Tom

BACKGROUND

Defendant was charged with gross vehicular manslaughter while intoxicated, driving under the influence causing harm to another, and driving with a blood-alcohol level of 0.08 percent or higher causing harm to another, along with various enhancement allegations. A jury acquitted defendant of the alcohol- related charges but convicted him of vehicular manslaughter with gross negligence 2 and found true the allegation that he personally inflicted great bodily injury on Kendall Ng. (Pen. Code, § 192, subd. (c)(1); id., former § 12022.7, subd. (a).) The court sentenced defendant to seven years in prison. Events Surrounding the Fatal Collision Defendant spent the early evening of February 19, 2007, entertaining his longtime friend Peter Gamino, a retired San Francisco police officer who was visiting from out of state. Defendant cooked a steak dinner at his Redwood City home and, after waking Gamino from a nap around 5:30 or 6:00 p.m., made them vodka tonics. Around 6:30 p.m., Gamino made another round of drinks. He did not know whether defendant finished that drink. After dinner, defendant announced that they needed to pick up a…

Dissenting. — The majority concludes a defendant may not rely on his Fifth Amendment rights as a basis for challenging the admission in the People’s case-in-chief of his postarrest, pre-Miranda 1 warning silence if he fails to affirmatively invoke those rights to police. Were I to reach the question, I would agree with my colleague Justice Liu’s analysis of the constitutional issue. (Dis. opn. of Liu, J., post, at pp. 1248-1254.) However, I conclude that by failing to make a timely and specific objection on this ground, defendant failed to preserve the issue for appellate review. Because I am unpersuaded by the majority’s explanation why it has chosen to resolve this case based on a claim that was forfeited in the trial court, I dissent.

I.

The evidence of defendant’s silence — that is, his failure to inquire after the welfare of the people in the car he crashed into — was twice placed before the jury. First, during Officer Price’s testimony, the prosecutor asked him, “when [defendant] made [his] request to go home, had he asked you any questions about the condition of the occupants in the Nissan?” Officer Price simply answered: “No.” Defendant interposed no Fifth Amendment…

Dissenting. — As anyone who has ever watched a crime drama on television knows, a suspect who is placed under arrest “has a right to remain silent,” and “any statement he does make may be used as evidence against him . . . .” (Miranda v. Arizona (1966) 384 U.S. 436, 444 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 ] (Miranda).) The Miranda warnings, which “have become part of our national culture” (Dickerson v. United States (2000) 530 U.S. 428, 443 [ 147 L.Ed.2d 405 , 120 S.Ct. 2326 ]), serve as an essential safeguard to protect the Fifth Amendment right against self-incrimination in the context of custodial interrogation. But whether interrogated or not, a suspect in custody has a right under the Fifth Amendment not to incriminate himself. And often the best way not to incriminate oneself is to say nothing.

The court today holds, against commonsense expectations, that remaining silent after being placed under arrest is not enough to exercise one’s right to remain silent. If the police have not given Miranda warnings, the court says, a suspect in custody cannot later claim the protection of the Fifth Amendment unless he breaks his silence and “clearly invoke[s]” the privilege in a manner…

On a clear evening in February 2007, defendant Richard Tom broadsided at high speed a vehicle driven by Loraine Wong, who was making a left turn from Santa Clara Avenue onto Woodside Road in Redwood City. Wong’s younger daughter, Sydney Ng, eight, was killed; her older daughter, Kendall Ng, 10, sustained serious injuries. The evidence at trial showed that defendant did not brake prior to the crash. He had been speeding, although his precise speed was disputed. He had been drinking earlier that evening, although (again) the amount he had consumed was disputed.

The issue before us arises from the People’s reliance in their case-in-chief on defendant’s failure to inquire about the occupants of the other vehicle as evidence that he was driving without due regard for their safety. Did it violate the Fifth Amendment privilege against self-incrimination to admit evidence that defendant, following his arrest but before receipt of Miranda 1 warnings, expressed no concern about the well-being of the other people involved in the collision?

*1215 The issue is one of first impression for this court. However, a plurality of the high court recently addressed the “closely related”…