Filed 6/25/21 P. v. Guidotti 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
----
THE PEOPLE, C087893
Plaintiff and Respondent, (Super. Ct. Nos. 18F038,
16SR005)
v.
FREDERICK JACOB GUIDOTTI,
Defendant and Appellant.
Sentenced to a state prison term following conviction by jury, defendant Frederick
Jacob Guidotti contended in his original brief that he was entitled to reversal because the
trial court erred in denying his motion for mistrial based on jury misconduct. In
subsequent supplemental briefs, he contends that he is entitled to a remand for a Dueñas
hearing (People v. Dueñas (2019) 30 Cal.App.5th 1157) on the fines, fees, and
assessments imposed by the trial court at sentencing, and that in light of the enactment of
Senate Bill No. 136 (Stats. 2019, ch. 590, § 1 (2019-2020 Reg. Sess.), eff. Jan. 1, 2020),
he is also entitled on remand to an order striking the one-year enhancement added to his
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sentence for his prior felony conviction (Pen. Code, § 667.5, subd. (b)).1 Agreeing only
with defendant’s last point, we shall strike the enhancement and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In case No. 18F038, an amended information charged defendant with felony
evading a police officer (Veh. Code, § 2800.2), and alleged that defendant had served a
prior prison term (§ 667.5, subd. (b)) for obstructing or resisting a peace officer in
performance of his duties (§ 69).
After trial, the jury convicted defendant on the charged offense and defendant
admitted the prison prior.
The trial court sentenced defendant to an aggregate state prison term of four years,
consisting of three years on the charged offense plus one year consecutive for the prior
prison term. Simultaneously, in case No. 16SR005, the court found defendant guilty of a
violation of postrelease community supervision, reinstated that supervision, and ordered
him to serve 180 days in custody concurrent with his sentence in the principal case.2
At trial, California Highway Patrol Officer Jesse Brookins testified as follows:
At around 3:25 p.m. on February 9, 2018, as he was patrolling in uniform on
Lewiston Road, a two-lane road in Trinity County, in a marked patrol vehicle, he saw an
eastbound green Dodge Caravan approaching his location. As it passed roughly 10 feet
from him at approximately 30 miles per hour, Officer Brookins could see that the driver
was defendant, whom he recognized from 40 to 50 prior contacts over the last four or five
years and whose license he believed to be suspended; the officer could also see through
the Caravan’s windshield and open driver-side window that defendant was not wearing a
1 Undesignated statutory references are to the Penal Code.
2 This court granted defendant’s motion for constructive notice of appeal to allow
the appeal to encompass case No. 16SR005.
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seatbelt. The officer saw defendant’s face and his distinctive neck tattoos; although he
was wearing a shirt, at least the tops of the tattoos were visible.
Officer Brookins made a U-turn and tried to overtake defendant’s vehicle,
activating his lights and siren. Defendant was evidently trying to flee: as he passed an
elementary school, his speed, confirmed by the officer’s radar unit, was 93 miles per
hour. It was a weekday, and there was a good deal of traffic going in and out of the
school at that time of day.
After leaving the school zone, defendant made several turns, finally reaching
Third Avenue, where Officer Brookins lost sight of him. When the officer turned onto
Third Avenue, he found the unoccupied Caravan parked in front of a house on the street,
with its engine running; no one was nearby. Neighbors told the officer that defendant
lived at or frequented that house. The officer did not find physical evidence that
defendant had been in the Caravan.
The Caravan was registered to persons whose names Officer Brookins recalled as
William S. and Judith S. According to a correctional officer who worked at Trinity
County Jail, when defendant was booked into the jail on a later date in 2018, he gave the
address where the Caravan was parked on the date of the incident as his residence and
listed Judy S. and Leon S., who lived on Second Avenue, as his emergency contacts.
Defendant did not present evidence. His counsel argued mistaken identity to the
jury, based on the supposed difficulty of seeing the driver of the Caravan clearly under
the circumstances and the lack of evidence after Officer Brookins found the parked
vehicle that defendant owned it or had been in it.
During deliberations, a juror alleged misconduct by fellow jurors, and defendant
moved for a mistrial. After investigating the matter, the trial court denied the motion,
finding no misconduct had occurred. We go into more detail on this episode in part I of
the Discussion.
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The jury subsequently requested and received a readback of Officer Brookins’s
testimony. Shortly after the readback, the jury returned its verdict.
DISCUSSION
I
Defendant contends his conviction must be reversed because the trial court erred
by denying his motion for mistrial based on jury misconduct. We disagree.
Background
After deliberations began, the trial court stated: “[W]e received some information
from the jurors that they took a break, and that during the break two jurors stayed in the
jury room. One of the jurors left and then came back, and when she came back she
overheard the two jurors talking about the case. She informed them they shouldn’t be
doing that. Supposedly they said okay, they’ll stop, and then they’re like something
you’re right. She then informed the bailiff who informed the Court, and she was asking
that something be addressed regarding this conduct. [¶] So what we’re going to do is
have [defendant] brought down from the jail, we’ll bring the jury up as a group, and then
I’ll explain to them we have information we have to look to, we’ll have them sit in the
jury room and we’ll call—is it (JUROR NO. 76185) is the person complaining and the
two individuals and then get the information on the record. The jury can still hang out in
the jury room and library, and then we can decide what to do from there.”
After a short recess, the trial court noted that the jury wanted a readback of Officer
Brookins’s testimony, which the court thought would take only five minutes. The court
deferred ruling on that request until after the misconduct issue had been resolved.
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When the jury returned to the courtroom, the trial court sent them to the library,
except for Juror No. 76185. After hearing from that juror, the court called in the others
directly implicated one at a time.3
Juror No. 76185 stated: “We were taking a break, and when I came back to the
room there were probably three or four people, other jurors in the room, and the Jury
Foreman, I could hear him talking about the case. I don’t know to whom he was
speaking, who overheard, but he was talking about—” When the trial court asked if the
juror had heard what the foreman had to say, the juror said, “I don’t recall.” However,
“[i]t was about the case, and it sounded like he and the other gentleman were agreeing on
a point that had caused some disagreement during . . . our discussions.” The juror added
that she now believed the foreman was talking to Juror No. 78728.
The trial court then brought in Juror No. 76877, the foreman. Juror No. 76877
admitted: “Yeah, it slipped my mind, I was relaxed. I started to say a half a sentence
about I can’t believe that someone would park, you know, just kind of like thinking in my
mind. Then she came in and said are you talking about the case? I said, yeah, I didn’t
think about it. And she goes well I need to tell the bailiff about it. Then I said okay, and
that was it.” Asked if there was any discussion with anyone else, Juror No. 76877 stated:
“I got that much out of my mouth, and that was it.” He added: “There were two jurors
just sitting there, we were just all relaxed. . . . Juror 7 was setting [sic] next to me,
(JUROR NO. 77921), so juror 7, I can’t remember the other guy, what number he is, but
yeah I was like we were sitting there talking about something else entirely, and then that
just came out of my mouth like, it was just like oh, and she walked in the door as that
happened, the three of us were sitting there. Well, I need to go tell the bailiff. I go
okay.” Asked if any discussion happened, he answered: “We stopped right there.”
3 After each juror’s statement, the trial court asked if the attorneys had questions.
They did not.
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Asked if Juror No. 77921 was also there, the foreman replied: “He was just sitting
there. He didn’t say a word.” In addition, he recalled that Juror No. 78728 was there.
After the foreman, Juror No. 77921 was called in. Asked if he recalled what the
foreman had said, he replied: “No, I wasn’t really listening.” He denied having
discussions with any jurors during the break; when he got back from the break he was on
his cell phone.
After Juror No. 77921, the trial court called in Juror No. 78728. Asked if he
remembered any conversation during the break, he said: “[The foreman] keeps saying
that he made the first comment, but I think I actually did. I made a comment that after
our first session together it . . . you could see that there are opinions all over the board,
and this is going to be . . . it’s going to be difficult to get people to change their minds
about the way they feel. I think that’s the first comment I made. [¶] And then he started
to respond, and that’s when the lady came in and said oh, you guys aren’t supposed to be
ta[l]king about this. Oh, you’re right, you’re absolutely right, we shouldn’t be because
everybody was supposed to be in the room.” Juror No. 78728 did not believe there was
any discussion about the facts of the case or about how to try to decide the matter. The
juror did not see any of the other jurors discussing anything.
After Juror No. 78728 had left the courtroom, defense counsel acknowledged it
was “somewhat questionable” to what degree misconduct had occurred, but he felt
obligated to move for mistrial. The prosecutor asserted it did not appear from what had
been elicited that the jurors discussed the case on the break.
The trial court ruled: “And from what I gleaned from the jurors, [JUROR
NO. 76185] overheard some conversation, didn’t hear the conversation. [JUROR
NO. 78728] actually says he began the conversation not as a deliberation, but just as an
observation that it might be hard. I don’t think that is misconduct to talk about
observations, what is happening. They weren’t talking about the facts of the case. They
weren’t deliberating on the matter, they weren’t trying to make a decision. [JUROR NO.
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77921] says he didn’t even hear, he was on the phone. And then [JUROR NO. 76877]
said that he began to say something and then that’s when [JUROR NO. 76185] came in
and—and he had half a sentence out. There was no discussion. There was . . . there was
no deliberations going on outside the presence of the other jurors. But I don’t think that
what we’ve heard now rises to the level of juror misconduct, so I’m going to deny your
request for mistrial.”
Analysis
In analyzing claims of prejudicial juror misconduct, we first determine whether
misconduct occurred. (People v. Collins (2010) 49 Cal.4th 175, 242.) It is misconduct
for a juror to discuss the case outside of deliberations or to violate instructions, such as
the instruction to refrain from discussing the case without all of the jurors present.
(People v. Weatherton (2014) 59 Cal.4th 589, 599-600 (Weatherton); People v. Linton
(2013) 56 Cal.4th 1146, 1194.)
If the defendant establishes that there was misconduct by a juror, prejudice is
presumed and the People must rebut the presumption to avoid reversal. (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1178.) In considering this issue we accept the trial
court’s factual findings and credibility determinations if supported by substantial
evidence. (People v. Majors (1998) 18 Cal.4th 385, 424-425.) However, we decide
independently whether any misconduct was prejudicial, meaning whether there is a
substantial likelihood one or more jurors were biased against the defendant. (Weatherton,
supra, 59 Cal.4th at p. 598.)
Here, even if misconduct technically occurred, it was de minimis and could not
have prejudiced defendant. Jurors who spoke about the deliberation process or the
evidence when all jurors were not in the jury room should not have done so, as they
immediately acknowledged when reprimanded by the complaining juror. But, as the trial
court found, there was no discussion of the evidence. The complaining juror could not
recall what the foreman was saying when she reentered the jury room, and her conclusion
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that he and another juror were agreeing on a point of evidence was unsupported by her
own recollection or by any other juror’s statement. The evidence is undisputed that the
only remark going to a fact in the case, the foreman’s ambiguous and fragmentary
statement “I can’t believe someone would park,” was unheard by any other juror—a point
which defendant ignores when recounting this evidence. The statement by another juror
that people’s opinions seemed to be all over the place and it would be hard to change
minds did not suggest any view of the evidence or the appropriate verdict. Thus,
defendant’s characterization of the jurors’ remarks as “discussing the case” or as
“persuading other jurors of their positions” is inapt.
But even assuming misconduct, defendant’s claim of prejudice does not withstand
scrutiny. He asserts correctly that identity, the only issue in the case, “was vigorously
disputed.” But he points to nothing that would have led a reasonable jury to doubt
Officer Brookins’s staunch identification of him as the culprit based on the officer’s
close-up visual observation of defendant, whose appearance he had long been familiar
with, driving the Caravan, plus the fact that immediately after the chase the vehicle was
found parked in front of the residence defendant claimed as his. And defendant does not
even try to explain how the alleged jury misconduct gave rise to a reasonable possibility
that one or more jurors were biased against him. (Weatherton, supra, 59 Cal.4th at
p. 598.) Contrary to defendant’s view, the trial court did not need to admonish the jurors
to follow their instructions in the future, since the jurors who committed the alleged
misconduct had already recognized their lapse.
Defendant asserts that the jurors’ request for a readback of Officer Brookins’s
testimony shows the case was close and the evidence against him was “far from
overwhelming.” We are not persuaded. In People v. Pearch (1991) 229 Cal.App.3d
1282, 1295, which defendant relies on, the evidence was complex and the witnesses
numerous; the jury requested readbacks of five witnesses’ testimony, as well as asking
questions going to evidentiary points in conflict. Here, the matter was factually simple,
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little if any evidence was in dispute, and the jury asked no evidentiary questions. The
fact that the jury returned its verdict soon after it got the readback implies that the case
was not close. Pearch is inapposite.
The trial court did not err by denying defendant’s mistrial motion.
II
At sentencing, the trial court imposed a $1,200 restitution fine (§ 1202.4, subd.
(b)), a matching suspended parole revocation restitution fine (§ 1202.45), a $40 court
operation fee (§ 1465.8), and a $30 criminal conviction fee (Gov. Code, § 70373).
Defendant did not object to any of these fines and fees.
Defendant contends he is entitled to a remand for a Dueñas hearing on his ability
to pay the fines and fees imposed. Numerous courts have rejected Dueñas. (People v.
Curry (2021) 62 Cal.App.5th 314, 328; People v. Cota (2020) 45 Cal.App.5th 786, 794-
795; People v. Kingston (2019) 41 Cal.App.5th 272, 279; People v. Hicks (2019) 40
Cal.App.5th 320, 322, rev. granted Nov. 26, 2019, S258946; People v. Aviles (2019) 39
Cal.App.5th 1055, 1060; People v. Caceres (2019) 39 Cal.App.5th 917, 920.) We do so
as well.
III
Defendant contends that, in light of the amendment to section 667.5, subdivision
(b) enacted by Senate Bill No. 136, which restricts the one-year enhancement under that
statute to sexual felonies, the sentence enhancement for his prior nonsexual felony must
be stricken. The Attorney General agrees that the statute has retroactive effect and that
defendant is entitled to the relief he seeks. We agree with the parties and strike the
enhancement.
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DISPOSITION
The one-year enhancement to defendant’s sentence imposed under section 667.5,
subdivision (b) is stricken. In all other respects, the judgment is affirmed.
/s/
BLEASE, Acting P. J.
I concur:
/s/
HOCH, J.
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ROBIE, J., Concurring and Dissenting.
I concur in all parts of the Discussion except the analysis in part II. Defendant
believes Dueñas calls into question the imposition of the $1,200 Penal Code
section 1202.4 restitution fine and matching suspended Penal Code section 1202.45
parole revocation restitution fine, a $40 Penal Code section 1465.8 assessment, and a $30
Government Code section 70373 assessment without a determination of his ability to pay.
(People v. Dueñas (2019) 30 Cal.App.5th 1157.) I conclude defendant forfeited his
challenge to the restitution fines because our Supreme Court has already determined an
objection necessary to challenge the imposition of the general restitution fine in excess of
the mandatory minimum. (People v. Nelson (2011) 51 Cal.4th 198, 227.) As to the
challenged assessments, I agree with Dueñas that principles of due process would
preclude a trial court from imposing the assessments if the defendant demonstrates he or
she is unable to pay them. (Dueñas, at p. 1168.) I do not find the analysis in Hicks to be
well-founded or persuasive and believe the majority has it backwards -- it is Hicks that
was wrongly decided, not Dueñas. (People v. Hicks (2019) 40 Cal.App.5th 320, review
granted Nov. 26, 2019, S258946.)
Defendant has not forfeited the Dueñas argument relating to the assessments, as
the People contend. I agree that, as stated in Castellano, a trial court is required to
determine a defendant’s ability to pay only if the defendant raises the issue, and the
defendant bears the burden of proving an inability to pay. (People v. Castellano (2019)
33 Cal.App.5th 485, 490.) In the absence of authority invalidating the challenged
assessments on inability to pay at the time the trial court imposed them, however,
defendant could not have reasonably been expected to challenge the trial court’s
imposition thereof. (People v. Welch (1993) 5 Cal.4th 228, 237 [“[r]eviewing courts
have traditionally excused parties for failing to raise an issue at trial where an objection
would have been futile or wholly unsupported by substantive law then in existence”].)
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I believe a limited remand under Dueñas is appropriate to permit a hearing on
defendant’s ability to pay the challenged assessments because his conviction and
sentence are not yet final. (See People v. Castellano, supra, 33 Cal.App.5th at
pp. 490-491.)
/s/
ROBIE, J.
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