Filed 2/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B309605
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA120941)
v.
JAIME RODOLFO LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Victor D. Martinez, Judge. Affirmed as modified;
remanded with directions.
Mark Alan Hart, 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, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
In August 2019, defendant and appellant Jaime Rodolfo
Lopez was charged with seven felonies, including three counts of
forcible rape against Amalia C. (the mother of his two minor
children). The case proceeded to trial in September 2020 during the
global COVID-19 pandemic. At that time, the Los Angeles Superior
Courts were operating under the safety protocols set forth in
General Order No. 021 (eff. Sept. 10, 2020) which mandated, among
other things, that all persons entering any courthouse wear a face
mask covering the nose and mouth at all times. (See
[as of Feb. 14, 2022], archived at .)
After a jury trial in which all persons in the courtroom were
masked, including witnesses, defendant was found guilty on six of
the charges. The court imposed a 16-year prison sentence and a 10-
year protective order prohibiting defendant from contact with
Amalia and both children.
Defendant contends the court violated his constitutional right
to confront witnesses by denying his pretrial motion to remain
unmasked during trial and to have all witnesses testify without a
face mask. Defendant also challenges the inclusion of his two minor
children in the postconviction protective order.
We conclude defendant’s rights under the Confrontation
Clause of the Sixth Amendment were not violated. United States
Supreme Court precedent establishes the right to face-to-face
confrontation is not absolute. 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 the case.’ ”
(Maryland v. Craig (1990) 497 U.S. 836, 849 (Craig).) The mask
requirement was necessary to further the public policy of ensuring
the safety of everyone in the courtroom during a global pandemic of
a highly infectious, potentially deadly virus. The procedure fairly
balanced defendant’s speedy trial rights with the government’s need
2
to reduce the substantial risk of infection to everyone in the
courtroom during the trial.
We also conclude the minor children were not properly
included within the scope of the postconviction protective order
imposed pursuant to Penal Code section 136.2, subdivision (i).
Accordingly, we remand with directions to the superior court
to remove the two minor children as protected persons under the
postconviction protective order and otherwise affirm the judgment
as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with three counts of forcible rape
(Pen. Code, § 261, subd. (a)(2); counts 1, 4 & 5), one count of
injuring a spouse or cohabitant (§ 273.5, subd. (a); count 2),
one count of making criminal threats (§ 422, subd. (a); count 3) and
two counts of dissuading a witness (§ 136.1, subd. (b)(1); counts 6 &
7).
Defendant made a pretrial request to be relieved of the
requirement to wear a face mask covering his nose and mouth
during trial and also requested that all witnesses be allowed to
testify without masks. The court denied defendant’s motion but
ordered that defendant, as well as both counsel, could stand and
remove their respective masks when being introduced to the jury.
In accordance with General Order No. 021, all witnesses wore
a face mask while testifying, including defendant when he testified
in his own defense.
Amalia testified that she and defendant had been in a
relationship for several years and lived in a small apartment with
their two children and defendant’s brother (we refer to Amalia and
the children by their first names only to protect their privacy).
Amalia testified to the incidents that occurred over the course of
two days in May 2019. She explained the three separate rapes, how
defendant physically assaulted her, choked her, hit her in the face,
3
pulled her hair and tore her undergarments off her body. She
testified to defendant’s threats to kill her and confirmed the
accuracy of photographs showing the injuries she suffered to her
face and her torn undergarments. Amalia also testified about
telephone conversations with defendant while he was in jail and his
efforts to pressure her to disavow the charges against him. Audio
recordings of the telephone conversations were played for the jury.
Detective Eduardo Flores testified to his interactions with
Amalia and confirmed she had visible injuries to her face and neck.
Wendeline Ruvalcaba, a registered nurse, testified to her
examination of Amalia. She said Amalia was “very emotional”
during the examination and had numerous injuries, including the
existence of petechiae (tiny broken blood vessels) consistent with
having been choked. Another registered nurse, Malinda Wheeler,
also testified to Amalia’s injuries that were consistent with manual
strangulation.
Defendant’s brother testified he lived with defendant and
Amalia and denied ever seeing his brother hit or verbally abuse
Amalia. He denied hearing any sounds of an argument or
disturbance on the night and morning Amalia testified she was
raped. He also denied seeing Amalia looking distressed or crying
during that time.
Defendant testified that he and Amalia had consensual
relations and that he had never abused her during their seven-year
relationship. He admitted they argued on the dates she said he
raped her but that it was Amalia who got angry with him. He
denied hitting Amalia, choking her, pulling her hair, raping her,
attempting to sodomize her, threatening her or saying any of the
derogatory statements to which she testified.
The jury acquitted defendant on count 6 and found him guilty
on all remaining charges. The court sentenced defendant to prison
for 16 years, awarded 683 total days of presentence custody credits
4
and imposed various fines and fees. Citing Penal Code section
136.2, subdivision (i), the court also imposed a 10-year protective
order, prohibiting defendant from having any contact, except
through counsel, with Amalia and defendant’s two minor children
(Jesus and Ariadne). The court ordered that peaceful contact with
the protected individuals would be possible if defendant obtained an
appropriate family, juvenile or probate court order allowing visits.
This appeal followed.
DISCUSSION
1. Defendant’s Rights Under the Confrontation Clause
Were Not Violated.
Defendant contends the court violated his constitutional right
to confront witnesses because the jury was unable to properly judge
the credibility of the witnesses and could not assess his own
demeanor throughout the trial, due to the face masks.
We are not aware of any published California cases resolving
this precise issue. However, numerous federal district courts have
concluded that, due to the unique and substantial public health
risks created by the ongoing global pandemic, the Confrontation
Clause is not violated by having a witness testify in a criminal
proceeding with a mask covering the nose and mouth. (See, e.g.,
United States v. Maynard (S.D.W.Va. Nov. 3, 2021, No. 2:21-cr-
00065) 2021 U.S.Dist. Lexis 211943 (Maynard); United States v.
Holder (D.Colo. Sep. 27, 2021, No. 18-cr-00381-CMA-GPG-01) 2021
U.S.Dist. Lexis 184017; United States v. Clemons (D.Md. Nov. 4,
2020, No. RDB-19-0438) 2020 U.S.Dist. Lexis 206221; United States
v. James (D.Ariz. Oct. 15, 2020, No. CR-19-08019-001-PCT-DLR)
2020 U.S.Dist. Lexis 190783; & United States v. Crittenden
(M.D.Ga. Aug. 21, 2020, No. 4:20-CR-7 (CDL)) 2020 U.S.Dist. Lexis
151950 (Crittenden).)
We agree with the reasoning in these federal decisions which
rely on the public interest exception to the face-to-face confrontation
5
requirement discussed in Craig, supra, 497 U.S. 836. In Craig, the
Supreme Court acknowledged the long line of precedent
establishing that the face-to-face confrontation requirement
embodied in the Sixth Amendment is not absolute. (Craig, at
pp. 849–850.) Craig explained that “a defendant’s right to confront
accusatory witnesses may be satisfied absent a physical, face-to-face
confrontation at trial 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.” (Id. at p. 850,
italics added [finding Confrontation Clause not violated where child
sexual abuse victim was allowed to testify via one-way closed-circuit
television].)
The court went on to say, “[a]lthough we are mindful of the
many subtle effects face-to-face confrontation may have on an
adversary criminal proceeding, the presence of these other elements
of confrontation—oath, cross-examination, and observation of the
witness’ demeanor—adequately ensures that the testimony is both
reliable and subject to rigorous adversarial testing in a manner
functionally equivalent to that accorded live, in-person testimony.”
(Craig, supra, 497 U.S. at p. 851.)
Applying Craig in a prepandemic case, the Ninth Circuit
concluded there was no Confrontation Clause violation in allowing a
confidential informant to testify in disguise. “[T]he reliability of the
[confidential informant’s] testimony was otherwise assured, because
(1) he was physically present in the courtroom, (2) he testified
under oath, thus impressing him with the seriousness of the matter
and the possibility of penalty for perjury, (3) he was subject to cross-
examination while [the defendant] could see him, (4) despite his
disguise, the jury was able to hear his voice, see his entire face
including his eyes and facial reactions to questions, and observe his
body language. These are all key elements of one’s demeanor that
shed light on credibility. Thus, we hold that in this case, the
6
disguise in the form of a wig and mustache did not violate the
Confrontation Clause.” (United States v. De Jesus-Casteneda (9th
Cir. 2013) 705 F.3d 1117, 1121, fns. omitted.)
Crittenden, supra, 2020 U.S.Dist. Lexis 151950 was decided
in August 2020, just before the start of defendant’s trial, at a time
when there was no vaccine yet available to protect against the
spread of COVID-19 and the best scientific evidence demonstrated
the wearing of face masks was effective at reducing the spread of
the virus and the risk of infection in indoor settings. In upholding
the mask requirement there, Crittenden found both prongs of Craig
were satisfied.
First, “the mask requirement is necessary to further an
important public policy: ensuring the safety of everyone in the
courtroom in the midst of a unique global pandemic. Without this
procedure, everyone in the courtroom would face the risk of being
infected with a lethal virus. The Court’s masking requirement is
based upon the best available scientific information and advice. . . .
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. . . . Given the [Center for Disease Control]
recommendations, which are based on the best available science in
this area, the Court finds that its social distancing and mask
protocols are necessary and essential to protect the courtroom
participants during a trial.” (Crittenden, supra, 2020 U.S.Dist.
Lexis 151950 at pp. *15–16, citations omitted.)
Moreover, the reliability of the testimony provided by masked
witnesses was otherwise assured. “[U]nder the Court’s mask
procedure, witnesses against the Defendant will be physically
present in the courtroom, they will testify under oath, and
Defendant will be able to have these witnesses cross-examined in
the open courtroom in front of the Defendant and the jurors. The
Defendant and jury will also be able to observe the witnesses’
7
demeanor, although they will not be able to see their nose and
mouth. The Court finds that this restriction does not diminish the
face-to-face nature of the confrontation contemplated by the
Confrontation Clause.” (Crittenden, supra, 2020 U.S.Dist. Lexis
151950 at pp. *17–18.)
Similarly here, the court’s mask requirement furthered the
public policy of protecting against the substantial health risks
presented by the COVID-19 virus, particularly in an indoor setting
like a courtroom. The mask order not only protects the safety of the
trial participants, but public health more broadly by seeking to
limit the spread of the virus.
We also conclude the mask requirement did not meaningfully
diminish the face-to-face nature of the witness testimony. The
witnesses testified in court, under oath and were subject to
unfettered cross-examination by counsel. The mask requirement
did not significantly obstruct the jury’s ability to assess witness
demeanor. The jurors could see the witnesses’ eyes, hear the tone of
their voices, and assess their overall body language. “To whatever
slight extent masks impinge on [a defendant’s] Confrontation
Clause right to see a witness’s full facial expressions, requiring
them is justified by important public policy interests to protect the
health and safety of those in the courthouse while allowing court
functions to proceed during a pandemic.” (Maynard, supra,
2021 U.S.Dist. Lexis 211943 at p.*6.)
Defendant argues the court did not consider alternatives such
as allowing witnesses to testify remotely without a mask. Nothing
in the record demonstrates that defendant asked the court to
consider alternatives. In any event, defendant’s argument that
having witnesses testify remotely from another location would have
been preferable to testifying in court with a mask is not supported
by Sixth Amendment jurisprudence.
8
Indeed, as Crittenden aptly noted, the “essence of the
confrontation right is the guarantee that one’s accuser must appear
in the defendant’s presence under oath while being subjected to
cross-examination knowing that the reliability of his testimony will
be closely scrutinized by the factfinder. That is the face-to-face
confrontation contemplated by the Confrontation Clause. The mask
requirement here does not diminish that confrontation or the
reliability of a witness’s testimony in a material way, and it is
necessary to protect the trial participants and spectators from
COVID-19.” (Crittenden, supra, 2020 U.S.Dist. Lexis 151950 at
p. *22.)
We are also not persuaded by defendant’s argument the court
could have reconfigured the courtroom to allow witnesses to testify
maskless and be socially distanced from all other courtroom
participants. Defendant conceded at oral argument that his
argument was based on speculation. Nothing in the record
indicates the particulars of the courtroom here allowed for such
accommodation. Indeed, the record shows the court was already
using much of the space in the courtroom to allow for jurors to be
socially distanced, sitting in the audience chairs rather than all
being confined in the traditional jury box.
Defendant pointed to a handful of orders from courts in other
counties allowing trials to proceed with witnesses testifying
maskless. That all courtrooms in every county throughout the state
have not adhered to identical procedures during this pandemic only
underscores the need for deference to a trial court’s inherent
authority and discretion to control the proceedings before it (Code
Civ. Proc., § 128).
Defendant’s argument also ignores the fact there were
numerous other factors relevant to the jury’s assessment of witness
credibility, none of which was impacted or diminished by the mask
requirement such as (1) how well the witness could see, hear, or
9
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. (See, e.g., CALCRIM No. 226.)
We decline to adopt a rule that would infringe on the inherent
authority of trial courts to promulgate procedures best suited for
their particular courtrooms as they confront the challenges
presented by the global pandemic. We find the trial court in this
case did not abuse its discretion or fail to protect defendant’s
constitutional right to a fair trial.
2. The Minor Children Must Be Removed From the
Postconviction Protective Order.
At sentencing, the court imposed a protective order, citing
Penal Code section 136.2, subdivision (i)(1) as its authority for doing
so. The court prohibited defendant for a period of 10 years from
having any contact or communications with Amalia and the two
minor children, except through counsel. The prosecutor conceded
the children were not direct victims and were asleep during the
domestic violence incidents but argued the court could include them
in the protective order pursuant to section 136.2, subdivision (a)(2).
The prosecutor further argued the court should permit the family
court to modify the protective order to permit contact with the
children if the family court later found such contact was
appropriate. The court agreed to modify the order so that
defendant could have peaceful contact with the children if he
10
obtained a family, juvenile or probate court order permitting visits.
The court reiterated it was imposing the protective order pursuant
to subdivision (i)(1). The sentencing minute order also states the
court issued the protective order pursuant to subdivision (i)(1).
Defendant contends the court had no authority to include the
children in the postconviction protective order because, as all
parties agreed, they were not victims within the meaning of the
statutory language. We agree.
Courts “have construed [Penal Code] section 136.2,
subdivision (a) to authorize imposition of protective orders only
during the pendency of the criminal action. [Citations.] Thus, once
the defendant is found guilty and sentenced, the court’s authority to
issue a protective order under section 136.2, subdivision (a)
generally ceases.” (People v. Beckemeyer (2015) 238 Cal.App.4th
461, 465 (Beckemeyer); accord, People v. Delarosarauda (2014)
227 Cal.App.4th 205, 210 [former § 136.2, subd. (a)(6) now codified
at subd. (a)(1)(F) “does not authorize postconviction protective
orders”].)
However, in 2011, Penal Code section 136.2 was amended
“creating an exception to the preconviction limitation of a
section 136.2 restraining order for domestic violence cases. (Stats.
2011, ch. 155, § 1.) Effective January 1, 2012, the Legislature
added section 136.2, subdivision (i) to the statutory scheme so that
a 10-year postconviction protective order would be permissible
when a defendant was convicted of a domestic violence offense.”
(Beckemeyer, supra, 238 Cal.App.4th at p. 465, italics & fn.
omitted.)
Subdivision (i)(1) of Penal Code section 136.2 now expressly
provides for the imposition of postconviction protective orders at the
time of sentencing. (Ibid. [“When a criminal defendant has been
convicted of a crime involving domestic violence . . . , the court, at
the time of sentencing, shall consider issuing an order restraining
11
the defendant from any contact with a victim of the crime.”].) Such
orders are limited to defendants convicted of crimes that qualify as
“ ‘domestic violence’ ” and where the protected person qualifies as a
‘“victim’ ” of said crime(s). (Beckemeyer, supra, 238 Cal.App.4th at
p. 466.)
Here, the parties agree the minor children were not victims of
a crime of domestic violence within the meaning of Penal Code
section 136.2, subdivision (i)(1). They were present but asleep.
“ ‘Victim’ ” for purposes of the statutory scheme is defined as “any
natural person with respect to whom there is reason to believe that
any crime as defined under the laws of this state or any other state
or of the United States is being or has been perpetrated or
attempted to be perpetrated.” (§ 136, subd. (3).)
Respondent, taking up the argument of the prosecutor below,
has argued the definition of victim is broader, citing to the language
in Penal Code section 136.2, subdivision (a)(2) which states that
“[f]or purposes of this subdivision, a minor who was not a victim of,
but who was physically present at the time of, an act of domestic
violence, is a witness and is deemed to have suffered harm within
the meaning of paragraph (1).” By its own terms, section 136.2,
subdivision (a)(2) only pertains to preconviction protective orders
imposed under subdivision (a), not postconviction orders imposed
under subdivision (i).
As no other basis for including the minor children within the
scope of the postconviction protective order has been advanced, the
protective order must be modified to protect the only victim as
defined by Penal Code section 136.2, subdivision (i)(1), Amalia.
DISPOSITION
The minor children identified as Jesus and Ariadne shall be
deleted as protected persons under the postconviction protective
order. On remand, the superior court is directed to remove their
12
names from the protective order. As so modified, the judgment of
conviction is otherwise affirmed in its entirety.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
13