Is there a principle of law that excuses parties for their failure to raise an issue at trial where to do so would have been an exercise in futility?

Equally recognized, however, is the principle of law that excuses parties for their failure to raise an issue at trial where to do so would have been an exercise in futility. (People v. Welch (1993) 5 Cal.4th 228, 237, 19 Cal.Rptr.2d 520, 851 P.2d 802, and cases cited therein.) This is clearly such a case. Appellant's interpretation of the statute had been categorically rejected by the court on two occasions prior to the time the court and counsel engaged in discussions regarding instructions. We shall, therefore, address appellant's claim on the merits.

This case presents us with the opportunity to revisit and build upon an earlier decision of this court concerning the specific intent referenced in section 12022.7. In People v. Phillips (1989) 208 Cal.App.3d 1120, 1123, 256 Cal.Rptr. 654, we noted that two lines of thought had developed [39 Cal.App.4th 1191] concerning the specific intent referenced in section 12022.7 and made the following observations: