The People v. Merritt CA3

DISCUSSION

I Constitutional Claim Defendant asserts that his sentence violates both the Eighth Amendment‟s ban on cruel and unusual punishment and the Fifth Amendment‟s double jeopardy clause. Attempting to circumvent his failure to make this objection during sentencing, he contends that “[w]hile defense counsel did not specifically mention federal or state constitutional provisions, this court should reach the merits under the relevant constitutional standards to prevent forfeiture and/or an ineffectiveness-of-counsel claim . . . .” “[I]t is elementary that [a] defendant waive[s] [an argument based on the U.S. Constitution] by failing to articulate an objection on federal constitutional grounds below.” (People v. Burgener (2003) 29 Cal.4th 833, 886.) Defendant cites People v. Em (2009) 171 Cal.App.4th 964 for the proposition that the court should overlook the forfeiture in this case in the interest of judicial economy. (See id. at p. 971, fn. 5.) Contrary to defendant‟s contention, we do not decide issues not properly before us. (See People v. Alvarez (1996) 14 Cal.4th 155, 186 [bare reference to “ „confrontation rule‟ ” not specific enough to preserve Sixth Amendment…