People v. Hill CA2/5

Filed 10/17/23 P. v. Hill CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B322169

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA152029)

MICHAEL HILL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Spolin Law, Aaron Spolin and Jeremy M. Cutcher, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Michael C. Keller, Deputy Attorney
General, for Plaintiff and Respondent.
 A jury convicted defendant Michael Hill (defendant) of
attempted murder and several other offenses for shooting his
girlfriend. We are asked to decide whether defendant’s trial
attorney was constitutionally ineffective because she herself
made reference to (and did not object to other references to) the
fact that he was held in custody during trial. We also consider
whether the use of face masks during part of defendant’s trial—to
reduce the risk of contracting COVID-19—violated his
constitutional rights.

I. BACKGROUND
A. The Offense Conduct, as Established by the Evidence
at Trial
Around 9:30 a.m. on March 5, 2020, Harold Hathorn
(Hathorn) was sitting in a van with a friend. They were parked
on the street outside their church in Lynwood preparing to “go
from door-to-door [to] conduct Bible studies.” Defendant lived
nearby, and Hathorn occasionally stopped by defendant’s home to
discuss religion with him. Hathorn had known defendant for
several months.
Hathorn noticed a woman walking on the sidewalk and
defendant “walking behind her in a hurry.” The woman, Naketia
Gregory (Gregory),1 was unknown to Hathorn. Defendant was
speaking angrily in a raised voice and pulled a gun from his

1
The appellate record includes some references to Gregory in
which her first name is spelled “Nakita,” but she spelled her
name “Naketia” when she testified at defendant’s sentencing
hearing. Defendant refers to Gregory as “Mrs. Hill” in his
opening brief, but the appellate record does not establish
defendant and Gregory are married.

2
waistband as he approached the woman. Defendant walked in
front of Gregory “and they had some type of verbal altercation,”
but Hathorn could not make out what they said.
Hathorn saw defendant point the gun at Gregory and “got
the feeling that it appeared he was going to shoot her.” Hathorn
said, “Michael, don’t do it,” but defendant did not respond.
Defendant then shot Gregory and fled the scene.
Hathorn drove Gregory to a hospital. She was treated by
Dr. Almaas Shaikh, a trauma critical care surgeon. Dr. Shaikh
testified Gregory suffered “injuries to her intestinal tracts in
various places” and had to have a portion of her colon removed.
Dr. Shaikh testified Gregory’s injuries would have been fatal
without immediate medical and surgical attention.
After the shooting, Los Angeles County Sheriff’s
Department (LASD) deputy Christian Medina recovered
surveillance video from a nearby business that showed defendant
tossing something into a bush a few feet from where the shooting
occurred.2 Deputy Medina located a revolver in the bush and
inside were three bullets and one spent casing.3

2
The video was played at trial.
3
LASD criminalist Tracy Peck examined the gun, a Smith &
Wesson .357 revolver, and testified it was undamaged and in
working order. Peck opined that the gun could not have fired
without someone pulling the trigger and testified regarding the
amount of pressure required to do so. Defendant’s firearms
expert, David Kim, testified that the trigger required less
pressure than called for in factory specifications and discussed
his experience with accidental discharges as a firearms
instructor.

3
 LASD detective Keegan McInnis distributed “wanted”
flyers for defendant to surrounding law enforcement agencies.
When defendant was arrested in Norwalk about two months after
the shooting, in May 2020, Detective McInnis read defendant his
Miranda rights and interviewed him at an LASD station. The
interview was recorded and the audio was played at defendant’s
later criminal trial.
Defendant told Detective McInnis that Gregory was his “off
and on” girlfriend. About a week prior to the shooting, defendant
heard from a mutual acquaintance that Gregory planned to have
someone rob him. Defendant bought the gun to protect himself.
When defendant saw Gregory on the morning of the shooting, he
“confronted her” and pulled the gun “to scare her.” He heard
Hathorn tell him not to shoot, “[b]ut [he] was not thinking. [He
was] thinking about [how Gregory was] trying to get somebody to
do something to [him] . . . .”
Defendant still claimed, however, that the shooting was
unintentional. He said that he and Gregory reconciled during the
two-month period between the shooting and his arrest. They
went to Las Vegas and “tried to get married, but
everything . . . [was] shut down” due to COVID-19.
Asked to explain why he did not remain on the scene to
help Gregory, defendant told Detective McInnis that he saw
Hathorn helping her, he believed she had been hit in the
shoulder,4 he was “just frustrated and mad,” and he “panicked.”
Asked to explain why he did not subsequently contact law

4
It was stipulated at trial that defendant, who represented
himself at his preliminary hearing, stated at that hearing that he
“shot [Gregory] in the upper torso.”

4
enforcement to explain the shooting was an accident, defendant
said he initially planned to turn himself in, post bail, and “fight
[his case] from the streets.” When he spoke to a bail bond agent,
however, and learned his bail would likely be far more than he
could afford, he decided not to turn himself in.
At trial, defendant testified during the defense case and
expanded upon his post-arrest interview statements to Detective
McInnis. He testified he had known Gregory for ten years and
they had been engaged for five years, though he had been
“incarcerated for two of them.” They continued to talk every day,
however. Defendant bought the gun about a week prior to the
shooting because he had “just c[o]me into a little inheritance from
[his] father, and [he] heard rumors somebody [was] going to rob
[him] and beat [him] up . . . .” He and Gregory were living
together at the time of the shooting, but he stayed at a motel the
night before because he and Gregory “had some words.” On the
morning of the shooting, defendant was “hanging out with the
fellas drinking beer” outside a shop near the apartment he
shared with Gregory. Defendant saw Gregory walk outside and
approached to ask whether “anybody was trying to rob [him] or
jump [him]. [Gregory] said no, not that [she] kn[e]w of, and
[defendant] pulled the gun out of [his] right-hand pocket, and
said, well, [‘]I bought this.[’] [Gregory] said, [‘]you know I don’t
like guns,[’] and [Hathorn] said, [‘]don’t do it, ain’t worth
it.[’] . . . [Defendant] went back and . . . tried to put [the gun] in
[his] pocket and the gun went off.”5 Defendant was “in shock”
and “threw [the gun] in some bushes” as he walked away.

5
One aspect of defendant’s defense was that his height
relative to Gregory’s was consistent with the gun discharging as
he placed it in his pocket. Defendant’s sister testified he is six

5
 It was stipulated at trial that defendant had previously
been convicted of a felony making it unlawful for him to possess a
firearm under Penal Code section 29800, subdivision (a)(1).6

B. Verdict and Sentencing
The jury found defendant guilty of attempted willful,
deliberate, and premeditated murder (§§ 664, subd. (a), 187,
subd. (a)) (count one); injuring a spouse, cohabitant, fiancée, or
girlfriend (§ 273.5, subd. (a)) (count two); assault with a firearm
(§ 245, subd. (a)(2)) (count three); and possession of a firearm by a
felon (§ 29800, subd. (a)(1)) (count four). In connection with the
attempted murder conviction on count one, the jury found true
allegations that defendant personally and intentionally
discharged a handgun causing great bodily injury within the
meaning of section 12022.53, subdivisions (b)-(d). As to counts
one through three, the jury found true allegations that defendant
personally used a firearm within the meaning of section 12022.5,
subdivision (a) and personally inflicted great bodily injury under
circumstances involving domestic violence within the meaning of
section 12022.7, subdivision (e).
The trial court sentenced defendant to life in prison for
attempted murder with a minimum parole eligibility of seven
years, plus 25 years to life for the section 12022.53, subdivision
(d) firearm enhancement. The trial court sentenced defendant to
a concurrent term of 16 months for possession of a firearm by a

feet, two inches tall, and a defense investigator testified Gregory
is five feet, four inches tall.
6
Undesignated statutory references that follow are to the
Penal Code.

6
felon. The trial court did not orally pronounce a sentence on
counts two and three, but indicated “the enhancements are
stayed pursuant to [section] 654.” A minute order for the
sentencing hearing reflects sentences of two years in state prison
on counts two and three.

II. DISCUSSION
Defendant contends he received ineffective assistance of
counsel because his trial attorney made references to the fact
that he was incarcerated during trial and did not object to other
such references. It is well established, however, that there may
be tactical reasons for allowing jurors to learn that a defendant is
in custody. That is the case here, which means reversal is
unwarranted. In addition to appealing to the jurors’ sympathy,
defendant’s incarceration provided essential context for the fact
that he and Gregory were still in a relationship and she
(presumably) believed the shooting was unintentional.
Defendant also contends the requirement that he, his
attorney, witnesses, and the jury wear masks during the first
part of his trial, held in March and April 2022, violated his
constitutional rights of confrontation and to an impartial jury.
The argument fails. California courts have published several
opinions, which we shall follow, that persuasively reject
contentions that the use of a partial face covering during the
extenuating circumstances of the COVID-19 pandemic is grounds
for reversal.
We shall accordingly affirm defendant’s convictions, but we
will remand the cause for resentencing to correct an easily
remedied error.

7
 A. Defendant Has Not Established Ineffective Assistance
of Counsel on Appeal Because There Are Tactical
Reasons Why the Defense Might Want the Jury to
Know Defendant Was in Custody
1. Additional background
There were several references to defendant’s in-custody
status at trial. First, in the recording of defendant’s interview
with law enforcement, defendant expressed concern that jail
records would reflect that he had a substantial amount of money
in his possession at the time of his arrest. Defendant said he
wanted to “make sure [he had] some money on [his] books,” and
Detective McInnis testified this reflected defendant’s concern that
“while he’s in the LA County Jail system, he can purchase food,
snacks, and other things from the commissary.”
The topic came up again during defense counsel’s
examination of the defense investigator, Bernadette Gambino
(Gambino). Asked to explain how she assisted defendant when
he was in propria persona, Gambino testified “the time that [she]
spent with [defendant] was basically visiting him at men’s
central jail, which is where he was at the time. And then
spending the time going over all the discovery, everything that he
gets from the [prosecution] . . . .”
Later, as we have already mentioned, defendant testified
he had known Gregory for ten years and they had been engaged
for five years, though he had “been incarcerated for two of them.”
Defendant also testified that Gregory sent him a photograph of
herself while he was in jail.
Finally, defendant’s attorney briefly referred to defendant’s
incarceration during her closing argument. Displaying a
photograph of defendant, counsel commented, “This is

8
[defendant], 6-foot-2. This picture was the picture that was
authenticated by [defendant’s] sister at the very beginning when
he said he was 6-foot-2. But we also had [defendant] state that
he was 6-foot-2 as well, and he was, I believe, 200
pounds . . . before he put on some jail weight.”
When charging the jury, the trial court gave CALJIC 2.29
because “[defendant] ha[d] testified that he[ was] in custody.”
The instruction stated that “[t]he mere fact that the defendant is
in custody must not prejudice you for or against any party. [¶]
You are not to consider the fact that defendant is in custody for
any purpose. In your deliberation, do not discuss or consider that
fact. That fact must not in any way affect your verdict.”

2. Analysis
“‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. (Strickland v. Washington
(1984) 466 U.S. 668, 694[ ]; People v. Ledesma (1987) 43 Cal.3d
171, 217 [ ].)’” (People v. Carter (2005) 36 Cal.4th 1114, 1189.)
We presume “‘counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions
can be explained as a matter of sound trial strategy. Defendant
thus bears the burden of establishing constitutionally inadequate
assistance of counsel. [Citations.]’” (Ibid.; see also People v. Scott
(1997) 15 Cal.4th 1188, 1212 [a reviewing court “should not
second-guess reasonable, if difficult, tactical decisions in the
harsh light of hindsight”].) “‘If the record on appeal sheds no

9
light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel
must be rejected unless counsel was asked for an explanation and
failed to provide one, or there simply could be no satisfactory
explanation.’ [Citation.]” (Carter, supra, at 1189; accord People
v. Mickel (2016) 2 Cal.5th 181, 198 [“[A] reviewing court will
reverse a conviction based on ineffective assistance of counsel on
direct appeal only if there is affirmative evidence that counsel
had ‘“‘no rational tactical purpose’”’ for an action or omission”].)
“It is established that a court may not require a defendant
to attend trial wearing jail clothing, because such a requirement
would impair the presumption that a defendant is innocent
unless and until proved guilty beyond a reasonable doubt.
[Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1335-
1336; accord Estelle v. Williams (1976) 425 U.S. 501, 503-506;
People v. Taylor (1982) 31 Cal.3d 488, 494-495.) Our Supreme
Court has suggested that “[i]t may be inferred that other
information, having the same tendency to remind the jury that a
defendant is in custody, might have a similar effect.” (Bradford,
supra, at 1336.) Although defendant appeared in civilian
clothing at trial, he argues the references to his custody status
during trial undermined the presumption of innocence.
Defendant’s argument that his trial attorney was
constitutionally ineffective for making reference to his custody
status during trial (and not objecting to references to that status
by others) fails because we cannot say there can be no rational
tactical purpose for the attorney’s actions (and inaction). Indeed,
there are several plausible reasons to conclude otherwise.7

7
In analyzing the issue, we assume just for argument’s sake
that defendant is correct in believing that references to his

10
 First, the Attorney General correctly highlights case law
suggesting a defendant might want the jury to know he or she is
incarcerated “in the hope of eliciting sympathy.” (Estelle v.
Williams, supra, 425 U.S. at 508 [“it is not an uncommon defense
tactic to produce the defendant in jail clothes in the hope of
eliciting sympathy from the jury”].) Because defendant did not
dispute that he possessed and fired the gun, his attorney “could
not realistically have argued [her] client was innocent of all
charges and should not be in custody,” and could therefore have
made a reasonable tactical calculation that jurors would be more
likely to acquit knowing defendant had already spent time in
custody as a result of the charged crime. (Scott, supra, 15 Cal.4th
at 1214-1215.)
Second, and beyond appealing to the jury’s sympathy,
defendant’s incarceration provided important context for the fact
that he and Gregory were still in a relationship and the related
defense theory that this showed the shooting must have been
unintentional. During a discussion with the trial court regarding
a separate issue, defense counsel expressly argued that
defendant’s case “really turn[ed] on the fact that [he and Gregory]
had a longstanding relationship and continued to see each other,
trust was not broken.” Defendant could not testify that he was
currently living with or going out on dates with Gregory, so he
testified that they spoke every day and she sent a photograph to
him in jail. Defendant’s arrest and incarceration also explained

custody status are the functional equivalent of having him
appear at trial in jail garb. (But see People v. Valdez (2004) 32
Cal.4th 73, 121.)

11
the apparent lack of follow-up after defendant and Gregory tried
and failed to get married in Las Vegas after the shooting.
Third, defendant’s explanation for not turning himself in
after the shooting hinged on his inability to afford bail. The jury
could readily infer from such statements that defendant was in
custody during trial.

B. The Use of Face Masks During Part of Defendant’s
Trial Did Not Violate His Constitutional Rights
1. Additional background
When defendant’s trial began on March 15, 2022, everyone
over two years of age entering any Los Angeles Superior Court
courthouse was required to “wear a face mask over both the nose
and the mouth while in public areas of the courthouse, including
courtrooms.”8 The trial court occasionally reminded participants
of this requirement.

8
On our own motion, we take judicial notice of general order
2021-GEN-023-00, issued by the presiding judge of the Los
Angeles County Superior Court on June 24, 2021. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a).) The general order noted that
although health authorities had “recently lifted mask mandates
and physical distancing requirements for vaccinated persons in
most public spaces,” these authorities “acknowledged the right of
businesses and entities to retain mask requirements.” The
general order further emphasized that the court remained subject
to COVID-19 Prevention Emergency Temporary Standards
adopted by Cal/OSHA. The trial court retained a mask
requirement “[t]o continue to protect the health of court
users . . . in compliance with federal, state, and local public
health guidance.”

12
 A general order issued by the presiding judge of the Los
Angeles County Superior Court on March 25, 2022, provided that
masks would no longer be required beginning April 4, 2022, but,
“[t]hereafter, use of face coverings in courthouses [would be]
strongly recommended.”9 The general order explained this
change was precipitated by “Los Angeles County[’s] emerge[nce]
from the most recent surge in COVID-19 cases and public health
authorities relax[ing] mandates. . . .”
At the end of the day on March 30, 2022, the trial judge in
this case told the parties and jurors that there would be “a
change in Los Angeles County Superior Court’s policy effective”
when trial resumed on April 4, 2022. “[T]he court is lifting the
mask requirement for all persons in the courthouse and the
courthouse locations, regardless of any vaccination status. So
you are not going to be required to wear face masks anymore.
However, you may wear a face mask. No one is going to stop you
from doing that if you choose to. That’s going to be your
choice. . . .” Defendant was testifying at the end of the day on
March 30, 2022, and his testimony resumed on April 4, 2022.10
He was the final witness to testify.

9
On our own motion, we judicially notice general order 2022-
GEN-005-00.
10
At the beginning of defendant’s testimony on April 4, 2022,
his attorney asked the trial court, “perhaps [defendant] wants to
keep his mask on, but does he need to keep his mask on?” The
trial court emphasized “no one needs to keep their mask on.” The
record does not indicate whether defendant ultimately removed
his mask.

13
 2. Analysis
Defendant challenges the masking requirement on various
fronts, contending that requiring him, his attorney, witnesses,
and the jurors to wear masks violated his constitutional rights of
confrontation and to an impartial jury. We are unpersuaded
because the fundamental assumption underlying defendant’s
arguments—that masks materially interfere with the ability to
assess credibility and demeanor—lacks merit.

a. Witnesses
“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.) This right
“includes not only a ‘personal examination’” of witnesses, “but
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.]” (Id.
at 845-846.)
“Although the constitutional right of confrontation is
important, it is not absolute.” (People v. Wilson (2021) 11 Cal.5th
259, 290.) Rather, it “‘must occasionally give way to
considerations of public policy and the necessities of the case.’”
(Craig, supra, 497 U.S. at 848, quoting Mattox v. United States

14
(1895) 156 U.S. 237, 243.) This “does not, of course, mean that it
may easily be dispensed with,” and the high court has
emphasized “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 850.)
California courts have now published several opinions
discussing the use of opaque face masks by witnesses in criminal
trials in response to COVID-19. They overwhelmingly hold such
mask use does not violate the Confrontation Clause. (See, e.g.,
People v. Edwards (2022) 76 Cal.App.5th 523, 527; People v.
Lopez (2022) 75 Cal.App.5th 227, 233-236; People v. Alvarez
(2022) 75 Cal.App.5th 28, 35-39.) This wall of authority
recognizes the important public policy of reducing the risk of
COVID-19 infection to participants in a trial and the community
at large. (Edwards, supra, at 526; Lopez, supra, at 233-234;
Alvarez, supra, at 36-37.) Although the trials in at least two of
these cases were held prior to the widespread availability of
vaccines (Edwards, supra, at 525-526; Lopez, supra, at 230),
defendant does not dispute the mask requirement continued to
serve an important public purpose in March 2022.
Defendant instead emphasizes the significance of nonverbal
communication and suggests (without directly engaging authority
like Edwards, Alvarez, or Lopez) that masks “inhibited the jury’s
ability to examine the behavior, manner, facial expressions, and
emotional responses of [his] accusers, which undermined the
jury’s role in assessing credibility.” We are persuaded, however,
by the reasoning in these cases that masks do not “significantly
obstruct the jury’s ability to assess witness demeanor.” (See, e.g.,

15
Lopez, supra, 75 Cal.App.5th at 234; ibid. [“The jurors could see
the witnesses’ eyes, hear the tone of their voices, and assess their
overall body language”]; Alvarez, supra, 75 Cal.App.5th at 38
[“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”].)

b. Defendant and his attorney
Defendant’s arguments with respect to his and his
attorney’s use of face masks likewise turn on the jury’s ability to
assess demeanor. Relying on case law addressing the effects of
medication on a defendant’s demeanor (People v. Gurule (2002)
28 Cal.4th 557, 598; Riggins v. Nevada (1992) 504 U.S. 127, 142-
145 (conc. opn. of Kennedy, J.)), defendant contends his mask
may have interfered with his ability to demonstrate emotion at
trial. But whereas medication may “inhibit[ ] the defendant’s
capacity to react and respond to the proceedings and to
demonstrate remorse or compassion” (Riggins, supra, at 143-144
(conc. opn. of Kennedy, J.), italics added), a mask only limits an
observer’s view of such expression. Because there is no reason to
believe that a defendant’s emotional response to testimony is any
less effectively conveyed through the eyes and overall body
language than is a witness’s sincerity, this argument lacks merit
for the reasons discussed in Edwards, Alvarez, and Lopez.
Defendant’s related contention that his attorney’s mask
“hindered” her ability “to demonstrate emotion to the jury” lacks
merit for the same reasons.

16
 c. The jury
A criminal defendant has a constitutional right to a fair
trial by an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal.
Const., art. I, § 16.) “An impartial jury is one in which no
member has been improperly influenced and every member is
capable and willing to decide the case solely on the evidence
before it. [Citation.] To effectuate this right, the prospective
jurors are subjected to voir dire questioning under oath to
uncover any bias, and the selected jurors are sworn to decide the
case based on the evidence presented to them and the
instructions given by the court. [Citations.]” (People v. Cissna
(2010) 182 Cal.App.4th 1105, 1115.)
Defendant contends prospective jurors’ use of face masks
during voir dire deprived him of the right to an impartial jury by
limiting his ability to exercise peremptory challenges in a “face to
face” setting.11 (Lewis v. United States (1892) 146 U.S. 370, 375-
376 [reversing judgment where, among other things, the record
indicated “the [defendant] was not brought face to face with the
jury until after the challenges had been made and the selected
jurors were brought into the box to be sworn”].) In Lewis, the
record suggested the defendant and prospective jurors were not
both in the courtroom when he exercised his peremptory
challenges. (Ibid.) Here, by contrast, defendant was present and
able to assess the prospective jurors’ “looks and gestures” to some
degree. (Id. at 376.) The reasoning of Edwards, Lopez, and

11
Although we find no error, our ability to determine whether
defendant was prejudiced by any error impacting voir dire is
limited by the absence of pertinent reporter’s transcripts. (Cal.
Rules of Court, rule 8.320(c)(3) [normal record need not contain
“the voir dire examination of jurors”].)

17
Alvarez as to the ability to assess witness credibility from the
eyes, overall body language, and speech applies with equal force
in the context of voir dire.12
Defendant alternatively contends that requiring jurors to
wear masks during trial hindered his and his attorney’s ability to
assess their reactions to evidence and argument. Assuming a
defendant has a right to observe jurors during trial as opposed to
jury selection,13 this argument fails for the same reason as
defendant’s other challenges to the mask requirement. (United

12
Federal courts have consistently rejected the argument
that requiring prospective jurors to wear masks during voir dire
violates a defendant’s right to an impartial jury on similar
grounds. (See, e.g., United States v. Trimarco (E.D. N.Y., Sept. 1,
2020, No. 17-CR-583 (JMA)), 2020 WL 5211051, *5 [“Being able
to see jurors’ noses and mouths ‘is not essential’ for assessing
credibility because ‘[d]emeanor consists of more than those two
body parts’ since it ‘includes the language of the entire body’”];
United States v. Tagliaferro (S.D. N.Y 2021) 531 F.Supp.3d 844,
851 [“despite the [court’s] mask mandate, [the defendant] is still
free to examine and assess juror credibility in all critical aspects
besides the few concealed by the wearing of a mask”]; United
States v. Ayala-Vieyra (6th Cir., Jan. 21, 2022, No. 21-1177), 2022
WL 190756, *5 [“Courts have consistently” rejected the argument
that “seeing the bottom of the jurors’ faces is constitutionally
required”].)
13
At least one court has held “there is no constitutional right
that requires a defendant to see a juror’s facial expression or
allows him to communicate non-verbally with a juror.”
(Trimarco, supra, 2020 WL 5211051 at 5.) Defendant’s reliance
on Gomez v. United States (1989) 490 U.S. 858 is misplaced in
this context because that case only discusses the significance of
“gestures and attitudes” during jury selection. (Id. at 875.)

18
States v. Schwartz (E.D. Mich., Nov. 12, 2021, No. 19-20451),
2021 WL 5283948, *2 [“All courts that have considered this
question so far have universally reached the conclusion that a
defendant can still assess a juror’s credibility and demeanor
during both voir dire and trial while the juror is wearing a face
mask”], italics added.) Defendant’s suggestion that masks might
have concealed impairments that would violate his right to a
competent jury (Tanner v. United States (1987) 483 U.S. 107,
126-127) has no specific basis in the record and there is no reason
to believe that detecting such impairment behind a mask is any
more problematic than assessing credibility.

C. Cumulative Error
Defendant contends that even if the asserted errors in this
case are not prejudicial when considered individually, the
cumulative effect of those errors requires reversal of his
convictions. Because we have found no error, there is no
cumulative error. (People v. Ramirez (2021) 10 Cal.5th 983,
1020.)

D. The Cause Must be Remanded for Imposition of
Sentence on Counts Two and Three
We invited defendant and the Attorney General to submit
supplemental briefs addressing the trial court’s failure to orally
pronounce a sentence on counts two and three. The Attorney
General concedes that the failure to pronounce a sentence on
these counts resulted in an unauthorized sentence and defendant
argues resentencing is required.
The Attorney General’s concession is appropriate. (People
v. El (2021) 65 Cal.App.5th 963, 967 [“The oral imposition of

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sentence constitutes the judgment in an action, and the minutes
cannot add anything substantive to the oral pronouncement”];
People v. Alford (2010) 180 Cal.App.4th 1463, 1466 [“when a trial
court determines that section 654 applies to a particular count,
the trial court must impose sentence on that count and then stay
execution of that sentence”].) We will accordingly remand for
resentencing. (People v. Taylor (1971) 15 Cal.App.3d 349, 353
[“In a case where the court fails to pronounce judgment with
respect to counts on which convictions were validly obtained, the
Court of Appeal has power to remand for the purpose of
pronouncement of a judgment in accordance with the verdict.
[Citation.] When such a mistake is discovered while [the]
defendant’s appeal is pending, the appellate court should affirm
the conviction and remand the case for a proper sentence”].)

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 DISPOSITION
Defendant’s sentence is reversed and the cause is
remanded for resentencing, including imposition of sentence on
the convictions in counts two and three. In all other respects, the
judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.

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