People v. Newlun

In People v. Newlun (1991) 227 Cal. App. 3d 1590, defendant argued that his due process right to notice of the charges against him was violated. He claimed that he was convicted of counts that were not included in the information and were not supported by the evidence at the preliminary hearing. The court concluded that the issue was waived. In finding waiver, Newlun stated that "defendant made no objection, in any form, based on a lack of notice of the charges." (Id. at p. 1604.) The court then reasoned, "As a general rule, defendant may not contend on appeal that the trial court committed error unless the defendant has tendered an objection to the trial court on the ground later asserted on appeal. As a rule, 'it would be wholly inappropriate to reverse a superior court's judgment for error it did not commit and that was never called to its attention.' Here, having failed to claim surprise or to request a continuance, defendant has waived objection to the evidence adduced at trial on the ground he did not have adequate notice of it. " (Ibid.) Newlun also explained why requiring an objection based upon lack of notice was especially appropriate. " 'Generally speaking, the rationale underlying the rule requiring objection below as a prerequisite to complaint on appeal regarding some error by the trial court is predicated on the premise that, in its absence, the People would be deprived of the opportunity to cure the defect in the trial court and the defendant would be allowed to gamble on a favorable result--secure in the knowledge that if he did not prevail there, he would be able to prevail on appeal. ' Unfairness because of lack of notice may often be cured in the trial court by granting the defendant a continuance of the trial to allow a defendant fair opportunity to meet the new evidence. " (People v. Newlun, supra, 227 Cal. App. 3d at p. 1604.)