Can a defendant argue on appeal that evidence should have been excluded for a reason not asserted at trial?

Although a defendant generally may not argue on appeal that evidence should have been excluded for a reason not asserted at trial, a defendant may argue that the "asserted error in overruling the trial objection had the legal consequence of violating due process." (People v. Partida (2005) 37 Cal.4th 428, 431.) To the extent the prosecutor's comments had the potential legal consequence of violating defendant's due process rights, we may consider that constitutional claim as not forfeited. Therefore, based on defense counsel's initial objection, we conclude he did not fail to object. We also reject defendant's related contention, raised in the habeas petition, that her trial counsel was ineffective for failing to renew the objection. Based on the trial court's denial of the initial objection, defense counsel could have reasonably believed that further objections would be futile, only highlighting further the prosecutor's argument or be counterproductive. (People v. Hill (1998) 17 Cal.4th 800, 820-821.)

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