California, United States of America
The following excerpt is from People v. Graham, C087027 (Cal. App. 2021):
Defendant's counsel objected to the first question but did not articulate any grounds for the objection. This is insufficient to preserve the issue on appeal. In People v. Cook (2006) 39 Cal.4th 566, the defendant argued the prosecutor impermissibly sought to shift the burden of proof (id. at p. 607) in questions to an expert witness regarding whether the defense could have conducted independent testing of bullets removed from the murder victims. The court overruled a defense objection that the question was argumentative. The court said, [o]nly on appeal does defendant contend that question improperly shifted the burden of proof to the defense. Because defendant failed to object to the question on that ground at trial, he has forfeited that claim. (Ibid.)
On reply, defendant argues that because the court quickly overruled an objection to a follow-up question to the prosecutor's first questionYou don't want the jury to think that you're innocent, that's not your goal?it would have been futile to make any further objection to the second question. (People v. Hill (1998) 17 Cal.4th 800, 820 [a defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile].) This argument does not address the defendant's failure to state an objection to the first question on the ground that it improperly shifted the burden of proof or request an admonition on that basis. In addition, defendant's counsel did state an objection to the follow-up question but on the ground that it misstates the evidence, once again omitting the basis for the objection that defendant asserts on appeal. On this record, we do not find that a proper objection and request for admonition would have been futile.
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