People v. Chadwick

1

THE PEOPLE, Plaintiff and Respondent, v. JOSHUA CHADWICK, Defendant and Appellant.

C094306

California Court of Appeals, Third District, Butte

September 19, 2022

NOT TO BE PUBLISHED

Super Ct. No. 20CF03304

RENNER, J.

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 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 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 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 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. .) Attempting to prevent the spread of this deadly disease, the federal government, the states (including California), and many local governments have taken various measures. One prominent measure has involved the use of face masks. Around the time...