Brief Bank # B-866 (Re: PG VI(A)(9) [Invited Error/Estoppel: Applicability To Prosecution])
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Date Of Brief: November, 2000
A. Respondent is estopped from arguing that the instructions on imperfect self defense and heat of passion were not warranted by the evidence.
The prosecutor requested instructions on voluntary manslaughter as a result of sudden quarrel/heat of passion and imperfect self-defense. (CT 423-424.) Although he did not expressly request CALJIC No. 5.17 defining imperfect self-defense, he did not object to the court’s giving it. Now the prosecutor devotes 16 pages of his brief to arguing that the instructions should not have been given. (RB pp. 21-37.) If a defendant had made such an argument on appeal, respondent would be claiming invited error and would likely prevail. The same doctrine applies to preclude respondent here from arguing his new and inconsistent theory.
“A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.” (Ernst v. Searle (1933) 218 Cal. 233, 240-241; see also Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 499 [party “not permitted to change his position . . . on appeal.”]; Estate of Stevenson (1992) 11 Cal.App.4th 852, 865.)
Furthermore, “It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried.” (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316; see also People v. Borland (1996) 50 Cal.App.4th 124, 129.) A party may not change his theory of the case for the first time on appeal. (People v. Witt (1975) 53 Cal.App.3d 154, 174; People v. Badgett (1995) 10 Cal.4th 330, 351.)
Appellant’s case was presented to the jury as involving imperfect self-defense and sudden quarrel/heat of passion as mitigating factors. Now, when it appears clear that the instructions defining the mental states required for manslaughter and second degree murder were prejudicially incorrect, and therefore reversal is required, respondent has changed his theory of the case and is arguing that the court should not have given the instructions.
The doctrine of “invited error” is an application of the principle of estoppel. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403. “’Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal’ on appeal.” (Ibid, quoting 9 Witkin, Cal. Procedure, supra, Appeal, § 383, p. 434, italics omitted; see also Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 420-421.) The purpose of the doctrine is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court. (See, e.g., People v. Upshaw (1974) 13 Cal.3d 29, 34.)
The policies underlying the preclusion of inconsistent positions are “general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings. [Citations.]” (Arizona v. Shamrock Foods Co. (9th Cir. 1984) 729 F.2d 1208, 1215, cert. denied, (1985) 469 U.S. 1197 [83 L.Ed.2d 982, 105 S.Ct. 980].) Judicial estoppel is “intended to protect against a litigant playing ‘fast and loose with the courts by asserting inconsistent positions.’ [Citations.]” (Rockwell International Corp. v. Hanford Atomic Metal Trades Council (9th Cir. 1988) 851 F.2d 1208, 1210.)
The fair administration of justice requires the doctrine of “invited error” to be a two-way street. A defendant would be precluded from arguing an instruction he requested should not have been given; likewise, respondent here is estopped from arguing that instructions he requested initially should not have been given.