THE PEOPLE, Plaintiff and Respondent, v. JOSE PARTIDA, Defendant and Appellant, 37 Cal. 4th 428

Opinion CHIN, J. In this case, the trial court admitted evidence of defendant’s gang involvement over his objection that the evidence was more prejudicial than probative. (See Evid. Code, § 352.) The Court of Appeal concluded that the court erred in admitting some of the evidence but found the error harmless. We granted review to decide when, if ever, a trial objection on Evidence Code

section 352 grounds preserves the appellate argument that admitting the evidence violated a defendant’s federal due process rights and, if the argument is preserved, under what circumstances error of this nature does violate due process. We conclude that a trial objection must fairly state the specific reason or reasons the defendant believes the evidence should be excluded. If the trial court overrules the objection, the defendant may argue on appeal that the court should have excluded the evidence for a reason asserted at trial.

A defendant may not argue on appeal that the court should have excluded the evidence for a reason not asserted at trial. A defendant may, however, argue that the asserted error in overruling the trial objection had the legal consequence of violating due process. Defendant argues on appeal primarily, perhaps exclusively, that the trial court should have excluded the evidence for the reason asserted at trial—that it was more prejudicial than probative. He also argues that this asserted error violated his right to due process. He may make that argument.

To the extent, if any, he argues that due process required the court to exclude the evidence for a reason not included in the trial objection, that argument is forfeited because he did not object to the evidence on that basis at trial. On the merits, we accept the Court of Appeal’s conclusion that the trial court erred in overruling defendant’s trial objection as to some of the gang evidence. We also conclude that error of the kind asserted here rises to the level of a due process violation only if it renders the trial fundamentally unfair.

Finally, we also accept the Court of Appeal’s conclusions that the perceived error was harmless under state law and did not render the trial fundamentally unfair. I. Facts and Procedural History On August 11, 2001, Jesse Moreno and three companions were ordering food at a Tacos El Unico taco stand in the Compton area of Los Angeles. A passenger in a green van, identified as defendant, asked Moreno, “Where are you from?” Moreno and a companion told defendant, “We don’t bang.” Defendant responded, “Pm from USV, Unos Sin Vergüenza.” The van then left but soon turned around.

Later defendant approached Moreno on foot, holding a gun. When defendant pointed the gun at Moreno, Moreno tried to flee, but defendant shot him from behind. As he did so, defendant said, “Fuck you, I’m from USV, Unos Sin Vergüenza.” Moreno died of two gunshot wounds in the back. Defendant was charged with Moreno’s murder. At trial, after a pretrial hearing, and over defendant’s objection, the court permitted a sheriff’s detective to testify as an expert on criminal street gangs.

He testified that in English, “Unos Sin Vergüenza” means “those without shame” or “ones without shame.” He provided substantial testimony about gangs, including how they mark out their territory, and how they commit violent crimes to enhance their reputation. Just before the detective testified, defense counsel renewed on the record that he was objecting to the gang evidence on the basis of Evidence Code

section 352 because it was “unnecessary and at this point it’s cumulative. They have evidence that this gang is in that area [because] there is graffiti there and that my client has been identified as a member of this gang and that the person who committed this murder is from the gang, and anything beyond that is cumulative at this point and more prejudicial than probative.” A jury found defendant guilty of Moreno’s murder in the first degree and found true a weapon enhancement allegation. The court sentenced him to prison for a total of 50 years to life. He appealed. The Court of Appeal affirmed the judgment.

It found that, although much of the gang evidence was properly admitted, the trial court abused its discretion under Evidence Code

section 352 in admitting some of it. It also concluded that defendant’s trial objection to the gang evidence as more prejudicial than probative (Evid. Code, § 352) preserved for appeal the argument that erroneously admitting the evidence violated his due process rights. It held, however, that defendant’s due process rights were not violated because admitting the gang evidence did not make the trial fundamentally unfair. Finally, it found the perceived error harmless under the test for state law error established in People v.

Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; it found no reasonable probability defendant would have obtained a more favorable outcome had the evidence been excluded. We granted defendant’s petition for review. II. Discussion A. Forfeiture Defendant objected to the gang evidence at trial on the ground that it should have been excluded under Evidence Code

section 352 because it was more prejudicial than probative. He did not object at trial that admitting the evidence would violate his due process rights. On appeal, he argues that the court erred in overruling the objection and also that the asserted error violated his constitutional right to due process. He does not clearly specify which Constitution, state or federal, he is relying on, but the briefing generally discusses the federal Constitution. Accordingly, we will focus on defendant’s federal due process claim. The first question we must decide is whether petitioner’s objection under Evidence Code

section 352 preserved his due process argument on appeal. The question is one of statutory

interpretation. Evidence Code

section 353 provides, as relevant, “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [][] (

a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .” (Italics added.) “In accordance with this statute, we have consistently held that the ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable. (People v.

Green (1980) 27 Cal.3d 1, 22 [164 Cal.Rptr. 1, 609 P.2d 468] [objection on ground that questions were leading does not preserve appellate argument that the evidence was impermissible evidence of other crimes] . . . .)” (People v. Seijas (2005) 36 Cal.4th 291, 302 [30 Cal.Rptr.3d 493].) A century ago, long before the Evidence Code existed, we explained the need for a specific objection. “To require this is simply a matter of fairness and justice, in order that cases may be tried on their merits.

Had attention been called directly in the court below to the particular objection which it is now claimed the general objection of appellant presented, that court would have had a concrete legal proposition to pass on, and counsel for plaintiff would have been advised directly what the particular complaint against the question was, and, if he deemed it tenable, could have withdrawn the inquiry or reframed his question to obviate the particular objection.

Trial judges are not supposed to have the numerous, varied, and complex rules governing the admissibility of evidence so completely in mind and of such ready application that under an omnivagant objection to a question they can apply with legal accuracy some particular principle of law which the objection does not specifically present.” (Bundy v. Sierra Lumber Co. (1906) 149 Cal. 772, 776 [87 P. 622]; see People v.

Morris (1991) 53 Cal.3d 152, 187-188 [279 Cal.Rptr. 720, 807 P.2d 949] [citing Bundy).) The objection requirement is necessary in criminal cases because a “contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.’ ” (People v. Rogers (1978) 21 Cal.3d 542, 548 [146 Cal.Rptr. 732, 579 P.2d 1048].) “The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error.

It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.” (People v. Morris, supra, 53 Cal.3d at pp. 187-188.) Thus, the requirement of a specific objection serves important purposes. But, to further these purposes, the requirement must be interpreted reasonably, not formalistically. “Evidence Code

section 353 does not exalt form over substance.” (People v. Morris, supra, 53 Cal.3d at p. 188.) The statute does not require any particular form of objection. Rather, “the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.” (People v.

Williams (1988) 44 Cal.3d 883, 906 [245 Cal.Rptr. 336, 751 P.2d 395].) What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.

If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct. In this case, defendant objected at trial that the gang evidence should be excluded under Evidence Code

section 352. The objection alerted the court to the nature of the anticipated evidence and the basis on which its exclusion was sought. It permitted the court to make an informed ruling and gave the People the opportunity to establish the evidence’s admissibility. On appeal, defendant may argue that the court erred in its ruling. But he may not argue that the court should have excluded the evidence for a reason different from his trial objection. If he had believed at trial, for example, that the trial court should engage in some sort of due process analysis that was different from the Evidence Code

section 352 analysis, he could have, and should have, made this clear as part of his trial objection. He did not do so. Accordingly, he may not argue on appeal that due process required exclusion of the evidence for reasons other than those articulated in his Evidence Code

section 352 argument. We believe, however, that defendant may make a very narrow due process argument on appeal. He may argue that the asserted error in admitting the evidence over his Evidence Code

section 352 objection had the additional legal consequence of violating due process. Similarly, a defendant may argue that error in overruling a trial objection was prejudicial under the Watson test (People v. Watson, supra, 46 Cal.2d 818) without citing Watson as part of the trial objection.

We recently concluded that, “[a]s a general matter, no useful purpose is served by declining to consider on appeal a claim that merely restates, under alternative legal principles, a claim otherwise identical to one that was properly preserved by a timely motion that called upon the trial court to consider the same facts and to apply a legal standard similar to that which would also determine the claim raised on appeal.” (People v. Yeoman (2003) 31 Cal.4th 93, 117 [2 Cal.Rptr.3d 186, 72 P.3d 1166]; accord, People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6 [17 Cal.Rptr.3d 532, 95 P.3d 811].) Here, as discussed in

part II.B., post, the admission of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair. Accordingly, the due process argument is not identical to the trial objection. (See also Duncan v. Henry (1995) 513 U.S. 364 [130 L.Ed.2d 865, 115 S.Ct. 887] [due process and Evid. Code, § 352 claims are not identical for federal exhaustion purposes].) To the extent, if any, that defendant may be understood to argue that due process required exclusion of the evidence for a reason different from his trial objection, that claim is forfeited.

Defendant could have apprised, but did not apprise, the trial court of such a claim. But defendant primarily makes a two-step argument on appeal: (1) the trial court erred in overruling the trial objection, and (2) the error was so serious as to violate due process. To consider this narrow due process argument on appeal “entails no unfairness to the parties,” who had the full opportunity at trial to litigate whether the court should overrule or sustain the trial objection. (People v.

Yeoman, supra, 31 Cal.4th at p. 118.) Defendant’s limited due process claim “merely invites us to draw an alternative legal conclusion [i.e., that erroneously admitting the evidence violated due process] from the same information he presented to the trial court [i.e., that the evidence was more prejudicial than probative]. We may therefore properly consider the claim on appeal.” (Id. at p. 133.) When a trial court rules on an objection to evidence, it decides only whether that particular evidence should be excluded. Potential consequences of error in making this ruling play no

part in this decision. A reviewing court, not the trial court, decides what legal effect an erroneous ruling has. Here, the trial court was called on to decide whether the evidence was more prejudicial than probative. It did so. Whether its ruling was erroneous is for the reviewing court to decide. If the reviewing court finds error, it must also decide the consequences of that error, including, if the defendant makes the argument, whether the error was so serious as to violate due process.

The consequences of hypothetical error are not something the trial court ordinarily can or should consider when making the initial ruling. The trial court merely rules on the actual objection. Ordinarily, it does not, and usually cannot, base this ruling on whether admitting prejudicial evidence would render the trial fundamentally unfair. Once the reviewing court has found error in overruling the trial objection, whether that error violated due process is a question of law for the reviewing court, not the trial court in ruling on the objection, to determine in assessing the consequence of that error.

Similarly, in ruling on the trial objection, the trial court would not decide whether an erroneous ruling would be prejudicial under the Watson test. (People v. Watson, supra, 46 Cal.2d 818.) If the trial objection fairly informs the court of the analysis it is asked to undertake, no purpose is served by formalistically requiring the party also to state every possible legal consequence of error merely to preserve a claim on appeal that error in overruling the objection had that legal consequence.

Specifically, no purpose would be served by requiring the objecting party to inform the court that it believes error in overruling the actual objection would violate due process. Indeed, if a defendant who objected on Evidence Code

section 352 grounds argues on appeal that the court erred in admitting the evidence for a reason different than that it was more prejudicial than probative, an additional trial invocation of due process or some other general principle that did not reasonably apprise the trial court of the analysis it was being asked to undertake would not be sufficient to preserve the argument. The Attorney General cites a number of cases in which we found a due process argument on appeal not cognizable when the defendant had not objected on due process grounds at trial. (E.g., People v.

Heard (2003) 31 Cal.4th 946, 972, fn. 12 [4 Cal.Rptr.3d 131, 75 P.3d 53]; People v. Burgener (2003) 29 Cal.4th 833, 869 [129 Cal.Rptr.2d 747, 62 P.3d 1]; People v. Boyette (2002) 29 Cal.4th 381, 424 [127 Cal.Rptr.2d 544, 58 P.3d 391]; People v. Rowland (1992) 4 Cal.4th 238, 273, fn. 14 [14 Cal.Rptr.2d 377, 841 P.2d 897]; People v.

Gordon (1990) 50 Cal.3d 1223, 1240, fn. 2 [270 Cal.Rptr. 451, 792 P.2d 251].) Those cases should be read to hold only that the constitutional argument is forfeited to the extent the defendant argued on appeal that the constitutional provisions required the trial court to exclude the evidence for a reason not included in the actual trial objection. They did not consider whether, and do not preclude us from holding that, defendant may argue an additional legal consequence of the asserted error in overruling the Evidence Code

section 352 objection is a violation of due process. (E.g., People v. Cole, supra, 33 Cal.4th at p. 1195, fn. 6 [trial objection under Evid. Code, §§ 352 and 1101 preserved claim that the asserted error violated due process and the constitutional right to a reliable verdict]; People v. Jones (1998) 17 Cal.4th 279, 305-306 [70 Cal.Rptr.2d 793, 949 P.2d 890]; People v. Hawkins (1995) 10 Cal.4th 920, 950-952 [42 Cal.Rptr.2d 636, 897 P.2d 574].) Here, to the extent defendant asserts a different theory for exclusion than he asserted at trial, that assertion is not cognizable.

But he primarily argues that the court erred in admitting the evidence because it was more prejudicial than probative under Evidence Code

section 352, which was precisely his trial objection, and which was the basis for the Court of Appeal’s finding of error. Defendant also argues that this error had the legal consequence of violating his due process rights. This he may do. B. The Merits Permitting defendant to argue that erroneously overruling his trial objections violated due process does not, of course, mean that the argument is meritorious; it only means that he may make the argument. The Court of Appeal held that the trial court abused its discretion under Evidence Code

section 352 in admitting some of the gang evidence. We accept for purposes of review this fact-specific application of settled law without deciding the question ourselves. (See Cal. Rules of Court, rule 29(b)(3) [“The court need not decide every issue the parties raise or the court specifies”]; People v. Weiss (1999) 20 Cal.4th 1073, 1076-1077 [86 Cal.Rptr.2d 337, 978 P.2d 1257].) Defendant argues that this error was so serious as to violate due process. But the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (Estelle v.

McGuire (1991) 502 U.S. 62, 70 [116 L.Ed.2d 385, 112 S.Ct. 475]; Spencer v. Texas (1967) 385 U.S. 554, 563-564 [17 L.Ed.2d 606, 87 S.Ct. 648]; People v. Falsetta (1999) 21 Cal.4th 903, 913 [89 Cal.Rptr.2d 847, 986 P.2d 182] [“The admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendant’s trial fundamentally unfair”]; see also Duncan v.

Henry, supra, 513 U.S. at p. 366.) Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error. (People v. Earp (1999) 20 Cal.4th 826, 878 [85 Cal.Rptr.2d 857, 978 P.2d 15]; People v. Watson, supra, 46 Cal.2d at p. 836.) The Court of Appeal applied the correct test both when it found no due process violation (fundamental fairness) and when it found the state law error harmless (Watson).

Because the Court of Appeal’s application of these tests is fact specific, we also accept its conclusions on these points. III. Conclusion We affirm the judgment of the Court of Appeal. George, C. J., Werdegar, J., and Moreno, J., concurred. Evidence Code

section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (

a) necessitate undue consumption of time or (

b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” The concurring and dissenting opinion asserts that defendant’s argument that “the gang evidence was inherently prejudicial in that it was akin to propensity evidence, criminal profile evidence, and evidence of crimes committed by third parties” is new and not included in his trial objection under Evidence Code

section 352. (Cone. & dis. opn., post, at p. 441; see also id. at pp. 448-449.) In addition to this argument, defendant also argues that the evidence was not very probative, partly because it was cumulative. This is classic Evidence Code

section 352 analysis, which requires a weighing of the prejudicial effect of evidence (hence permitting argument that the evidence is prejudicial) against its probative value. (E.g., People v. Williams (1997) 16 Cal.4th 153, 191-194 [66 Cal.Rptr.2d 123, 940 P.2d 710]; People v. Champion (1995) 9 Cal.4th 879, 922-923 [39 Cal.Rptr.2d 547, 891 P.2d 93].) The concurring and dissenting opinion also relies heavily on these cases, but they do not consider this question. For example, the case that opinion discusses most extensively as “typical” (conc. & dis. opn., post, at p. 440), People v.

Rowland, supra, 4 Cal.4th at page 273, footnote 14, states only this: “Defendant claims that by denying his motion [to bar certain testimony], the court committed error not only under Evidence Code

section 352, but also under the United States Constitution, including the due process clause of the Fourteenth Amendment. He failed to make an argument below based on any federal constitutional provision. Hence, he may not raise such an argument here.” (Italics added.) We reiterate that a defendant may not argue that the court committed error for a reason not included in the trial objection.

But neither Rowland nor any of the other opinions cited in the dissenting and concurring opinion considered—or held one way or the other—whether the defendant may assert that error in overruling the actual objection was so serious as to violate due process. The concurring and dissenting opinion states that these three cases neither reflected that the Attorney General had asserted the claims were forfeited nor cited Evidence Code

section 353. (Conc. & dis. opn., post, at p. 442, fn. 1.) The same is true of the cases the concurring and dissenting opinion cites as supposedly resolving this entire question. (Id. at p. 440.) (In People v.

Yeoman, supra, 31 Cal.4th at page 133, where we permitted the defendant to argue that admitting certain evidence rendered the death sentence arbitrary and unreliable in violation of the Eighth Amendment to the United States Constitution, the People did argue that the Eighth Amendment claim was forfeited because the defendant had not cited that Amendment at trial, an argument we rejected.) None of these cases are authority for propositions not considered. That is why we are explaining and reconciling all of our cases, not just a selected portion of them.

Principles of stare decisis do not preclude us from doing so.

In response to the concurring and dissenting opinion’s assertion that we are somehow permitting “a challenge to an evidentiary ruling based on an argument never presented to the trial court” (conc. & dis. opn., post, at p. 446) and, accordingly, are permitting defendants to “blindsid[e]” the trial court and prosecution {id. at pp. 450, 451), we can merely reiterate what we have already stressed: If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial.

A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct. (Ante, at p. 435.) We are permitting no blindsiding. In response to the concurring and dissenting opinion’s assertion that this opinion is “likely to breed confusion” (cone. & dis. opn., post, at p. 449), we believe that permitting defendants to argue that error in overruling a trial objection was so serious as to render the trial fundamentally unfair in violation of their due process rights is neither particularly complex nor beyond the comprehension of future courts.