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The People v. Barry Whitlock

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)


October 19, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
BARRY WHITLOCK, DEFENDANT AND APPELLANT.

(Super. Ct. No. 09CR16301)

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

P. v. Whitlock CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 that ineffective representation is likely to result [citations].' [Citations.]" (People v. Fierro (1991) 1 Cal.4th 173, 204.)

The record does not establish trial counsel was inadequate or an irreconcilable conflict existed between defendant and counsel. The trial court did not err in denying defendant's Marsden motion.

Defendant claims trial counsel was ineffective for not challenging prospective jurors who knew the arresting officer and one of the witnesses. The jurors in question stated they would be impartial in spite of knowing witnesses to the case.

Nothing in the record supports removing the jurors for cause. There is no indication of general disqualification, or actual or implied bias. (Code Civ. Proc., §§ 225, subd. (b)(1), 229; see People v. King (1938) 30 Cal.App.2d 185, 207 [juror acquainted with district attorney and defendant's counsel, and client of district attorney did not establish challenge for cause].) Counsel is not ineffective for failing to challenge a juror for cause without basis. "Counsel is not required to make futile objections or motions merely to create a record impregnable to assault for claimed inadequacy of counsel. [Citation.]" (People v. Weston (1981) 114 Cal.App.3d 764, 780.)

Nor was counsel incompetent for failing to exercise peremptory challenges against the prospective jurors. "Because the use of peremptory challenges is inherently subjective and intuitive, an appellate record will rarely disclose reversible incompetence in this process." (People v. Montiel (1993) 5 Cal.4th 877, 911.) Reviewing courts generally defer to trial counsel's tactical decisions. (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) Nothing in the record provides a reason to rescind deference to trial counsel's tactical decision.

Defendant claims appellate counsel was ineffective for failing to preserve his right to file a supplemental brief, for telling him he had no right to appeal, and for not challenging a jury instruction that a guilty verdict must be unanimous (CALCRIM No. 3517). CALCRIM No. 3517 correctly states a defendant's California constitutional right to be free from conviction absent a unanimous verdict. (Cal. Const., art. I, § 16.) We allowed defendant to file a supplemental brief, so he was not prejudiced by any alleged delay of appellate counsel. Finally, nothing in the record supports defendant's contention that appellate counsel informed him he had no right to appeal.

Our independent review of the record, however, reveals that a modification in defendant's custody credits is required. The trial court awarded custody credits in conformance with the amendments to section 4019 effective January 25, 2010. (§ 4019, former subds. (b), (c); Stats. 2009, 3d Ex.Sess. 2009-2010, ch. 28, § 50.) Under those amendments, a term of four days was deemed to have been served for every two days spent in actual custody, because a defendant would receive two days' custody credit and two days' conduct credit for every two days actually spent in custody. (§ 4019, former subd. (f).) Thus, if a defendant spent an even number of days in custody, his conduct credits would be equal to his custody credits. If a defendant spent an odd number of days in custody, however, his conduct credits would not equal his custody credits, because while he would receive one day of custody credit for the odd day served in custody, he would not receive a day of conduct credit for that day.

Thereafter, however, the Legislature enacted yet another amendment that affects the credit calculation. (See § 2933, subd. (e)(1) [as amended by Stats. 2010, ch. 426, § 1, eff. Sept. 28, 2010].) Under this amendment, section 2933 now provides one day of conduct credit for every day actually served in custody, and thus a defendant who serves an odd number of days in custody is not deprived of the one extra day of conduct credit for the odd day, as was previously the case.

This most recent amendment to section 2933 applies to all appeals, including defendant's, pending as of September 28, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Doganiere (1978) 86 Cal.App.3d 237; People v. Hunter (1977) 68 Cal.App.3d 389.)

Defendant is not among the prisoners excepted from the additional accrual of credit. (§ 2933, subd. (e)(3).) Thus, defendant is entitled to 163 actual days and 163 conduct days, for a total of 326 days of presentence conduct credit.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to increase defendant's conduct credits from 162 to 163, for a total of 326 days of custody credit. As modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment accordingly and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur: NICHOLSON, Acting P. J. HOCH J.

20111019

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