IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S127505
v.
Ct.App. 2/8 B161356
JOSE PARTIDA,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. TA061403
In this case, the trial court admitted evidence of defendant’s gang
involvement over his objection that the evidence was more prejudicial than
probative. (See Evid. Code, § 352.) The Court of Appeal concluded that the
court erred in admitting some of the evidence but found the error harmless. We
granted review to decide when, if ever, a trial objection on Evidence Code section
352 grounds preserves the appellate argument that admitting the evidence violated
a defendant’s federal due process rights and, if the argument is preserved, under
what circumstances error of this nature does violate due process.
We conclude that 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
1
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.
Defendant argues on appeal primarily, perhaps exclusively, that the trial
court should have excluded the evidence for the reason asserted at trial—that it
was more prejudicial than probative. He also argues that this asserted error
violated his right to due process. He may make that argument. To the extent, if
any, he argues that due process required the court to exclude the evidence for a
reason not included in the trial objection, that argument is forfeited because he did
not object to the evidence on that basis at trial.
On the merits, we accept the Court of Appeal’s conclusion that the trial
court erred in overruling defendant’s trial objection as to some of the gang
evidence. We also conclude that error of the kind asserted here rises to the level
of a due process violation only if it renders the trial fundamentally unfair. Finally,
we also accept the Court of Appeal’s conclusions that the perceived error was
harmless under state law and did not render the trial fundamentally unfair.
I. FACTS AND PROCEDURAL HISTORY
On August 11, 2001, Jesse Moreno and three companions were ordering
food at a Tacos El Unico taco stand in the Compton area of Los Angeles. A
passenger in a green van, identified as defendant, asked Moreno, “Where are you
from?” Moreno and a companion told defendant, “We don’t bang.” Defendant
responded, “I’m from USV, Unos Sin Verguenza.” The van then left but soon
turned around. Later defendant approached Moreno on foot, holding a gun. When
defendant pointed the gun at Moreno, Moreno tried to flee, but defendant shot him
from behind. As he did so, defendant said, “Fuck you, I’m from USV, Unos Sin
Verguenza.” Moreno died of two gunshot wounds in the back.
Defendant was charged with Moreno’s murder. At trial, after a pretrial
hearing, and over defendant’s objection, the court permitted a sheriff’s detective to
2
testify as an expert on criminal street gangs. He testified that in English, “Unos
Sin Verguenza” means “those without shame” or “ones without shame.” He
provided substantial testimony about gangs, including how they mark out their
territory, and how they commit violent crimes to enhance their reputation. Just
before the detective testified, defense counsel renewed on the record that he was
objecting to the gang evidence on the basis of Evidence Code section 352 because
it was “unnecessary and at this point it’s cumulative. They have evidence that this
gang is in that area [because] there is graffiti there and that my client has been
identified as a member of this gang and that the person who committed this
murder is from the gang, and anything beyond that is cumulative at this point and
more prejudicial than probative.”
A jury found defendant guilty of Moreno’s murder in the first degree and
found true a weapon enhancement allegation. The court sentenced him to prison
for a total of 50 years to life. He appealed.
The Court of Appeal affirmed the judgment. It found that, although much
of the gang evidence was properly admitted, the trial court abused its discretion
under Evidence Code section 352 in admitting some of it. It also concluded that
defendant’s trial objection to the gang evidence as more prejudicial than probative
(Evid. Code, § 352) preserved for appeal the argument that erroneously admitting
the evidence violated his due process rights. It held, however, that defendant’s
due process rights were not violated because admitting the gang evidence did not
make the trial fundamentally unfair. Finally, it found the perceived error harmless
under the test for state law error established in People v. Watson (1956) 46 Cal.2d
818, 836; it found no reasonable probability defendant would have obtained a
more favorable outcome had the evidence been excluded.
We granted defendant’s petition for review.
3
II. DISCUSSION
A. Forfeiture
Defendant objected to the gang evidence at trial on the ground that it should
have been excluded under Evidence Code section 352 because it was more
prejudicial than probative.1 He did not object at trial that admitting the evidence
would violate his due process rights. On appeal, he argues that the court erred in
overruling the objection and also that the asserted error violated his constitutional
right to due process. He does not clearly specify which Constitution, state or
federal, he is relying on, but the briefing generally discusses the federal
Constitution. Accordingly, we will focus on defendant’s federal due process
claim.
The first question we must decide is whether petitioner’s objection under
Evidence Code section 352 preserved his due process argument on appeal. The
question is one of statutory interpretation. Evidence Code section 353 provides, as
relevant, “A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous admission of
evidence unless: [¶] (a) There appears of record an objection to or a motion to
exclude or to strike the evidence that was timely made and so stated as to make
clear the specific ground of the objection or motion . . . .” (Italics added.) “In
accordance with this statute, we have consistently held that the ‘defendant’s failure
to make a timely and specific objection’ on the ground asserted on appeal makes
that ground not cognizable. (People v. Green (1980) 27 Cal.3d 1, 22 [objection on
1
Evidence Code section 352 provides: “The court in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time or (b)
create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.”
4
ground that questions were leading does not preserve appellate argument that the
evidence was impermissible evidence of other crimes] ; . . .)” (People v. Seijas
(2005) 36 Cal.4th 291, 302.)
A century ago, long before the Evidence Code existed, we explained the
need for a specific objection. “To require this is simply a matter of fairness and
justice, in order that cases may be tried on their merits. Had attention been called
directly in the court below to the particular objection which it is now claimed the
general objection of appellant presented, that court would have had a concrete
legal proposition to pass on, and counsel for plaintiff would have been advised
directly what the particular complaint against the question was, and, if he deemed
it tenable, could have withdrawn the inquiry or reframed his question to obviate
the particular objection. Trial judges are not supposed to have the numerous,
varied, and complex rules governing the admissibility of evidence so completely
in mind and of such ready application that under an omnivagant objection to a
question they can apply with legal accuracy some particular principle of law which
the objection does not specifically present.” (Bundy v. Sierra Lumber Co. (1906)
149 Cal. 772, 776; see People v. Morris (1991) 53 Cal.3d 152, 187-188 [citing
Bundy].)
The objection requirement is necessary in criminal cases because a
“contrary rule would deprive the People of the opportunity to cure the defect at
trial and would ‘permit the defendant to gamble on an acquittal at his trial secure
in the knowledge that a conviction would be reversed on appeal.’ ” (People v.
Rogers (1978) 21 Cal.3d 542, 548.) “The reason for the requirement is manifest:
a specifically grounded objection to a defined body of evidence serves to prevent
error. It allows the trial judge to consider excluding the evidence or limiting its
admission to avoid possible prejudice. It also allows the proponent of the
evidence to lay additional foundation, modify the offer of proof, or take other
5
steps designed to minimize the prospect of reversal.” (People v. Morris, supra, 53
Cal.3d at pp. 187-188.)
Thus, the requirement of a specific objection serves important purposes.
But, to further these purposes, the requirement must be interpreted reasonably, not
formalistically. “Evidence Code section 353 does not exalt form over substance.”
(People v. Morris, supra, 53 Cal.3d at p. 188.) The statute does not require any
particular form of objection. Rather, “the objection must be made in such a way
as to alert the trial court to the nature of the anticipated evidence and the basis on
which exclusion is sought, and to afford the People an opportunity to establish its
admissibility.” (People v. Williams (1988) 44 Cal.3d 883, 906.) What is
important is that the objection fairly inform the trial court, as well as the party
offering the evidence, of the specific reason or reasons the objecting party believes
the evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling. If the court
overrules the objection, the objecting party may argue on appeal that the evidence
should have been excluded for the reason asserted at trial, but it may not argue on
appeal that the court should have excluded the evidence for a reason different from
the one stated at trial. A party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct.
In this case, defendant objected at trial that the gang evidence should be
excluded under Evidence Code section 352. The objection alerted the court to the
nature of the anticipated evidence and the basis on which its exclusion was sought.
It permitted the court to make an informed ruling and gave the People the
opportunity to establish the evidence’s admissibility. On appeal, defendant may
argue that the court erred in its ruling. But he may not argue that the court should
have excluded the evidence for a reason different from his trial objection. If he
had believed at trial, for example, that the trial court should engage in some sort of
6
due process analysis that was different from the Evidence Code section 352
analysis, he could have, and should have, make this clear as part of his trial
objection. He did not do so. Accordingly, he may not argue on appeal that due
process required exclusion of the evidence for reasons other than those articulated
in his Evidence Code section 352 argument.
We believe, however, that defendant may make a very narrow due process
argument on appeal. He may argue that the asserted error in admitting the
evidence over his Evidence Code section 352 objection had the additional legal
consequence of violating due process. Similarly, a defendant may argue that error
in overruling a trial objection was prejudicial under the Watson test (People v.
Watson, supra, 46 Cal.2d 818) without citing Watson as part of the trial objection.
We recently concluded that, “[a]s a general matter, no useful purpose is
served by declining to consider on appeal a claim that merely restates, under
alternative legal principles, a claim otherwise identical to one that was properly
preserved by a timely motion that called upon the trial court to consider the same
facts and to apply a legal standard similar to that which would also determine the
claim raised on appeal.” (People v. Yeoman (2003) 31 Cal.4th 93, 117; accord,
People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6.)
Here, as discussed in part II. B., post, the admission of evidence, even if
error under state law, violates due process only if it makes the trial fundamentally
unfair. Accordingly, the due process argument is not identical to the trial
objection. (See also Duncan v. Henry (1995) 513 U.S. 364 [due process and
Evidence Code section 352 claims are not identical for federal exhaustion
purposes].) To the extent, if any, that defendant may be understood to argue that
due process required exclusion of the evidence for a reason different from his trial
objection, that claim is forfeited. Defendant could have apprised, but did not
apprise, the trial court of such a claim. But defendant primarily makes a two-step
7
argument on appeal: (1) the trial court erred in overruling the trial objection, and
(2) the error was so serious as to violate due process.2 To consider this narrow
due process argument on appeal “entails no unfairness to the parties,” who had the
full opportunity at trial to litigate whether the court should overrule or sustain the
trial objection. (People v. Yeoman, supra, 31 Cal.4th at p. 118.) Defendant’s
limited due process claim “merely invites us to draw an alternative legal
conclusion [i.e., that erroneously admitting the evidence violated due process]
from the same information he presented to the trial court [i.e., that the evidence
was more prejudicial than probative]. We may therefore properly consider the
claim on appeal.” (Id. at p. 133.)
When a trial court rules on an objection to evidence, it decides only
whether that particular evidence should be excluded. Potential consequences of
error in making this ruling play no part in this decision. A reviewing court, not the
trial court, decides what legal effect an erroneous ruling has. Here, the trial court
was called on to decide whether the evidence was more prejudicial than probative.
It did so. Whether its ruling was erroneous is for the reviewing court to decide. If
the reviewing court finds error, it must also decide the consequences of that error,
including, if the defendant makes the argument, whether the error was so serious
2
The concurring and dissenting opinion asserts that defendant’s argument
that “the gang evidence was inherently prejudicial in that it was akin to propensity
evidence, criminal profile evidence, and evidence of crimes committed by third
parties,” is new and not included in his trial objection under Evidence Code
section 352. (Conc. & dis. opn., post, at p. 3; see also id. at p. 13.) In addition to
this argument, defendant also argues that the evidence was not very probative,
partly because it was cumulative. This is classic Evidence Code section 352
analysis, which requires a weighing of the prejudicial effect of evidence (hence
permitting argument that the evidence is prejudicial) against its probative value.
(E.g., People v. Williams (1997) 16 Cal.4th 153, 191-194; People v. Champion
(1995) 9 Cal.4th 879, 922-923.)
8
as to violate due process. The consequences of hypothetical error are not
something the trial court ordinarily can or should consider when making the initial
ruling. The trial court merely rules on the actual objection. Ordinarily, it does
not, and usually cannot, base this ruling on whether admitting prejudicial evidence
would render the trial fundamentally unfair. Once the reviewing court has found
error in overruling the trial objection, whether that error violated due process is a
question of law for the reviewing court, not the trial court in ruling on the
objection, to determine in assessing the consequence of that error. Similarly, in
ruling on the trial objection, the trial court would not decide whether an erroneous
ruling would be prejudicial under the Watson test. (People v. Watson, supra, 46
Cal.2d 818.)
If the trial objection fairly informs the court of the analysis it is asked to
undertake, no purpose is served by formalistically requiring the party also to state
every possible legal consequence of error merely to preserve a claim on appeal
that error in overruling the objection had that legal consequence. Specifically, no
purpose would be served by requiring the objecting party to inform the court that it
believes error in overruling the actual objection would violate due process.
Indeed, if a defendant who objected on Evidence Code section 352 grounds argues
on appeal that the court erred in admitting the evidence for a reason different than
that it was more prejudicial than probative, an additional trial invocation of due
process or some other general principle that did not reasonably apprise the trial
court of the analysis it was being asked to undertake would not be sufficient to
preserve the argument.
The Attorney General cites a number of cases in which we found a due
process argument on appeal not cognizable when the defendant had not objected
on due process grounds at trial. (E.g., People v. Heard (2003) 31 Cal.4th 946,
972, fn. 12; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Boyette
9
(2002) 29 Cal.4th 381, 424; People v. Rowland (1992) 4 Cal.4th 238, 273, fn. 14;
People v. Gordon (1990) 50 Cal.3d 1223, 1240, fn. 2.) Those cases should be read
to hold only that the constitutional argument is forfeited to the extent the
defendant argued on appeal that the constitutional provisions required the trial
court to exclude the evidence for a reason not included in the actual trial objection.
They did not consider whether, and do not preclude us from holding that,
defendant may argue an additional legal consequence of the asserted error in
overruling the Evidence Code section 352 objection is a violation of due process.3
(E.g., People v. Cole, supra, 33 Cal.4th at p. 1195, fn. 6 [trial objection under
Evidence Code sections 352 and 1101 preserved claim that the asserted error
violated due process and the constitutional right to a reliable verdict]; People v.
Jones (1998) 17 Cal.4th 279, 305-306; People v. Hawkins (1995) 10 Cal.4th 920,
950-952.)4
3
The concurring and dissenting opinion also relies heavily on these cases,
but they do not consider this question. For example, the case that opinion
discusses most extensively as “typical” (conc. & dis. opn., post, at p. 2), People v.
Rowland, supra, 4 Cal.4th at page 273, footnote 14, states only this: “Defendant
claims that by denying his motion [to bar certain testimony], the court committed
error not only under Evidence Code section 352, but also under the United States
Constitution, including the due process clause of the Fourteenth Amendment. He
failed to make an argument below based on any federal constitutional provision.
Hence, he may not raise such an argument here.” (Italics added.) We reiterate
that a defendant may not argue that the court committed error for a reason not
included in the trial objection. But neither Rowland nor any of the other opinions
cited in the dissenting and concurring opinion considered—or held one way or the
other—whether the defendant may assert that error in overruling the actual
objection was so serious as to violate due process.
4
The concurring and dissenting opinion states that these three cases neither
reflected that the Attorney General had asserted the claims were forfeited nor cited
Evidence Code section 353. (Conc. & dis. opn., post, at pp. 4-5, fn. 1.) The same
is true of the cases the concurring and dissenting opinion cites as supposedly
resolving this entire question. (Id. at p. 2.) (In People v. Yeoman, supra, 31
Cal.4th at page 133, where we permitted the defendant to argue that admitting
10
Here, to the extent defendant asserts a different theory for exclusion than he
asserted at trial, that assertion is not cognizable.5 But he primarily argues that the
court erred in admitting the evidence because it was more prejudicial than
probative under Evidence Code section 352, which was precisely his trial
objection, and which was the basis for the Court of Appeal’s finding of error.
Defendant also argues that this error had the legal consequence of violating his
due process rights. This he may do.
B. The Merits
Permitting defendant to argue that erroneously overruling his trial
objections violated due process does not, of course, mean that the argument is
meritorious; it only means that he may make the argument.
The Court of Appeal held that the trial court abused its discretion under
Evidence Code section 352 in admitting some of the gang evidence. We accept
for purposes of review this fact-specific application of settled law without
certain evidence rendered the death sentence arbitrary and unreliable in violation
of the Eighth Amendment to the United States Constitution, the People did argue
that the Eighth Amendment claim was forfeited because the defendant had not
cited that Amendment at trial, an argument we rejected.) None of these cases are
authority for propositions not considered. That is why we are explaining and
reconciling all of our cases, not just a selected portion of them. Principles of stare
decisis do not preclude us from doing so.
5
In response to the concurring and dissenting opinion’s assertion that we are
somehow permitting “a challenge to an evidentiary ruling based on an argument
never presented to the trial court” (conc. & dis. opn., post, at p. 9) and,
accordingly, are permitting defendants to “blindsid[e]” the trial court and
prosecution (id. at pp. 15, 17) , we can merely reiterate what we have already
stressed: If the court overrules the objection, the objecting party may argue on
appeal that the evidence should have been excluded for the reason asserted at trial,
but it may not argue on appeal that the court should have excluded the evidence
for a reason different from the one stated at trial. A party cannot argue the court
erred in failing to conduct an analysis it was not asked to conduct. (Ante, p. 6.)
We are permitting no blindsiding.
11
deciding the question ourselves. (See Cal. Rules of Court, rule 29(b)(3) [“The
court need not decide every issue the parties raise or the court specifies.”]; People
v. Weiss (1999) 20 Cal.4th 1073, 1076-1077.) Defendant argues that this error
was so serious as to violate due process. But the admission of evidence, even if
erroneous under state law, results in a due process violation only if it makes the
trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v.
Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903,
913 [“The admission of relevant evidence will not offend due process unless the
evidence is so prejudicial as to render the defendant’s trial fundamentally
unfair.”]; see also Duncan v. Henry, supra, 513 U.S. at p. 366.) Absent
fundamental unfairness, state law error in admitting evidence is subject to the
traditional Watson test: The reviewing court must ask whether it is reasonably
probable the verdict would have been more favorable to the defendant absent the
error. (People v. Earp (1999) 20 Cal.4th 826, 878; People v. Watson, supra, 46
Cal.2d at p. 836.)
The Court of Appeal applied the correct test both when it found no due
process violation (fundamental fairness) and when it found the state law error
harmless (Watson). Because the Court of Appeal’s application of these tests is
fact specific, we also accept its conclusions on these points.6
6
In response to the concurring and dissenting opinion’s assertion that this
opinion is “likely to breed confusion” (conc. & dis. opn., post, at p. 14), we
believe that permitting defendants to argue that error in overruling a trial objection
was so serious as to render the trial fundamentally unfair in violation of their due
process rights is neither particularly complex nor beyond the comprehension of
future courts.
12
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
CHIN,
J.
WE CONCUR:
GEORGE, C. J.
WERDEGAR, J.
MORENO, J.
13
CONCURRING AND DISSENTING OPINION BY BAXTER, J.
When a party objects at trial to the admission of certain evidence as
substantially more prejudicial than probative under Evidence Code section 352
(section 352), may the party argue on appeal, for the first time, that the admission
of the evidence violated due process? The answer to that question is found in the
general forfeiture rule set forth in Evidence Code section 353, which bars relief
based on the erroneous admission of evidence unless the aggrieved party presented
an objection to the trial court “that was timely made and so stated as to make clear
the specific ground of the objection” and the reviewing court agrees that the
evidence “should have been excluded on the ground stated.” (Italics added.)
Because defendant’s section 352 objection failed to make clear that he was also
objecting to the evidence on due process grounds, the plain language of the statute
compels the conclusion that he has thereby forfeited his due process claim.
The analysis here therefore should be straightforward. The general
forfeiture rule set forth in Evidence Code section 353 “applies equally to any
claim on appeal that the evidence was erroneously admitted, other than the stated
ground for the objection at trial.” (People v. Kennedy (2005) 36 Cal.4th 595, 612,
italics added.) In particular, for over 15 years, we have relied on section 353 to
bar defendants from expanding a trial objection to evidence that rested on one
ground—i.e., that the evidence was substantially more prejudicial than probative
under section 352—into an appellate argument on a different ground—i.e., that
1
admission of the evidence thereby rendered the trial fundamentally unfair. (See,
e.g., People v. Heard (2003) 31 Cal.4th 946, 972, fn. 12; People v. Burgener
(2003) 29 Cal.4th 833, 869; People v. Boyette (2002) 29 Cal.4th 381, 424; People
v. Rowland (1992) 4 Cal.4th 238, 273, fn. 14; People v. Raley (1992) 2 Cal.4th
870, 892; People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7; People v. Gordon
(1990) 50 Cal.3d 1223, 1240, fn. 2.) Rowland is typical. In that case, the
defendant objected at the penalty phase of a capital trial to testimony from the
second victim of a prior kidnapping on the ground that her testimony “would be
substantially more prejudicial than probative” under section 352. (Rowland,
supra, 4 Cal.4th at p. 273.) On appeal, the defendant renewed his section 352
claim but added a new claim of error based on the theory that the second witness’s
testimony was so “inflammatory” as to deny him his rights “under the United
States Constitution, including the due process clause of the Fourteenth
Amendment.” (Rowland, supra, 4 Cal.4th at p. 273, fn. 14.) We held—
unanimously—that the due process claim was forfeited because defendant “failed
to make an argument below based on any federal constitutional provision.” (Ibid.)
Rowland and our other cases construing Evidence Code section 353 are
indistinguishable from the circumstances here, which involve the admission of
evidence of defendant’s gang involvement to explain the motive for his senseless
murder of Jesse Moreno. At an Evidence Code section 402 hearing prior to trial,
the prosecution made an offer of proof concerning the gang expert’s testimony and
argued that this evidence tended to show the motive for Moreno’s murder as well
as the identity of the murderer. Defendant objected to this evidence, but on the
specific grounds that the evidence was irrelevant and cumulative. Almost as an
afterthought, and without any elaboration, defendant also summarily objected on
the ground the evidence was “more prejudicial than probative” under section 352.
The trial court excluded part of the proffered evidence and declared that the
2
remainder, while inadmissible as to identity, could be used to demonstrate motive
“because, you know, the jurors are going to sit there and say, ‘Why did this
happen?’ . . . [and] what it all means when someone rolls up and says, ‘Where
you from?’ and so forth.” Defendant continued to object, but conceded that “if
you’re not going to allow it for identification at this point, then to prove motive I
guess—I guess that it would be limited then.”
At trial, the gang expert explained that “Where you from?” constitutes a
“challenge” in the gang culture and is a question with “no correct answer.” The
questioner “is asking you to either say ‘yes’ and claim your gang or do what is
shameful and rank out which means you deny you’re . . . a member of the gang.”
When the questioner identifies his own gang—such as by saying, “This is USV,
Unos Sin Verguenza”—he is making sure the victim and the others nearby know
that the gang is “claiming” this territory. The expert also explained that gangs
commit crimes to enhance their reputations, that more violent crimes instill more
fear and respect in the community, and that the shooter would thus perceive no
need to disguise himself or his gang affiliation in committing the crime.
On appeal, for the first time, defendant articulated a due process objection
to this evidence. His due process objection was based not on the theory that the
probative value of this evidence was substantially outweighed by the danger of
undue prejudice but instead on the theory that the gang evidence was inherently
prejudicial in that it was akin to propensity evidence, criminal profile evidence,
and evidence of crimes committed by third parties.
As the majority concedes, defendant “did not object at trial that admitting
the evidence would violate his due process rights.” (Maj. opn., ante, at p. 4.) The
majority likewise concedes that the trial court had no opportunity to evaluate the
constitutional arguments defendant now urges on appeal. (See id. at pp. 8-9.)
Under the plain language of Evidence Code section 353 and our case law
3
construing that statute in this precise context, defendant forfeited his claim that the
admission of the gang evidence violated his due process rights. The majority,
remarkably, finds to the contrary, although the precise basis for its conclusion
remains obscure. In particular, the majority does not explain how an objection on
section 352 grounds makes clear to the trial court that the defendant is also
objecting on due process grounds.
The majority does try to distinguish our longstanding line of cases
construing Evidence Code section 353 to bar a defendant from claiming due
process error for the first time on appeal, but the distinction is a false one. The
majority suggests that these cases “hold only that the constitutional argument is
forfeited to the extent the defendant argued on appeal that the constitutional
provisions required the trial court to exclude the evidence for a reason not
included in the actual trial objection.” (Maj. opn., ante, at p. 10.) But, as
discussed above, we have applied the forfeiture rule even when the actual trial
objection was that the evidence was more prejudicial than probative under section
352 and the argument on appeal was that the error in overruling the section 352
objection allowed in evidence that was so “inflammatory” as to deny the defendant
due process. (E.g., People v. Rowland, supra, 4 Cal.4th at p. 273 & fn. 14.)
Inasmuch as defendant’s trial objection here was merely that the evidence was
more prejudicial than probative under section 352 and his appellate argument is
that “the erroneous admission of the inflammatory gang evidence” denied him due
process, this case is indistinguishable from those enforcing our long-standing
interpretation of section 353.1
1
The majority also cites three cases in which we proceeded to decide a due
process claim even though the face of the opinion did not reflect that an objection
on that ground had been made in the trial court. (People v. Cole (2004) 33 Cal.4th
1158, 1195, fn. 6; People v. Jones (1998) 17 Cal.4th 279, 305-306; People v.
4
In other words, this case is really about stare decisis. The high court
reminds us “often and with great emphasis” that stare decisis “ ‘is of fundamental
importance to the rule of law.’ ” (Patterson v. McLean Credit Union (1989) 491
U.S. 164, 172.) We have echoed that sentiment and have agreed with the high
court that “[t]he principles underlying the doctrine of stare decisis apply with
special force in the context of statutory interpretation.” (Barner v. Leeds (2000)
24 Cal.4th 676, 686, fn. 2; accord, Patterson, supra, 491 U.S. at p. 172.) “[A]ny
departure from the doctrine of stare decisis demands special justification” (ibid.),
and therefore the “ ‘burden borne by the party advocating the abandonment of an
established precedent is greater when the Court is asked to overrule a point of
statutory construction.’ ” (People v. Latimer (1993) 5 Cal.4th 1203, 1213, quoting
Patterson, supra, 491 U.S. at p. 172.)
The majority fails utterly to grapple with the doctrine of stare decisis and
the special justification necessary to overrule a point of statutory construction.
That is unfortunate. (See Shepard v. United States (2005) ___ U.S. ___ [125 S.Ct.
1254, 1261 [“In this instance, time has enhanced even the usual precedential force,
nearly 15 years having passed”].) Yet, even if it were considered as a question of
first impression, the majority’s newly minted exception to Evidence Code section
353 lacks any coherent justification. Because it is essential to discover the
majority’s rationale for this exception in order to determine whether it will apply
Hawkins (1995) 10 Cal.4th 920, 950-952.) In none of those cases, however, did
our opinions reflect that the Attorney General ever asserted that the claims had
been forfeited for failure to articulate that specific ground below. More
importantly, none of those cases purported to construe—or even cited—Evidence
Code section 353. Inasmuch as the Attorney General here has invoked the
forfeiture rule of section 353 and (as the majority concedes) section 353 governs
here, those three cases are not authority on the forfeiture issue. (People v.
Barragan (2004) 32 Cal.4th 236, 243 [“ ‘[C]ases are not authority for propositions
not considered’ ”].)
5
in other circumstances in the future, I will endeavor to explain what it is not—or,
at the least, cannot be.
1. Is defendant’s due process claim identical to his trial objection? No.
The majority quotes our recent opinion in People v. Yeoman (2003) 31
Cal.4th 93, 117 (Yeoman)—that “ ‘[a]s a general matter, no useful purpose is
served by declining to consider on appeal a claim that merely restates, under
alternative legal principles, a claim otherwise identical to one that was properly
preserved by a timely motion that called upon the trial court to consider the same
facts and to apply a legal standard similar to that which would also determine the
claim raised on appeal’ ” (maj. opn., ante, at p. 7)—but then fails to explain how,
if at all, this rather unremarkable proposition applies here. In Yeoman, we held
that a defendant who made a Wheeler2 objection to the exercise of a peremptory
challenge at trial could assert a Batson3 objection to the exercise of that challenge
on appeal. We did so on the belief, since superseded (see Johnson v. California
(2005) ___ U.S. ___ [125 S.Ct. 2410]), that “Wheeler and Batson articulate the
same standard” and thus “required the trial court to conduct the same factual
inquiry” and to apply an “identical” legal standard. (Yeoman, supra, 31 Cal.4th at
p. 117.) Under those circumstances, the parties “had an opportunity to litigate the
relevant facts and to apply the relevant legal standard in the trial court.” (Id. at p.
118, fn. omitted.)
Defendant, like the Court of Appeal, argued that his due process claim was
identical to his objection under section 352. The majority properly rejects this
argument. A claim under section 352 and a claim under due process are “not
identical.” (Maj. opn., ante, at p. 7.) The former depends on whether the
2
People v. Wheeler (1978) 22 Cal.3d 258.
3
Batson v. Kentucky (1986) 476 U.S. 79.
6
probative value of the challenged evidence is substantially outweighed by the
danger of undue prejudice; the latter depends on whether the challenged evidence
rendered the entire proceedings fundamentally unfair. As the high court has made
clear, these legal standards “are no more than ‘ “somewhat similar.” ’ ” (Duncan
v. Henry (1995) 513 U.S. 364, 366.) Because these claims do not depend on the
same facts and are not governed by similar legal standards, Yeoman is
inapplicable. (People v. Smith (2005) 35 Cal.4th 334, 356 [defendant’s
constitutional claim is not preserved where it “is not identical to his properly
preserved claim based on California decisions and statutes”].)
2. Did defendant’s trial objection, even if not identical to his due process
argument on appeal, “fairly inform” the trial court of his due process argument?
No.
The majority at various points deems it “important” that an objection
“fairly inform” the trial court of the argument sought to be advanced on appeal.
(Maj. opn., ante, at p. 6.) I agree that an objection should, at a minimum, fairly
inform the trial court and the opposing party of the specific ground sought to be
urged on appeal—but this, once again, offers no help to defendant. As the high
court explained in Duncan v. Henry, supra, 513 U.S. at page 366, an objection
under section 352 that the evidence is more prejudicial than probative does not
fairly “apprise” the court of a due process claim that the evidence was so
“inflammatory as to prevent a fair trial.” Indeed, as the majority elsewhere
cautions, a trial court confronted with a section 352 objection cannot and should
not consider whether the challenged evidence would render the trial fundamentally
unfair. (Maj. opn., ante, at p. 9.) Consequently, the trial court was not informed,
fairly or otherwise, of the argument defendant now urges on appeal.
7
3. Even if defendant’s due process claim is not preserved, may he
nonetheless argue that the “legal consequence” of overruling his statutory
objection was a due process violation? No.
The majority never actually states that defendant’s due process objection is
preserved for appeal notwithstanding his failure to fairly present it to the trial
court. Instead, the majority asks “when, if ever, a trial objection on Evidence
Code section 352 grounds preserves the appellate argument that admitting the
evidence violated a defendant’s federal due process rights” (maj. opn., ante, at p.
1) and then concludes that a defendant may argue “that the asserted error in
overruling the trial objection had the legal consequence of violating due process.”
(Id. at p. 2.) The majority thus deems it significant that the defendant is making a
“two-step argument on appeal: (1) the trial court erred in overruling the trial
objection, and (2) the error was so serious as to violate due process.” (Id. at pp. 7-
8.) Unfortunately, the majority has to take more than two steps—indeed, it must
execute a reverse double somersault with a twist—to find that the due process
argument here is preserved.
The majority never explains what qualifies as a claim and what qualifies as
a legal consequence (or how to distinguish between the two), nor does the majority
explain why the former is barred but the latter is preserved.4 It makes no more
sense to say that overruling a section 352 objection was error that had the legal
consequence of violating due process than it would be to say that overruling a
4
I agree with the majority that a trial court, in ruling on an evidentiary
objection, “would not decide whether an erroneous ruling would be prejudicial
under the . . . test” of People v. Watson (1956) 46 Cal.2d 818. (Maj. opn., ante, at
p. 9.) But we are dealing here with federal due process, which is a freestanding
substantive claim, not a state constitutional standard of harmless error. Quite
simply, there is no such thing as a “Watson claim.” The analogy, therefore, is
inapt.
8
relevance objection was error that had the legal consequence of violating section
352 or that overruling a hearsay objection was error that had the legal consequence
of violating the confrontation clause of the Sixth Amendment. In the latter
circumstances, we have regularly held that the appellate claim—i.e., the legal
consequence—is forfeited. (E.g., People v. Champion (1995) 9 Cal.4th 879, 913
[relevance objection does not preserve claim under section 352; the trial court was
not asked “to weigh the conversations’ probative value and prejudicial effect”];
People v. Catlin (2001) 26 Cal.4th 81, 138, fn. 14 [hearsay objection does not
preserve claim that the “error constituted a violation of his Sixth Amendment right
to confrontation”].) The majority offers no reason why a different result should
obtain here. (People v. Rowland, supra, 4 Cal.4th at p. 273, fn. 14 [section 352
objection does not preserve claim that “by denying his motion, the court
committed error . . . under the United States Constitution, including the due
process clause”].)
More problematically, the majority’s blanket assertion that we may review
a challenge to an evidentiary ruling based on an argument never presented to the
trial court so long as the argument is cast as a “consequence” rather than as an
independent “claim” is utterly bereft of legal support. The majority cites no
authority, here or elsewhere, in support of this newly minted distinction. This is
not surprising, inasmuch as we long ago foreclosed such sophistic analysis: “ ‘The
general rule confining the parties upon appeal to the theory advanced below is
based on the rationale that the opposing party should not be required to defend for
the first time on appeal against a new theory that “contemplates a factual situation
the consequences of which are open to controversy and were not put in issue or
presented at the trial.” ’ ” (Yeoman, supra, 31 Cal.4th at p. 118, fn. 3, italics
added, quoting Ward v. Taggart (1959) 51 Cal.2d 736, 742.) Where, as here,
those consequences were not identified at trial, the defendant may not rely on them
9
to challenge the trial court’s ruling—for, “[i]n the absence of a timely and specific
objection on the ground sought to be urged on appeal,” the appellate court simply
will not review “the trial court’s rulings on admissibility of evidence.” (People v.
Clark (1992) 3 Cal.4th 41, 125-126.) The majority fails to recognize that we sit to
review trial court rulings, not consequences of particular objections, and that when
we review those rulings, we are limited to those attacks articulated in the trial
court. (People v. Seijas (2005) 36 Cal.4th 291, 302 [“we have consistently held
that the ‘defendant’s failure to make a timely and specific objection’ on the ground
asserted on appeal makes that ground not cognizable”]; People v. Kennedy, supra,
36 Cal.4th at p. 612 [“The appellate court’s review of the trial court’s admission of
evidence is then limited to the stated ground for the objection”].) Because
defendant failed to articulate a due process argument below, he forfeited it for
appeal.
Even on its own terms, the distinction the majority draws between this case
and our existing rule is at best an elusive one. As I understand it, the majority
would continue to bar defendants from arguing for the first time on appeal that by
overruling a section 352 objection, the trial court “committed error . . . under . . .
the due process clause.” (Maj. opn., ante, at p. 10, fn. 3, italics omitted.) But the
majority will now allow defendants to argue for the first time on appeal that “error
in overruling the actual objection was so serious as to violate due process.” (Ibid.,
italics added.) I do not understand why the claim would be barred in one
circumstance and not the other, nor does the majority explain why this slight
difference in language should be endowed with transcendental significance.
4. Is the trial court incompetent to decide a due process claim? No.
The majority observes that in resolving a section 352 objection, a trial court
“does not, and usually cannot, base this ruling on whether admitting prejudicial
evidence would render the trial fundamentally unfair.” (Maj. opn., ante, at p. 9.)
10
But the question here is not whether a trial court can or does resolve a due process
claim in the course of resolving a section 352 objection, but whether a trial court
could resolve a due process claim if a defendant were to make a timely evidentiary
objection on that specific ground. If trial courts are incompetent to resolve a
timely due process objection to evidence, then the majority would be correct that
defendants need not object to the evidence on that specific ground in order to
preserve the due process claim for appeal. If, on the other hand, trial courts are
competent to resolve timely due process objections to the evidence, then Evidence
Code section 353 requires defendants to make such an objection on a timely basis
in the trial court, on pain of forfeiting the claim on appeal. The statute contains no
exception for arguments that the defendant could have brought to the trial court’s
attention (but did not) and that the trial court was competent to resolve (but had no
opportunity to do so).
In my view, it is plain that trial courts are competent—indeed, well
equipped—to resolve evidentiary objections based on due process. The judge who
sits through the trial and hears the witnesses firsthand is in a much better position
to gauge the impact of the challenged evidence on the jury than is an appellate
tribunal, which has only the cold record to review. (Cf. People v. Cornwell (2005)
37 Cal.4th 50, 87 [effect of spectator misconduct]; Walling v. Kimball (1941) 17
Cal.2d 364, 369 [effect of attorney misconduct].) As we recently observed, “it is
the trial court that has a ‘first-person vantage’ [citation] on the effect of trial errors
or irregularities on the fairness of the proceedings in that court.” (People v. Ault
(2004) 33 Cal.4th 1250, 1267.) Moreover, trial courts have a “constitutional duty
. . . to ensure that defendants be accorded due process of law.” (People v.
Fosselman (1983) 33 Cal.3d 572, 582, italics added) and statutory authority to
correct asserted errors in the admission of evidence. (Pen. Code, § 1181, subd. 5
11
[trial court has authority to grant a new trial based on error “in the decision of any
question of law arising during the course of the trial”].)
Our forfeiture rule reflects the principle “that a trial on the merits, whether
in a civil or criminal case, is the ‘main event,’ and not simply a ‘tryout on the
road’ to appellate review.” (Freytag v. Commissioner (1991) 501 U.S. 868, 895
(conc. opn. of Scalia, J.), quoting Wainwright v. Sykes (1977) 433 U.S. 72, 90.)
Allowing defendants to withhold a specific ground for the evidentiary objection,
when the trial court is fully competent to consider that ground, thwarts this
fundamental principle. As the majority points out, it is “ ‘simply a matter of
fairness and justice’ ” to alert the trial court “ ‘to the particular objection’ ” sought
to be advanced on appeal so that the trial court “ ‘can apply with legal accuracy
[the] particular principle of law’ ” at issue. (Maj. opn., ante, at p. 5.) Without “ ‘a
specifically grounded objection’ ” articulating “the specific reason or reasons the
objecting party believes the evidence should be excluded,” the party offering the
evidence cannot respond appropriately, nor can the trial court make a fully
informed ruling. (Id. at pp. 5, 6.) If, as the majority contends, defendants forfeit
all other types of due process objections that are not presented to the trial court
(see id. at pp. 6-7), it remains a mystery why this particular due process argument
falls outside the general rule.
5. Whatever the rationale for the majority’s exception to our longstanding
forfeiture rule, has defendant actually satisfied the exception? No.
Evidence Code section 353 bars relief based on the admission of evidence
unless the objecting party stated an objection so as “to make clear the specific
ground of the objection” (italics added) and the appellate court agrees that the
evidence should have been excluded “on the ground stated.” Defendant’s due
process claim is forfeited through any fair application of this clear statutory
command. But, under the majority’s strained interpretation of the statute, relief
12
may be granted “for a reason asserted at trial” or “included in the trial objection.”
(Maj. opn., ante, at pp. 1-2, italics added.) However, the objecting party “may not
argue on appeal that the court should have excluded the evidence for a reason
different from the one stated at trial.” (Id. at p. 6.) Although the majority’s new
formulation is sure to spawn hard-fought but largely pointless litigation as to what
constitutes the same reason or a different reason, this case seems to fit in the latter
category, not the former.
As the majority concedes, the sole reason defendant identified at trial for
excluding the gang evidence was his unadorned contention that it was more
prejudicial than probative. On appeal, though, defendant’s claim has undergone a
transformation. Defendant does not claim merely that the admission of evidence
that was more prejudicial than probative, in that its probative value was so slight,
violated his due process rights. Rather, he argues that his due process rights were
violated by the admission of evidence that was “inherently prejudicial” and that
this evidence should be treated like evidence of a defendant’s propensity to
commit crimes, evidence of a criminal profile, and evidence of crimes committed
by third parties. As to propensity, he argues that the gang evidence caused the
jury to believe he “was more likely to have committed the violent offenses
charged against him because of his membership in the . . . gang.” As to criminal
profile, he argues that the gang evidence deprived him of his “right to be tried
based on the evidence against him . . . , not on the techniques utilized by law
enforcement officials in investigating criminal activity.” And, as to third party
crimes, defendant argues that the gang evidence saddled him “with the burden of
proving the innocence of another. Such a burden violates the fundamental
principles of due process of law.”
As amicus curiae State Public Defender explained at oral argument, the
burden rests with the appellant to show that the appellate claim was the same as
13
the trial objection. Defendant has not discharged this burden. Neither the trial
court nor the prosecutor was ever alerted to these theories for exclusion, let alone
any of the case law on which defendant is now relying. The prosecution never had
the chance to “respond appropriately” to these bases for excluding the evidence,
and the trial court never had the chance to “make a fully informed ruling” on them.
(Maj. opn., ante, at p. 6.) As the Attorney General pointed out in his brief and
again at oral argument, a fair reading of the record reveals that defendant’s due
process claims do not fall within the majority’s newly created exception to the
forfeiture rule.
Thus, rather than “reiterate” its general rule that a defendant may argue on
appeal that the evidence “should have been excluded for the reason asserted at
trial” but not “for a reason different from the one stated at trial” (maj. opn., ante, at
p. 11, fn. 5), the majority ought instead to identify which of these due process
arguments were preserved by defendant’s perfunctory section 352 objection and
which were not. The reviewing courts that will have to apply the majority’s newly
minted exception will need guidance in determining which theories are included
within the reason asserted at trial and which are not. The majority’s blanket
statement that each of defendant’s appellate arguments “is classic Evidence Code
section 352 analysis” (maj. opn., ante, at p. 8, fn. 2), without regard to whether
any of these arguments were actually presented below, is likely to breed
confusion.
In sum, there is no rationale—let alone a coherent one—for repudiating our
long-standing forfeiture rule in this context. Even if this were a question of first
impression, there is likewise no justification for the exception the majority has
crafted to Evidence Code section 353’s clear command. Although such an
exception has the potential to be extended in unpredictable and mischievous ways,
one hopes that it will instead remain a curiosity, applicable only to the singular
14
circumstance when a defendant unsuccessfully challenges the admission of
evidence at trial as more prejudicial than probative under section 352 and the
appellate court is persuaded that admission of the evidence was error, albeit
harmless. If limited to that circumstance, however, the rule will not benefit
defendants in any discernible way. Error that is deemed harmless under People v.
Watson, supra, 46 Cal.2d 818, will rarely (if ever) have the “consequence” of
rendering a trial fundamentally unfair.
If, on the other hand, the new exception created by the majority were to
have any practical effect, it will come only at the cost of blindsiding trial courts
that have conscientiously considered the objections actually made and burdening
appellate courts by forcing them to address evidentiary objections never passed on
below. When a defendant objects that the admission of certain evidence would
violate section 352, the trial court may find that the probative value of that
particular evidence is not substantially outweighed by the danger of undue
prejudice—and, at that point, the trial court’s duty under section 352 is discharged.
If, on the other hand, the defendant were to object also that the admission of this
evidence would render his trial fundamentally unfair, the trial court has a different
duty. The trial court would no longer focus on the relative probative and
prejudicial value of that particular piece of evidence, but on the effect of that
evidence on the trial as a whole. The trial court would also be alerted that review
of its ruling on the due process issue would not be subject to the abuse of
discretion standard that attaches to its ruling on the statutory claim, so it would be
compelled to focus special attention on that distinctly broader constitutional
question in the course of making subsequent rulings in the case. In discharging its
duties, the trial court has both statutory and inherent authority to defer ruling on
the due process objection until the effect of the challenged evidence on the entire
proceeding can be assessed, up to and including the close of the prosecution’s
15
case-in-chief, the close of evidence, and a defendant’s motion for new trial. (See
Pen. Code, §§ 1093, 1094; People v. Arias (1996) 13 Cal.4th 92, 147.) It makes
no sense to manufacture an exception to Evidence Code section 353 that
encourages parties to bypass the trial court and thereby denies appellate courts of
their expertise.
If the prosecution were similarly alerted in a timely manner to the due
process claim, it too would likewise have an opportunity to make appropriate
adjustments. The prosecutor (or the trial court) might propose a limiting
instruction that would ameliorate the possibility the jury might use the evidence
for an improper purpose, such as to prove that the defendant had a propensity to
commit this type of crime, that defendant fit a criminal profile, or that defendant
was guilty because of his association with criminals. The prosecutor might choose
to offer additional evidence on the points in controversy, thereby diminishing the
importance of the challenged evidence. The prosecutor might achieve the same
result by electing not to rely on the disputed evidence in closing argument. In
short, both the trial court and the prosecutor might make numerous adjustments
upon learning the true nature of defendant’s objection. I therefore respectfully
disagree with the majority’s assertion that “no purpose would be served by
requiring the objecting party to inform the court that it believes error in overruling
the actual objection would violate due process.” (Maj. opn., ante, at p. 9.) At a
minimum, the majority’s approach will undermine what defense counsel and
amicus curiae State Public Defender conceded at oral argument was the “best
practice” for trial lawyers—i.e., to present the trial court with an objection on both
section 352 grounds and on due process grounds. Even worse, the majority’s
approach will allow parties to deliberately withhold the objections that would
enable the opposing party and trial courts to make appropriate adjustments to
avoid the risk of reversal.
16
Aside from blindsiding the trial court and the opposing party, the majority’s
new exception to Evidence Code section 353 encourages defendants to withhold
all but one of the grounds for an objection from the trial court and then, on appeal,
to invoke every conceivable constitutional provision as a legal consequence of
overruling the objection actually made at trial. This will do nothing but burden
appellate courts with the task of evaluating a multiplicity of legal consequences,
none of which was ever presented to the trial court and most of which will likely
border on the frivolous.
Evidence Code section 353 requires a party’s objection to be “timely made
and so stated as to make clear the specific ground of the objection.” (Italics
added.) The majority concedes that defendant never made clear to the trial court
that he objected to the gang evidence on the specific ground of due process and
concedes as well that his due process objection is not “identical,” within the
meaning of Yeoman, supra, 31 Cal.4th at page 117, to the section 352 objection he
did assert at trial. (Maj. opn., ante, at p. 7.) Nor does the majority contend that
the section 352 objection “ ‘specifically present[ed]’ ” the due process claim
defendant advances on appeal (maj. opn., ante, at p. 5), or that the People “had the
full opportunity at trial to litigate” the due process argument (id. at p. 8) or to
“ ‘cure the defect’ ” by offering a limiting instruction or taking other steps
designed to minimize the prospect of reversal. (Id. at p. 5.) “Defendant
17
could have apprised, but did not apprise, the trial court of such a claim.” (Id. at p.
7.) He therefore forfeited his due process challenge. Because the majority finds
otherwise, I respectfully dissent from that determination. I concur only in the
judgment.
BAXTER, J.
WE CONCUR:
KENNARD, J.
ASHMANN-GERST, J.*
_____________________________________
* Associate Justice of the Court of Appeal, Second Appellate District, Division
Two, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Partida
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 121 Cal.App.4th 202
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S127505Date Filed: November 21, 2005
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Arthur M. Lew
__________________________________________________________________________________
Attorneys for Appellant:
Verna Wefald, under appointment by the Supreme Court, for Defendant and Appellant.
Michael J. Hersek, State Public Defender, and Barry P. Helft, Chief Deputy State Public Defender, as
Amici Curiae on behalf of Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, Donald E. De Nicola, Lance E. Winters, John R. Gorey and Laura
J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Verna Wefald65 North Raymond Avenue, #320
Pasadena, CA 91103
(626) 577-2658
Barry P. Helft
Chief Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Laura J. Hartquist
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 576-1354
Opinion Information
| Date: | Docket Number: |
| Mon, 11/21/2005 | S127505 |
Parties
| 1 | Partida, Jose (Defendant and Appellant) Represented by Verna Wefald Attorney at Law 65 North Raymond Ave, Suite 320 Pasadena, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Laura J. Hartquist Ofc Attorney General 300 S Spring St Los Angeles, CA |
| 3 | State Public Defender (Amicus curiae) Represented by Barry P. Helft Office of the State Public Defender 221 Main St 10FL San Francisco, CA |
| Disposition | |
| Nov 21 2005 | Opinion: Affirmed |
| Dockets | |
| Aug 31 2004 | Petition for review to exhaust state remedies filed appellant Jose Partida |
| Sep 15 2004 | Record requested |
| Sep 22 2004 | Received Court of Appeal record one doghouse |
| Sep 28 2004 | Request for depublication (petition for review pending) counsel for respondent, the people. |
| Oct 12 2004 | Opposition filed counsel for appellant, Partida. |
| Oct 27 2004 | Petition for review granted (criminal case) Pursuant to Rule 29(a) of the California Rules of Court, the parties are directed to brief the following issues: (1) Did defendant forfeit his federal due process claim on appeal by failing to object on that ground in the trial court? (2) Does the forfeiture exception articulated in People v. Yeoman (2003) 31 Cal.4th 93, 117, apply when the appellate claim is otherwise governed by Evidence Code section 353, subdivision (a)? (3) Did the admission of testimony from a gang expert violate either Evidence Code section 352 or federal due process? Votes: George, C.J., Baxter, Werdegar, Chin, and Brown, JJ. |
| Nov 3 2004 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Verna Wefald is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty days from the date of this order. |
| Dec 3 2004 | Request for extension of time filed by counsel for appellant: requesting a 30-day extension to and including January 3, 2004 to file appellant's opening brief on the merits. |
| Dec 9 2004 | Extension of time granted To January 3, 2005 to file appellant's opening brief on the merits. No further extensions of time are contemplated. |
| Jan 3 2005 | Request for extension of time filed to file opening brief/merits [apellants's] asking to Feb. 2, 2005. |
| Jan 6 2005 | Extension of time granted To January 18, 2005 to file appellant's opening brief on the merits. No further extensions of time will be granted. |
| Jan 18 2005 | Opening brief on the merits filed appellant JOSE PARTIDA. |
| Feb 2 2005 | Compensation awarded counsel Atty Wefald |
| Feb 14 2005 | Request for extension of time filed to file respondent's answer brief/merits. to March 19, 2005. |
| Feb 22 2005 | Extension of time granted To March 18, 2005 to file respondent's answer brief on the merits. No further extensions of time are contemplated. |
| Mar 11 2005 | Request for extension of time filed to file respondent's answer brief/merits to 04-18-05. |
| Mar 15 2005 | Extension of time granted To April 11, 2005 to file respondent's answer brief on the merits. No further extensions of time will be granted. |
| Apr 11 2005 | Answer brief on the merits filed respondent The People |
| Apr 15 2005 | Received: Errata re: declaration of service on respondent's answer brief on the merits. |
| May 4 2005 | Received: Appellant's request for extension of time. Appellant request a 20-day extension to and including May 25, 2005 to file the Reply Brief on the Merits. |
| May 10 2005 | Extension of time granted To May 25, 2005 to file appellant's reply breif on the merits. |
| May 25 2005 | Reply brief filed (case fully briefed) appellant Jose Partida |
| Jun 22 2005 | Received application to file Amicus Curiae Brief of The State Public Defender in support of Appellant. |
| Jun 27 2005 | Permission to file amicus curiae brief granted The State Public Defender in support of appellant. |
| Jun 27 2005 | Amicus curiae brief filed The State Public Defender in support of appellant. Answer is due within twenty days. |
| Jul 15 2005 | Response to amicus curiae brief filed respondent The People [responding to a.c. of State Publid Defender's) |
| Aug 10 2005 | Case ordered on calendar 9/13/05 @ 1:30pm - San Francisco |
| Aug 19 2005 | Filed: Application from appellant to divide oral argument time with amicus (State Public Defender). |
| Aug 26 2005 | Order filed The request of counsel for appellant to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. |
| Aug 26 2005 | Order filed The request of appellant to allocate to amicus curiae Barry P. Helft, Office of the Public Defender, 15 minutes of appellant's 30-minute allotted time for oral argument is granted. |
| Sep 13 2005 | Cause argued and submitted |
| Nov 21 2005 | Opinion filed: Judgment affirmed in full Opinion by Chin, J. -----joined by George, C.J., Werdegar & Moreno, JJ. Concurring and Dissenting Opinion by Baxter, J. -----joined by Kennard & Ashmann-Gerst ( CA 2/2 assigned) JJ. |
| Dec 6 2005 | Rehearing petition filed The People, respondent Deputy A.G., Laura J. Hartquist |
| Dec 16 2005 | Time extended to consider modification or rehearing to 02/17/2006 |
| Feb 8 2006 | Rehearing denied Kennard and Baxter, JJ., are of the opinion the petition should be granted. Chin, J., was absent and did not participate. |
| Feb 9 2006 | Remittitur issued (criminal case) |
| Mar 15 2006 | Compensation awarded counsel Atty Wefald |
| Briefs | |
| Jan 18 2005 | Opening brief on the merits filed |
| Apr 11 2005 | Answer brief on the merits filed |
| May 25 2005 | Reply brief filed (case fully briefed) |
| Jun 27 2005 | Amicus curiae brief filed |
| Jul 15 2005 | Response to amicus curiae brief filed |
