People v. Preciado CA1/1 ( 2022 )

Filed 8/18/22 P. v. Preciado CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A162865
v.
ADDAE PRECIADO, (Alameda County
Super. Ct. No. 19-CR-017348)
Defendant and Appellant.
We are in the midst of an unprecedented global pandemic, requiring
trial courts to implement safety measures to mitigate the potential spread of
the COVID-19 virus. In this matter, as a precautionary measure, the trial
court required everyone, including the witnesses, to wear masks. Defendant
contends the trial court’s denial of his motion to require witnesses, as an
alternative to opaque masks, to wear a clear face mask or a transparent face
shield, violated his Sixth Amendment right to confrontation. Defendant also
contends he is entitled to resentencing under Senate Bill No. 567 (2021–2022
Reg. Sess.) (Senate Bill 567).1 We conclude defendant’s rights under the
The parties cite Assembly Bill No. 124 (2021–2022 Reg. Sess.)
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(Assembly Bill 124) as having amended Penal Code section 1170 to add
subdivision (b)(6). As recently explained in People v. Jones (2022)
79 Cal.App.5th 37, however, “it is Senate Bill 567 that added
subdivision (b)(6) to the statute.” (Id. at p. 44, fn. 11.) The two bills (along
confrontation clause of the Sixth Amendment were not violated. However,
the matter shall be remanded for resentencing.
I.
FACTUAL AND PROCEDURAL BACKGROUND
We briefly summarize the facts of defendant’s crimes, which are
unnecessary to the resolution of this appeal.
Dianna D. and Robert P. lived in a homeless encampment near the bike
trails between Berkeley and Richmond. One night, Robert and Marvin B.
were going to help Dianna with the completion of the platform for her tent.
While they were standing on the platform under some tarps talking, Marvin
started smoking. Because Dianna was asthmatic, at her request, Marvin
stepped away. Shortly thereafter, defendant shot Marvin in the abdomen
with a bow and arrow and then struck him two times on the head and
“maybe” three times on the shoulder.
In the meantime, after Marvin walked around the corner, Dianna
heard a “weird” noise. When Dianna went to check on Marvin, she
discovered him face down on the ground. He was unresponsive. At this
point, Dianna noticed that Robert was no longer behind her and heard him
say he had been “hit” by “Panda,” who Dianna identified as defendant.
Robert “pulled two arrows from himself.”
Defendant admitted he shot Marvin B. and Robert P., but claimed he
acted in self-defense. Around Halloween, before the incident, according to
with a third) overlapped and were approved by the Governor on the same
day. “But because Senate Bill 567 was the last bill signed by the Governor
and bears the highest chapter number, its amendments to section 1170
prevail over the amendments to that code section specified in the other two
bills.” (Jones, at p. 44, fn. 11.) We therefore refer to Senate Bill 567 in this
opinion.
2
defendant, he had sex with Dianna, and Robert, armed with a machete,
ordered him to leave. Several days later, defendant returned to Dianna’s
camp to return her bike light because he did not need it. He brought his bow
and arrow for protection. When an unfamiliar man carrying a “foot-long
object” began walking toward him, he thought it was Robert trying to hurt
him. Defendant shot him with the bow and arrow. After realizing the man
he shot was not Robert, defendant began to walk away; however, Robert
approached him, holding what appeared to be a knife, and defendant shot
him with an arrow.
The Alameda County District Attorney filed a first amended
information charging defendant with two counts of attempted murder of
Robert P. and Marvin B. (Pen. Code,2 §§ 187, subd. (a), 664) and two counts of
assault with a deadly weapon upon Robert P. and Marvin B. (§ 245,
subd. (a)(1)). As to all counts, the information alleged an enhancement for
infliction of great bodily injury (§ 12022.7, subd. (a)), and as to the attempted
murder counts, alleged personal use of a deadly weapon (§ 12022,
subd. (b)(1)).
A jury found defendant guilty of assault with a deadly weapon against
Marvin B. and found true the allegation of great bodily injury. However, the
jury acquitted defendant on both counts of attempted murder and assault
with a deadly weapon against Robert P.
The court sentenced defendant to three years in state prison for assault
with a deadly weapon and, under section 1385, stayed the three-year
enhancement for great bodily injury.
2 All statutory references are to the Penal Code.
3
II.
DISCUSSION
A. Defendant’s Rights Under the Confrontation Clause Were Not
Violated
1. Relevant Proceedings
Defendant’s trial occurred during the COVID-19 pandemic, an
unprecedented situation. His counsel filed a written in limine motion
requesting that witnesses testify without wearing “a mask or face covering
that conceals any part of their face while testifying.” In the alternative,
defense counsel proposed having a plexiglass partition separating the witness
stand from the rest of the courtroom, or having witnesses wear a plastic face
shield or a transparent mask. Counsel asserted that allowing a partial face
covering would violate defendant’s right to confrontation under the Sixth
Amendment of the United States Constitution. Moreover, allowing a witness
to testify while partially masked, defense counsel argued, would inhibit the
jury’s ability to assess a witness’s credibility by observing demeanor or
behavior.
The trial court denied the motion. The judge ruled that everyone in the
courtroom, including himself, would be required to wear a mask. In rejecting
defense counsel’s proposal to use plexiglass to surround the witness or a clear
plastic face shield, the court believed both provided inadequate protection
because respiratory particles could “drop down in the seats,” and there are
“so many ways that you can’t escape the little particles that you’re referring
to will come out.”
2. Pertinent Law and Standard of Review
“ ‘The Sixth Amendment to the United States Constitution, made
applicable to the States via the Fourteenth Amendment, [citation], provides
that “[in] all criminal prosecutions, the accused shall enjoy the right . . . to be
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confronted with the witnesses against him.” . . . [I]t guarantees a defendant’s
right to confront those “who ‘bear testimony’ ” against him.’ ” (People v.
Powell (2011) 194 Cal.App.4th 1268, 1281.) “The confrontation clause not
only affords defendants the right to personally examine adverse witnesses, it
also ‘ “(1) 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; (2) forces the witness to submit
to cross-examination, the ‘greatest legal engine ever invented for the
discovery of truth’; [and] (3) 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.” [Citation.] [¶] The combined
effect of these elements of confrontation . . . 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
the Anglo-American criminal proceedings.’ ” (In re Ruedas (2018)
23 Cal.App.5th 777, 786, quoting Maryland v. Craig (1990) 497 U.S. 836,
845–846 (Craig).)
In Craig, the court recognized “that face-to-face confrontation enhances
the accuracy of factfinding by reducing the risk that a witness will wrongfully
implicate an innocent person.” (Craig, supra, 497 U.S. at p. 846.) The high
court, nonetheless, also recognized that “[a]lthough face-to-face confrontation
forms ‘the core of the values furthered by the Confrontation Clause,’
[citation], we have nevertheless recognized that it is not the sine qua non of
the confrontation right.” (Id. 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
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the case.’ ” (Craig, at p. 849, italics added by Craig.) Though the “face-to-
face confrontation requirement is not absolute,” it cannot be “easily dispensed
with,” and may be denied only when “necessary to further an important
public policy and only where the reliability of the testimony is otherwise
assured.” (Id. at p. 850.)
Here, because the facts are not disputed, we review the court’s denial of
defendant’s motion de novo. (People v. Wilson, supra, 11 Cal.5th at p. 291;
People v. Bharth (2021) 68 Cal.App.5th 801, 813.)
3. Analysis
Defendant contends the court violated his constitutional right to
confront witnesses by requiring the witnesses to wear opaque face masks
rather than clear masks or plastic face shields. We are unpersuaded
defendant’s Sixth Amendment right to confront witnesses was violated.
Three recent cases, People v. Alvarez (2022) 75 Cal.App.5th
28 (Alvarez), People v. Lopez (2022) 75 Cal.App.5th 227 (Lopez), and People v.
Edwards (2022) 76 Cal.App.5th 523 (Edwards), have concluded that
requiring witnesses to wear masks covering their nose and mouth during
their testimony does not violate the confrontation clause because of the
substantial risks created by the ongoing pandemic. Because there were no
California published cases addressing whether the mask requirement
violated the confrontation clause when Alvarez and Lopez were decided, both
cases adopted and expanded upon the reasoning in numerous federal cases
which concluded that due to the substantial public health risks created by the
COVID-19 pandemic, having witnesses wear masks does not violate the
confrontation clause. (Alvarez, at pp. 36–38 & fn. 7; Lopez, at pp. 232–233;
see, e.g., U.S. v. Maynard (S.D.W.Va., Nov. 3, 2021, No. 2:21-cr-00065) 2021
6
U.S.Dist. Lexis 211943; U.S. v. Crittenden (M.D.Ga., Aug. 21, 2020, No. 4:20-
CR-7 (CDL)) 2020 U.S.Dist. Lexis 151950.)
In Alvarez, the trial occurred during the COVID-19 pandemic. Prior to
trial, defense counsel expressed his concern that allowing witnesses to wear
masks while testifying to protect them from the spread of the virus would
violate the defendant’s constitutional right to confrontation. The judge who
presided over this hearing responded that the 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.” (Alvarez, supra, 75 Cal.App.5th at p. 34.) However,
when a different judge presided over the trial, and defense counsel raised the
same concern, requesting that witnesses testify without face masks, the judge
required the witnesses to wear masks but allowed them to remove the masks
“ ‘momentarily’ ” so they could be seen. (Ibid.)
The Alvarez court held a compelling public policy—the protection of the
health and safety of the trial participants and members of the public who
may attend the trial—justified the trial court’s mask requirement. The court
noted requiring individuals while testifying to wear masks covering their
mouth and lower part of the nose during the pandemic “served an important
state interest in protecting the public from a contagious, and too often, lethal
disease.” (Alvarez, supra, 75 Cal.App.5th at p. 36.) As to less restrictive
alternatives, such as face shields and plexiglass screens, the court reasoned,
“ ‘The CDC [(Centers for Disease Control and Prevention)] 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
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masks. [Citation.] Given the CDC recommendations, which are based on the
best available science in this area,’ ” the court concluded the CDC’s “ ‘social
distancing and mask protocols are necessary and essential to protect the
courtroom participants during a trial.’ ” (Id. at p. 37.) Ultimately, the court
found “face shields and plexiglass screens are not an adequate substitute and
standing alone do not provide reasonable protection for the trial
participants.” (Ibid.)
Finally, the court found all elements inherent in the confrontation
clause, as set out in Craig, were satisfied. (Alvarez, supra, 75 Cal.App.5th at
pp. 37–38.) The witnesses were physically in the courtroom in the presence
of the defendant, under oath, and they were subject to “rigorous cross-
examination.” (Id. at p. 38.) Even though face masks covered their mouths
and the lower part of their noses, the court observed “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 be able to observe most facets of the witnesses’ demeanor.’ ”
(Ibid.)
In sum, the Alvarez court concluded that as long as all procedural
safeguards for ensuring reliability were present, “despite some minimal
limitation on a jury’s ability to assess witness demeanor,” the confrontation
clause was not violated. (Alvarez, supra, 75 Cal.App.5th at pp. 38–39.)
Likewise, in Lopez, the court held the mask requirement did not
violate the defendant’s right to confrontation. There, during pretrial
proceedings, the defendant requested to be relieved of the requirement to
wear a mask and that all witnesses be allowed to testify without masks. The
trial court denied defendant’s motion. (Lopez, supra, 75 Cal.App.5th at
8
p. 231.) Mirroring the same rationale as in Alvarez, Lopez upheld the trial
court’s decision requiring the defendant and witnesses to wear masks. (Id. at
pp. 232–236.) Unlike Alvarez, however, the defendant in Lopez focused on a
handful of orders from courts in other counties allowing witnesses during
trial to testify maskless. The Lopez court determined the lack of adherence to
identical procedures during the pandemic only “underscores the need for
deference to a trial court’s inherent authority and discretion to control the
proceedings before it.” (Lopez, at p. 235.) Accordingly, the court declined to
adopt a rule infringing on the trial court’s inherent authority to “promulgate
procedures best suited for the particular courtrooms as they confront the
challenges presented by the global pandemic.” (Id. at p. 236.)
Shortly after the Lopez decision, the appellate court in Edwards, supra,
76 Cal.App.5th 523, in a succinct opinion, held the trial court properly denied
the defendant’s motion to bar witnesses from testifying through a mask. In
upholding the trial court’s ruling, Edwards reasoned: “The trial court in this
case was not trying to hide or obscure identities or the truth. It was following
national safety guidelines and court orders in response to a deadly and
worldwide pandemic. This pandemic potentially affects everyone. This
disease spreads through social contact. This pandemic has been long and
unpredictable.” (Id. p. 527.) Importantly, as discussed in more detail below,
the appellate court also rejected the alterative use of clear masks or face
shields.
Here, we agree with the reasoning of Alvarez and Lopez, and reject
defendant’s claims for the reasons expressed in both cases. In view of the
ongoing and persistent COVID-19 pandemic, we believe the trial court’s
masking order was justified by the strong interest in safeguarding the health
and safety of everyone in the courtroom. The masking order still allowed the
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jury to assess the reliability and credibility of the witnesses by taking into
consideration such factors as their demeanor, appearance, tone of their voice,
recollection, and consistency and inconsistencies in their testimony, and
accordingly, did not violate the confrontation clause.
Defendant argues the trial court instead could have ordered witnesses
to wear clear masks or plastic face shields. However, citing to the CDC
recommendations, Alvarez discounted the face shield or plexiglass screen
alternatives because the CDC concluded face shields were not as effective as
face masks and consequently did not recommend substituting face shields for
face masks. (Alvarez, supra, 75 Cal.App.5th at p. 37.) The Edwards court
also rejected proposed alternatives to face masks—clear masks or face
shields—since the defendant “offered no evidence an objective authority
appraised these alternatives to be effective in combatting the disease’s
spread.” (Edwards, supra, 76 Cal.App.5th at p. 527.)
Here, too, defendant failed to provide the trial court with any objective
authority suggesting clear masks or face shields were a safe alternative to
opaque masks. The trial court, in August 2020, made its best assessment
that masks were necessary “based on information known and prevalent at
the time, months before COVID-19 vaccines were available and when public-
health experts were still learning how to best prevent the spread of COVID-
19.” (State v. Modtland (Minn.Ct.App. 2022) 970 N.W.2d 711, 718.) In the
absence of any evidence transparent masks or face shields were truly a viable
alternative, and in view of the conclusion by many courts that face masks
covering the nose and mouth do not violate the confrontation clause, the trial
court’s order did not violate the Constitution.
Lastly, defendant’s reliance on Romero v. State (Tex.Crim.App. 2005)
173 S.W.3d 502 and U.S. v. de Jesus-Castaneda (9th Cir. 2013) 705 F.3d 111710
is misplaced because both cases concerned disguises, not face masks.
Moreover, these cases were concerned with witness fear and safety rather
than with a public health crisis, and in de Jesus-Castaneda, the Ninth Circuit
concluded there was no violation of the confrontation clause. (Romero, at
p. 506; de Jesus-Castaneda, at pp. 1120–1121.) Because the reasonableness
of an impingement on the right of confrontation must be evaluated on a case-
by-case basis, neither case has any bearing on the issue before us.
In sum, due to the ongoing safety and health threat posed by the
COVID-19 virus, we conclude the trial court, acting in the best interests of
the witnesses, jury, court personnel, and the public did not violate
defendant’s right of confrontation when it thoughtfully and intelligently
required witnesses to wear opaque masks over their nose and mouth.
B. Defendant Is Entitled To Resentencing Under Senate Bill 567
Senate Bill 567 became effective January 1, 2022. (Stats. 2021, ch.731,
§§ 1.3, 3(c).) Among other changes, Senate Bill 567 sets a presumption that
the trial court “shall order imposition of the lower term if any of the
[enumerated circumstances] was a contributing factor in the commission of
the offense.” (§ 1170, subd. (b)(6).) These circumstances include: “The
person experienced psychological, physical, or childhood trauma, including,
but not limited to abuse, neglect, exploitation, or sexual violence” and/or “The
person is a youth, or was a youth, as defined under subdivision (b) of
Section 1016.7 at the time of the commission of the offense.” (§ 1170,
subd. (b)(6)(A)–(B).) Section 1016.7, subdivision (b) defines “ ‘youth’ ” as “any
person under 26 years of age on the date the offense was committed.”
Defendant contends, the Attorney General concedes, and we agree that
Senate Bill 567 applies retroactively in this case as an ameliorative change in
the law applicable to all nonfinal convictions on appeal. (See In re Estrada
11
(1965) 63 Cal.2d 740, 745; People v. Jones (2022) 79 Cal.App.5th 37, 44;
People v. Flores (2022) 73 Cal.App.5th 1032, 1039 [concluding Sen. Bill 567
retroactively applies to the defendant and remanding for resentencing].)
The trial court here imposed a three-year sentence, consisting of the
middle term of three years with the punishment for the great bodily injury
true finding dismissed (§ 1385, subd. (b)). The court continued the case
several weeks for sentencing, and on May 17, 2021, executed the sentence
and released defendant due to credit for time served.
Defendant contends he is entitled to the benefit of Senate Bill 567, and
requests we remand the case for resentencing because he was 22 years old at
the time of the incident underlying his assault with a deadly weapon
conviction, and there was substantial evidence trauma played a role in
causing his behavior. Each of these circumstances, defendant argues,
triggers new section 1170, subdivision (b)(6)’s presumptive mandate to
impose the lower term of two years. (§ 1170, subd. (b)(6)(A)–(B).) Defendant
argues that if the trial court reduces his three-year sentence, his term of
parole must be reduced by the amount of time his incarceration exceeded the
duration of his proper sentence.
The Attorney General, on the other hand, maintains remand is
unnecessary as defendant has served his three-year sentence. Relying on
People v. Delong (2002) 101 Cal.App.4th 482, 487 and People v. Zgurski
(2021) 73 Cal.App.5th 250, the Attorney General asserts defendant has not
explained why a reduction in his sentence “after his release due to credit for
time served would provide him any practical benefit.” Regardless of the
length of his sentence, the Attorney General argues, defendant “will have to
be on parole for three years. (§ 3000, subd. (b)(2)(B) [‘For a crime committed
on or after July 1, 2013, at the expiration of a term of imprisonment of 1 year
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and one day, or a term of imprisonment imposed pursuant to Section 1170
. . . , the inmate shall be released on parole for a period of 3 years . . .’].) . . .
Nothing in [Senate Bill 567] reflects that the Legislature intended for the
presumption of a lower term to also require a shorter term of parole.”
Accordingly, the Attorney General contends, defendant’s “claim for
resentencing is moot.”
We are not persuaded. For reasons we will explain, we conclude
remand for resentencing under Senate Bill 567 is not moot.
We do not agree with the Attorney General because “parole is a
mandatory component of any prison sentence.” (People v. Nuckles (2013)
56 Cal.4th 601, 609.) By statute, excess presentence custody credits apply to
reduce any period of parole. (§§ 1170, subd. (a)(3) & 2900.5, subds. (a), (c);
see also Cal. Code Regs., tit. 15, § 2345.) In addition, our case law recognizes
that time served in excess of a determinate term must be credited against the
prisoner’s parole period. (People v. Morales (2016) 63 Cal.4th 399, 405
(Morales) [recognizing “long-established rule” that “excess presentence
credits can reduce any period of parole”]; In re Ballard (1981) 115 Cal.App.3d
647, 649–650 (Ballard) [excess presentence custody and conduct credits apply
to reduce a parole term]; cf. In re Young (2004) 32 Cal.4th 900, 909, fn. 5
[notwithstanding prisoner’s release on parole, a sentence reduction for “heroic
act” in prison under § 29353 “may still benefit petitioner by reducing his
parole period”].)
3 Section 2935 allows the Secretary of the Department of Corrections
and Rehabilitation to “grant up to 12 additional months of reduction of the
sentence to a prisoner, who has performed a heroic act in a life-threatening
situation or who had provided exceptional assistance in maintaining the
safety and security of a prison.”
13
We recognize some recent cases have found excess credits do not reduce
a parole term in a resentencing context; however, those cases were based on
the express language of the statutes at issue. (See, e.g., Morales, supra,
63 Cal.4th at pp. 405, 406 [under Prop. 47, credit for time served does not
reduce the parole period mandated by § 1170.18, subd. (d)]; People v. Wilson
(2020) 53 Cal.App.5th 42, 49–50 [analogizing to Morales and finding
§ 1170.95, subd. (g) clearly precluded application of excess credits to parole
term]).
Moreover, other cases have explained that absent specific language,
generally applicable sentencing principles apply to resentencing. In People v.
Steward (2018) 20 Cal.App.5th 407, 416–417, for example, the court held that
because Proposition 47 was entirely silent as to whether excess custody
credits under section 2900.5 (defendant is entitled to credit for time in
custody from date of arrest) could reduce a term of postrelease community
supervision (PRCS) imposed on a felony, generally applicable sentencing
procedures governed. It then construed section 1170, subdivision (a)(3)
(when presentence custody credits equal to or exceed the imposed sentence,
the entire sentence is deemed to have been served) “to provide that excess
custody credits apply to reduce a period of PRCS.” (Steward, at p. 426; see
also People v. Pinon (2016) 6 Cal.App.5th 956, 966–967 [excess custody
credits reduced fines under § 2900.5].)
While the Attorney General stresses, pursuant to section 3000,
subdivision (b)(2)(B), that regardless of the length of defendant’s sentence, he
will have to be on parole for three years, section 3000 says nothing about
whether excess custody credits can apply to that parole term. It therefore
appears that general sentencing procedures apply, and if on remand the trial
court reduces defendant’s sentence, he will be entitled to a reduction of his
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parole term resulting from any excess credits pursuant to sections 1170,
subdivision (a)(3) and 2900.5. We express no opinion as to how the trial court
should exercise its discretion on remand.
III.
DISPOSITION
This matter is remanded for resentencing in accordance with this
opinion. In all other respects, the judgment is affirmed.4
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
WISS, J.
A162865
People v. Preciado
4We deny the Attorney General’s request that we take judicial notice of
the Alameda County Superior Court’s press release requiring all people
entering its courthouses to wear masks.

Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
15