People v. Alvarez ( 2022 )

Filed 2/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B309269
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA123941)
v.
CARLOS HECTOR ALVAREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jacqueline H. Lewis, Judge. Affirmed.
Daniel Milchiker, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Colleen M. Tiedemann, Deputy Attorney
General, for Plaintiff and Respondent.
_________________
A jury convicted Carlos Hector Alvarez of one count of first
degree residential burglary. On appeal Alvarez contends the trial
court erred in admitting his statement to law enforcement
officers obtained in violation of Miranda v. Arizona (1966)
384 U.S. 436 (Miranda). Alvarez also contends the court’s order
during the COVID-19 pandemic that all persons in the
courtroom, including testifying witnesses, wear a mask covering
the mouth and part of the nose interfered with the jury’s ability
to assess witness demeanor and thus violated his
Sixth Amendment right to confrontation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
An information filed February 19, 2020 charged Alvarez
with one count of first degree residential burglary (Pen. Code,
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§ 459) with a person other than an accomplice present (§ 667.5,
subd. (c)(21)). Alvarez pleaded not guilty.
2. The Evidence at Trial
On January 22, 2020 Elen and Stephan Arabian’s young
son alerted them to a man standing in their yard. The Arabians
checked their home security camera and saw Alvarez standing
underneath their son’s window. After calling the 911 emergency
number, the Arabians checked the security camera again and
saw Alvarez trying to open the door to their converted, furnished
garage, which Stephan Arabian used as a cigar room. When
Los Angeles County Sheriff’s deputies arrived at the Arabians’
home, Elen led them in through the house and unlocked the door
of the cigar room leading to the outside. As soon as it was
1
Statutory references are to this code.
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unlocked, the door “flung open” from the outside, and Alvarez
stepped into the house. Los Angeles County Sheriff’s Deputies
Luis Capilla and Vincent Soto immediately apprehended him.
Alvarez was wearing socks on his hands. Deputy Capilla testified
that, in his training and experience, individuals covered their
hands with socks and similar items to prevent them from leaving
fingerprint evidence.
Alvarez was handcuffed and led to the patrol car. Before
reaching the car, the deputies noticed a large plastic trash bag
near the side gate. Deputy Vincent Soto asked Alvarez whether
the bag was his. Alvarez replied, “Yeah.” Soto picked up the bag
and took it to his patrol car. Deputies did not provide Alvarez
with Miranda warnings before this exchange took place.
Surveillance footage from the home security camera
introduced at Alvarez’s trial showed Alvarez climbing over a
locked fence to enter the Arabians’ yard and then standing at the
door to the converted garage for more than nine minutes. The
outside doorknob was damaged. Elen Arabian testified the
doorknob had not been damaged prior to Alvarez’s appearance at
the home.
Alvarez did not testify, and the defense presented no
witnesses. The theory of the defense was that, while Alvarez had
been in the backyard, he never actually entered the home, so
there was no burglary. Alternatively, even if he had entered the
home, he did not do so with intent to commit a theft.
3. Verdict and Sentence
The jury convicted Alvarez of first degree residential
burglary with a person present. The court sentenced Alvarez to
the middle term of four years in state prison.
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DISCUSSION
1. Alvarez Forfeited His Miranda Objection
a. Governing law
“A defendant who is in custody . . . must be given Miranda
warnings before police officers may interrogate him.” (People v.
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Haley (2004) 34 Cal.4th 283, 300.) Custodial interrogation
means “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” (Miranda, supra,384 U.S. at p. 444; accord, Illinois v. Perkins (1990) 496 U.S. 292,
296; People v. Thomas (2011) 51 Cal.4th 449, 476.) Statements
obtained in violation of Miranda are generally inadmissible; they
may be admitted for the limited purpose of impeachment if
otherwise voluntarily made. (Harris v. New York (1971) 401 U.S.
222, 225; People v. Case (2018) 5 Cal.5th 1, 26.)
b. Relevant proceedings
At trial the prosecutor asked Deputy Capilla on direct
examination, “When you saw that plastic bag, did you ask the
defendant if the plastic bag was his?” Capilla responded, “My
partner [Deputy Soto] asked him in my presence if it was his.”
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“As a prophylactic safeguard to protect a suspect’s Fifth
Amendment privilege against self-incrimination, the United
States Supreme Court, in Miranda, required law enforcement
agencies to advise a suspect, before any custodial law
enforcement questioning, that ‘he has the right to remain silent,
that anything he says can be used against him in a court of law,
that he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires.’” (People v. Martinez (2010)
47 Cal.4th 911, 947, quoting Miranda, supra, 384 U.S. at p. 479.)
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The prosecutor asked, “And what did the defendant say—”
Before the prosecutor finished the question, defense counsel
interrupted with an objection, citing Miranda. The court
responded, “Well, the question at this point was, ‘Did you ask the
defendant if the plastic bag was his?’ And he said, ‘My partner
ask[ed] him.’” To that question the court overruled the “Miranda
objection” as well as defense counsel’s hearsay objection, which
he made immediately following the court’s statement. The
prosecutor continued, “And what did the defendant say?”
Defense counsel did not object. Deputy Capilla replied Alvarez
had said, “yeah,” indicating the bag belonged to him. Deputy
Soto also later testified without objection that he had asked
Alvarez whether the plastic bag was his and Alvarez had
responded it was. During closing argument the prosecutor cited
the presence of the trash bag, along with the socks on Alvarez’s
hands and the surveillance footage showing Alvarez scaling a
locked gate, as evidence Alvarez intended to commit a theft.
c. Alvarez’s argument is forfeited
Alvarez contends the court erred in overruling his Miranda
objection because the evidence was undisputed the officers had
asked him an incriminating question while he was handcuffed
and in police custody. At the very least, he argues, the court
should have stopped proceedings and held an evidentiary hearing
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to determine whether a custodial interrogation had occurred.
3
Alvarez did not move prior to trial to suppress or exclude
his statement nor request an evidentiary hearing at trial. In any
event, there were no disputed facts around the statement for the
court to resolve at an evidentiary hearing.
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Contrary to Alvarez’s argument, the trial court overruled
the objection because it was premature, not because the court
found a Miranda violation had not occurred. The court observed
the only question put to Deputy Capilla at the time defense
counsel objected was whether Deputy Capilla had asked Alvarez
if the bag was his. Because that question was limited to Capilla’s
statements, the court overruled the objection.
The trial court’s reasoning may well have been faulty—the
prosecutor had, in fact, asked the question (or, at least, most of
the question) to which a Miranda objection would be properly
directed. But after the court explained why it was overruling the
objection and the prosecutor again asked what Alvarez had said
in response to Deputy Soto’s question, it was defense counsel’s
responsibility to reassert his objection. He did not, nor did he
object when the prosecutor asked Deputy Soto the same question
later at trial. Alvarez’s Miranda argument is forfeited.
(See Evid. Code, § 353; see generally People v. Flinner (2020)
10 Cal.5th 686, 726 [“a defendant forfeits an argument on appeal
where he fails to object” at trial]; People v. Seijas (2005)
36 Cal.4th 291, 301 [“We have long held that a party who does
not object to a ruling generally forfeits the right to complain of
that ruling on appeal”; “[t]his bar ‘is but an application of the
general rule that questions relating to the admissibility of
evidence will not be reviewed on appeal in the absence of a
specific and timely objection in the trial court on the ground
sought to be urged on appeal’”].)
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2. The Court’s Order Requiring Testifying Witnesses To
Wear Face Coverings During the COVID-19 Pandemic
Did Not Violate Alvarez’s Sixth Amendment Right To
Confrontation
a. Relevant proceedings
Alvarez’s trial occurred during the COVID-19 pandemic.
During a pretrial hearing, Alvarez’s counsel stated his concern
that allowing people to wear masks on the witness stand to
protect against the spread of the virus would deprive Alvarez of
his constitutional right to confrontation. Judge Mike Camacho
responded witnesses might be able to drop their masks below
their mouths while testifying behind a plastic shield, which had
been installed on the witness stand following the COVID-19
outbreak, and return the masks to cover the tip of their nose and
mouths when not speaking. After the case was transferred from
Judge Camacho to Judge Jacqueline Lewis for trial, defense
counsel raised his concern again, asking that witnesses testify
without any facial covering. Judge Lewis stated, “Well, the
court’s not going to be granting that in full, but I do think having
them remove their mask so they can be seen, I think
momentarily, is appropriate.” However, the court continued, “we
do have issues in regard[] to safety obviously during the COVID
pandemic, and we can address that further as well.”
When the trial began and defense counsel again raised his
objection to testifying witnesses wearing masks, the court (Judge
Lewis) overruled the objection, explaining, “[I]t’s not being used
as a disguise for the witnesses. I do believe that, and again, I will
describe this particular mask on the record, that you can still see
their eyes. You can see a lot of expression in that part of their
face. I understand what your request is, but I’m going to have
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them use the mask for protection based on the orders of the
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presiding judge.”
The court described on the record the mask each witness
wore. As described, the masks covered the tip of the nose and
mouth of the witnesses, allowing the jury to see each witness’s
eyes and face from the tip of the nose to the top of the head.
b. Governing law and standard of review
The confrontation clause of the Sixth Amendment,
applicable to the states through the 14th Amendment, provides,
“In all criminal prosecutions, the accused court shall enjoy the
right . . . to be confronted with the witnesses against him . . . .”
This right “‘provides two types of protections for a criminal
defendant: The right physically to face those who testify against
him, and the right to conduct cross-examination.’” (Coy v. Iowa
(1988) 487 U.S. 1012, 1016; see Maryland v. Craig (1990)
497 U.S. 836, 845) (Craig) [confrontation implies more than
physical presence in the courtroom; it means compelling a
witness “‘to stand face to face with the jury in order they may
4
At the time of trial the Los Angeles Superior Court
operated under general order 2020-GEN-016-01, issued July 6,
2020, by Presiding Judge Kevin C. Brazile. The order stated in
part, “All persons entering any courthouse or courtroom shall
wear a face covering/mask over his or her nose and mouth at all
times within public areas of the courthouse or courtroom. Face
coverings may include a mask, scarf, or any other fabric that
covers both the mouth and nose. Individuals who elect to wear
face shields must ensure that the shield covers both the nose and
mouth. The face shield must wrap around the sides of the
wearer’s face and extend to below the chin with a cloth drape
from the bottom of the face shield to below the neck. Children
under the age of three (3) are exempt from the order.”
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look at him, and judge by his demeanor upon the stand and the
manner in which he gives his testimony whether he is worthy of
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belief’”].)
Nonetheless, while “face-to-face confrontation forms ‘the
core of the values furthered by the Confrontation Clause’ . . ., it is
not the sine qua non of the confrontation right.” (Craig, supra,497 U.S. at p. 847; accord, People v. Wilson (2021) 11 Cal.5th 259,
290.) Rather, “‘the Confrontation Clause reflects a preference for
face-to-face confrontation at trial,’ [citation], a preference that
‘must occasionally give way to considerations of public policy and
the necessities of a case.’” (Craig, at p. 849; accord, Wilson, at
p. 290 [the criminal defendant’s constitutional right of
confrontation, while fundamental, is not absolute; neither,
however, is it easily disregarded].) The face-to-face requirement
can be dispensed with, but “only where denial of such
confrontation is necessary to further an important public policy
and only where the reliability of the testimony is otherwise
assured.” (Craig, at p 850; accord, People v. Arredondo (2019)
8 Cal.5th 694, 709.) This public policy exception is not a general
5
While American jurisprudence has for centuries identified
demeanor as an important tool for assessing credibility
(see Mattox v. United States (1895) 156 U.S. 237, 243; Coy v.
Iowa, supra, 487 U.S. at p. 1016; Craig, supra, 497 U.S. at
p. 850), some scholars have more recently urged reconsideration
of that understanding, arguing assessments of demeanor are
often based on widespread stereotypes and flawed assumptions.
(See Simon-Kerr, Unmasking Demeanor (Sept. 2020) 88 Geo.
Wash. L.Rev. Arguendo 158, 170 [“witnesses whose behavior or
appearance ‘diverges from the observer’s expectation’—namely
the white male normativity of the courtroom—are perceived as
less credible,” citing studies].)
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one; it must be applied on a case-by-case basis. (Craig, at
pp. 848-849 [exceptions to face-to-face confrontation will be
permissible but only in “narrow circumstances” on a “case-
specific” basis]; Arredondo, at p. 709.)
When, as here, there are no disputed facts, our review of
the court’s determination that its mask order did not violate
Alvarez’s rights under the confrontation clause is de novo. (Lilly
v. Virginia (1999) 527 U.S. 116, 136; People v. Wilson, supra,
11 Cal.5th at p. 291; People v. Bharth (2021) 68 Cal.App.5th 801,
813.)
c. The masking order satisfied an important public
policy and retained essential safeguards of
reliability
Alvarez contends partial facial coverings worn by witnesses
at trial interfered with the important face-to-face aspect of
confrontation. While acknowledging the order requiring
courtroom participants to wear such coverings served an
important public policy during the COVID-19 pandemic, he
argues there were less restrictive alternatives available, as
evidenced by Judge Camacho’s suggestion of allowing a witness
to testify behind a plexiglass shield. If a different judge was
prepared to allow unmasked testimony in this manner, Alvarez
argues, the court’s decision to require witnesses wear face masks
that covered their mouths and the lower part of the nose while
testifying was not necessary to further the important health and
safety policy of protecting the public during the COVID-19
pandemic.
Whatever Judge Camacho, or even Judge Lewis for that
matter, may have considered before the court ruled at trial, there
is no doubt that requiring people to wear masks covering the
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mouth and the lower part of the nose while testifying in the
courtroom during the COVID-19 pandemic served an important
state interest in protecting the public from a contagious, and too
often, lethal, disease. As far as the less restrictive alternatives
Alvarez cites, we find the response of the federal district court in
United States v. Crittenden (M.D. Ga. Aug. 21, 2020, No. 4:20-
CR-7 (CDL)) 2020 U.S.Dist. Lexis 151950 (Crittenden) to the
same argument to be particularly apt: “The [c]ourt’s masking
requirement is based upon the best available scientific
information and advice. The Centers for Disease Control and
Prevention (‘CDC’) strongly recommends that to avoid infection
from the dangerous coronavirus, individuals should practice
social distancing and wear masks over the nose and mouth.
Considerations for Wearing Masks, Ctrs. for Disease Control
and Prevention (updated Aug. 7, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-
sick/cloth-face-cover-guidance.html. The wearing of the mask not
only protects the wearer of the mask, but more significantly,
protects others who may be in the same room with the person.
[Citation.] These precautions are particularly important inside of
a building. The CDC also makes a distinction between ‘masks’
and ‘face shields,’ which is what the Government recommends
here. The CDC finds that face shields are not as effective as
masks, and it does not recommend substituting face shields for
masks. [Citation.] Given the CDC recommendations, which are
based on the best available science in this area, the [c]ourt finds
that its social distancing and mask protocols are necessary and
essential to protect the courtroom participants during a trial.
The [c]ourt further finds that face shields and plexiglass screens
are not an adequate substitute and standing alone do not provide
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reasonable protection for the trial participants. Thus a
compelling policy reason exists for the mask requirement—
protection of the health and safety of the trial participants and
members of the public who may attend the trial.”
Alvarez alternatively argues, even if the mask rules
furthered an important public policy by inhibiting the spread of
COVID-19, reliability, the cornerstone of the confrontation clause
protection (Crawford v. Washington (2004) 541 U.S. 36, 63; Craig,
supra, 497 U.S. at p. 850), cannot be assured when the defendant
and jury are deprived of the ability to fully assess a witness’s
demeanor while testifying. A smirk, for example, can bear on
witness credibility, but could go undetected in a masked
individual. And, he adds, witness credibility was critical in this
case because the surveillance video never showed him actually
entering the house, an essential element of burglary. The
evidence on that point, he asserts, was testimonial and
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conflicting.
The “ultimate goal” of the confrontation clause, ensuring
the reliability of evidence (Crawford v. Washington, supra,541 U.S. at p. 63), “is a procedural rather than a substantive
guarantee. It commands, not that evidence be reliable, but that
reliability be assessed in a particular manner: by subjecting it to
the crucible of cross-examination” and other procedural
safeguards. (Id. at p. 61.) Those procedural safeguards are:
6
Two sheriff’s deputies testified Alvarez took one step into
the home, while Elen Arabian testified at the preliminary
hearing Alvarez did not enter the home, testified on direct
examination at trial he had entered the home, and admitted on
cross-examination the deputies standing in front of her for her
safety impeded her view.
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(1) in-person testimony; (2) given under oath; (3) subjected to
cross-examination and (4) the ability of the defendant and fact
finder to view witness demeanor for the purpose of evaluating
credibility. (Craig, supra, 497 U.S. at pp. 845-846.) The
“combined effect” of these elements of confrontation “ensur[es]
that evidence admitted against an accused is reliable and subject
to the rigorous adversarial testing that is the norm of Anglo-
American criminal proceedings.” (Ibid.)
Here, all four safeguards inherent in confrontation were
present. Witnesses testified in the solemnity of the courtroom
and in the presence of the defendant, under oath, and subject to
rigorous cross-examination, “‘“the greatest legal engine ever
invented for the discovery of truth.”’” (Craig, supra, 497 U.S. at
p. 846.) Although face masks covered the witnesses’ mouths and
the lower part of their noses, significant aspects of their
appearance, including the eyes, tops of the cheeks, and the body,
were readily observable as was posture, tone of voice, cadence
and numerous other aspects of demeanor: “Demeanor includes
the language of the entire body [and] jurors will still be able to
observe most facets of the witnesses’ demeanor. They can
observe the witnesses from head to toe. They will be able to see
how the witnesses move when they answer a question; how the
witnesses hesitate; how fast the witnesses speak. They will be
able to see the witnesses blink or roll their eyes, make furtive
glances, and tilt their heads. The Confrontation Clause does not
guarantee the right to see the witness’s lips move or nose sniff,
any more than it requires the jurors to subject the back of a
witness’s neck to a magnifying glass to see if the hair raised
13
during particularly probative questioning.” (Crittenden, supra,
7
2020 U.S.Dist. Lexis 151950).
In arguably less compelling circumstances, courts have
found no confrontation clause violation when all four procedural
safeguards for ensuring reliability were present, despite some
minimal limitation on a jury’s ability to assess witness demeanor.
(See e.g., People v. Bharth, supra, 68 Cal.App.5th at p. 818 [court
did not violate defendant’s right to confrontation by allowing
victim to turn slightly in the witness chair to avoid staring at
defendant directly; while the defendant’s view was somewhat
impeded, “[t]his minor interference with defendant’s line of sight
was fully justified given the need to complete the victim’s
testimony and her documented distress”]; United States v.
de Jesus-Castaneda (9th Cir. 2013) 705 F.3d 1117, 1120-1121
7
For these reasons, nearly every state and federal court to
consider the issue during our current COVID-19 pandemic has
found no confrontation violation because a witness was wearing a
mask. (See, e.g., United States v. Holder (D.Colo. Sept. 27, 2021,
No. 18-cr-00381-CMA-GPG-01) 2021 U.S.Dist. Lexis 184017;
United States v. Maynard (S.D.W.Va. Nov. 3, 2021, No. 2:21-cr-
00065) 2021 U.S.Dist. Lexis 211943; State v. Jesenya O. (N.M. Ct.
App. Mar. 11, 2021, No. A-1-CA-39148) 2021 N.M. Ct. App.
Lexis 17; United States v. James (D.Ariz. Oct. 14, 2020, No. CR-
19-08019-001-PCT-DLR) 2020 U.S.Dist. Lexis 190783; States v.
Clemons (D.Md. Nov. 4, 2020, No. RDB-19-0438) 2020 U.S.Dist.
Lexis 206221; but cf. United States v. Thompson (D.N.M.
June 11, 2021, No. 19-1610 MV-4) ___ F.Supp.3d ___ [2021
U.S.Dist. Lexis 109762] [granting motion in limine requesting
unvaccinated testifying witnesses to wear a clear face shield to
protect against virus transmission; such an order “appropriately
strike[s] the balance of minimizing health risks” while “retaining
the full force of Mr. Thompson’s Sixth Amendment rights”].)
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[confidential informant’s wearing of a wig and fake mustache
during testimony to protect his identity served an important
public policy and did not unduly prohibit jury from evaluating
demeanor]; Morales v. Artuz (S.D.N.Y. 2000) 2000 U.S.Dist. Lexis
16405 [trial court’s ruling permitting prosecution witness to
testify while wearing sunglasses did not violate defendant’s right
to confrontation; “permitting Sanchez to wear sunglasses while
testifying is a relatively modest imposition on the right to face-to-
face confrontation”].)
In concluding Alvarez’s confrontation rights were not
violated, we are mindful of the importance of the issue Alvarez
raises and the likelihood it will recur as courts continue to
grapple with the need to balance the health and safety of
courtroom participants during the COVID-19 pandemic with the
defendant’s constitutional right to confrontation. There may well
be occasions, due to the fluid nature of the pandemic and evolving
health and safety measures, as well as the type of face covering
that may be at issue, when the balance tips differently, and does
not fit as neatly, within the public policy exception identified in
Craig. That is not the case on the record before us.
DISPOSITION
The judgment is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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