appellate review resources

Prescriptions for Overcoming Those Annoying Waiver Assertions

by Kate Dashiell, CCAP Staff Attorney


What follows is an informal collection of citations that may prove useful as a starting point for research when the issue or theory you want to brief has been overlooked in the trial court. The list is a compilation of citations collected by several CCAP staff attorneys over the years. As always, be sure to make the citation your own by reading the case and Shepardizing the point before you use it. Additionally, some citations are followed by reference to an opposite viewpoint. Many of these citations will meet an equal and opposite citation in the respondent's brief. This article does not attempt to describe the myriad ways an issue can be forfeited – if you are not alert to that possibility when you write the opening brief, it will be brought forcefully to your attention in the respondent's brief.


1. Some general comments on waiver/forfeiture:

Waiver is not the same thing as forfeiture. As the United States Supreme Court has explained, "waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' [Citations.]." (United States v. Olano (1993) 507 U.S. 725, 733 (123 L. Ed.2d 508, 113 S.Ct. 1770); see also People v. Collins (2001) 26 Cal.4th 297.) Even though California courts often use the terms interchangeably, the California Supreme Court has begun to pay closer attention to the difference. (See People v. Simon (2001) 25 Cal.4th 1082.)

The burden is on the party claiming waiver and doubtful cases will be resolved against a waiver. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1662.)

An important point to remember is that appellate courts have the authority to address any issue where the issue does not involve the admission or exclusion of evidence. (People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6.) When issues that are "close and difficult" and it is unclear whether the defendant has preserved the ground for appeal, the reviewing court can choose to reach the merits. (People v. Bruner (1995) 9 Cal.4th 1178, 1183, fn.5.)


2. Constitutional issues/structural error can be reviewed though not litigated below:

Constitutional issues may be raised for the first time on appeal (Hale v. Morgan (1978) 22 Cal.3d 388, 394; In re Mazoros (1977) 76 Cal.App.3d 50, 54; People v. Allen (1974) 41 Cal.App.3d 196, 201, fn. 1), especially when enforcement of a penal statute is involved. (Hale v. Morgan, supra, 22 Cal.3d at p. 394; People v. Ramirez (1987) 189 Cal.App.3d 603, 618, fn. 28; see also People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-73; People v. Saunders (1993) 5 Cal.4th 580, 592 [plea of once in jeopardy]; People v. Holmes (1960) 54 Cal.2d 442, 443-444 [constitutional right to jury trial].)

"The question of waiver of a federally guaranteed constitutional right is…a federal question controlled by federal law." (Brookhart v. Janis (1966) 384 U.S. 1, 4.) Under federal law, "[t]here is a presumption against the waiver of constitutional rights." (Ibid.) Presuming waiver of a fundamental constitutional right from inaction is impermissible. (Barker v. Wingo (1972) 407 U.S. 514, 525-526.)


3. Constitutionality of statutes are cognizable without an objection:

"[A]lthough California authorities on the point are not uniform, our courts have several times examined constitutional issues raised for the first time on appeal, especially when the enforcement of a penal statute is involved. This court ([First District] Division Two) reached the merits of a constitutional evidence challenge even though the record showed no objection, because the constitutional question can properly be raised for the first time on appeal A matter normally not reviewable upon direct appeal, but which is . . . vulnerable to habeas corpus proceedings based upon constitutional grounds may be considered upon direct appeal. Whether the rule shall be applied is largely a question of the appellate court's discretion." (People v. Blanco (1992) 10 Cal.App.4th 1167, 1173, internal quotation marks and citations omitted.)


4. Legal error and facts undisputed/ pure legal question:

Failure to raise a particular legal theory below will not necessarily bar a claim on appeal where there is a clear factual record upon which the reviewing court may base its decision (see Ward v. Taggert (1959) 51 Cal.2d 736, 742.) The reviewing court has discretion to decide a pure question of law based on undisputed facts. (People v. Brown (1996) 42 Cal.App.4th 461, 471.)


5. Error unanticipated/unforseen:

Failure to object will not be characterized as a forfeiture where there is insufficient notice and/or lack of a meaningful opportunity to object. (People v. Scott (1994) 9 Cal.4th 331, 356.) When the issue that was not raised was unforseeable at an earlier time (Reed v. Ross (1984) 468 U.S. 1, 11 [82 L.Ed.2d 1, 104 S.Ct. 2901] [claim cognizable on federal habeas despite failure to object in state court because novelty of claim rendered legal basis unavailable]; In re Khonsavahn S. (1998) 67 Cal.App.4th 532, 536-537 [court's fleeting reference to a condition of an unrecommended, unrequested, unconsidered probation condition at the end of the disposition hearing did not provide sufficient opportunity to object].)


6. Error invisible:

Although the doctrine of waived error prohibits a defendant from complaining on appeal about an error which could have been corrected at trial, the doctrine is equitable, and it cannot fairly be applied if the error was not clearly visible. Unless a defendant is plainly apprized of the court's intention to err, he cannot be expected to object. (People v. Eastman (1993) 13 Cal.App.4th 668, 679 [waiver of credits].)


7. In circumstances where an objection would be redundant, none is required:

"[I]f a motion to exclude evidence is made raising a specific objection, directed to a particular, identifiable body of evidence, at the beginning of or during trial at a time when the trial judge can determine the evidentiary question in its appropriate context, the issue is preserved for appeal without the need for a further objection at the time the evidence is sought to be introduce . . . ." (People v. Crittenden (1994) 9 Cal.4th 83, 126, citing People v. Morris (1991) 53 Cal.3d 152, 190, overruled on another point in People v. Stansbury (1995) 9 Cal.4th 619; People v. Wharton (1991) 53 Cal.3d 522, 549-550 [the defendant had not waived the issue in question for purposes of appeal where, in a pretrial motion, the defendant had moved to exclude evidence based upon the psychotherapist-patient privilege and did not object at trial to admission of the evidence on that ground].)


8. An issue is not forfeited when an objection would be futile or the error incurable:

A claim is not waived for failure to object where an objection would be futile. (People v. Hill (1998) 17 Cal.4th 800, 821 [failure to object to prosecutorial misconduct]; People v. Turner (1990) 50 Cal.3d 668, 703 [though evidentiary challenges are usually waived unless timely raised in the trial court, this is not so when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change].) The objection would have been unavailing under prevailing precedent. (Auto Equity Sales Ins. v. Superior Court (1962) 54 Cal.2d 450, 455 - 456; People v. Stanfill (1999) 76 Cal.App.4th 1137, 115; Civ. Code, § 3532 ["The law neither does nor requires idle acts." ].) Failure to object is excused where, at the time of trial, the law was so unsettled that reasonable minds could have differed over whether or not an objection would be proper. (see People v. Hasto (1968) 69 Cal.2d 233, 356, fn.28; People v. Simms (1970) 10 Cal.App.3d 299, 310.)

When the court has excluded a entire class of evidence, or clearly stated that it will receive no evidence of a particular class or character, an offer of proof is not required. (Beneficial Fire & Casualty Ins. Co. v. Kurt Hitke & Co. (1956) 46 Cal.2d 517, 511; People v. Schneis (1996) 44 38, 54, fn.9; Pacific Gas & Elec. Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142.) To make this determination the reviewing court must examine the tenor and content of the remarks of the trial court. (Montez v. Superior Court (1970) 10 Cal.App.3d 343, 351.) "Any failure on defendant's part to argue more vociferously must be attributed to the apparent futility of any further challenge to the court's determination." (People v. Poplawski (1997) 25 Cal.App.4th 881, 896.)

"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation]." (People v. Bradford (1997) 15 Cal.4th 1229, 1333.)


9. Jurisdictional issue:

In California jurisdictional issues can be raised at any time. (Summers v. Superior Court (1959) 53 Cal.2d 295, 298 [trial court does not have jurisdiction to decide a dispute between an appellant and a court reporter about the amount owed for preparation of the transcript]; People v. Williams (1999) 77 Cal.App.4th 436, 446-447 [an act beyond a court's jurisdiction in the fundamental sense is null and void and a claim based on a lack of a fundamental jurisdictional may be raised for the first time on appeal]; People v. Backus (1979) 23 Cal.3d 360, 381[statutory grant of immunity]; People v. King (1967) 66 Cal.2d 633, 645 ["a statutory grant of immunity enjoins the prosecution of a criminal action and thus deprives the court of jurisdiction to proceed."]; People v. Pennington (1967) 66 Cal. 2d 508, 521 [whether a person is competent to stand trial is a jurisdictional question and cannot be waived by the defendant or counsel].)


10. Insufficient evidence:

Sufficiency-of-the-evidence issues are never waived. (People v. Neal (1993) 19 Cal.App.4th 1114, 1122.) And retrial is precluded after an insufficiency finding. (Burks v. United States (1978) 437 U.S. 1 [57 L.Ed.2d 1, 98 S.Ct. 2141.)

Although a challenge to the sufficiency of the evidence supporting an enhancement is waived by a guilty plea (see People v. Perry (1984) 162 Cal.App.3d 1147 [firearm enhancement]); but see People v. Loera (1984) 159 Cal.App.3d 992 as to illegally imposed enhancement which may be reviewed despite admission. See also People v. Thomas (1986) 41 Cal.App.3d 837, 844.


11. Competence of defendant:

Neither the defendant, his/her counsel, nor the prosecutor is required to make a motion raising the issue of the defendant's competence in order to permit consideration of the issue on appeal. (People v. Tomas (1977) 74 Cal.App.3d 75, 88; see also People v. Aparicio (1952) 38 Cal.2d 565, 568-569.) The trial court's duty includes sua sponte reconsideration of pro se status where there is substantial evidence bringing the defendant's competency into doubt. (see People v. Poplawski (1994) 25 Cal.App.4th 881, 890-891.) Competence cannot be waived, and the court has the initial and primary duty to act when the facts demonstrate the defendant's possible incompetency. (People v. Castro (2000) 78 Cal.App.4th 1402, 1416.)


12. Jury instruction issues:

A. Preservation/confusion/court's duty

Case law and Penal Code section 1259 preserve instructional issues not argued below.
" ‘ "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation]' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) This duty has been held to include instructing the jury on all elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311.) The duty to instruct sua sponte applies to the elements of an enhancement. (People v. Winslow (1995) 40 Cal.App.4th 680, 688, fn.7.)

From People v. Smith (1992) 9 Cal.App.4th 196: "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 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." (Id., at p. 207, fn. 20.)

Penal Code section 1138 "imposes [on trial courts] a ‘mandatory' duty to clear up any instructional confusion expressed by the jury." (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) "The trial court has the primary duty to help the jury understand the legal principles it is asked to apply." (People v. Moore (1996) 44 Cal.App.4th 1323, 1331.) The trial court has a duty to instruct correctly. (People v. Colantuono (1994) 7 Cal.4th 206, 221.) Evidence Code section 502 requires the trial court instruct properly on the burden of proof.

B. Constitutional right:

The jury deliberative process is a right guaranteed under the Sixth Amendment of the United States Constitution and Article I, section 6 of the California Constitution. (People v. Collins (1976) 17 Cal.3d 687, 693.) An instruction that undermines or impacts that process affects a defendant's substantial rights. No objection is required to preserve the issue on appeal. (Pen. Code, §1250; see also People v. Baca (1996) 48 Cal.App.4th 1703, 1706.)

An instruction which directly misstates the People's burden of proof constitutes structural federal constitutional error, requiring reversal per se. (Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 187-191].)

C. Requested by defense:

Where counsel suggests an instruction, the doctrine of invited error will not be applied unless counsel has stated a tactical reason for suggesting the instruction. (People v. Trevino (1988) 200 Cal.App.3d 874, 877, fn.7; People v. Blassingill (1988) 199 Cal.App.3d 1413, 1418.) Invited error does not apply to instructional errors unless the record establishes trial counsel made a deliberate tactical choice (People v. Carrera (1989) 49 Cal.3d 291, 311, fn.8 [not invited error where defense counsel conceded the instruction need not be given because irrelevant]; People v Mosher (1969) 1 Cal.3d 379, 393 [agreement that an instruction is proper is not a waiver of the right to complain about the instructions absent an expressed tactical purpose for the agreement].)

D. Prosecutor's duty:

The prosecutor, as the initiating party in a criminal prosecution, shares with the trial court the responsibility to tender legally correct instructions to avoid an unlawful conviction. (People v. Phillips (1997) 59 Cal.App.4th 952, 955.)


13. Sentencing error:

A. Unauthorized sentence:

An unauthorized sentence must be corrected whenever brought to the attention of a court. (People v. Scott (1994) 9 Cal.4th 331, 354.) Improper calculation of credits is an illegal sentence which can be corrected at any time. (People v. Delarosa (1986) 176 Cal.App.3d 318, 321; but compare People v. Wagoner (1979) 89 Cal.App.3d 605, 616 [where the court's calculation is based on the factual data from the probation officer's report and the defendant does not challenge that factual data at time of sentencing, defendant waives any argument regarding the dates on appeal] and People v. Nwafor (1996) 46 Cal.App.4th 39 [reviewing court refuses to entertain People's request to correct custody credits where "a party has failed to object to the custody credit error in the trial court, the custody credit error is de minimis, the sentence lengthy, and other issues dominate the appeal."].)

B. Penal Code section 654 error:

As a general rule, questions involving the applicability of Penal Code section 654 cannot be waived by failure to object at trial or on appeal. (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn.3; People v. Scott (1994) 9 Cal.4th 331, 354, fn.17.) This is not true where there is a plea. (Calif. Rules of Court, rule 412(b); People v. Cole (2001) 88 Cal.App.4th 850.)

C. Restitution fines:

Even though trial counsel did not object to a restitution fine, the trial court's discretion in determining the amount of the restitution fine must be supported by the record. (People v. Blankenship (1989) 213 Cal.App.3d 992, 997-998, fn 5.)


14. Appeal:

A. Waiver of right to appeal:

Waiver of the right to appeal will not prevent an appeal where the sentence imposed is not in accordance with the negotiated agreement of the parties or where other sentencing errors occur. (People v. Olsen (1989) 216 Cal.App.3d 601, 604, fn. 2.) Where the trial court does not advise a defendant that his waiver would preclude a claim of sentencing error, and there is nothing more in the record to show that the defendant knew he was waiving his appeal to sentencing or other future errors not within the defendant's contemplation or knowledge at the time the waiver was made, the waiver cannot include sentencing or future errors. (People v. Sherrick (1993) 19 Cal.App.4th 657, 659.)

The absence of a written waiver form including an advisement and waiver of appellate rights, read, initialed and signed by the defendant or an oral advisement of his appellate rights, a defendant's waiver is not knowing or intelligent. (People v. Rosso (1994) 30 Cal.App.4th 1001, 1006-1007.)

B. New theory on appeal:

Consideration of a theory not argued below is proper where the factual record is complete. (Green v. Superior Court (1985) 40 Cal.3d 126, 139; see also United States v. Harrington (9th Cir. 1980) 636 F.2d 1182, 1185.) The record must show that essential facts were litigated. (People v. Gorak (1987) 196 Cal.App.3d 1032, 1039-1040.)

C. Failure to adequately raise the issue in the course of the appeal:

  1. Issue raised for the first time in a reply brief:
  2. The general rule is that issues raised for the first time in the reply brief will not be considered on appeal absent a showing of good cause. (People v. Adams (1990) 216 Cal.App.3d 1431, 1441.)
  3. Failure to head an argument as required by the rules:
  4. Raising an argument in a footnote in disregard of the rules of appellate practice waives the issue. (Cal. Rules of Court, rule 15(a); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn.4.)
  5. Issue unsupported by authority:
    An issue not supported by citation to the record and appropriate authority is waived. (People v. Harris (1993) 19 Cal.App.4th 709, 713-714.)


15. Other doctrines related to appeal:

A. Failure to preserve the issue can be ineffective assistance of counsel:

A petition for a writ of habeas corpus to raise a claim of ineffective assistance of trial counsel is unnecessary where the error can be addressed and corrected on appeal because there is no valid reason, tactical or otherwise, for the trial attorney to act as he/she did. (People v. Plager (1987) 196 Cal.App.3d 1537, 1543.)

B. Judicial economy:

An appellate court may and should consider a prosecutorial misconduct issue on direct appeal in the absence of a trial level objection in order to forestall a claim of ineffective assistance of counsel in not making an objection to the misconduct. (People v. Lewis (1990) 50 Cal.3d 262, 282; People v. Pitts (1990) 223 Cal.App.3d 606, 693.)