People v. Guidry CA2/1 ( 2021 )

Filed 5/25/21 P. v. Guidry CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B301133
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. VA150626,
v. BA471541)
JOHN E. GUIDRY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Raul A. Sahagun, Judge. Affirmed.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
A jury convicted John E. Guidry of grand theft, and the
trial court sentenced him to six years in prison. Guidry contends
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the trial court erroneously denied his Pitchess motion and
motion to exclude evidence, and violated his right against self-
incrimination. We affirm.
BACKGROUND
On May 2, 2019, Guidry used a hammer to break into a
cash register at a Walmart. He removed cash from the register
and placed it in his pocket, put the hammer in his front
waistband, and left the store. He was detained and searched
outside the store by Los Angeles County Sheriff’s deputies, who
retrieved $2,230 from his buttocks area, where it had been
secured within transparent leggings.
Before trial, Guidry moved for production of confidential
personnel files of the deputies who arrested him. The court
denied the motion for noncompliance with notice requirements.
Guidry also moved to suppress evidence of the money
discovered in his buttocks area, arguing the deputies conducted
an unreasonable public strip search to find the money. After
hearing testimony from deputies, the trial court denied the
motion on the ground that the search was reasonable: The
money was visible underneath transparent leggings once
deputies pulled back Guidry’s waistband.
At trial Erik Tejada, a Walmart employee, testified that he
followed Guidry through the store and saw him break into a cash
register and leave. The incident was captured on a surveillance
video that was too pixilated to identify Guidry’s face, but Tejada,
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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who admittedly lost sight of him for several seconds while
following him, identified Guidry as the culprit.
Guidry represented himself, presenting a defense of
mistaken identity. When cross-examining Tejada, Guidry twice
referred to the person Tejada had followed as himself. When
Tejada testified, “I was following you,” Guidry stated, “You were
following me, but you lost sight of the person you said.” After
Tejada admitted that even though he followed Guidry closely, he
did not appear in any security footage, Guidry stated, “Even
though you are following me at a rapid pace . . . .”
During closing argument, the prosecutor stated, “The
kicker in this case is that the defendant, when he was
questioning the witnesses, kept referring, well, when you saw me,
when you followed me . . . [¶] . . . [¶] He continually referred to
this individual as, ‘me’ himself. If it truly wasn’t him, he would
have— . . . [¶] . . . – been able to keep that distance from himself
throughout the entire trial, but he wasn’t because he knows it’s
him.”
The jury convicted Guidry of grand theft. (Pen. Code,
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§ 487, subd. (a).)
DISCUSSION
A. Pitchess Motion
Guidry mailed his Pitchess motion to the Sheriff’s
Department’s custodian of records on June 28, 2019, and a
hearing was scheduled for July 22, 2019. He filed no proof of
service until the day of the hearing. Guidry’s declaration in
support of the motion made no discussion of the charged offense
2
All undesignated statutory references will be to the Penal
Code.
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and proposed no defense, merely alleging that deputies used
excessive force when they arrested him. The motion provided no
copy of the police report. The Sheriff’s Department opposed the
motion expressly on the grounds of inadequate notice and service,
and additionally argued that the motion failed on the merits.
The department declined to appear at the hearing.
Guidry argues the court erred in denying his Pitchess
motion on notice grounds because he complied with notice
requirements, which in any event the Sheriff’s Department
waived. We disagree.
Confidential peace officer personnel records are
discoverable upon a written motion establishing good cause.
(§§ 832.5, 832.7; Evid. Code, § 1043, subds. (a) & (b); see City of
Tulare v. Superior Court (2008) 169 Cal.App.4th 373, 382-383.)
Notice of the motion to the officer’s custodian of records must be
“served and filed at least 10 days before the hearing. . . . Proof of
service of the notice shall be filed no later than five court days
before the hearing.” (Evid. Code, § 1043, subd. (a)(2).) “No
hearing upon a motion for discovery or disclosure shall be held
without full compliance with the notice provisions of this section
except upon a showing by the moving party of good cause for
noncompliance, or upon a waiver of the hearing by the
governmental agency identified as having the records.” (Evid.
Code, § 1043, subd. (d).)
To show good cause, a Pitchess motion must be
accompanied by a declaration proposing a defense to the pending
charges and a factually specific articulation how the discovery
sought may lead to relevant evidence. (Warrick v. Superior Court
(2005) 35 Cal.4th 1011, 1025; see People v. Salcido (2008) 44
Cal.4th 93, 146 [a “logical connection” must be made between the
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charges and defense].) The motion must also be accompanied by
a copy of the police report. (Evid. Code, § 1046.)
We review the denial of a Pitchess motion for an abuse of
discretion, i.e., by determining if the denial exceeded the bounds
of reason under all of the circumstances or was arbitrary or
capricious. (People v. Lewis and Oliver (2006) 39 Cal.4th 970,
992.)
Here, Guidry timely mailed his Pitchess motion to the
Sheriff’s Department’s custodian of records more than 10 court
days before the hearing, but filed no proof of service until the day
of the hearing. Because no proof of service was filed five days
before the hearing, Guidry failed to fully comply with the notice
provisions of Evidence Code section 1043, and the court acted
within its discretion in denying the motion. Although the court
did not expressly rely on the untimely proof of service to deny the
motion, we review a trial court’s ruling, not its rationale. (People
v. Smithey (1999) 20 Cal.4th 936, 972.)
Moreover, Guidry’s declaration in support of the motion
made no discussion of the charged offense and proposed no
defense, merely alleging that deputies used excessive force when
they arrested him. And he failed to provide a police report, as
required by Evidence Code section 1046. These failures
separately justified denial of the motion.
Guidry argues that his delay in filing a proof of service
caused the Sheriff’s Department no prejudice. We agree, but
mere lack of prejudice does not mean a trial court abuses its
discretion when it denies a motion that fails to comply with
statutory requirements.
Guidry argues that the Sheriff’s Department waived any
procedural argument by presenting an alternative argument on
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the merits in its opposition. We disagree, as the Sheriff’s
Department expressly stated in its opposition that it stood on the
service requirements.
B. Motion to Suppress Evidence
Before trial, Guidry moved to suppress the cash found
on his person, arguing the public “strip search” by which the
money was discovered violated his Fourth Amendment
rights.
At the hearing on the motion, Sheriff’s Deputies
testified that while in the Walmart parking lot, Tejada
identified Guidry as the suspect who had been reported to
them as having broken into several cash registers and taken
money. He wore “big and loose” pants that were falling down
after deputies removed an electrical cord Guidry used for a
belt. The all-male deputies surrounded Guidry with four to
six patrol cars, away from the public, performed a patdown
search for weapons, finding a concealed hammer in his
waistband, then pulled back the waistband and discovered
that “[s]ome bills were on his butt cheeks and some bills
were between his buttocks and some [transparent] spiderweb
leggings” or “fishnet stockings.” The deputies never touched
Guidry’s buttocks, and denied that this constituted a strip
search.
The trial court found the money was “secured by these
either fishnet stockings or these web stockings or something
which caused the money to be secure at or near the buttocks
area,” and could be seen when deputies pulled open Guidry’s
waistband. The court found it was “not a strip search where
they’re looking in the body cavity attempting to locate
something which is secreted inside the body,” and the
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deputies were “really not searching at all,” but “retrieving
what [was] seen and once the pants are loosened.” The court
found the search to be reasonable, and denied Guidry’s
motion to suppress.
Guidry argues the court erred in denying his motion to
suppress evidence because Sheriff’s Deputies discovered the
evidence only after an unreasonable public strip search. We
disagree.
“The Fourth Amendment prohibits ‘unreasonable searches
and seizures’ by the Government, and its protections extend to
brief investigatory stops of persons or vehicles that fall short of
traditional arrest. [Citations.] Because the ‘balance between the
public interest and the individual’s right to personal security,’
[citation], tilts in favor of a standard less than probable cause in
such cases, the Fourth Amendment is satisfied if the officer’s
action is supported by reasonable suspicion to believe that
criminal activity ‘ “may be afoot.” ’ (United States v. Arvizu
(2002) 534 U.S. 266, 273 [122 S.Ct. 744, 151 L.Ed.2d 740]; see
People v. Dolly (2007) 40 Cal.4th 458, 463 [“An investigatory
detention of an individual in a vehicle is permissible under the
Fourth Amendment if supported by reasonable suspicion that the
individual has violated the law”].)
A search conducted upon a reasonable suspicion of criminal
activity must be reasonable in the execution. (Bell v. Wolfish
(1979) 441 U.S. 520, 559.) “The test for reasonableness under the
Fourth Amendment is not capable of precise definition or
mechanical application. In each case it requires a balancing of
the need for the particular search against the invasion of
personal rights that the search entails.” (Ibid.) Relevant factors
include the justification for the search, the place and manner in
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which it is conducted, and the scope of the particular intrusion.
(Ibid.)
In People v. Smith (2009) 172 Cal.App.4th 1354, police
conducted a patdown search inside the open back door of a patrol
car with two other officers standing around the suspect. After
that search yielded negative results, the officers opened the
suspect’s pants, lowered them about a foot, and “pulled the elastic
waistband of [the suspect’s] underwear ‘out away from his body’
and saw a large bag the size of a baseball ‘sitting right on top of
his penis.’ ” (Id. at p. 1358.) The court concluded that the search
did not constitute a public strip search nor violate the Fourth
Amendment. (Id. at pp. 1357, 1363-1364.)
When analyzing a ruling on a suppression motion, we
“ ‘ “defer to the superior court’s express and implied factual
findings if they are supported by substantial evidence, [but] we
exercise our independent judgment in determining the legality of
a search on the facts so found.” ’ ” (People v. Tully (2012) 54
Cal.4th 952, 979.) “ ‘As the finder of fact . . . the superior court is
vested with the power to judge the credibility of the witnesses,
resolve any conflicts in the testimony, weigh the evidence and
draw factual inferences in deciding whether a search is
constitutionally unreasonable.’ ” (Ibid.)
Here, deputies removed none of Guidry’s clothing other
than a wire he used as a belt. They did not lower his pants,
but merely pulled open the waistband. The search was
conducted by male deputies surrounded by four to six patrol
cars, away from the public, and without force, and never
included the direct touching of Guidry’s buttocks. Under
these circumstances, we conclude the search involved no
broad invasion of privacy, and was reasonable.
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C. Prosecutorial Misconduct
As we noted above, during closing argument the
prosecutor alluded to Guidry admitting during his cross-
examination of Tejada that he was the suspect Tejada had
followed through Walmart.
Prior to opening statements, the court instructed the
jury that attorney and party “remarks are not evidence,”
that “questions are not evidence,” and that “[o]nly the
witnesses’ answers are evidence. The attorneys’ questions
are significant only if they help you understand the
witnesses’ answers. [¶] Do not assume that something is
true just because one of the attorneys or parties asked a
question that suggested it is true.”
Prior to closing arguments, the court instructed the
jury that “[n]othing that the attorneys say is evidence. The
defendant is acting as his own attorney, therefore, any
statement made by the defendant in court is not
evidence. . . . Their questions are not evidence. Only the
witnesses’ answers are evidence. The attorneys’ questions
are significant only if they help you to understand the
witnesses’ answers. Do not assume that something is true
just because one of the attorneys asked a question that
suggested it was true.”
Guidry argues the prosecutor’s remarks improperly
used Guidry’s questions during the trial as evidence of guilt.
We disagree.
The jury was instructed to consider only the evidence,
and further instructed that attorney or party comments or
questions were not evidence. A jury is presumed to follow
instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
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Guidry argues that the trial court’s denial of his
objections to the prosecutor’s statements constituted an
implied instruction to the jury that the prosecution could
rely on Guidry’s trial questions as evidence of guilt. We
disagree. Denial of an objection to a statement indicates
only that the statement is nonobjectionable, which can be for
any of a number of reasons. It implies nothing about the
merits of the statement, much less contradicts express
instructions.
In any event, no use by the jury of Guidry’s purported
admissions could have prejudiced him. When cross-
examining Tejada, Guidry stated only that Tejada had
followed him in Walmart, but the jury already knew this
from Tejada’s testimony. Guidry’s theory was not that
Tejada had never followed him but that when he briefly lost
sight of a first suspect, he erroneously reacquired Guidry,
whom he followed out the door. Moreover, the evidence of
guilt was overwhelming. Tejada identified Guidry as the
person who broke open registers at Walmart and as the one
person he followed, both before and after momentarily losing
sight of him. And Guidry was immediately arrested outside
the store with the hammer and the money in his possession.
Therefore, any error was harmless under any standard. (See
Chapman v. California (1967) 386 U.S. 18, 24 [reversal is
required under the federal Constitution unless the error was
harmless beyond a reasonable doubt]; People v. Watson
(1956) 46 Cal.2d 818, 836 [state law error requires reversal
only if it is reasonably probable that the error had an effect
on the verdict].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
*
FEDERMAN, J.
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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