Filed 4/25/13 P. v. Kendrick CA4/3



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G046094

                    v.                                                 (Super. Ct. No. 10NF0575)

DONALD RAY KENDRICK,                                                   OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Richard
M. King, Judge. Affirmed.
                   Nancy L. Tetreault, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and
Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.


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              A jury convicted defendant Donald Ray Kendrick of 14 counts of second
degree robbery arising out of six bank robberies. (Pen. Code, §§ 211, 212.5, subd. (c); all
further statutory references are to this code.) The trial court thereafter found true
allegations defendant had three serious felony priors (§ 667, subd. (a)(1)) that also served
as strike priors (§ 667, subds. (d), (e)(2)(A)), and five prison priors (§ 667.5, subd. (b)).
It struck the prison priors for sentencing purposes only, denied defendant‟s motion to
strike the other priors, and sentenced defendant to 165 years to life, consisting of
consecutive terms of 25 years to life on counts 1, 3, 5, 7, 10, and 13, plus additional five
year terms for each of the three prior serious felonies.
              Defendant contends the court erred in failing to sua sponte instruct the jury
on the defense of necessity and abused its discretion in denying his motion to strike the
prior serious felony convictions. Finding no error, we affirm the judgment.


                                           FACTS


              At trial, defendant admitted robbing the banks but claimed he did so
because the Aryan Brotherhood gang, with whom he associated while serving his first
prison term, had threatened his life and that of his eldest daughter. Defendant had
previously committed 10 robberies for the gang, was convicted of two of them, and was
sent to federal prison where he continued to associate with the Aryan Brotherhood.
While in prison, the gang asked defendant to have his family smuggle drugs into the
prison and when he refused, the gang had someone stab him. About the same time,
defendant‟s son disappeared; defendant believed his son was murdered by the gang.
              Defendant was released in 1992 and resided in Oregon. The Aryan
Brotherhood found him and again forced him to rob banks for them. He was again
convicted of robbery and sent to a prison where there were no members of the Aryan
Brotherhood. He was released in 2006.

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              In 2009, defendant was living in a sober living home when his roommate
introduced him to two men with the Aryan Brotherhood at a Narcotics Anonymous
meeting. They told him they knew who he was, his ability to rob banks, and where his
children lived. Because they threatened to kill him and his eldest daughter if he did not
rob banks for the Brotherhood, he complied, using a toy gun. After the robberies, he
gave the money to his roommate, the getaway driver, who in turn gave it to the gang.
              A defense expert on the Aryan Brotherhood testified a person cannot refuse
a gang‟s request to commit a crime without risking their life or the lives of family
members. On rebuttal, a prosecution expert testified the Aryan Brotherhood would not
force a non-member to commit a crime for it and that a member or associate would not
only commit financial crimes for the gang but would commit both violent and non-
violent crimes.


                                       DISCUSSION


1. Failure to Instruct on Necessity
              Defendant contends the court prejudicially erred in failing to instruct the
jury sua sponte on the defense of necessity. The Attorney General responds defendant
invited any error. We agree.
              “„When a defense attorney makes a “conscious, deliberate tactical choice”
to . . . forego a particular instruction, the invited error doctrine bars an argument on
appeal that the instruction was . . . omitted in error.‟” (People v. McKinnon (2011) 52
Cal.4th 610, 675.) Here, during a break in defense counsel‟s closing argument, the court
asked the parties if it had a sua sponte duty to instruct the jury on the defense of
necessity. The prosecutor noted that because the burden of proving the necessity defense
is on defendant, “if the defense chose tactically to object based on the entire burden of
proof remaining with me, that would moot the issue right now.” Defense counsel later

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informed the court that “for tactical reasons, we‟re not requesting” the necessity
instruction. The court had “the minute order reflect [it] . . . brought to the defendant‟s
attention the application of [CALCRIM No.] 3403. The defense objects to the giving of
that for tactical reasons.” Because the record demonstrates counsel forsook the necessity
instruction for tactical reasons, any error in not giving the instruction was invited.
              Defendant argues the invited error doctrine does not apply because it
pertains only to instructions on lesser included offenses, which the necessity defense is
not. But he identifies no authority concluding the doctrine is inapplicable to a
defendant‟s decision to forego instructions on a defense. Although the cases he cites
involve a lesser included offenses (see People v. Barton (1995) 12 Cal.4th 186, 198;
People v. Duncan (1991) 53 Cal.3d 955, 969), they do not hold the doctrine may be
invoked only in such cases.
              To the contrary, the doctrine “is designed to prevent an accused from
gaining a reversal on appeal because of an error made by the trial court at his behest. If
defense counsel intentionally caused the trial court to err, the appellant cannot be heard to
complain on appeal.” (People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on
other grounds in People v. Barton, supra, 12 Cal.4th at p. 201.) Thus, courts have found
invited error in the excusal of a juror (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 49), the requesting of an instruction (People v. Wader (1993) 5 Cal.4th 610, 657-658),
and the omission of a definition (People v. Catlin (2001) 26 Cal.4th 81, 150).
              Notably, unlike “„[t]he sua sponte duty to instruct on lesser included
offenses, [which] . . . arises even against the defendant‟s wishes, and regardless of the
trial theories or tactics the defendant has actually pursued[]‟” (People v. Beames (2007)
40 Cal.4th 907, 926), the court‟s duty to instruct, sua sponte, on particular defenses “is
more limited, arising „only if it appears that the defendant is relying on such a defense, or
if there is substantial evidence supportive of such a defense and the defense is not
inconsistent with the defendant‟s theory of the case‟” (People v. Barton, supra, 12

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Cal.4th at p. 195). If a defendant may invite error by tactically declining instruction on a
lesser included offense, there is no reason why the doctrine should not also apply to the
more limited sua sponte duty to instruct on a defense where defendant makes a tactical
decision to forego instruction on a defense.


2. Denial of Motion to Strike Priors
              Defendant argues the court abused its discretion in denying his motion to
strike his prior felony convictions. We are unpersuaded.
              Section 1385, subdivision (a) authorizes a trial court to strike prior felony
conviction allegations “in furtherance of justice” in cases brought under the “Three
Strikes” law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In
determining whether or not to do so, the trial court “must consider whether, in light of the
nature and circumstances of [the defendant‟s] present felonies and prior serious and/or
violent felony convictions, and the particulars of his background, character, and
prospects, the defendant may be deemed outside the scheme‟s spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of one or
more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review the court‟s ruling for abuse of discretion, which does not occur unless “its
decision is so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony (2004) 33 Cal.4th 367, 377.)
              Defendant‟s abuse of discretion contention is based on his testimony “he
was trying to reclaim his life, but was prevented from doing so [b]y the Aryan
Brotherhood‟s threats of killing his daughter if he did not commit the present crimes.”
He claims he is a nonviolent drug addict who, in order to protect himself as a young man
in prison, mistakenly associated with the Aryan Brotherhood, which “tried killing him in
prison, likely murdered his only son, and threatened to kill his eldest daughter if he did
not commit the bank robberies giving rise to the present convictions.”

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              But the court already considered such evidence, having read defendant‟s
lengthy Romero motion and hearing defense counsel‟s arguments on it. Defendant is
essentially asking this court to reweigh the evidence and substitute our judgment for that
of the trial court. This we will not do. “„[W]here the record demonstrates that the trial
court balanced the relevant facts and reached an impartial decision in conformity with the
spirit of the law, we shall affirm the trial court‟s ruling, even if we might have ruled
differently in the first instance.‟” (People v. Carmony, supra, 33 Cal.4th at p. 378.) The
record in this case affirmatively shows the court understood its discretionary authority
and weighed all of the competing facts to reach a reasoned and reasonable conclusion.
After evaluating the entirety of that information, the court determined it could not
conclude defendant was outside of the spirit of the Three Strikes law and declined to
exercise its discretion to strike the priors. Defendant has not shown it abused its
discretion in doing so.


                                       DISPOSITION


              The judgment is affirmed.




                                                  RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



IKOLA, J.


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