PG VI(A) Cognizability On Appeal Of Instructional Error: Failure To Object.
PG VI(A)(1.1) Cognizability: PC 1259:
It is often asserted that an instructional error cannot be raised on appeal if there was no objection below. Generally, this assertion is based on cases which have refused to review allegedly incomplete instructions under the theory that any amplification or clarification should have been requested.
Instructional errors which affect the defendant’s fundamental rights are reversible without objection at trial. (See People v. Dunkle (2005) 36 C4th 861 [no waiver by failing to object; PC 1259]; People v. Prieto (2003) 30 C4th 226, 247 [instructional errors are reviewable to the extent they affect the defendant’s substantial rights]; see also PC 1259.) As observed in People v. Smith (92) 9 CA4th 196, 207, fn 20 [11 CR2d 645] “the people make their oft-repeated, but only occasionally applicable, contention the issue was waived, or alternatively that any error was invited, because defendants failed to object to, or request a modification of, the challenged instruction. As appellate courts have explained time and again, merely acceding to an erroneous instruction does not constitute invited error. [Citations.] Nor must a defendant request amplification or modification in order to preserve the issue for appeal where, as here, the error consists of a breach of the trial court’s fundamental instructional duty.” (See also People v. Slaughter (2002) 27 C4th 1187, 1199-1201 [120 CR2d 477] [failure to object to jury instruction directing guilt phase jury to consider defendant’s oral admission with caution (CJ 2.71) did not preclude review on appeal to the extent the instruction affected the defendant’s substantial rights]; People v. Hernandez (88) 47 C3d 315, 353 [253 CR 199]; People v. Hall (89) 208 CA3d 34, 47 [256 CR 149]; People v. Harris (81) 28 C3d 935, 956 [171 CR 679]; People v. Godwin (95) 31 CA4th 1112, 1116, fn 1 [37 CR2d 708]; People v. Andersen (94) 26 CA4th 1241, 1249 [32 CR2d 442] [“[A]n appellate court may ascertain whether the defendant’s substantial rights will be affected by the asserted instructional error and, if so, may consider the merits and reverse the conviction if error indeed occurred, even though the defendant failed to object in the trial court].”)
People v. Renteria (2001) 93 CA4th 552, 560 [113 CR2d 287] explained the rationale of PC 1259 in the following passage:
“Respondent argues that the defendant’s claim of error is waived (forfeited; [citation]) because his attorney did not raise the issue when the alternate replaced the discharged juror. Respondent is mistaken. An instruction, not correct in law, such as the inadequate instruction given in this case, is deemed excepted to, and in this case, it affected the substantial rights of the defendant. For that reason the failure to request the proper instruction containing the admonition does not bar defendant from asserting the point on appeal. [Citations.]”
Instructions On Elements Reviewable Under PC 1259. “Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [Citations.]” (People v. Hillhouse(2002) 27 CA4th 469, 503.)
PRACTICE NOTE: Notwithstanding PC 1259, trial counsel should be reticent to assume that instructional objection is not necessary. From an appellate perspective there is always a danger that the error will be waived or invited if no objection was made. (See e.g., People v. Andrews (89) 49 C3d 200, 218 [260 CR 583] [“generally a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language”]; see also People v. Guiuan (98) 18 C4th 558, 570 [76 CR2d 239].) And, this concern is even greater when the defense formally agrees to the instruction. (See FORECITE PG VI(A)(2) and PG VI(A)(3).)
The importance of objecting to jury instructions, notwithstanding PC 1259, was recently illustrated in Hamilton v. Vasquez (9th Cir. 1994) 17 F3d 1149. In that case, the defense had objected to any instruction on the issue of parole at the death penalty trial. The court modified the standard parole instruction and gave this to the jury with the eventual consent of counsel. Two of the three appellate judges concluded that because defense counsel wanted no instruction on parole, he had “to settle for a modified instruction.” (17 F3d at 1161.) On the other hand, the dissent suggested that defense counsel was satisfied with the resulting instruction. (17 F3d at 1170.) Hence, even if an objection may not technically be required under PC 1259, the existence or nonexistence of an objection may be a factor which could influence the outcome on appeal on federal habeas.
In federal court, recognition of the issue and proper objection by trial counsel is extremely important. (See (Henderson v. Kibbe (77) 431 US 145, 154 [52 LEd2d 203; 97 SCt 1730] [“[I]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court”]); see also Johnson v. U.S (97) 520 US 461 [137 LEd2d 718; 117 SCt 1544] [limiting application of plain error rule under FRCP 52(b)].)
PG VI(A)(1.2) Duty to Obtain Ruling From The Court.
Where the court, through inadvertence or neglect, fails to rule, the party who objected must make some effort to have the court “actually rule.” (People v. Heldenburg (90) 219 CA3d 468, 474 [268 CR 255].)
PG VI(A)(1.3) Duty Of Counsel To Object: Futile Objections Need Not Be Raised.
An issue is not waived by failure to object if the objection would have been futile. (See People v. McKinnon (2011) 52 CA4th 610, 675 [unsuccessful objections to testimony of first gang witness preserved those objections to the testimony of all three gang witnesses]; People v. Hill (1998) 17 CA4th 800, 820; People v. Chavez (1980) 26 CA3d 334, 350 fn 5; People v. Williams (1976) 16 CA3d 663, 667 fn 4; People v. Johnson (2004) 119 CA4th 976, 982-84; Estelle v. Smith (1981) 451 US 454, 468 fn 12 [68 LEd2d 359; 101 SCt 1866] [recognizing futility rule in federal habeas proceeding]; Rupe v. Wood (9th Cir. 1996) 93 F3d 1434, 1440 [failure to make offer of proof excused where it would be redundant, unnecessary, or futile]; R.B. Matthews, Inc. v. Transamerica Transp. Services, Inc. (9th Cir. 1991) 945 F2d 269, 272, fn 2 [same]; see also Mary M. v. City of Los Angeles (1991) 54 CA3d 202, 212-13 [discussed with approval in 9 Witkin,Cal. Procedure (4th ed. 1997), Appeal, §387 at pp. 437-38].)
PG VI(A)(1.4) Duty To Object: Prosecutorial Misstatements Of Law.
It is misconduct for the prosecution to misstate the law in argument to the jury. (People v. Hill (98) 17 C4th 800 [72 CR2d 656].) For example, in Hill there were three instances of such misconduct. First, the prosecutor misstated the law concerning the import of circumstantial evidence. In addition, her argument that the jury would have to acquit the defendant of all charges if it found insufficient intent for robbery under the felony murder theory was legally incorrect, particularly since defense counsel had conceded that the perpetrator would be guilty of second degree murder.
Second, the prosecutor misstated the law when she argued that “pretend[ing] to sell them something in order to get money” is robbery since she omitted the force or fear element. This argument undermined the defendant’s primary defense at the guilt phase and thus contributed to the overall unfairness of the trial.
Third, with regard to reasonable doubt, the prosecutor asserted that “[t]here has to be some evidence on which to base a doubt. You can’t say, well one of the attorneys said so.” The court read this ambiguous comment as another misstatement of law: “Although the question arguably is close, we conclude it is reasonably likely Morton’s comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude [the prosecutor] committed misconduct by misstating the law.” (Hill, 17 C4th 800, at 832.)
Normally, counsel must object to prosecutorial misconduct during argument. (People v. Hill, 17 C4th at 820.) While objection may be excused where the prejudice cannot be cured (Hill, 17 C4th at 820) this is rare. In most cases, objection is necessary for two important reasons: one, to preserve the issue for appeal and two, to prevent the jury from relying on the misstatement. (Note that CJ 1.00 permits the jury to rely on counsel’s statements of law during argument which do not conflict with the instructions. See FORECITE F 1.00l.)
PG VI(A)(1.4.1) Intemperate Behavior Of Prosecutor: Request For Curative Admonition Required.
See People v. Samuels (2005) 36 C4th 96, 124; see also People v. Brown (2004) 33 C4th 382, 398-399.
PG VI(A)(1.5) Duty To Object: Misconduct Of Co-Counsel.
While there may be a tendency in some situations to view co-counsel as an ally, co-counsel may intentionally or unintentionally impact the rights of the other defendant(s). (See FORECITE PG VII(C)(30).) Accordingly, the duty to object to prosecutorial misconduct (see PG VI(A)(1.4) is also applicable to the misconduct of co-counsel.
PG VI(A)(1.6) Duty To Object: Plain Error.
For purposes of analysis in federal court, a “plain” error (FRCP 52(b)) is one which affected the defendant’s substantial rights. (U.S. v. Olano (93) 507 US 725, 731-36 [123 LEd2d 508; 113 SCt 1770].) The reviewing court should “correct a plain forfeited error affecting substantial rights if the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” (Olano, 507 US at 736; see also Johnson v. U.S. (97) 520 US 461 [137 LEd2d 718; 117 SCt 1544] [under the plain error doctrine an error, even if structural, may not be considered absent an objection unless the forfeited error “seriously affects the fairness, integrity or public reputation of judicial proceedings …”].) An error is forfeited if there was a failure to make the timely assertion of a right rather than the intentional relinquishment of the right. (Id. at 733.)
PG VI(A)(1.7) Duty To Object To Time-Barred Lesser Offenses.
See FORECITE PG VI(A)(8).
PG VI(A)(1.8) Cognizability Of Error Without Objection: Prosecution Equally At Fault.
(See People v. Abbaszadeh (2003) 106 CA4th 642 [130 CR2d 873] [failure to object to a Mello [People v. Mello (2002) 97 CA4th 511 [118 CR2d 523]] instruction was excused, inter alia, because the prosecution was at least equally at fault in allowing the error].)
PG VI(A)(1.9) Cognizability Of Error Without Objection: Trial Rendered Unfair.
(See People v. Abbaszadeh (2003) 106 CA4th 642 [130 CR2d 873] [reviewing court retains discretion to excuse the lack of an objection because of the shocking nature of the error which rendered the trial unfair].)
PG VI(A)(1.10) Cognizability Of Error Without Objection: Denial Of Fundamental Right Such As Trial By Jury.
“Not all claims of error are prohibited in the absence of a timely objection in the trial court. A defendant is not precluded from raising for the first time on appeal a claim asserting the deprivation of certain fundamental, constitutional rights.” (People v. Vera (97) 15 C4th 269, 276 [62 CR2d 754].) Among those rights is the constitutional right to a jury trial. (Id. at pp. 276-77; see also People v. Belmares (2003) 106 CA4th 19, 27 [130 CR2d 400].)
PG VI(A)(1.11) Cognizability Of Error Without Objection: Alternative Ineffective Counsel Claim Does Not Presume The Issue Was Waived.
(See People v. Boyette (2002) 29 C4th 381, 414 [127 CR2d 544] [appellant’s argument that if the court were to find that defense counsel’s objections were not adequate, defense counsel rendered ineffective assistance, is not an acknowledgment that the issue was waived, as respondent argued].)
PG VI(A)(1.12) Cognizability Of Error Without Objection: Closely Balanced Case And Grave Doubt As To Guilt.
“As a general rule, prosecutorial error is waived where… no objection was made in the trial court. But there is an exception to this rule where the case is closely balanced and presents grave doubt as to the defendant’s guilt, and where the prosecutor’s error contributed materially to the verdict. [Citation.]” (People v. Bryden (98) 63 CA4th 159, 182.)
PG VI(A)(1.13) Reviewing Court’s Power To Sua Sponte Consider Issues Not Raised Or Preserved By The Parties: Courts Of Appeal.
An appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party. (People v. Williams (98) 17 C4th 148, 161-162, fn. 6; see also People v. Smith (2003) 31 C4th 1207, 1215; People v. Yeoman (2003) 31 C4th 93, 117 [Batson federal constitutional claim is properly cognizable on appeal based on a Wheeler state law motion by analogy to the well-established principle that a reviewing court may consider a claim raising a pure question of law on undisputed facts].)
“[T]he fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue. ‘An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party… . Whether or not it should do so is entrusted to its discretion.’” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 36, p. 497, quotingPeople v. Williams (98) 17 C4th 148, 162, fn. 6; see People v. Marchand (2002) 98 CA4th 1056, 1061 [appellate court has discretion to adjudicate important question of constitutional law despite party’s forfeiture of right to appellate review]; see also People v. Johnson (2004) 119 CA4th 976, 984-985.)
California Supreme Court: As a matter of policy, the California Supreme Court generally will not consider on review any issue which could have been, but was not, timely raised in the Court of Appeal. (Cal. Rules of Court, rule 28(c)(1); see also People v. Randle (2005) 35 C4th 987, 1001; Gavaldon v. Daimler Chrysler Corp. (2004) 32 C4th 1246, 1265.) However, “[i]n a number of cases, [the] court has decided issues raised for the first time before us, where those issues were pure questions of law, not turning upon disputed facts, and were pertinent to a proper disposition of the cause or involved matters of particular public importance. [Citations.]” (Randle, 35 C4th at 1001-02.)
PG VI(A)(1.14) Cognizability Of Instructional Error On Appeal: Pre-Trial Objection Must Be Renewed In Context Of Trial Evidence.
(See People v. Holloway (2004) 33 C4th 96, 133 [A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself]; see also People v. Hernandez (2004) 33 C4th 1040, 1052 [a question asked of the court before the evidence portion of trial, and before the evidence was offered or ruled on, was not an adequate request for a limiting instruction; defendant did not specifically make clear he wanted such an instruction in light of the evidence actually admitted].)
See also FORECITE PG I(D); FORECITE PG VI(A)(1.15).
PG VI(A)(1.15) Cognizability Of Error Without Objection: Pure Question Of Law.
PG VI(A)(1.15.1) Absence Of Any Objection At Trial:
It is well-established that, even without objection below, a reviewing court may consider a claim raising a pure question of law on undisputed facts. (People v. Partida (2005) 37 C4th 428, 435; People v. Yeoman (2003) 31 C4th 93, 118; see also, People v. Hines (97) 15 C4th 997, 1061; Hale v. Morgan (78) 22 C3d 388, 394; Ward v. Taggart (59) 51 C2d 736, 742; De Anza Santa Cruz, Etc. v. De Anza Santa Cruz, Etc. (2001) 94 CA4th 890, 896; Dudley v. Dep’t. of Transportation(2001) 90 CA4th 255, 259.)
PG VI(A)(1.15.2) Trial Objection On Non-Constitutional Ground: Trial Counsel Need Not State The “Legal Consequence” Of An Adverse Ruling To A Trial Objection.
To preserve a claim for appeal, trial counsel must state the “reason” for the objection (e.g., that the proffered evidence is unduly prejudicial under EC 352.) (People v. Partida (2005) 37 C4th 428, 435.) However, counsel does not need to state each particular legal consequence of the alleged error (e.g., violation of due process). The reviewing court may still consider claims not raised below if they are merely based on a “legal consequence” of the claim that was raised below. (Id. at 436.) This is so because “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 C4th 93, 117; accord, People v. Partida, supra; People v. Cole (2004) 33 C4th 1158, 1195, fn. 6.)
Thus, so long as trial counsel has identified the reason or basis for a trial objection or requested, specific federal constitutional abridgements flowing from denial of the objection or request should be cognizable on appeal. (People v. Partida, supra; see also People v. Scott (2011) 52 CA4th 452, 487; People v. Loker (2008) 44 CA4th 691, 704, fn 7; People v. Boyer (2006) 38 CA4th 412, 441, fn 17.)
PG VI(A)(1.15.3) Trend Toward Forfeiture Of Instructional Issues.
Trial counsel should be alert to an apparently growing trend – especially in unpublished opinions – toward finding appellate forfeiture of instructional issues not raised below. The following language from People v. Whipple UNPUB’D (2011, A127236) 2011 Cal. App. Unpub. LEXIS 3099, 21-22 is typical:
No objection was made at trial to CALCRIM No. 875, as read to the jury, nor was any request made by appellant for any additional, clarifying instruction. Failure to object under these circumstances constitutes a forfeiture of the right to raise the issue for the first time on appeal. As our Supreme Court reminded us earlier this year: “We conclude defendant forfeited this claim by failing to object to the trial court’s consent instruction or to request any modification or amplification of it at trial. A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel (People v. Kelly (1992) 1 C4th 495, 535 . . .), and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal (People v. Rundle (2008) 43 C4th 76, 151 . . .; People v. Samaniego (2009) 172 CA4th 1148, 1163 . . . .) . . . If defendant believed the instruction on consent required elaboration or clarification, he was obliged to request such elaboration or clarification in the trial court. (People v. Rundle, supra, 43 C4th at p. 151; People v. Hart (1999) 20 C4th 546, 622. . . .)” (People v. Lee (2011) 51 C4th 620, 638.) Therefore, we reject appellant’s assignment of error on the ground of forfeiture and waiver.
Some courts have even extended forfeiture to situations where an instruction may not be incorrect in all cases. For example, forfeiture has been applied to the “equally guilty” language in former CC 400 (re: aider and abettor liability) because it is accurate in some cases and inaccurate in others:
“Because the instruction as given was generally accurate, but potentially incomplete in certain cases, it was incumbent on Brousseau to request a modification if she thought it was misleading on the facts of this case. Her failure to do so forfeits the claim of error. (People v. Lang (1989) 49 C3d 991, 1024 [party may not claim “an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language”]; see People v. Samaniego (2009) 172 CA4th 1148, 1163–1165 (Samaniego) [challenge to CALCRIM No. 400 forfeited for failure to seek modification]; but see People v. Nero (2010) 181 CA4th 504, 517–518 (Nero) [construing CALJIC No. 3.00, also using the ‘equally guilty’ language, and finding it misleading ‘even in unexceptional circumstances’].)” [Footnote omitted.] (People v. Lopez (2011) 198 CA4th 1106, 1118-19.)
However, any doubt that this was generally an incorrect statement of the law should have been settled when the “equally guilty” language was removed from CC 400. (Id. at fn 5.)
PG VI(A)(1.16) Cognizability On Appeal Of Instructional Error: Failure To Object – No Duty To Object Based On Unknown Facts.
“A defendant is under no duty to object at trial if the defendant does not know, and could not reasonably discover, the facts supporting the objection. If, for example, the prosecution fails to disclose to the defense any material exculpatory evidence (see Brady v. Maryland (63) 373 US 83 [10 LEd2d 215; 83 SCt 1194]), the defense may not learn of the undisclosed evidence until long after the trial has been completed. Therefore, when a claim depends substantially on facts that the defense was unaware of and could not reasonably have known at trial, a failure to object at trial will not bar consideration of the claim in a habeas corpus proceeding.” (In re Seaton (2004) 34 C4th 193, 200.)
PG VI(A)(1.17) Cognizability Of Claim Not Raised Below: Alternate Legal Grounds:
See FORECITE PG VI(A)(1.15.2.)
PG VI(A)(1.18) Presumption Against Waiver of Fundamental Constitutional Rights.
Waiver of a fundamental right must meet the traditional standard that it is knowing, voluntary and intelligent. (Johnson v. Zerbst (38) 304 US 458, 464 [82 LEd 1461; 58 SCt 1019].) In other words, the defendant must know the existence and nature of the right, know that it is a right and can be exercised without undue burden and understand the direct consequences of waiver of the right. (See, e.g., Henderson v. Morgan (76) 426 US 637, 645, fn. 13 [49 LEd2d 108; 96 SCt 2253]; Von Moltke v. Gillies (48) 332 US 708, 723-724 [92 LEd 309; 68 SCt 316].) Courts must “indulge every reasonable presumption against a waiver of fundamental constitutional rights.” (U.S. v. Allen (9th Cir. 1987) 831 F2d 1487, 1498; see also Glasser v. United States (42) 315 US 60, 70 [86 LEd 680; 62 SCt 457]; Johnson v. Zerbst, supra, 304 US at p. 464.)
A waiver of a constitutional right to counsel, including facts to show the waiver is knowing and intelligent, must appear on the face of the record; otherwise, there is no waiver. (Carnley v. Cochran (62) 369 US 506, 516-517 [8 LEd2d 70; 82 SCt 884]; Johnson v. Zerbst, supra, 304 U.S. at pp. 464-465; see also Boykin v. Alabama (69) 395 U.S. 238, 242 [23 LEd 2d 274; 89 SCt 1709].) Any doubts are necessarily resolved in favor of protecting the constitutional guarantee of counsel. (Michigan v. Jackson (85) 475 US 625, 633 [89 LEd2d 631; 106 SCt 1404].)
(See also FORECITE PG VII(C)(38.1).
PG VI(A)(1.19) Waiver Rule Must Be Interpreted Reasonably:
“[T]he 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.’ [Citation.] 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.’ [Citation.] What is important is that the objection fairly informs 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.” (People v. Partida (2005) 37 C4th 428, 434-435.)
PG VI(A)(1.20) Cognizability Of Error Without Objection: Failure To Define Technical Term.
Waiver has also been found where the court responds to an inquiry with a correct and germane statement of the law, and the defense proposes no further clarification. (People v. Marks (2003) 31 C4th 197, 237.) However, this rule does not apply where the court affirmatively told the jury to use its own lay understanding of a term that in fact possessed, in law, a specific and unobvious meaning. (People v. Ross (2007)155 CA4th 1033; see also PG V(A)(8).)
PG VI(A)(1.21) Role Of CALCRIM Bench Notes.
See FORECITE PG XI(I).
PG VI(A)(2) Invited Error: General Principles:
Even if counsel failed to object or actually requested the instruction below, it may still be reviewed on appeal. For the doctrine of invited error to apply, “it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons….” (People v. Wickersham (82) 32 C3d 307, 332 [185 CR 436]; People v. Dunkle (2005) 36 C4th 861, 895 [no invited error even though trial counsel joined in prosecutor’s request for jury instruction later challenged on appeal]; People v. Moon (2005) 37 C4th 1, 37 [because counsel did not specifically ask the trial court to refrain from reinstructing the jury with the applicable guilt phase instructions, counsel’s actions did not absolve the trial court of its obligation to instruct]; compare People v. Hernandez (88) 47 C3d 315, 353 [counsel’s argument indicated a tactical purpose for requesting the instruction].)
“Error is invited only if defense counsel affirmatively causes the error and makes ‘clear that [he] acted for tactical reasons and not out of ignorance or mistake’ or forgetfulness. [Citation.]” (People v. Tapia (94) 25 CA4th 984, 1031 [30 CR2d 851]; see also People v. Beames (2007) 40 C4th 907, 927 [“. . .the record clearly reflects that defendant and his counsel expressed a deliberate tactical purpose in resisting instructions on second degree murder. . .”]; People v. Stitely(2005) 35 C4th 514, 553 fn. 19; People v. Viramontes (2001) 93 CA4th 1256, 1264 [115 CR2d 229] [counsel’s alleged acquiescence in the error “cannot be viewed as a tactical choice” where counsel “appeared to be confused and at a loss to explain how the [instruction at issue] fit into the case”].)
For the doctrine of invited error to apply, it must be clear from the record that counsel had a deliberate tactical purpose in suggesting or acceding to an instruction, and did not act out of ignorance or mistake. (See People v. GonzalezUNPUBLISHED (4/19/2013, H037854) 2013 WL 1697352; see also People v. Maurer (1995) 32 CA4th 1121, 1127 [38 CR2d 335].) When it would have made “no sense” for defense counsel to request a particular instruction, it is likely that counsel’s request for the instruction was made out of ignorance or by mistake, unless the record indicates that defense counsel had his or her eye on an appeal. (Maurer, 32 CA4th at 1128.)
Invited error is not applicable to instruction which withdraws an element of the charge. (People v. Jackson DEPUBLISHED (92) 6 CA4th 1347, 1353 [8 CR2d 328].) However, a requested instruction on simple kidnapping, even though incomplete, was invited error. (People v. Ojeda-Parra (92) 7 CA4th 46, 49-51 [8 CR2d 634].) The California Supreme Court has held that the defendant’s failure to request modification of instructions they find incomplete may be invited error. (See People v. Jackson (96) 13 C4th 1164, 1228-29 [56 CR2d 49].)
In People v. Marshall (90) 50 C3d 907 [269 CR 269], the Supreme Court explained that the Wickersham holding “is limited to situations in which the court is under an obligation to instruct sua sponte in a manner other than it did.” Hence, even without an articulated reason, a non-sua sponte requested instruction which intentionally caused the claimed error will be subject to the invited error doctrine. (Id. at 931-33; see also People v. Gallego (90) 52 C3d 115, 202 [276 CR 679].) Compare, People v. Blassingill (88) 199 CA3d 1413, 1418 [245 CR 599] where defendant’s request of CJ 2.21 (4th Ed. 1974) was not invited error. (See also People v. Cooper (91) 53 C3d 771, 830-31 [281 CR 90] [invited error will be found so long as counsel made a “conscious, deliberate tactical choice” even if counsel failed to understand the legal implications of a tactical choice]; see also People v. Duncan (91) 53 C3d 955, 969 [281 CR 273] [objection to lesser offense instruction is invited error even though court was obligated to instruct sua sponte].)
When counsel makes a conscious and deliberate tactical choice to request a particular instruction, any error in giving that instruction will normally be deemed to be invited. (See People v. Wader (93) 5 C4th 610, 657-58 [20 CR2d 788]; see also, People v. Medina (95) 11 C4th 694, 763 [47 CR2d 165]; see also People v. Jackson (96) 13 C4th 1164, 1223 [56 CR2d 49] [Any errors as to consciousness of guilt instructions (CJ 2.03, CJ 2.04 and CJ 2.52) were waived by the invited error doctrine where defendant joined in requesting the instructions].) However, a defendant who is barred from raising instructional error by the invited error doctrine may “‛always claim he received ineffective assistance of counsel.’ [Citation.]” (Wader, 5 C4th at 658.)
PRACTICE TIP: Because errors in requested instructions will likely be held to be invited under Wader, counsel may wish to not formally request standard CALJIC instructions which will be given anyway under request by the D.A. or by the court sua sponte. An instruction which is given at the request of the D.A. or sua sponte may still be reviewed on appeal per PC 1259. (See FORECITE PG VI(A)(1), above.)
PG VI(A)(3) Invited Error: Joining D.A.’s Request For Instruction.
Where the defendant affirmatively requests an instruction, any error as to that instruction may be considered waived. (See People v. Beames (2007) 40 C4th 907, 927 [“. . .the record clearly reflects that defendant and his counsel expressed a deliberate tactical purpose in resisting instructions on second degree murder. . .”]; People v. Medina (95) 11 C4th 694, 763; see also People v. Wader (93) 5 C4th 610, 658.) U.S. v. Cain (9th Cir. 1997) 130 F3d 381 held that defense counsel had waived a jury instruction issue by signing a joint instruction request with the prosecutor which included the erroneous instruction. By signing the joint request, counsel represented to the court that he had read the instructions, studied them and that to the best of his knowledge, they represented the current state of the law. Therefore, counsel should be careful not to unnecessarily request or join with the district attorney in requesting any standard CJ instructions which will be given anyway. An instruction which is given at the request of the D.A. or sua sponte may still be reviewed on appeal per PC 1259. (See FORECITE PG VI(A)(1.1).)
[See Brief Bank # B-662 for additional briefing on invited error.]
PG VI(A)(4) “Defensive Act” Made In Light Of Court Ruling Does Not Waive Issue.
Once the court has made a ruling with respect to a particular issue in response to an objection or request by defense counsel, counsel does not waive the issue by taking a “defensive act” in light of the court’s ruling. (See e.g., People v. Turner (90) 50 C3d 668, 704 fn 18 [268 CR 706]; see also People v. Venegas (98) 18 C4th 47, 94 [74 CR2d 262] [“An attempt to attack the merits of damaging testimony to which a party has unsuccessfully objected has long been recognized as a necessary and proper trial tactic, and it may not be deemed a waiver of a continuing objection”]; People v. Woods (91) 226 CA3d 1037, 1052 [277 CR 269]; see also 9 Witkin, Cal. Procedure (4th Ed. 1997) Appeal sec. 393, p. 443.)
PG VI(A)(5) Invited Error: Inapplicable Where Requested Instruction Has Been Changed.
“The doctrine of invited error does not apply where the instruction objected to on appeal contains elements or additions substantially different from that contained in the instruction submitted by appellant, particularly where such instruction is prejudicial to him and is not the law. [Citations.]” (Gipson v. Davis Realty Co. (63) 215 CA2d 190, 208 [30 CR 253].)
PG VI(A)(6) Invited Error: Error Must Be Caused By Counsel.
“Error is invited only if defense counsel affirmatively causes the error….” (People v. Tapia (94) 25 CA4th 984, 1031 [30 CR2d 851]; see also People v. Stitely (2005) 35 C4th 514, 553 fn. 19 [“the court’s decision to withhold CJ 10.65 with respect to the felony-murder-rape theory was not induced by defendant, but by the court’s unwavering belief that the instruction lacked evidentiary support”]; People v. Barton (95) 12 C4th 186, 198 [47 CR2d 569] [invited error applies only where “the trial court accedes to the defendant’s wishes….”]; People v. Wickersham (82) 32 C3d 307, 330 [185 CR 436] [invited error applies where “defense counsel intentionally caused the court to err”]; People v. Viramontes(2001) 93 CA4th 1256, 1264 [115 CR2d 229] [“Although defense counsel failed to argue vigorously or persuasively in support of the instruction and ultimately expressed agreement with the court’s reasoning, counsel in no sense causedthe trial court to omit the instruction.” (Emphasis in original.)].)
PG VI(A)(7) Invited Error As To Lesser Included Offenses.
If the defendant affirmatively requests an instruction on a lesser offense any error in giving the instruction will likely be waived. (See People v. Beames (2007) 40 C4th 907, 927 [“. . .the record clearly reflects that defendant and his counsel expressed a deliberate tactical purpose in resisting instructions on second degree murder. . .”]; People v. Medina (95) 11 C4th 694, 763; see also People v. Wader (93) 5 C4th 610, 658.) Similarly, if the defendant objects to instruction on a lesser offense and the instruction is not given, the error in failing to instruct will be considered invited. (See People v. Duncan (91) 53 C3d 955, 969.)
PG VI(A)(8) Duty To Object To Time-Barred Lesser Offenses.
Notwithstanding PC 1259 and the general principles of invited error (see FORECITE PG V(A)(2)), People v. Stanfill (99) 76 CA4th 1137 [90 CR2d 885] held that the statute of limitations as to a lesser offense will be deemed waived unless the defendant affirmatively objects to it.
CAVEAT: Stanfill permits finding of waiver based on mere inadvertence of counsel. In so doing, the Stanfill court recognized that this may give rise to an ineffective assistance of counsel claim. (76 CA4th at 1149.)
PG VI(A)(9) Invited Error/Estoppel: Applicability To Prosecution.
PG VI(A)(9.1) New Theory On Appeal.
“‘The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.’[Citations.]” (In re Blake (1979) 99 CA3d 1004, 1022.) This principle is simply a corollary of the “no new theories on appeal” rule. (See, generally, 1 Eisenberg et al.,Cal. Practice Guide, Civil Appeals & Writs (The Rutter Group 1998) P 8:229 et seq.) That doctrine was first enunciated in Ernst v. Searle (1933) 218 CA233, 240-41 and has continued in full force and effect to the present. (See, e.g.,Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 CA4th 820, 847; North Coast Business Park v. Nielsen Construction Co. (1993) 17 CA4th 22; Richmond v. Dart Industries, Inc. (1987) 196 CA3d 869, 874.)
[See Brief Bank # B-866 for briefing on this issue.]
PG VI(A)(9.2) Prosecution Reliance On Incompatible Theories – Judicial Estoppel.
The “use of irreconcilable theories of . . . culpability, unjustified by a good faith justification for the inconsistency, is fundamentally unfair, for it necessarily creates the potential for – and, where prejudicial, actually achieves – . . . increased punishment on a false factual basis for one of the accuseds.” (In re Sakarias (2005) 35 CA4th 140, 159-60.) Likewise, in Jacobs v. Scott (1995) 513 US 1067, 1069 [130 LEd2d 618; 115 SCt 711], Justice Stevens, dissenting from the denial of stay of execution in a capital case, wrote:
“[F]or a sovereign State represented by the same lawyer to take flatly inconsistent positions in two different cases — and to insist on the imposition of the death penalty after repudiating the factual basis for that sentence — surely raises a serious question of prosecutorial misconduct. In my opinion, it would be fundamentally unfair to execute a person on the basis of a factual determination that the State has formally disavowed.”
The Ninth Circuit has occasionally found it necessary to penalize the state for what it has perceived as opportunistic or even deceitful argument. (See, e.g., Whaley v. Belleque (9th Cir. 2008) 520 F3d 997 [“‘Judicial estoppel … precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.’  We may not allow the state to represent in federal court the opposite of what it represented to the state court when it succeeded in defeating [petitioner]’s claim…. [T]he state’s position … is ‘chutzpah’ in the first degree”].)
PG VI(A)(10) Duty To Object: Duty To Submit To Court’s Ruling; No Obligation To Pursue The Issue Or Renew The Objection.
After the court has ruled, the defendant is not required to peremptorily challenge a particular juror of the regular panel, and thus antagonize the challenged juror and perhaps others, in order to preserve his rights. Where a court has made its ruling, counsel must not only submit thereto but it is his duty to accept it, and is not required to pursue the issue. (See People v. Dunkle (2005) 36 C4th 861, 895 [counsel was not required to continue to argue the point in order to preserve it for appeal]; People v. Jones (2003) 30 C4th 1084, 1119 [“because the trial court had already refused defendant’s proposed instructions … defense counsel may have believed it pointless to pursue the matter in argument to the jury”]; People v. Diaz (51) 105 CA2d 690 696 [234 P2d 300]; see also People v. Woods (91) 226 CA3d 1037, 1052 [277 CR 269].)
PG VI(A)(11) Invited Error: Reviewing Court Not Permitted To Look To Closing Argument For Possible Tactical Reason For Counsel’s Omission.
In People v. McKinnon (2011) 52 CA4th 610, the attorney general argued that, in closing argument, trial counsel commented that the case did not rest primarily on circumstantial evidence, showing that his failure to request the circumstantial evidence instruction was a matter of trial tactics. The California Supreme Court refused to consider the closing argument because “review of the record on the question [of invited instructional error] is limited to that portion concerning the formulation of the instructions provided to the jury.” (Id. at 675; see also People v. Wickersham (1982) 32 CA3d 307, 333-334.)
PG VI(A)(12) Mere Failure To Request An Instruction Is Not Invited Error.
“For purposes of the invited error doctrine, however, the absence of a request is not equivalent to an express tactical objection. [Citation to People v. Wickersham (1982) 32 C3d 307, 333].” (People v. McKinnon (2011) 52 C4th 610, 675 [the parties conferred with the trial court regarding the proposed jury instructions, trial counsel was silent when the prosecutor indicated that he wanted to withdraw his request for CALJIC 2.01].)
PG VI(A)(13) Role Of CALCRIM Bench Notes.
See FORECITE PG XI(I).