People v. Phillips CA4/3

Filed 4/28/16 P. v. Phillips 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050709

v. (Super. Ct. No. 13CF1276)

WILLIAM ANDREW PHILLIPS, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant William Andrew Phillips was convicted of two counts of resisting an executive officer by use of force, a felony. (Pen. Code, § 69.)1 He contends the trial court was required to instruct on the lesser included offense of misdemeanor resisting or obstructing a police officer. (§ 148, subd. (a)(1).) The Attorney General concedes the court should have so instructed the jury, but argues the invited error doctrine bars defendant’s argument. We agree with the Attorney General that counsel’s decision not to request an instruction on the lesser included misdemeanor reflected a deliberate and tactical choice, and the trial court’s failure to instruct was invited error. We therefore affirm the judgment.

I FACTS Because the issue on appeal is very limited, we need not delve into the facts of the case. In August 2013, defendant was charged with two counts of aggravated assault on a peace officer (§ 245, subd. (c)); two counts of resisting and deterring an executive officer (§ 69); possession of methamphetamine (Health & Saf. Code, § 11377, subd (a)); and two counts of aggravated assault (§ 245, subd. (a)(1)). He was also alleged to have served six prior prison terms. (§ 667.5, subd. (b).) The charges all related to an incident in Santa Ana that occurred on November 27, 2012. Defendant was convicted of the two counts of resisting an executive officer by use of force and for possession of methamphetamine and was found not guilty on the remaining four charges. The trial court subsequently found the prison priors true. Defendant was sentenced to five years in prison, comprised of two years for one of the resisting counts, plus one year for each of the three prison priors. The court imposed