Hicks

*468 MEMORANDUM ***

Kerry Hicks was convicted of kidnapping Michael Alberti. Hicks, joined by two large men, paid a visit to Alberti at a motel to collect on a drug-debt. Alberti was staying with his girlfriend and child at the motel. Upon Hicks’ arrival at the motel, he told Alberti, “[Ljet’s go for a ride. Your old lady and child don’t want to see this.” Alberti, nervous and trembling, told his girlfriend to go back to bed, and the three men escorted Alberti to a truck. While in the truck Hicks told Alberti to call his girlfriend and tell her not to call the police. Once at Hicks’ residence, the men began duct-taping Alberti’s legs and discussed hanging him from the rafters. When the men were interrupted by the police, Alberti undid the duct-tape and ran off.

The issue certified for appeal is whether the state courts deprived Hicks of his right to a defense by refusing to instruct the jury on a Mayberry defense. See People v. Mayberry, 15 Cal.3d 143 , 125 Cal.Rptr. 745 , 542 P.2d 1337 (1975). Hicks contends this failure deprived him of the right to present a defense because a defendant is entitled to an instruction as to a recognized defense for which there exists evidence…