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iLaw Dictionary
California
Law Dictionary
Criminal Law-Gang Loitering
(In re Daniel G.)
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Criminal Law-Waiver of Due Process Objection-Failure to Object-Exception-(People v. Partida)

Waiver

The People argue that appellant failed to raise a due process objection to the admissibility of the gang evidence in trial and therefore waived the right to raise this objection on appeal. We agree the general rule is that constitutional errors, like any others, are ordinarily waived absent a specific objection. (People v. Millwee (1998) 18 Cal.4th 96, 128-129; People v. Champion (1995) 9 Cal.4th 879, 918; People v. Crittenden (1994) 9 Cal.4th 83, 126; Miranda v. Arizona (1966) 384 U.S. 436.) California courts have reasoned that an objection alerts 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.) Stated otherwise, the waiver policy serves two purposes, first to bring errors to the attention of the trial court so that the court may correct or avoid any errors and provide the defendant with a fair trial. (People v. Boyette (2002) 29 Cal. 4th 381; People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.) Second, to prevent a “‘defendant from speculating on the result of the trial and raising the objection after an unfavorable verdict.’ [Citation.]” (People v. Jennings (1991) 53 Cal.3d 334, 357.)

Although a due process objection was not raised during the trial, appellant’s counsel made it abundantly clear that she objected to the admission of the expert gang testimony. She first attempted to exclude the evidence by requesting a section 402 hearing, she renewed her objection prior to opening statements, and then again prior to the testimony of prosecution’s gang expert. These objections relied exclusively on section 352 and argued that certain gang evidence was too prejudicial to be admitted in the trial. Appellant did not however, raise the due process objection until the filing of his opening brief on appeal.

This court based it initial ruling on the section 352 objection. We did not however, adequately address the issue of the waiver of appellant’s right to raise a due process objection. Upon further review, we do not find a waiver of the due process objection to be appropriate for several reasons. First, as noted by appellant, a reviewing court may consider on appeal a claim raising a pure question of law on undisputed facts.” (People v. Yeoman (2003) 31 Cal.4th 93, 118; citing People v. Hines (1997) 15 Cal.4th 997, 1061; Hale v. Morgan (1978) 22 Cal.3d 388, 394; Wade v. Taggart (1959) 51 Cal.2d 736, 742.) The content of the testimony of the gang expert is undisputed in this case.

Next, we also conclude that raising a due process objection in the trial court would have been futile. Trial counsel raised the section 352 objection several times in the trial court and that objection was always rejected. There was no realistic possibility that a due process argument would have been more persuasive. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Simon (1927) 80 Cal.App. 675, 679.) Respondent tacitly acknowledges this conclusion in its supplemental letter brief which states that trial counsel’s decision not to object on the basis of due process “could have been a reasonable tactical decision that any such objection would have been fruitless. Appellant’s objection based on section 352 had already been overruled by the trial court.”

We also note that when the foundation of an alleged section 352 error is that the erroneously admitted evidence was more prejudicial than probative, a due process analysis would virtually duplicate the section 352 analysis. It has been noted, “[a] careful weighing of prejudice against probative value under [Evidence Code section 352] is essential to protect a defendant’s due process right to a fundamentally fair trial.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; People v. Hoover (2000) 77 Cal.App.4th 1020, 1029; People v. Brown (2000) 77 Cal.App.4th 1324, 1334.) The California Supreme Court recognized section 352 as providing a realistic safeguard from due process violations. (People v. Falsetta (1999) 21 Cal.4th 903, 919-920; People v. Fitch (1997) 55 Cal.App.4th 172, 183.) In the factual circumstances of this case, the evaluation required by section 352 and by due process is virtually coextensive. (See e.g. People v. Marchand (2002) 98 Cal.App.4th 1056, 1060.)

We also conclude the policy reasons for finding a waiver has occurred would not be advanced by finding of a waiver in this case. Lastly, after taking all the previously stated reasons into consideration we would, if necessary, elect to exercise our discretion to consider the due process issues. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) Although as discussed below, we believe that the trial court erred in the admission of some of the gang related evidence, we do not believe that the error was of constitutional dimension.

If appellant’s due process rights were not violated, appellant argues in the alternative that the defense attorney provided ineffective assistance of counsel by not preserving this federal constitutional issue. People v. Coddington (2000) 23 Cal.4th 529, 651-652 held that in order “[t]o establish constitutionally ineffective assistance of counsel under either the state or federal constitutional right to counsel, appellant must demonstrate (1) . . . that counsel’s performance . . . did not meet the standard to be expected of a reasonably competent attorney, and (2) that he suffered prejudice as a result of that failure. Prejudice [can be] established if there was a reasonable probability that, absent counsel’s errors, the result would have been different. [Citations.]” We will consider the ineffective assistance of counsel, if any, after we determine whether any error occurred and its effect on the trial.

People v. Partida-B161356A-7/30/04

Jul 30 2004

B161356A
[PDF] [DOC]

P. v. Partida 7/30/04 CA2/8

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