Appellate Counsel Should Be Alert To The Use Of The "Preclusive Instruction" Doctrine

By Dallas Sacher

(December 2002)

    In a little noticed opinion, the California Supreme Court has promulgated the "preclusive instruction" doctrine. (People v. Morales (2001) 25 Cal.4th 34, 43.) Although the doctrine will have to be fleshed out in future cases, it is potentially of great use to criminal defendants on appeal.

    The doctrine has its roots in the seminal case of People v. Green (1980) 27 Cal.3d 1. In Green, the prosecutor presented three separate theories in an attempt to secure a conviction for kidnapping. The third theory was that the victim had been forcibly asported ninety feet from a car to the place where she was murdered. The Supreme Court held that ninety feet was not a sufficient distance to support a kidnapping conviction. (Id., at pp. 65-67.) Since "[n]othing in the instructions, . . . disabused the jury" of the prosecutor’s argument to the contrary, reversible error was found. (Id., at p. 68.)

    Recently, the Supreme Court discussed the holding in Green. In People v. Morales, supra, 25 Cal.4th 34, the issue was whether the prosecutor had committed misconduct by arguing an erroneous theory to the jury. In the course of analyzing this question, the court reaffirmed Green and categorized its holding as follows: "The evidence regarding the third movement did not describe a crime. When the court did nothing to "disabuse [] the jury of [the] notion (Green, supra, 27 Cal.3d at p. 68) that it did (a defect it could have cured with a preclusive instruction), it ratified the prosecutor’s error." (Morales, supra, 25 Cal.4th at p. 43, emphasis added.)

    The ramifications of the quoted language are quite profound. At the outset, it is essential to note that there was no error in the instructions actually given to the Green jury. In particular, the jury was properly instructed on the elements of kidnapping. Nonetheless, due to the facts of the case, the trial court erred by failing to preclusively instruct the jury that ninety feet is not a sufficient distance to satisfy the kidnapping statute.

    In conceptual terms, the "preclusive instruction" doctrine falls into the genre of those instructions which the trial court must give sua sponte. In this regard, a trial court has the duty to instruct sua sponte on those general principles of law which are necessary for the jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) Insofar as the defense apparently never asked for a preclusive instruction in Green, the conclusion necessarily follows that the trial court had a duty to instruct the jury suasponte.

    The parameters of the preclusive instruction doctrine are potentially quite broad. Seemingly, the rule applies whenever the trial judge perceives a possibility that the jury will be seriously misled concerning the applicable rule of law. Thus, appellate counsel should not hesitate to be creative in employing the doctrine. Indeed, the doctrine will be used to raise an issue in a pending Sixth District case.

    In People v. Frye, H024652, the defendant was charged with aiding and abetting a burglary by acting as a lookout. Under settled law, a burglary is complete when the perpetrator leaves the premises. (People v. Montoya (1994) 7 Cal.4th 1027, 1045 and fn. 9.) Nonetheless, the prosecutor argued to the jury that the defendant could be found guilty based on acts which he performed during the perpetrator’s escape. In light of this erroneous theory, it will be argued on appeal that the trial court erred by failing to preclusively instruct the jury sua sponte that acts performed after the burglar’s departure from the premises could not constitute aiding and abetting.

    Frye presents only a single example of how the "preclusive instruction" doctrine might be used. Zealous defense counsel should now go forward and expand the doctrine in other appropriate cases.

Dallas Sacher, Sixth District Appellate Program, Santa Clara. 1981 graduate of the Santa Clara University School of Law. Former Research attorney for Presiding Justice George A. Brown of the Fifth District Court of Appeal. Presently Assistant Director of the Sixth District Appellate Program. Extensive writings and lectures on varying topics such as jury instructions, the Three Strikes Law, prejudicial error, ethics and habeas corpus.

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