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The People v. Barry Whitlock

October 19, 2011


(Super. Ct. No. 09CR16301)

The opinion of the court was delivered by: Hull J.

P. v. Whitlock CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

On December 30, 2009, Amador County Deputy Sherriff Matthew Girton arrested defendant Barry Whitlock for public intoxication, handcuffed him, and put him in the back seat of Deputy Girton's patrol car. Defendant told Deputy Girton he was having a heart attack, and Deputy Girton called for medical personnel to meet him.

Emergency medical technicians Jell Faillers and Richard Martin met Deputy Girton and handcuffed defendant to a gurney to take him to the hospital. As he was put into the ambulance, defendant started to scream and struggled with the medical equipment. Defendant became more unruly during the drive to the hospital, was verbally aggressive, and tried to free himself. Defendant started kicking Faillers and his partner when they tried to hold him down. Faillers yelled to the driver to pull over and motioned to Deputy Girton, who was following the ambulance, that he needed help.

Deputy Girton pulled over and asked defendant to calm down. Defendant responded by swinging his arm and kicking his feet at Deputy Girton. After warning defendant he would use the Taser if defendant did not calm down, Deputy Girton used his Taser on defendant. Defendant kept kicking and swinging, so Deputy Girton warned and tasered defendant again. Defendant then calmed down, and Deputy Girton sat with him on the way to the hospital.

Following a jury trial, defendant was convicted of resisting an executive officer (Pen. Code, § 69; statutory section citations that follow are to the Penal Code) and assault on an emergency medical technician engaged in the performance of his duties (§§ 240, 241, subd. (c)). The trial court sustained a prior prison term allegation (§ 667.5, subd. (b)) and sentenced defendant to four years in state prison, imposed various fines and fees, and awarded 325 days' presentence credit (163 custody and 162 conduct).

Defendant appeals.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.

Defendant filed a supplemental brief, asserting the trial court erred in denying his People v. Marsden (1970) 2 Cal.3d 118 (Marsden) motion, and ineffective assistance of trial and appellate counsel.

At the hearing on his Marsden motion, defendant complained that trial counsel was using "scare tactics" to get him to agree to a plea agreement, and counsel never told him he had a chance of beating the People's case. The Amador County public defender informed the court that his office never pressures a defendant to accept the plea. The public defender said the People's case was strong, and their offer of two years and four months was a good deal for defendant, and it would be unethical not to tell defendant his professional appraisal of the case. The trial court denied the motion.

A defendant is entitled to effective assistance of legal counsel at all critical stages of a criminal proceeding. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) A criminal defendant has the right to discharge appointed counsel and receive new counsel upon demonstration of constitutionally inadequate representation. (Marsden, supra, 2 Cal.3d at pp. 124-125.)

Generally, when a criminal defendant makes a motion to substitute appointed counsel, "'the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict ...

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