 Cal.3d
583
258 [148
3
Kentucky
U.S.
Batson v.
L.Ed.2d
Defendant, like the Court that his due claim Appeal, argued of was process identical to objection rejects his under section 352. The majority properly argument. A claim under 352 and a under due are section claim “not process ante, 436.) identical.” at The former on whether the (Maj. opn., depends p. value of the evidence probative substantially outweighed by is challenged danger of undue the latter on whether prejudice; depends challenged evidence rendered the entire unfair. As proceedings fundamentally high ‘ clear, court has made no these standards “are more than “somewhat legal ’ ” (Duncan similar.” v. Henry U.S. L.Ed.2d 115 S.Ct. Because claims do these on the same facts and depend standards, are not similar governed by Yeomanis legal inapplicable.
Smith 229] is not constitutional claim where it “is not identical to preserved [defendant’s statutes”].) his claim on and properly based California decisions preserved 2. objection, Did trial even not identical his due defendant’s if argument on his process “fairly trial court appeal, inform” of due No. process argument? The at various deems it that an majority points “important” objection the trial “fairly inform” court of to be advanced on argument sought ante, should, I that an at appeal. (Maj. agree objection opn., minimum, inform the trial court and the fairly opposing this, be no ground sought urged again, once offers appeal—but help defendant. high Henry, As Duncan 513 U.S. at explained 366, an under section 352 that objection is more page does not the court of a due claim that fairly “apprise” process Indeed, the evidence so as to a fair “inflammatory was trial.” as the prevent cautions, elsewhere court confronted with a section 352 majority objection cannot should not consider whether challenged ante, would render the trial unfair. fundamentally (Maj. opn., otherwise, informed, court was or Consequently, fairly argument defendant now urges appeal. hemay is not claim process preserved,
3. Even if defendant’s his “legal overruling argue consequence” nonetheless No. a due violation? statutory was objection is states that defendant’s actually never majority the trial failure notwithstanding fairly present preserved “when, ever, Instead, asks, a trial on Evidence court. if majority argument Code section 352 grounds preserves appellate ante, (maj. evidence violated federal due rights” opn., a defendant’s “that the asserted 431) concludes that a defendant argue then violating had overruling legal error in the trial consequence that the defendant (Ibid.) significant thus deems it process.” the trial court erred making “two-step appeal: violate (2) the serious as to error so objection, *16 (Id. the has take more majority at process.” Unfortunately, p. awith than two it must execute a reverse double somersault steps—indeed, twist—to find that the due here is argument preserved. as
The
as a claim and what
never
what
majority
explains
qualifies
qualifies
two),
the
(or
a
how to
between the
nor does
legal consequence
distinguish
It
the former is barred but
latter is
majority explain why
preserved.4
error
makes no more sense to
that
a section 352
was
say
objection
overruling
that
be to
had the
than it would
legal
consequence
violating
say
legal
that
a relevance
was error that had the
objection
or
a
violating
section 352
consequence
overruling hearsay
was error that had
clause
legal
violating
the confrontation
consequence
circumstances,
of the Sixth Amendment. In
latter
held
we
regularly
claim—i.e.,
(E.g.,
forfeited.
appellate
legal consequence—is
879,
547,
(1995) 9 Cal.4th
P.2d
People Champion
v.
913
891
Cal.Rptr.2d
[39
352;
court
does not
claim under
preserve
§
93] [relevance
“to
not asked
conversations’
value
weigh
prejudicial
138,
effect”];
(2001)
v. Catlin
26 Cal.4th
fn. 14
Cal.Rptr.2d
31, 26
does
claim that the “error
P.3d
not
[hearsay objection
preserve
357]
confrontation”].)
a
his
The
right
constituted violation of
Sixth Amendment
v.
no
a different
should obtain here.
why
(People
offers
reason
result
majority
court,
evidentiary objection, “would
agree
majority
ruling
4 I
that a
in
on an
with
People ruling
be
the . . . test” of
not decide whether an erroneous
would
ante,
dealing
Watson
(Maj.
But
are
opn.,
consequences particular objections, rulings, we are limited to those attacks articulated in the trial court. Seijas v. 36 302 held Cal.Rptr.3d consistently 493] [“we to a on the objection’ ‘defendant’s failure make timely specific cognizable”]; ground asserted on makes that v. ground appeal supra, 36 Cal.4th at of Kennedy, court’s review the appellate [“The trial of court’s admission evidence is then limited to the stated for the ground Because defendant to a objection”].) failed articulate due process argument below, he forfeited it for appeal. terms,
Even on its own the distinction the between this case majority draws it, I our rule is best an elusive one. As understand the existing majority would to from for the time appeal continue bar defendants first on arguing “ by overruling section objection, a court ‘committed ” ante, error due . . . ... clause.’ fn. (Maj. process opn., omitted.) for italics But will now allow defendants to majority argue in on first time “error actual was so objection (Ibid., to added.) serious as violate due italics I do not understand process.” other, nor in and not be barred one circumstance the claim would why be should language difference why slight does the majority explain with significance. endowed transcendental due claim? No. process to decide a incompetent
4. Is the trial court a trial objection, that in section 352 resolving The observes majority cannot, not, whether ruling “does base this usually court unfair.” fundamentally (Maj. opn., would render the trial ante, can does is not whether trial court or But here a section 352 resolving objection, a due claim in the course of resolve process if a defendant but a due claim whether a trial court could resolve If trial make on that evidentiary specific ground. were to a timely evidence, due are to resolve timely courts incompetent to the correct that defendants need not object then the would be claim evidence on that in order to ground preserve hand, If, to resolve timely for on the other trial courts are competent appeal. evidence, section 353 to the then Evidence Code process objections trial to make such an on a basis timely defendants requires court, on contains no of claim statute pain forfeiting appeal. trial that the defendant could have arguments brought exception not) (but and that the trial court’s attention did competent (but so). resolve had no do opportunity view, courts are well competent—indeed,
In my plain evidentiary judge resolve based objections process. equipped—to hears is in a much better who sits trial and the witnesses firsthand through evidence on the than is jury of position gauge impact challenged tribunal, (Cf. cold record to only which has review. appellate Cornwell 37 Cal.4th 622] [effect misconduct]; Cal.2d Kimball spectator Walling observed, we “it is the misconduct].) As attorney recently 58] [effect trial errors or vantage’ court that has a on the ‘first-person [citation] effect *18 the of the in that court.” v. Ault (People fairness irregularities proceedings Moreover, 1250, 302, 523].) (2004) 33 ensure be trial courts have a “constitutional ... to that defendants duty 572, 582 of Fosselman 33 Cal.3d accorded law.” 1144], added) statutory authority italics Cal.Rptr. Code, (Pen. of correct asserted errors in the admission evidence. § “in the has a new trial based on error authority subd. 5 court grant [trial trial”].) course the during of law the of arising decision any question merits, Our forfeiture rule reflects the “that a on the whether principle event,’ case, in a civil or criminal is the ‘main not on the ‘tryout simply road’ review.” (Freytag v. Commissioner 501 U.S. appellate (conc. Scalia, J.), L.Ed.2d 111 S.Ct. opn. quoting 2631] Sykes Wainwright 433 U.S. L.Ed.2d 97 S.Ct. defendants to withhold a Allowing specific for the ground evidentiary the objection, when trial court is consider fully ground, competent “ out, thwarts this fundamental As the it majority is principle. points ‘simply ” “ a matter of fairness and the to alert trial court ‘to the justice’ particular ” “ to be advanced the objection’ sought so that trial court ‘can appeal ” legal with law’ apply accuracy at issue. particular principle (Maj. [the] “ ” ante, (ibid.) 434.) opn., at Without ‘a grounded objection’ specifically “the reason or reasons the articulating specific objecting believes party excluded,” evidence be should the evidence party offering cannot respond (Id. nor can the court make a informed appropriately, fully ruling. If, contends, all defendants forfeit other of due majority types (see ibid.), are to the trial court objections presented remains a mystery why particular falls outside rule. general Whatever rationale
5. majority’s exception our rule, has long-standing actually forfeiture satisfied exception? No. Evidence Code section 353 bars relief based on the admission of unless the stated an so make objecting party as “to clear the ground (italics added) of the objection” that the agrees appellate should been excluded “on stated.” ground Defendant’s process claim forfeited fair of this through any clear application statutory But, statute, command. under the strained majority’s interpretation reason asserted at trial” or “included in the trial relief granted be “for ante, However, objection.” (Maj. added.) italics opn., objecting argue on that the court should have excluded the “may (Id. evidence for reason different from the one trial.” stated at at p. Although hard-fought new formulation is sure to but majority’s spawn as to what constitutes same or a largely pointless litigation reason reason, different this case to fit in the latter category, seems not the former. concedes, As the sole reason defendant identified trial for evidence was more excluding his unadorned contention it was than On under- prejudicial probative. though, defendant’s claim has appeal, a transformation. Defendant claim gone does not admission of merely evidence that was more value in that its probative, *19 Rather, rights. so violated his he that his due slight, process argues that was “inher- of evidence were the admission by violated rights of a be like evidence should treated and that evidence
ently prejudicial” crimes, a criminal evidence of profile, to commit defendant’s propensity he As argues third to propensity, crimes committed by parties. evidence of to he more likely to believe “was the caused the jury evidence gang of his member- him because offenses charged against committed the violent criminal he argues gang profile, in the . . . As gang.” ship , him . . . against to be tried based on him of “right deprived investigating law officials in utilized enforcement by not on the techniques crimes, And, defendant argues as third party criminal activity.” of of the innocence him “with burden proving evidence saddled of due of the fundamental principles another. Such a burden violates law.” at oral argument, curiae Public Defender explained
As amicus State claim was same with the to show that the appellate burden rests appellant this burden. Neither the discharged Defendant has objection. exclusion, for was ever alerted to these theories nor prosecutor case on which defendant is now relying. let alone law any to these bases never had the chance “respond appropriately” prosecution evidence, to “make and the trial court never had chance for excluding ante, 435.) As the Attorney informed on them. at fully ruling” (Maj. opn., oral fair again argument, reading General out in his brief and at pointed do not within the record claims fall reveals that defendant’s created rule. majority’s newly exception forfeiture Thus, argue rule that a defendant general rather “reiterate” its asserted that the evidence “should have been excluded for reason one (maj. at trial” but not “for a reason different from the stated trial” opn., ante, of these 5), identify fn. instead to which ought majority section 352 were defendant’s process arguments preserved by perfunctory courts that will have reviewing apply and which were not. The determining minted will need guidance the majority’s newly exception at trial and which are theories are included within the reason asserted which each of defendant’s appellate blanket statement that majority’s not. ante, Code section 352 analysis” (maj. opn., “is classic Evidence arguments these were 2), any arguments fn. to whether regard without below, is to breed confusion. actually presented likely sum, our there is rationale—let alone a coherent one—for repudiating In no Even this were a forfeiture rule in this context. if long-standing no exception first there is likewise impression, justification clear Al- Code 353’s command. has crafted to Evidence section has the to be extended in unpredictable such though potential exception *20 and mischievous one that it will a ways, instead remain hopes curiosity, the when a defendant applicable only singular circumstance unsuccessfully the admission of evidence trial as more challenges prejudicial under section 352 and the court is that admis- probative appellate persuaded error, the sion of evidence was albeit limited to harmless. If that circum- stance, however, the rule will not benefit in defendants discernible any way. Watson, Error is that deemed harmless under Cal.2d (if ever) will have the of rarely a trial “consequence” rendering fundamentally unfair.
If, hand, other the new created were to by exception effect, have will any come at the cost of trial practical only blindsiding courts that have conscientiously considered made and objections actually burdening courts them to address appellate by forcing evidentiary objections never on below. aWhen that the admission of passed objects certain evidence would violate section court find trial that value that probative of particular substantially outweighed by of undue at that trial danger prejudice—and, court’s point, duty If, hand, section 352 is on the discharged. other the defendant were object also that the admission of this evidence would render trial fundamentally unfair, the trial court has a different The trial court would no duty. longer focus relative value of that of particular piece evidence, but on the effect that evidence on the trial as a whole. The court also would be alerted that review of its on the due issue ruling would not be to the abuse of discretion standard that to its subject attaches claim, on the so it be ruling statutory would to focus compelled special attention that distinctly broader constitutional course of duties, making case. In its subsequent rulings discharging has both and inherent statutory defer on the due authority ruling objection until the effect of the evidence on the challenged entire proceeding assessed, can be to and the close of the up including case-in- prosecution’s chief, evidence, close (See and defendant’s motion for trial. Pen. new Code, 1094; Arias §§ It makes no sense to an manufacture to Evidence Code
exception encourages section 353 parties bypass trial court and courts of thereby denies their appellate expertise.
If the were prosecution alerted in a manner to the due similarly timely claim, it too would likewise an make opportunity appropriate (or adjustments. court) might limiting prosecutor propose instruction would ameliorate the use the jury might possibility such as to that the defendant had improper purpose, prove crime, to commit this propensity defendant fit a criminal type profile, criminals. because of his association with or that defendant was guilty *21 evidence on the points choose to offer additional prosecutor might evidence. challenged the of the controversy, thereby diminishing importance the rely to electing achieve the same result might by The prosecutor short, the the court and In both trial argument. closing disputed true the nature make learning numerous prosecutor might adjustments upon the majority’s therefore with disagree of defendant’s I objection. respectfully the to party be by objecting assertion “no would served purpose requiring would the actual overruling objection inform the court that believes error in ante, minimum, 437.) at At a the due p. violate process.” (Maj. opn., amicus curiae will undermine what counsel and defense majority’s approach at for State Public Defender conceded oral “best practice” on both section objection trial to the trial court with an lawyers—i.e., present worse, the majority’s and on due Even grounds process grounds. to would deliberately objections will allow withhold approach parties trial to to adjustments enable courts make appropriate opposing the risk reversal. avoid of the majori-
Aside from court and the blindsiding opposing party, new to defendants to ty’s Evidence Code section 353 exception encourages all of the from the trial court and objection withhold but one for grounds then, a to invoke conceivable constitutional appeal, every provision at trial. will of made This legal consequence objection actually a nothing evaluating do but burden courts with task of multiplic- appellate ity of none of which was ever to the trial court legal consequences, presented and most of will which border on frivolous. likely “timely
Evidence Code section 353 to be made requires objection party’s clear (Italics and so stated as to make ground objection.” added.) concedes that defendant never made clear majority he court that to the evidence on the objected specific ground “identical,” and concedes as well that process Yeoman, within the 31 Cal.4th at section meaning page ante, 436.) Nor he did assert at trial. at does (Maj. p. opn., ” “ contend that the section 352 ‘specifically presented]’ ante, claim at defendant advances on (maj. opn., 434), or at trial the due litigate” that the “had full p. opportunity “ ” 436) offering ‘cure the defect’ process argument by or {id. or minimize the designed instruction other limiting taking prospect steps (Id. did not “Defendant could have but apprise, reversal. apprised, (Id. the trial court of such a claim.” He therefore forfeited his due otherwise, Because I challenge. majority finds dissent respectfully from that determination. I concur in the only judgment.
Kennard, J., Ashmann-Gerst, J.,* concurred. Respondent’s petition was denied rehearing February 2006. Chin, J., J., Kennard, Baxter, J., did not therein. participate were of the opinion should be petition granted. *22 District, Two, *Associate Appeal, Appellate assigned Justice of Court of Second Division VI,
by the Chief Justice pursuant article section 6 of the California Constitution.