In People v. Durst, C071233, March 28, 2014, the Third District published a reminder of the importance of the standard of review, taking counsel to task to the extent of ruling a Miranda argument forfeited, although eventually addressing the merits (doubtless to forestall a potential IAC claim). The Court’s discussion did not bode well for appellate counsel, beginning:
In arguing in his opening brief that the statement should have been excluded, defendant disregards the trial court’s crucial findings concerning the facts. Most importantly, defendant relies on a transcript of his statements that the trial court expressly found to be unreliable. This appellate strategy forfeits review of the issue.
Review of a trial court’s ruling concerning the admissibility of a defendant’s statement is a two-part analysis. “[W]e accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence. [Citation.] But we determine independently, based on the undisputed facts and those properly found by the trial court, whether the challenged statements were legally obtained. [Citation.]” [Citation.]
When the appellate standard is substantial evidence review, as it is here with respect to the trial court’s factual findings, the appellant bears the burden of showing that no substantial evidence supports the challenged factual findings. [Citations.] Failure to set forth the evidence most favorable to the factual findings – or, as in this case, to acknowledge that the factual findings even exist, along with supporting evidence – results in forfeiture of the contention that substantial evidence does not support the factual findings. [Citation.]
The Court goes on to point out the brief relied on a “nonexistent circumstance” since the trial court had specifically rejected a fact asserted at trial, recounting the trial court’s various factual findings and rulings contrary to the defendant’s position at trial, concluding: “The effect of defendant’s appellate strategy is forfeiture, not persuasion.”
It is one thing to argue the trial court proceedings in the most favorable possible light, looking for chinks in “substantial evidence” armor. But the emphasis must be on possible, with “possible” considered in the context of the relevant standard of review. Otherwise you may find yourself explaining to the Court why your argument should not be forfeited, and then explain to the paying client why they should pay you for an argument the Court refused even to consider.