People v. Chadwick CA3 ( 2022 )

Filed 9/19/22 P. v. Chadwick 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
(Butte)
----
THE PEOPLE, C094306
Plaintiff and Respondent, (Super. Ct. No. 20CF03304)
v.
JOSHUA CHADWICK,
Defendant and Appellant.
At the time of the trial in this case, in early March 2021, federal authorities
recommended that everyone wear face coverings while in public indoor settings. It did
so to slow the transmission of COVID-19. It did so, moreover, at a time when vaccines
against the virus that causes COVID-19 were not yet widely available and when the best
scientific evidence demonstrated that face masks were effective at reducing the spread of
the virus and the risk of infection in indoor settings.
Defendant Joshua Chadwick was tried and convicted under these circumstances.
Consistent with federal recommendations at the time, the trial court required all witnesses
1
to wear face masks during their testimony. Because of the face masks, the jury’s ability
to see each witness’s face was impaired to a degree. But the jury could still see the
witnesses’ eyes, hear the tone of their voices, and assess their overall body language. The
jury could also, among other things, consider the witnesses’ past consistent and
inconsistent statements, the witnesses’ ability to remember and describe the relevant
events, and other evidence tending to support or undermine the witnesses’ testimony.
On appeal, defendant raises one claim: The trial court violated his Sixth
Amendment right to confront witnesses when it allowed the witnesses to testify wearing
face masks. He reasons that the masks were unnecessary and left the jury unable to
effectively assess the credibility of the witnesses. We find otherwise. Because we find
that the mask requirement was necessary to further an important public policy and that
the reliability of the witnesses’ testimony was otherwise assured, we conclude that the
witnesses’ wearing of masks did not violate defendant’s constitutional right to confront
witnesses. We thus affirm.
I. BACKGROUND
Defendant was charged with 14 counts of childhood sexual abuse. These included
two counts of sexual intercourse with a child under 11 years of age (Pen. Code, § 288.7,
subd. (a)), eight counts of committing a non-forcible lewd act on a child under 14 years
of age (id., § 288, subd. (a)), and four counts of oral copulation with a child under 11
years of age (id., § 288.7, subd. (b)). The charging document also, for each count of
committing a non-forcible lewd act on a child under 14 years of age, alleged that
defendant committed this offense against more than one victim (id., §§ 667.61, subds.
(e)(4) & (j)(2), 1203.066, subd. (a)(7)). These charges followed after three children,
P.H., M.C., and P.C., accused defendant of sexual abuse.
All witnesses at trial, including the three children, testified wearing face masks.
Although defendant objected that the use of masks would obscure facial expressions and
thus violate his constitutional rights to due process and a fair trial, the trial court
2
overruled the objection. It acknowledged that “facial expressions are certainly
important,” but it said that it had “to keep people safe.” It added that the “defense and the
prosecution both have to deal with th[e] difficulty” of being “unable to see the lower half
of a witness or prospective juror’s face,” which was “just a fact of life these days.”
Consistent with the trial court’s orders, everyone in the courtroom wore face masks.
The jury ultimately found defendant guilty of six of the eight counts of committing
a non-forcible lewd act on a child under 14 years of age and found true the allegation that
defendant committed these acts against more than one victim. It found defendant not
guilty on the remaining counts. The trial court afterward sentenced defendant to 150
years to life in prison.
Defendant timely appealed.
II. DISCUSSION
Defendant’s sole claim on appeal is that the trial court violated his Sixth
Amendment right to confront witnesses when it allowed witnesses to testify at trial while
wearing face masks. Although he acknowledges his trial counsel never raised this precise
objection, but instead only objected to the use of face masks as a violation of his rights to
due process and a fair trial, he contends his argument has not been forfeited because the
trial court’s overruling of his objection “demonstrates that asserting the additional
objection [based on the right to confront witnesses] would have been futile.” He adds
that to the extent his trial counsel’s failure to raise this specific objection resulted in
forfeiture, his counsel provided ineffective assistance. We find no violation of the Sixth
Amendment’s confrontation clause.
“The Confrontation Clause of the Sixth Amendment, made applicable to the States
through the Fourteenth Amendment, provides: ‘In all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.’ ” (Maryland v.
Craig (1990) 497 U.S. 836, 844 (Craig); see also Cal. Const. art. I, § 15 [providing the
same].) The Supreme Court has observed that the clause: (1) guarantees the defendant
3
the right to examine witnesses in person; “ ‘([2]) insures that the witness will give his
statements under oath—thus impressing him with the seriousness of the matter and
guarding against the lie by the possibility of a penalty for perjury; ([3]) forces the witness
to submit to cross-examination, the “greatest legal engine ever invented for the discovery
of truth”; [and] ([4]) permits the jury that is to decide the defendant’s fate to observe the
demeanor of the witness in making his statement, thus aiding the jury in assessing his
credibility.’ ” (Craig, supra, at pp. 845-846.) “The combined effect of these elements of
confrontation—physical presence, oath, cross-examination, and observation of demeanor
by the trier of fact—serves the purposes of the Confrontation Clause by ensuring that
evidence admitted against an accused is reliable and subject to the rigorous adversarial
testing that is the norm of Anglo-American criminal proceedings.” (Id. at p. 846.)
The right to confrontation, however, is not absolute. The Supreme Court has
found that “in certain narrow circumstances, ‘competing interests, if “closely examined,”
may warrant dispensing with confrontation at trial.’ ” (Craig, supra, 497 U.S. at p. 848.)
On that understanding, the court in Craig dispensed with one of the core rights
guaranteed under the confrontation clause—the defendant’s right to examine witnesses in
person. In that case, the court considered “whether the Confrontation Clause of the Sixth
Amendment categorically prohibits a child witness in a child abuse case from testifying
against a defendant at trial, outside the defendant’s physical presence, by one-way closed
circuit television.” (Id. at p. 840.) The court found it did not. It explained that “ ‘the
Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ ” (id. at
p. 849) not an absolute right, and that this preference may give way “where denial of such
confrontation is necessary to further an important public policy and . . . where the
reliability of the testimony is otherwise assured” (id. at p. 851).
In this case, we consider the impairment of another protection afforded under the
confrontation clause—its “ ‘permit[ting] the jury that is to decide the defendant’s fate to
observe the demeanor of the witness in making his statement, thus aiding the jury in
4
assessing his credibility.’ ” (Craig, supra, 497 U.S. at p. 846.) Both parties assume that,
in evaluating the propriety of the mask requirement here, we must apply the same test
applied in Craig—that is, we must consider whether the requirement was necessary to
further an important public policy and whether the reliability of the witnesses’ testimony
was otherwise assured.
Consistent with the parties’ understanding, we accept that this test applies in the
circumstances before us. We acknowledge that the Supreme Court has not yet employed
this test when a witness’s face is obscured. (See Morales v. Artuz (2d Cir. 2002)
281 F.3d 55, 58 [noting that the Supreme Court’s test described in Craig has so far only
been applied “where the witness is physically separated from the defendant”; the court
has not yet considered whether the same test applies when a witness is present at trial but
“with a slight disguise that prevents the defendant and the jurors from seeing the
witness’s eyes”].) But seeing no reason to follow a different approach, and considering
the other courts that have already applied the test described in Craig under identical
circumstances, we accept that this test is applicable under the circumstances here. (See
People v. Lopez (2022) 75 Cal.App.5th 227, 232-233 (Lopez) [applying standard
described in Craig when witnesses wore face masks]; People v. Alvarez (2022)
75 Cal.App.5th 28, 36 (Alvarez) [same]; see also United States v. de Jesus-
Casteneda (9th Cir. 2013) 705 F.3d 1117, 1120 [applying standard described in Craig
when witness wore a disguise of a wig and mustache].)
Applying this test here, we find no violation of the Sixth Amendment’s
confrontation clause. We consider first whether the mask requirement was necessary to
further an important public policy. Consistent with other California courts that have
considered this question, we find it was. As the Supreme Court has observed, “COVID-
19 is a highly contagious, dangerous, and . . . deadly disease.” (Biden v. Missouri (2022)
__ U.S. __ [142 S.Ct. 647, 652].) Attempting to prevent the spread of this deadly
disease, the federal government, the states (including California), and many local
5
governments have taken various measures. One prominent measure has involved the use
of face masks. Around the time of trial, for example, the Centers for Disease Control and
Prevention (CDC) “recommend[ed] wearing a mask . . . to reduce the likelihood of
contracting COVID-19.” (Bay City Realty, LLC v. Mattress Firm, Inc. (E.D. Mich.,
Apr. 7, 2021, No. 20-CV-11498) 2021 U.S. Dist. Lexis 67054, *3 [discussing CDC
guidance as of February 22, 2021].) Governments, in taking these measures, acted
consistent with “the best scientific evidence demonstrat[ing] [that] the wearing of face
masks was effective at reducing the spread of the virus and the risk of infection in indoor
settings.” (Lopez, supra, 75 Cal.App.5th at p. 233.)
The trial here took place under these circumstances—a time when COVID-19, a
once-in-a-century global pandemic, continued to spread through the community and
when the federal government continued to recommend masks in indoor public settings to
stem the spread of the disease. This was a time too when COVID-19 vaccines were not
yet widely available. Although federal authorities had already issued emergency use
authorizations for several vaccines at this time, only certain “priority groups” were
eligible to receive the vaccines at this point; the broader public was not eligible until
some time after. (See Stepien v. Murphy (D.N.J. 2021) 574 F.Supp. 3d 229, 234 [noting
that “vaccines became widely available in the Spring of 2021”].)
On the facts of this case, we are satisfied that the mask requirement here was
necessary to further an important public policy—namely, the policy of “ ‘ensuring the
safety of everyone in the courtroom in the midst of a unique global pandemic.’ ” (Lopez,
supra, 75 Cal.App.5th at pp. 232-234 [mask requirement during COVID-19 did not
violate the Sixth Amendment]; see Alvarez, supra, 75 Cal.App.5th at p. 34 [same];
People v. Edwards (2022) 76 Cal.App.5th 523, 525 (Edwards) [same]; see also Roman
Catholic Diocese of Brooklyn v. Cuomo (2020) __ U.S. __ [141 S.Ct. 63, 67] (per
curiam) [“Stemming the spread of COVID-19 is unquestionably a compelling interest”];
see also Ala. Ass’n of Realtors v. Department of Health & Humans Services (2021)
6
__ U.S. __ [141 S.Ct. 2485, 2490] (per curiam) [“It is indisputable that the public has a
strong interest in combating the spread of the COVID-19 Delta variant”].)
Attempting to counter this evidence, defendant claims “[l]ess intrusive means
could have been used that would have protected [his] right to confrontation”—
specifically, through “the adequate spacing of individuals in the courtroom or by the use
of protective glass barriers through which facial expressions would not have been hidden
from view.” But nothing in the record demonstrates that defendant asked the trial court
to consider these or any other alternatives. And even setting that aside, we still find
defendant’s argument meritless. First, to the matter of spacing, defendant’s argument is
pure speculation. “Nothing in the record indicates the particulars of the courtroom here
allowed for such accommodation.” (Lopez, supra, 75 Cal.App.5th at p. 235.) Nor does
defendant supply any evidence indicating that the spacing he has in mind would have, as
he claims, “protect[ed] all people in the courtroom from COVID-19” or served as an
adequate substitute. Second, in terms of protective glass barriers, defendant similarly
fails to supply any evidence indicating a glass barrier would have served as an adequate
substitute for a mask. To the extent, moreover, that defendant envisions transparent
barriers comparable to transparent face shields, his offered alternative finds no favor with
the agency experts. As several courts have noted, “ ‘[t]he CDC finds that face shields are
not as effective as masks, and it does not recommend substituting face shields for
masks.’ ” (Alvarez, supra, 75 Cal.App.5th at p. 37 [quoting a federal district court].)
We consider next whether the reliability of the witnesses’ testimony was otherwise
assured. Once again, consistent with other California courts that have considered this
question, we find it was. We acknowledge that “[a] mask covering the nose and mouth
undeniably impairs jurors’ ability to see a witness’s face to a degree.” (Edwards, supra,
76 Cal.App.5th at p. 526.) But we find other considerations assure the reliability of the
witnesses’ testimony. The witnesses in this case testified in person, they testified under
oath, they were subject to cross-examination, and, although their noses and mouths were
7
hidden, numerous other considerations allowed the jury to assess the witnesses’
credibility.
The jury, for instance, could observe the witnesses’ “eyes, tops of the cheeks,
. . . the body, . . . posture, tone of voice, cadence and numerous other aspects of
demeanor. . . . ‘They [were] able to see how the witnesses move[d] when they
answer[ed] a question; how the witnesses hesitate[d]; how fast the witnesses sp[oke].
They [were] able to see the witnesses blink or roll their eyes, make furtive glances, and
tilt their heads.’ ” (Alvarez, supra, 75 Cal.App.5th at p. 38.) And they were able to
consider many other factors too, including: “(1) how well the witness could see, hear, or
otherwise perceive the things about which the witness testified, (2) how well the witness
was able to remember and describe what happened, (3) whether the witness answered
questions directly, (4) whether the witness’s testimony may have been influenced by bias
or prejudice in the form of a personal relationship with someone involved in the case, or a
personal interest in how the case was decided, (5) any past consistent or inconsistent
statements by the witness, (6) the existence of other evidence that proved or disproved
any fact about which the witness testified, and (7) whether the witness admitted to being
untruthful about any aspect of his or her testimony.” (Lopez, supra, 75 Cal.App.5th at
p. 235.) Considering all these tools available to the jury to assess witness credibility,
together with the witnesses’ presence in court, their testifying under oath, and their
submitting to cross-examination, we are satisfied that the reliability of the witnesses’
testimony was otherwise assured.
Although defendant contends otherwise, we find his arguments unpersuasive. He
principally argues: “There was no such assurance in this case because the trial testimony
of M.C. and P.C. (and their . . . interviews [with the child abuse response team]) was, in
part, conflicting and inconclusive.” But defendant’s argument only highlights one of the
means that the jury had to assess credibility—it could consider the witnesses’ inconsistent
and inconclusive statements. Nothing about the mask requirement undermined the jury’s
8
ability to do so. Defendant adds that “the reliability of the trial testimony of M.C. and
P.C. was materially impaired because they testified with a mask obscuring their facial
expressions from the view of appellant, trial defense counsel, and the jury.” But for the
reasons already covered, although we acknowledge that a witness’s wearing of a mask
impairs a jury’s ability to see a witness’s face to a degree, we find the remaining tools
available to the jury here to assess the witnesses’ credibility demonstrate that the
reliability of their testimony was otherwise assured.
In sum, because we find that the mask requirement was necessary to further an
important public policy and that the reliability of the witnesses’ testimony was otherwise
assured, we conclude that the witnesses wearing of masks did not violate defendant’s
rights under the Sixth Amendment’s confrontation clause. (See Lopez, supra,
75 Cal.App.5th at p. 235; Alvarez, supra, 75 Cal.App.5th at p. 38; Edwards, supra,
76 Cal.App.5th at p. 525.) We emphasize, however, that our holding is a narrow one
based on the particular facts of this case. As the Alvarez court observed: “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.” (Alvarez, supra, at p. 39.)
9
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
HOCH, J.
10