failure to preserve an issueP

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Appeal-Issue
(People v. Barajas)

Failure to Preserve an Issue in the Trial Court Will Preclude Appellate Consideration People v. Barajas

2. Lack of trial counsel’s testimony at new trial motion hearing

Defendant asks for a remand for another hearing on his new trial motion because his trial counsel did not testify at the original hearing. Defendant’s trial counsel was present, and his new counsel planned to call her as a witness. The prosecution had no objection. Before she could do so, however, the court interjected, asking, “Has anybody read [section] 1181 of the Penal Code lately? Counsel, it calls for declarations or affidavits.” As the court began reading the section aloud, defendant’s new counsel said, “I believe the Court is correct. [¶] … [¶] You have refreshed my recollection that is correct.” The court read section 1181, subsection (8), in its entirety. Then the court said:

“1181, of course, is based on various grounds that are permitted to be cited as a basis for a new trial. The only basis cited here is the--that counsel, trial counsel was ineffective and that that was prejudicial to the defendant. [¶] Any comment [defendant’s new counsel] or [prosecutor]?”

Defendant’s new counsel repeated that he believed the court was correct. The prosecutor agreed: “That’s right. It’s declarations.” Defendant’s trial counsel asked if she could be excused, and his new counsel said “[y]es.”

It appears from this record that counsel and the court misunderstood section 1181, subsection (8). That subsection does provide that a motion based on new evidence is to be supported by witness affidavits. But, as defendant’s memorandum of points and authorities pointed out, his motion was not based on section 1181. Ineffective assistance of counsel is not one of the nine grounds for a new trial set forth in section 1181. It is a “nonstatutory” basis for a new trial motion recognized by the Supreme Court in People v. Fosselman (1983) 33 Cal.3d 572, 582. (People v. Taylor, supra, 162 Cal.App.3d at p. 724.)

Notably, the court never ruled that defendant’s trial counsel could not testify. The court merely raised the question of what the effect of section 1181 might be and invited counsel to comment. Defendant’s new counsel then concluded that trial counsel should not testify and told her she could leave. The court did not rule, and defendant did not ask for a ruling to preserve the issue for appeal. “As a general rule, failure to preserve an issue in the trial court will preclude a party from raising that issue on appeal.” (People v. Dossman (1991) 235 Cal.App.3d 1433, 1436.)

Defendant argues that we should consider the merits of the issue despite any failure to preserve it because the constitutional right to due process is at issue. We need not decide whether this is correct since defendant withdrew his request without obtaining a ruling. None of the cases defendant cites state that an issue should be reached on appeal under these circumstances. If we were to reverse and remand, we would in effect be holding that the court was obliged sua sponte to order defendant’s new counsel to call and examine trial counsel. We know of no authority for this.

Defendant also likens this case to one in which a constitutional right cannot be relinquished without a knowing and intelligent waiver. (E.g., Brookhart v. Janis (1966) 384 U.S. 1, 4 [court’s failure to obtain knowing and intelligent waiver of defendant’s right to cross-examine witnesses against him].) But there is no authority for the proposition that a court must obtain a criminal defendant’s knowing and intelligent waiver under these circumstances.

Finally, even if we were to rule that the court was required sua sponte to order defendant’s new counsel to examine defendant’s trial counsel at the hearing, trial counsel’s testimony could not cure the other deficiencies in defendant’s motion. The fundamental problem with defendant’s ineffective assistance claim would remain: with minor exceptions, it relies on speculation about what a deeper investigation could have shown. No testimony by defendant’s trial counsel could establish, for instance, that expert opinion might establish that the victim was not shot in the back or that defendant was suffering from post-traumatic stress disorder.

People v. BarajasF041273 error was harmless imperfect self-defense

Date Posted	Docket #/ File Format	Description
Jul 15 2004	F041273 [PDF] [DOC]	P. v. Barajas 7/15/04 CA5

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