How have the Courts treated the issue of whether defense counsel has forfeited the issue by failing to raise it below?
California, United States of America
The following excerpt is from People v. Padilla, E066273 (Cal. App. 2018):
Preliminarily, the People respond that defense counsel forfeited this issue by failing to raise it below. However, because a claim of this nature implicates the right to trial by jury, it has been held that it "may not be forfeited absent an express waiver by the defendant." (People v. Baughman (2008) 166 Cal.App.4th 1316, 1322; accord, People v. French (2008) 43 Cal.4th 36, 46-47.) There was no such express waiver here. Accordingly, we turn to the merits.
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