Opinion
B317939
11-20-2023
THE PEOPLE, Plaintiff and Respondent, v. ARTYOM GASPARYAN, Defendant and Appellant.
Spolin Law, Aaron Spolin and Jeremy M. Cutcher, for Defendant and Appellant. Rob Bonta, Attorney General, Lance Winters, Assistant Attorney General, Susan Pithey, Senior Assistant Attorney General, Michael Keller and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA442550, Mary Lou Villar, Judge.
Spolin Law, Aaron Spolin and Jeremy M. Cutcher, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance Winters, Assistant Attorney General, Susan Pithey, Senior Assistant Attorney
General, Michael Keller and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
ADAMS, J.
A jury found Artyom Gasparyan guilty of 32 criminal offenses, including murder and attempted murder, robbery and attempted robbery, reckless fleeing a pursuing police officer, assault with a deadly weapon, hit and run driving, shooting at an unoccupied vehicle, and assault with a firearm on a peace officer, all occurring during a six-month crime spree.
On appeal, Gasparyan argues the trial court abused its discretion by denying his motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), and by denying the prosecution's motion to dismiss a special circumstance allegation. Gasparyan also claims he was deprived of his Sixth Amendment rights to confront witnesses, to be present at trial, and to a fair trial based on an impartial jury because of an order requiring every person in the courtroom to wear a mask due to the COVID-19 pandemic. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In light of the issues raised on appeal, we need not discuss the underlying facts at length. In short, the evidence at trial established that, between August 2015 and January 2016, Gasparyan was involved 16 separate incidents with over 20 different victims. He engaged in some of the incidents with an accomplice.
In August 2015, Gasparyan stabbed an acquaintance with a knife during an argument. In late November 2015 through his arrest in early January 2016, Gasparyan engaged in a series of seemingly unrelated and unprovoked acts of violence on members of the general public. He shot into unoccupied vehicles and at people walking in public and standing in front of their homes. He also shot at passing motorists. While many of these shootings resulted in injuries, one resulted in the death of Adan Corea. Gasparyan also shot and injured a parking attendant during an attempted robbery, was involved in robberies of both individuals and businesses, and committed two carjackings.
On January 1, 2016, Gasparyan's accomplice for some of the crimes, Daniel Ramirez, shot himself while barricaded in a stranger's home. Ramirez and Gasparyan had fled from the police into the home after conducting a carjacking. Ramirez subsequently died of his self-inflicted wounds.
A few days later, Gasparyan fled from police in his car and caused a car accident that injured a mother and her children as he drove in the wrong direction on the freeway. An on-foot pursuit ensued, culminating in the police shooting and arresting Gasparyan.
In July 2021, Gasparyan was charged by an amended information with 32 counts: one count of first degree murder with a drive by shooting special circumstance (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(21)); 10 counts of premediated attempted murder (§§ 664, 187, subd. (a)); one count of attempted murder (§§ 664, 187, subd. (a)); two counts of assault with a firearm on a peace officer (§ 245, subd. (d)(1)); six counts of second degree robbery (§ 211); one count of attempted second degree robbery (§§ 664, 211); two counts of carjacking (§ 215, subd. (a)); one count of assault with a deadly weapon (§ 245, subd. (a)(1)); five counts of shooting at an unoccupied vehicle (§ 247, subd. (b)); one count of reckless fleeing a pursuing peace officer (Veh. Code, § 2800.2); one count of hit and run driving resulting in injury (Veh. Code, § 20001, subd. (b)(1)); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)). The information also alleged various firearm and great bodily injury enhancements.
All further undesignated statutory references are to the Penal Code.
The trial began in July 2021. Evidence at trial linked Gasparyan to all of the crimes through a combination of eyewitness identification, G.P.S. tracking of his car, ballistics, and fingerprint and video evidence. Gasparyan testified on his own behalf. Defense counsel argued that Gasparyan was misidentified by eyewitnesses, particularly due to "cross-racial" identification, in that Gasparyan is Armenian and some of the witnesses are not. Counsel also pointed to the lack of DNA and fingerprint evidence, argued one of the crimes was committed in self-defense, and contended the video evidence was inconsistent with officer testimony.
The defense called an expert to testify about the unreliability of eyewitness identification and the challenges of cross-racial identification. Defense counsel also argued that while some of the victims and eyewitnesses described the perpetrator as Hispanic or Latino, Gasparyan "does not look Hispanic" and "is not one of [those] Armenians who look Hispanic."
In August 2021, the jury found Gasparyan guilty of all counts as charged. The jury also found true the firearm and great bodily injury allegations.
In January 2022, the trial court sentenced Gasparyan to life without the possibility of parole on the conviction for first degree murder with a drive by shooting special circumstance.
The Court further imposed an indeterminate sentence of 203 years to life, and a consecutive determinate sentence of 42 years.
Gasparyan timely appealed.
DISCUSSION
I. The Trial Court Properly Denied Gasparyan's Marsden Motion
A. Background
At a pre-trial conference in January 2021, Gasparyan's attorney told the court that a defense expert did not want to testify until she was vaccinated against COVID-19. Gasparyan personally addressed the court, claiming his attorney had lied to him because counsel said the case would go to trial earlier. Gasparyan further claimed counsel was not visiting him in person or by video call and counsel had made excuses to delay trial. The trial court directed defense counsel to arrange a video call with Gasparyan. The court indicated it would hold a Marsden hearing if Gasparyan still had concerns after the call.
At the next pre-trial hearing in February 2021, the court conducted a Marsden hearing. Gasparyan began by telling the court: "[I]t seems like [counsel] doesn't care about my case." Gasparyan said counsel told him he would lose the case if he did not testify, and that he could represent himself if he did not like counsel. The court allowed counsel to respond. Counsel said he had explained to Gasparyan that failing to testify would increase the chances of a conviction. Counsel believed Gasparyan's testimony was necessary to explain why his car was linked to the various crime scenes through G.P.S., even though Gasparyan said he was not present. In addition, Gasparyan's testimony could establish that he was acting in self-defense as to one of the charged offenses. The court explained to Gasparyan that it was his choice whether or not to testify and follow his attorney's advice. The court asked counsel if he would continue to advocate for Gasparyan even if Gasparyan did not follow counsel's advice about testifying, and counsel responded that he would.
Gasparyan told the court: "[Counsel] doesn't care about my case, whether I win or lose. So I'm not - I don't want to hear that. [¶] . . . [¶] I need him to say 'I'm going to win this case.' [¶] If he says 'you're going to lose this case,' then that's negative. I don't want no negative. [¶] I don't want to go to trial now because he is negative. I am not going to go to trial with negative. I want positive." Counsel responded that ethically he could not tell Gasparyan he would win, but he did tell Gasparyan he believed there was insufficient evidence to support some of the charged counts. Counsel had accordingly filed a motion as to one such count and planned to supplement that motion as to two others. Counsel also explained that he and Gasparyan had a conversation in which Gasparyan said he did not trust counsel and counsel lied. Counsel said he told Gasparyan he would fight for him no matter what Gasparyan thought of him, but that Gasparyan was impeding counsel's ability to defend him effectively, by, for example, refusing to waive time for trial to allow counsel the opportunity to find a different expert. The trial court explained to Gasparyan that the demeanor of counsel was not what was important; rather, counsel's skills were critical. The court stressed that Gasparyan had now heard counsel state that he would fight for Gasparyan.
Gasparyan also repeatedly told the court he needed counsel to provide him with a "plan," and he asserted counsel had no plan for the defense. Counsel responded that he had told Gasparyan his plan many times. Counsel then explained his defense strategy to the court. Most of the counts could be challenged based on identification, so counsel had obtained an expert to explain misidentification to the jury. Counsel reiterated that he had filed a motion to dismiss one count and he planned to add two counts to the motion. For the remaining charges, counsel planned to argue self-defense and misidentification, and he wanted Gasparyan to testify as to those counts. The trial court asked counsel whether he intended to cross-examine the People's witnesses. Counsel responded he anticipated cross-examining all eyewitnesses who had identified Gasparyan. Counsel also planned to use prior inconsistent statements to impeach witnesses. He had subpoenaed law enforcement officers with that intent, and had reached a stipulation with the prosecutor to use police reports to impeach unavailable witnesses.
Gasparyan disagreed with counsel's plan, in that he wanted counsel to further investigate the G.P.S. evidence and alibi witnesses. He stated that video footage from his grandmother's house might provide exculpatory evidence. The court inquired whether counsel had consulted with a G.P.S. expert. Counsel replied that he had. Counsel explained Gasparyan believed the police and the prosecution had conspired to manipulate the G.P.S. data, but the G.P.S. expert indicated the data could not be altered. Counsel thus felt he could not prove the G.P.S. data was invalid and that a different strategy was needed. Moreover, Gasparyan had previously insisted that he was not in the car when the crimes occurred, thus the G.P.S. data was irrelevant. Counsel further indicated he had previously asked Gasparyan for alibis, but Gasparyan did not provide any, and he had never before mentioned that he was at his grandmother's home. However, now that Gasparyan had provided this information, counsel indicated he would subpoena Gasparyan's grandmother and also look for the video footage from her house.
The trial court denied the Marsden motion, explaining it found counsel was working diligently on Gasparyan's behalf, giving him advice that he could choose to follow or not, and counsel had a "logical" plan to gather evidence, call experts, and cross-examine and impeach witnesses.
B. Discussion
Gasparyan contends the trial court erred by dismissing his concerns about counsel's ineffectiveness, making "unfounded" conclusions about counsel's effectiveness, and finding Gasparyan failed to show his right to counsel would be substantially impaired if his request was denied. We find no abuse of discretion.
"When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation . . . the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance." (People v. Smith (2003) 30 Cal.4th 581, 604 (Smith).)" 'The court must appoint a new attorney if the record clearly shows the current attorney is not providing adequate representation or that the defendant and counsel have such an irreconcilable conflict that ineffective representation is likely to result. [Citations.] If the court holds an adequate hearing, its ruling is reviewed for abuse of discretion.' [Citation.]" (People v. Rices (2017) 4 Cal.5th 49, 69 (Rices).) "Substitution of counsel lies within the court's discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (Smith, at p. 604.)
The record reflects that the trial court conducted a thorough and adequate hearing to evaluate Gasparyan's concerns. Contrary to his contentions on appeal, the trial court did not draw unfounded conclusions based on its own observations. Instead, the trial court allowed Gasparyan to explain his complaints at length, asked follow up questions, provided counsel an opportunity to respond, and appropriately educated Gasparyan on various aspects of trial and pre-trial procedure. Gasparyan's claim that the trial court dismissed or ignored his complaints lacks merit.
The record further supports the trial court's conclusion that Gasparyan did not establish inadequate representation or an irreconcilable conflict. Gasparyan's complaints about counsel related to his assertions that counsel had not communicated enough, he did not have a plan for the defense, he had not investigated evidence as Gasparyan wanted, and he was insufficiently optimistic. The trial court's inquiry into these complaints revealed that they did not provide a legal basis to grant the Marsden motion.
For example, the court questioned counsel regarding his plan for the defense, and counsel responded in detail. Counsel also indicated he had told Gasparyan his plan many times. To the extent that Gasparyan argued counsel had not conveyed any plan to him, the court was"' "entitled to accept counsel's explanation."' [Citations.]" (Rices, supra, 4 Cal.5th at p. 69.)
Counsel additionally indicated he understood Gasparyan's concerns with the G.P.S. data and took them into account, stating that Gasparyan believed the data had been altered, so counsel obtained a G.P.S. expert with whom he had discussed this possibility. Based on that investigation, counsel did not believe exploring the G.P.S. data further would be advantageous to the defense. That Gasparyan did not accept counsel's opinion was not a basis to grant the motion. "[T]actical disagreements between a defendant and his attorney or a defendant's frustration with counsel are not sufficient cause for substitution of counsel." (People v. Streeter (2012) 54 Cal.4th 205, 231; People v. Lara (2001) 86 Cal.App.4th 139, 151.)
Gasparyan's statements that he did not trust counsel, counsel lied, counsel told him he could represent himself if he did not like counsel, and he needed counsel to be more positive, were insufficient to establish an irreconcilable conflict. "[A] defendant's claimed lack of trust in, or inability to get along with, an appointed attorney" does not by itself establish irreconcilable conflict. (People v. Crandell (1988) 46 Cal.3d 833, 860, abrogated on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 361; accord People v. Taylor (2010) 48 Cal.4th 574, 600.) A "defendant may not force the substitution of counsel by his own conduct that manufactures a conflict," and even where "heated words were spoken between client and attorney," that does not require substitution of an attorney absent evidence of an irreconcilable conflict. (People v. Smith (1993) 6 Cal.4th 684, 696.) Moreover, counsel expressly affirmed that he would continue vigorously advocating for Gasparyan, irrespective of how Gasparyan felt about him.
The trial court did not abuse its discretion in denying Gasparyan's Marsden motion.
II. The Trial Court Did Not Abuse Its Discretion When It Denied the People's Motion to Dismiss the Special Circumstance Allegation in Count 15
Gasparyan asserts the trial court abused its discretion in denying the People's motion to dismiss a special circumstance allegation because the trial court failed to consider the objectives of the district attorney's Special Directive 20-08 (Special Directive 20-08). Again, we find no abuse of discretion.
A. Background
In February 2018, the People filed an amended information. As to count 15, premediated murder, the information asserted a special circumstance allegation of shooting from a motor vehicle. (§ 190.2, subd. (a)(21).)
In December 2020, the prosecution moved to dismiss the special circumstance allegation based on the new Los Angeles County District Attorney's Special Directive. The prosecutor began his argument by noting that he had previously offered to provide the court with a copy of Special Directive 20-08, and the court informed him at that time that it had already read and was familiar with the special directive. The prosecutor indicated the basis for the motion was the reasoning set forth in Special Directive 20-08.
The court then heard a statement from the deceased victim's sister. The sister told the court she did not want the court to dismiss the special circumstance allegation due to the "nature of what happened" and because it had been a "very difficult five years for [her] and [her] family" since her brother was killed.
Defense counsel urged the court to grant the motion without providing any specific argument.
The trial court denied the motion. It explained the court's role was "to determine whether . . . there's sufficient justification in the interest of justice for the court to grant this particular motion at this time." The court noted the case had been pending for years, and the prior district attorney felt there was evidence to support the charge, including the special circumstance allegation. The court stated it had read the new district attorney's "initial special directive," which indicated that he was taking into account the "best interests of victims." The court further noted that although the outcome of the motion was not up to the victims, the victim's sister was only asking the court to retain the status quo and allow the matter to proceed to trial for a determination by the jury. The court concluded: "I don't think the People have met their burden at this time, so I'm just going to leave the status quo as it is and deny the motion at this point."
While Special Directive 20-08 is not in the record, our colleagues in Division Seven of the Second Appellate District described it as follows: "On November 3, 2020, the voters of Los Angeles County elected George Gascon to replace Jackie Lacey as district attorney. On December 8, 2020[,] the new district attorney issued Special Directive 20-08, which made changes to the [L]egal [P]olicies [M]anual. Special Directive 20-08 stated that 'sentence enhancements or other sentencing allegations . . . shall not be filed in any cases and shall be withdrawn in pending matters.' The Special Directive explained that 'the current statutory ranges for criminal offenses alone, without enhancements, are sufficient to both hold people accountable and also to protect public safety' and that 'studies show that each additional sentence year causes a 4 to 7 percent increase in recidivism that eventually outweighs the incapacitation benefit.'
An appendix to Special Directive 20-08 stated that there was no compelling evidence California's 100-plus sentence enhancements improved public safety, that such enhancements contributed to prison overcrowding, and that they 'exacerbate[d] racial disparities in the justice system.' The appendix also stated 'long sentences do little' to deter crime. [¶] Special Directive 20-08 instructed deputy district attorneys in pending cases to move to dismiss or withdraw sentence enhancement allegations." (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 486 (Nazir).)
B. Discussion
The prosecution's motion was brought under section 1385, subdivision (a), which provides that a "judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed."
In determining whether to grant a motion to dismiss under section 1385, "trial courts must balance '"' "the constitutional rights of the defendant, and the interests of society represented by the People . . . ." '"' [Citations.]" (Nazir, supra, 79 Cal.App.5th at p. 492, italics omitted.) The "court considers the same factors considered' "when handing down a sentence in the first instance."' [Citations.] These factors include those listed in California Rules of Court, rule 4.410 (general objectives in sentencing), rules 4.421 and 4.423 (circumstances in aggravation and mitigation), and rule 4.428(b) (discretion in striking an enhancement and punishment for an enhancement under [section] 1385). These rules refer to circumstances specific to the crime and the defendant's criminal history, as well as to broader societal objectives, such as '[d]eterring others from criminal conduct by demonstrating its consequences' and '[i]ncreasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.' (Cal. Rules of Court, rule 4.410(a)(4), (8).) The rules state the trial court 'should be guided by statutory statements of policy, the criteria in [the Rules of Court], and any other facts and circumstances relevant to the case.' (Id., rule 4.410(b).)" (Nazir, supra, 79 Cal.App.5th at p. 497.)
We review an order denying a motion to dismiss under section 1385 for abuse of discretion. (Nazir, supra, 79 Cal.App.5th at p. 490.) "A trial court may abuse its discretion where 'its decision is so irrational or arbitrary that no reasonable person could agree with it,' 'where the trial court was not "aware of its discretion"' to dismiss a sentencing allegation under section 1385, or 'where the court considered impermissible factors in declining to dismiss.'" (Ibid., citing People v. Carmony (2004) 33 Cal.4th 367, 377-378 (Carmony).)
The Nazir court recently considered a motion under section 1385 based on Special Directive 20-08. (Nazir, supra, 79 Cal.App.5th at pp. 490, 497-498.) In Nazir, the prosecution moved to dismiss firearm enhancements, citing Special Directive 20-08. The trial court denied the motion, concluding it was not permitted to consider Special Directive 20-08 under our Supreme Court's decision in People v. Williams (1998) 17 Cal.4th 148 (Williams). (Nazir, at pp. 497-498.) Williams considered whether the trial court abused its discretion in dismissing a conviction for purposes of the "three strikes law." (§ 667, subds. (b)-(i).) The Williams court concluded the trial court could not give "weight" to "factors extrinsic to the [statutory] scheme, such as the mere desire to ease court congestion or . . . bare antipathy to the consequences for any given defendant," but could consider whether "the defendant may be deemed outside the [statutory] scheme's spirit." (Williams, at p. 161.) Following Williams, the trial court in Nazir refused to consider Special Directive 20-08, stating it could not base a ruling under section 1385 on any" 'antipathy or disagreement with the statutory scheme . . . .'" (Nazir, at pp. 497-498.)
The Court of Appeal reversed, reasoning that Williams did not prevent the trial court from considering Special Directive 2008 for two reasons. (Nazir, supra, 79 Cal.App.5th at p. 498.) First, in Williams, the trial court dismissed the charge on its own motion, and when the decision to strike is sua sponte, the court cannot rely on its"' "personal antipathy for the [statutory scheme]." '" (Williams, supra, 17 Cal.4th at p. 159.) However, when a representative of the People questions the deterrent effect or value to public safety of imposing a sentence enhancement, a court may consider that position. (Nazir, at p. 499.) Second, the Nazir court considered that the Legislature's amendments to sections 12022.5 and 12022.53 gave courts the authority to dismiss firearm enhancements in the interests of justice, based on research that such enhancements do not have a deterrent effect. The appendix to Special Directive 20-08 cited some of the same research. (Ibid.)
The Nazir court therefore held the trial court could consider Special Directive 20-08 when determining whether to strike an enhancement. The court reasoned Special Directive 2008 "was based on research showing that existing sentence enhancements do not deter crime or reduce recidivism, which are objectives of the criminal justice system a court may consider in determining whether to impose a firearm enhancement . . . and thus are relevant to determining whether to dismiss an enhancement." (Nazir, supra, 79 Cal.App.5th at p. 497.) Nazir held the trial court "misunderstood the scope of its discretion under section 1385 when it refused to consider" Special Directive 20-08. (Id. at p. 485.) However, the Nazir court also held a trial court retains the discretion to consider the interests of justice and deny a motion to dismiss an enhancement, even if the motion is based on Special Directive 20-08. (Id. at pp. 499-500.)
In contrast to Nazir, the trial court in this case was aware of its discretion to consider Special Directive 20-08. The court had previously indicated it was familiar with Special Directive 20-08. While the court considered the statement of the victim's sister, it recognized that it needed to consider the "interests of justice" overall and it is "not, obviously, up to the victim . . . what happens in a case. And I don't want [it] to be misconstrued; I am not saying that it is. But it is a factor that the prosecutor's office traditionally has taken into account." Unlike the trial court in Nazir, the court in this case did not refuse to consider the district attorney's position in determining whether granting the motion furthered the interests of justice.
Gasparyan appears to assert that the trial court was required to explicitly address Special Directive 20-08's "objectives," particularly its reliance on research that sentences without enhancements are sufficient to protect public safety. He cites no authority for the argument that any such explicit findings were necessary. A trial court is not required to make express findings on the record for us to find a proper exercise of discretion in denying a motion under section 1385. (Carmony, supra, 33 Cal.4th at p. 378 [in considering abuse of discretion for failing to strike a prior felony conviction allegation under section 1385, "[w]here the record is silent" we affirm]; People v. Mack (1986) 178 Cal.App.3d 1026, 1033 ["[t]he trial court was not obligated to set forth reasons for declining to exercise discretion" under section 1385].) That Special Directive 20-08 was the basis for the motion does not change the analysis. We do not assume error. "It is a fundamental tenet of appellate review that we presume on a silent record the court properly exercised its discretion." (People v. Frazier (2020) 55 Cal.App.5th 858, 868.) We therefore do not speculate that, although the trial court indicated it had read and considered Special Directive 20-08, it nonetheless ignored the directive's objectives, or that the court misunderstood the scope of its discretion.
In addition, while the trial court must consider the policy considerations underlying Special Directive 20-08 when that is the basis for the People's motion, the trial court retains discretion to deny a motion under section 1385 in the interests of justice. (Nazir, supra, 79 Cal.App.5th at pp. 497, 499.) The record establishes the trial court considered the interests of justice in this case, while still acknowledging Special Directive 20-08. The court found the People did not meet their burden because they had not brought anything "particular about this case or about this defendant" to the court's attention to "aid the court in exercising its discretion." The court also considered the victim's sister's statement about the crime and its impact, and concluded that allowing the jury to make a determination on the special circumstance allegation best advanced the interests of justice. We find no abuse of discretion.
III. Gasparyan's Constitutional Rights Were Not Violated by the Requirement That All Present in the Courtroom Wear a Face Mask
Gasparyan's trial took place in 2021, during the COVID-19 pandemic. The trial court mandated that every person in the courtroom wear a face mask at all times, including witnesses and prospective jurors. The Court also made sure the masks were properly worn. The court indicated the mask policy was approved by "the [Los Angeles] County Health Officer" who "indicated that they want [the courts] to require people to wear masks[ ] [b]ecause [it was not possible to] tell who has been vaccinated and who has not." Gasparyan contends the mask requirement violated his federal and state constitutional rights. We disagree.
As an initial matter, Gasparyan concedes that he did not object to the masking order in the trial court. His claims are therefore forfeited. (People v. McCullough (2013) 56 Cal.4th 589, 593 [failure to object may forfeit a constitutional right]; see also People v. Arredondo (2019) 8 Cal.5th 694, 710 [confrontation clause claim].) He does not establish that an objection would have been futile. Indeed, several cases reflect that during the pandemic, courts employed various means to address specific defense objections to mask requirements. (See e.g., People v. Lopez (2022) 75 Cal.App.5th 227, 231 (Lopez) [after objection to masking requirement, trial court permitted defendant to remove his mask when introduced to the jury].) Nonetheless, we exercise our discretion to consider the substance of his claims, all of which fail on the merits. (In re Sheena K. (2007) 40 Cal.4th 875, 887 & fn. 7.)
A. Requiring testifying witnesses to wear masks did not violate Gasparyan's confrontation clause rights
Gasparyan argues the trial court violated his Sixth Amendment right to confrontation by requiring witnesses to wear masks during trial. He contends the masks interfered with the jury's ability to assess witness demeanor. For the reasons below, we reject this argument.
Under the Sixth Amendment's confrontation clause, the defendant in a criminal trial "shall enjoy the right . . . to be confronted with the witnesses against him ...." The confrontation clause compels the witness" 'to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.' [Citation.]" (Maryland v. Craig (1990) 497 U.S. 836, 845 (Craig).)
The right to confrontation" '(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 . . .; [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.]" (Craig, supra, 497 U.S. at pp. 845-846.) "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 . . . rigorous adversarial testing ...." (Id. at p. 846.)
Although" 'the Confrontation Clause reflects a preference for face-to-face confrontation at trial,' [citation]" this preference" 'must occasionally give way to considerations of public policy and the necessities of the case.' [Citation.]" (Craig, supra, 497 U.S. at p. 849.) "[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.) The lack of face-to-face confrontation is permissible in "narrow circumstances" on a "case-specific" basis. (Id. at pp. 848, 852.)
Because the facts are not disputed, we review Gasparyan's confrontation clause claim de novo. (People v. Alvarez (2022) 75 Cal.App.5th 28, 35-36 (Alvarez).)
Several California Courts of Appeal have addressed whether requiring a witness to testify while wearing a face mask violates the defendant's right to confrontation. All have held the mask requirement did not violate the confrontation clause. (People v. Edwards (2022) 76 Cal.App.5th 523, 525-527 (Edwards); Lopez, supra, 75 Cal.App.5th at pp. 232-236; Alvarez, supra, 75 Cal.App.5th at pp. 34-39.)
In Alvarez, as in this case, the defendant asserted his confrontation clause rights were violated because the evidence against him was "testimonial and conflicting"; thus, "witness credibility was critical" as to whether he committed the crime. (Alvarez, supra, 75 Cal.App.5th at p. 37.) The Alvarez court recognized that even though the witnesses at trial wore masks, all the "safeguards inherent in confrontation were present." (Id. at p. 38.) The testimony was in person, under oath, and subjected to cross-examination. (Id. at p. 37, citing Craig, supra, 497 U.S. at pp. 845-846.)
The court in Alvarez further reasoned: "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: 'Demeanor includes the language of the entire body [and] jurors will still be able to observe most facets of the witnesses' demeanor. They can observe the witnesses from head to toe. They will be able to see how the witnesses move when they answer a question; how the witnesses hesitate; how fast the witnesses speak. They will be able to see the witnesses blink or roll their eyes, make furtive glances, and tilt their heads. The Confrontation Clause does not guarantee the right to see the witness's lips move or nose sniff, any more than it requires the jurors to subject the back of a witness's neck to a magnifying glass to see if the hair raised during particularly probative questioning.' [Citation.]" (Alvarez, supra, 75 Cal.App.5th at p. 38.)
The Alvarez court also recognized that the pandemic presented the narrow circumstances required for application of the public policy exception to face-to-face confrontation discussed in Craig, supra, 497 U.S. at pages 848-849. The court explained "there is no doubt that requiring people to wear masks covering the mouth and the lower part of the nose while testifying in the courtroom during the COVID-19 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.)
Similarly, in Lopez, supra, 75 Cal.App.5th 227, the court found a masking 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." (Id. at p. 234.) Further, "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 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." (Id. at p. 235.)
The Lopez court also followed the reasoning of numerous federal decisions that rejected a similar confrontation clause argument based on the "public interest exception to the face-to-face confrontation requirement" in Craig. (Lopez, supra, 75 Cal.App.5th at p. 233.) The Lopez court observed masking "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." (Id. at p. 234.)
In Edwards, the court also rejected the defendant's confrontation clause claim. Citing Alvarez and Lopez, the court stated: "According to the constitutional terms, Edwards enjoyed his right to confront the witnesses against him. He and the jurors saw and heard those witnesses. Under oath, the witnesses responded to Edwards's cross-examination. The jurors saw and heard the witnesses' reactions to the confrontation. The masks covered noses and mouths to minimize disease transmission. This was scrupulous adherence to the written law during a public health emergency. The confrontation clause permits a judge to follow national safety guidelines." (Edwards, supra, 76 Cal.App.5th at p. 527.)
We agree with the reasoning of Alvarez, Edwards, and Lopez. Gasparyan was afforded his constitutional right to confront witnesses. The witnesses gave in-person testimony under oath, were subjected to cross-examination, and the jury could view the witnesses for the purpose of evaluating credibility. (Alvarez, supra, 75 Cal.App.5th at pp. 37-38, citing Craig, supra, 497 U.S. at pp. 845-846.) Although the lower portion of the witnesses' faces and noses were covered, there were myriad other ways to assess demeanor and credibility. (Lopez, supra, 75 Cal.App.5th at p. 234; Alvarez, at p. 38.)
In addition, following public health mandates during the pandemic served an important public health interest. (Alvarez, supra, 75 Cal.App.5th at p. 38; Lopez, supra, 75 Cal.App.5th at p. 234; Edwards, supra, 76 Cal.App.5th at p. 526 ["It is desirable to make jury duty less dangerous to jurors. The potential danger was not only to jurors, but also to Edwards, and to everyone else in the courtroom. [¶] Also vulnerable to danger would be others outside the courtroom who later encountered these people, and so on, in an increasing swath of multiplying contacts"].)
Gasparyan argues the same public health goal could have been met by allowing the wearing of plastic face shields, "transparent surgical masks," or a continuance of trial. Nothing in the record reflects that Gasparyan asked the trial court to consider these or any other alternatives. He cannot argue the trial court erred in rejecting alternatives he never proposed. Regardless, his arguments fail on the merits. Gasparyan offers no evidence that face shields are as effective as masks. (Edwards, supra, 76 Cal.App.5th at p. 527 [rejecting same argument as to face shields due to lack of evidence shields are as effective as masks]; cf. Alvarez, supra, 75 Cal.App.5th at p. 37, citing United States v. Crittenden (M.D. Ga. Aug. 21, 2020, No. 4:20-CR-7) 2020 U.S.Dist. Lexis 151950, *16 ["CDC finds that face shields are not as effective as masks, and it does not recommend substituting face shields for masks"].) Gasparyan also does not provide any information as to the effectiveness or feasibility of transparent masks, nor does he establish that transparent masks were not permitted under the trial court's challenged masking order. (See United States v. James (D.Ariz. Oct. 14, 2020, No. CR-19-08019-001-PCT-DLR) 2020 U.S.Dist. Lexis 190783, *8, fn. 5 [rejecting challenge to mask mandate based on inability to view demeanor and observing that the FDA had approved a transparent face mask, which the court would allow to be worn under the mask mandate].) As for Gasparyan's assertion that the trial court should have continued the trial to avoid the need to wear masks, he did not request a continuance for this or any other purpose. Indeed, the record shows that Gasparyan was generally opposed to continuances.
Gasparyan attempts to distinguish Alvarez, Edwards, and Lopez on the ground that they concerned trials that took place in 2020, and his trial was in July 2021. He asserts that the pandemic was less dangerous when his trial took place, and the trial court was required to make individualized findings that each testifying witness was in need of "specialized protection at the time of trial." This proposed witnesses-by-witness analysis ignores the fact that" '[t]he 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.' [Citation.]" (Alvarez, supra, 75 Cal.App.5th at p. 37.) The record reflects the trial court was continuing to follow the recommendations of the County public health authorities. Other than unsupported statements in his brief, Gasparyan offers no evidence that the masking requirement no longer served a critical or legitimate public policy at the time of trial in July 2021. (See, e.g., Alabama Association of Realtors v. Department of Health and Human Services (2021) U.S., [141 S.Ct. 2485, 2490] (per curiam) [stating in August 2021, "[i]t is indisputable that the public has a strong interest in combating the spread of the COVID-19 Delta variant"].) As the trial court recognized, sitting all day in a courtroom, in close proximity to others, is very different from a brief interaction with the public at a store where masking may no longer have been required.
We conclude there was no violation of Gasparyan's confrontation clause rights due to the requirement that witnesses wear masks.
B. Requiring the jury to wear masks during voir dire and trial did not deprive Gasparyan of his right to a fair trial
Gasparyan also asserts the trial court's requirement that jurors wear masks during voir dire and throughout trial violated his right to a fair trial because he was unable to assess the jurors' credibility and demeanor. We find no error.
"A criminal defendant has a fundamental constitutional right to a fair trial by an impartial jury." (People v. Breceda (2022) 76 Cal.App.5th 71, 89.) However, "[t]here is no constitutional right to voir dire per se. Nor is there any constitutional right to conduct voir dire in a particular manner. [Citation.] Rather, the voir dire process serves as a means of implementing the defendant's Sixth Amendment right to an impartial jury." (People v. Contreras (2013) 58 Cal.4th 123, 143.) "Unless the voir dire 'is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal.' [Citations.]" (Ibid.)
Here, the trial court's mask requirement still allowed Gasparyan to "examine and assess juror credibility in all critical aspects besides the few concealed by the wearing of a mask." (United States v. Tagliaferro (S.D.N.Y. 2021) 531 F.Supp.3d 844, 851 (Tagliaferro) [rejecting argument that masking during voir dire would violate defendant's right to a "meaningful voir dire" or "impartial jury"], original italics.) Gasparyan could view the potential jurors' eyes and upper face, and observe their body language and posture. Further, the mask requirement did not prevent Gasparyan from questioning the prospective jurors to discern their biases and prejudices, or from hearing the tone and cadence of their voices as they responded to questions. This enabled him to exercise his peremptory challenges in an informed manner.
Gasparyan relies solely on Lewis v. U.S. (1892) 146 U.S. 370 (Lewis) in support of his claim. His reliance is misplaced. In Lewis, the court held that a defendant's right to a fair trial encompasses being brought face to face with the jury during the jury selection process. (Id. at pp. 373-375.) There, each side exercised its challenges to prospective jurors in private and the defendant was not present until after the challenges were made. (Id. at pp. 371-372, 375.) The U.S. Supreme Court rejected this approach, holding the defendant had the right "to be brought face to face with the jurors at the time when the challenges were made." (Id. at p. 376.) In contrast, Gasparyan was present during jury selection. For the same reasons discussed above regarding the confrontation clause, the mask requirement did not prevent Gasparyan from being brought face to face with the jury during voir dire, and the masks served an important public policy of hampering the spread of COVID-19. The trial court did not err in requiring the jury to wear masks during voir dire.
Gasparyan's related argument that his rights were violated because the jury needed to see his entire face during voir dire similarly fails. Even while he wore a mask, Gasparyan was brought "face to face" with the jurors during voir dire. (Lewis, supra, 146 U.S. at p. 376.)
Numerous state and federal courts have addressed the issue of masking during voir dire due to the COVID-19 pandemic and have found no constitutional violation because credibility and bias can still be assessed while a prospective juror is wearing a face mask. (See, e.g. United States v. Ayala-Vieyra (6th Cir., Jan. 21, 2022, No. 21-1177) 2022 U.S.App. Lexis 1783, *13; Tagliaferro, supra, 531 F.Supp.3d at p. 851; United States v. Thompson (D.N.M. 2021) 543 F.Supp.3d 1156, 1164; People v. Garcia (Colo.Ct.App. 2022) 527 P.3d 410, 415-417; People v. Smart (Ill.Ct.App. 2022) 213 N.E.3d 919, 925; Guerin v. Commonwealth (Ky.Ct.App. 2022) 658 S.W.3d 481, 484; Prince v. State (Md. Ct. Spec. App. 2022) 284 A.3d 795, 806-807; State v. Bell (Wash.Ct.App. 2023) 529 P.3d 448, 458-459.)
Similarly, that the jurors wore masks during trial did not prevent Gasparyan or the court from observing each juror's level of attention and body language. Gasparyan fails to provide any legal authority or reasoned argument to explain how the jurors' face masks prevented him from "mak[ing] observations of each member of the jury" to determine if they were "impartial, mentally competent and unimpaired." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 [appellant must overcome presumption of correctness by affirmatively showing error and supporting contentions with argument and citations to authority]; Cal. Rules of Court, rule 8.204(a)(1)(C); Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 276-277.)
Although Alvarez, Edwards, and Lopez concerned witnesses wearing masks, the analysis of these cases applies equally here. As with testifying witnesses, that jurors wore masks did not render voir dire inadequate or Gasparyan's trial fundamentally unfair. Moreover, the sole California Court of Appeal opinion to address a similar issue found no ineffective assistance of counsel in failing to object to the masking of jurors during the COVID-19 pandemic during voir dire and trial. (People v. Molina (2023) 96 Cal.App.5th 516, 521 (Molina).) The court rejected the defendant's claim of violation of his right to a fair trial and concluded any objection by counsel would have been "meritless" because, "[t]o whatever limited extent masks might have hindered defense counsel's ability to read actual or prospective jurors' facial expressions . . . that hindrance was justified by the state's compelling need to protect the health and safety of courtroom participants from a highly contagious and potentially deadly virus." (Ibid.) We agree with this reasoning. We find no violation of Gasparyan's right to a fair trial.
C. Requiring Gasparyan to wear a mask did not violate his constitutional rights
Gasparyan also argues that the ability of the witnesses and jurors to see his unmasked face during trial and jury selection was constitutionally required. We find no error in the trial court's requirement that Gasparyan wear a mask during trial.
While Gasparyan contends his right to confront witnesses was impaired because he was required to wear a face mask, we note that he has provided no authority for this proposition. Our research has revealed that to the extent this claim has been considered in other states, it has been rejected. We agree with these courts. (See Tagliaferro, supra, 531 F.Supp.3d at p. 849 [observing lack of precedent on issue; finding no violation as witnesses would testify in defendant's presence]; accord State v. Rockafellor (Or.Ct.App 2023) 326 Ore.App. 753, 760 ["No element of the right to confrontation promises the defendant that his entire face will be literally seen or requires the witness or others to observe the same. In short, the defendant's right to confrontation does not require that defendant be unmasked in the courtroom"]; State v. Daniels (Tenn.Crim.App. 2022) 656 S.W.3d 378, 387-388 [rejecting confrontation clause argument based on defendant wearing a mask where "every witness who testified against Defendant testified in his physical presence, and only Defendant's nose and mouth were obscured"].) In Coy v. Iowa (1988) 487 U.S. 1012, the U.S. Supreme Court noted the right to face-to-face confrontation in criminal cases is related to the idea that "[i]t is always more difficult to tell a lie about a person 'to his face' than 'behind his back,' "consistent with the phrase," 'Look me in the eye and say that.'" (Id. at pp. 1018, 1019.) Gasparyan's mask did not prevent his accusers from "looking him in the eye" and perceiving his presence in the courtroom as they testified. He has not established that the requirement that he wear a mask during trial impermissibly infringed on his right to confront witnesses.
Gasparyan's claim that masking throughout trial unconstitutionally prevented the jury from viewing his face also lacks merit. Gasparyan's reliance on Riggins v. Nevada (1992) 504 U.S. 127 (Riggins), to support his claim is misplaced. Riggins concerned a defendant who was medicated with an antipsychotic drug at trial, against his will. (Id. at pp. 129-130.) The high court held the trial court erred in failing to acknowledge "the defendant's liberty interest in freedom from unwanted antipsychotic drugs." (Id. at p. 137.) The court further reasoned the error "may well have impaired" the defendant's constitutionally protected trial rights. (Ibid.) Due to side effects such as drowsiness, confusion, and altered thought processes, the court concluded it was "clearly possible" that the forced medication "had an impact upon not just Riggins' outward appearance, but also the content of his testimony on direct or cross examination, his ability to follow the proceedings, or the substance of his communication with counsel." (Ibid.) The potential prejudice thus resulted not only from the defendant's altered demeanor, but also from his inability to comprehend the proceedings or assist his counsel. A concurring opinion further described the medication's significant side effects and reasoned they could alter a defendant's demeanor in a way that would prejudice "all facets of the defense." (Id. at p. 142, conc. opn. of Kennedy, J.; People v. Gurule (2002) 28 Cal.4th 557, 598-599, fn. 8 [noting Kennedy concurrence, but finding no substantial evidence that defendant's medication had a "palpable effect" on him].)
We reject Gasparyan's attempt to analogize the severe and significant side effects of forced antipsychotic medication to the wearing of a face mask. Gasparyan's wearing of a face mask did not alter his cognitive abilities or impair his ability to assist or confer with counsel. Further, the observation of demeanor rests on more than viewing a nose and mouth. As detailed in our discussion above, the jury could still see Gasparyan's eyes, take note of his body language, hear his tone of voice when he was speaking, and listen to the content of his testimony. Riggins does not support his argument.
Gasparyan further contends it was necessary for the jury to view his entire face to evaluate his defense that he was misidentified. Yet, the record reflects that the jury was repeatedly shown photographs of Gasparyan, including the photographic lineups that law enforcement showed to several witnesses. There was no dispute at trial that Gasparyan was the individual depicted in those photographs. The jury thus had the opportunity to see Gasparyan's unobscured face. Gasparyan does not explain why these photos were insufficient to allow the jury to assess his claim that he does not look like the suspect various witnesses described.
Moreover, there were other ways to show the jury Gasparyan's entire face within the contours of the masking requirement, none of which he requested or employed. The defense could have shown the jury a current photograph of Gasparyan or requested that he be allowed to pull down his mask for a brief viewing by the jury. (See, e.g., Lopez, supra, 75 Cal.App.5th at p. 231 [permitting defendant to remove mask while introduced to the jury].)
Gasparyan appears to additionally argue that his defense rested in part on an argument that he is Armenian and does not "look Hispanic," which was how some witnesses described the suspect to law enforcement. Yet, he fails to explain how having the lower portion of his face exposed in court would have aided the jury in determining whether he appeared to be of any particular ethnicity or national origin. He further does not contend that any witness description of the perpetrator included details of the individual's nose, mouth, or chin. Indeed, the evidence at trial indicated that other than various descriptions of the perpetrator's possible ethnicity, the witnesses described the suspect's skin tone, hair color and texture, height, weight, and age, all of which the jury could evaluate while Gasparyan was wearing a mask. In sum, the jury was able to observe Gasparyan's demeanor and general appearance while he wore a mask. That Gasparyan was required to wear a mask did not impair his constitutional rights, including the right to be present at all stages of the trial. He has failed to establish that the requirement that he wear a mask rendered his trial unfair.
Further, to the extent that his confrontation rights were in any way implicated, the public interest exception to the "face to face" aspect of the confrontation clause weighed in favor of his wearing a mask to preserve public health. (Lopez, supra, 75 Cal.App.5th at p. 232 [rejecting confrontation clause claim based on inability to judge credibility of witnesses and defendant's "own demeanor throughout the trial, due to face masks"]; see also (Molina, supra, 96 Cal.App.5th at p. 521 [holding, in context of ineffective assistance of counsel, any objection to defendant's mask would have been without merit because the mask was justified by the state's compelling need to protect health].)IV. The Clerical Error in the Abstract of Judgment Is
As we have rejected Gasparyan's mask-related claims on the merits, his related claim of ineffective assistance of counsel similarly fails. (People v. Thompson (2010) 49 Cal.4th 79, 121, fn. 14.)
Corrected as to Count 27
"Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls." (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) "An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185 (Mitchell).) The trial court sentenced Gasparyan to life plus four years on count 27, to run "consecutive" to count 15. The abstract of judgment reflects that count 27 was stayed. The People request that we correct this clerical error, and Gasparyan does not address this issue. The abstract of judgment must be corrected to accurately reflect the sentence imposed on count 27. (Mitchell, at p. 188 ["where, as here, the Attorney General identifies an evident discrepancy between the abstract of judgment and the judgment that the reporter's transcript and the trial court's minute order reflect, the appellate court itself should order the trial court to correct the abstract of judgment"].)
DISPOSITION
The judgment is modified to correct the clerical error in the abstract of judgment to reflect that the sentence imposed on count 27 is not stayed and is to run consecutive to the sentence imposed on count 15. As modified, the judgment is affirmed. The clerk of the superior court is directed to prepare an amended and corrected abstract of judgment and to forward it to the Department of Corrections and Rehabilitation.
We concur: LAVIN, Acting P. J., EGERTON, J.