Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 1 of 12 Page ID #:1068

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 ) JAIME RODOLFO LOPEZ, ) Case No. CV 22-4281-JEM 12 ) Petitioner, ) 13 ) MEMORANDUM OPINION AND ORDER v. ) DENYING PETITION FOR WRIT OF 14 ) HABEAS CORPUS AND DENYING MARTIN GAMBOA, Warden, ) CERTIFICATE OF APPEALABILITY 15 ) Respondent. ) 16 ) 17

PROCEEDINGS

18 On June 16, 2022, Jaime Rodolfo Lopez (“Petitioner”), a state prisoner proceeding 19 pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 20 (“Petition”). On July 22, 2022, Warden Martin Gamboa (“Respondent”) filed an Answer. 21 Petitioner has not filed a reply. 22 Pursuant to 28 U.S.C. § 636(c), both parties have consented to proceed before this 23 Magistrate Judge. 24

PRIOR PROCEEDINGS

25 On September 24, 2020, a Los Angeles County Superior Court jury found Petitioner 26 guilty of three counts of forcible rape (Cal. Penal Code § 261(a)(2)), one count of injuring a 27 cohabitant or child’s parent (Cal. Penal Code § 273.5), one count of criminal threats (Cal. 28 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 2 of 12 Page ID #:1069

1 Penal Code § 422(a)), and one count of dissuading a witness from prosecuting a crime 2 (Cal. Penal Code § 136.1(b)(2)). (Lodgment (“LD”) 1, 2 Clerk’s Transcript (“CT”) 249-54, 3 257-59.) The jury acquitted Petitioner of a second count of dissuading a witness. (2 CT 4 258.) On December 18, 2020, the trial court sentenced Petitioner to 16 years in state 5 prison. (2 CT 302.) The trial court issued a protective order ordering Petitioner to stay 6 away from the victim and their two children. (2 CT 301.) 7 Petitioner appealed to the California Court of Appeal, raising two claims. He argued 8 that his confrontation rights were violated because he and the witnesses were required to 9 wear masks, and that the protective order erroneously included his children. (LD 3.) In a 10 published opinion issued on February 15, 2022, the Court of Appeal ordered the trial court 11 to remove Petitioner’s children from the protective order, but otherwise affirmed the 12 judgment. (LD 6; see People v. Lopez, 75 Cal. App. 5th 227 (2022).) Petitioner filed a 13 petition for review in the California Supreme Court, which denied it without comment on 14 April 27, 2022. (LD 7, 8.) 15 SUMMARY OF EVIDENCE AT TRIAL 16 Based on its independent review of the record, the Court adopts the following factual 17 summary from the California Court of Appeal’s unpublished opinion as a fair and accurate 18 summary of the evidence presented at trial: 19 Amalia testified that she and [Petitioner] had been in a relationship for 20 several years and lived in a small apartment with their two children and 21 [Petitioner]'s brother (we refer to Amalia and the children by their first names only 22 to protect their privacy). Amalia testified to the incidents that occurred over the 23 course of two days in May 2019. She explained the three separate rapes, how 24 [Petitioner] physically assaulted her, choked her, hit her in the face, pulled her hair 25 and tore her undergarments off her body. She testified to [Petitioner]'s threats to 26 kill her and confirmed the accuracy of photographs showing the injuries she 27 28 2 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 3 of 12 Page ID #:1070

1 suffered to her face and her torn undergarments. Amalia also testified about 2 telephone conversations with [Petitioner] while he was in jail and his efforts to 3 pressure her to disavow the charges against him. Audio recordings of the 4 telephone conversations were played for the jury. 5 Detective Eduardo Flores testified to his interactions with Amalia and 6 confirmed she had visible injuries to her face and neck. 7 Wendeline Ruvalcaba, a registered nurse, testified to her examination of 8 Amalia. She said Amalia was “very emotional” during the examination and had 9 numerous injuries, including the existence of petechiae (tiny broken blood vessels) 10 consistent with having been choked. Another registered nurse, Malinda Wheeler, 11 testified to Amalia's injuries that were consistent with manual strangulation. 12 [Petitioner]'s brother testified he lived with [Petitioner] and Amalia and 13 denied ever seeing his brother hit or verbally abuse Amalia. He denied hearing 14 any sounds of an argument or disturbance on the night and morning Amalia 15 testified she was raped. He also denied seeing Amalia looking distressed or 16 crying during that time. 17 [Petitioner] testified that he and Amalia had consensual relations and that 18 he had never abused her during their seven-year relationship. He admitted they 19 argued on the dates she said he raped her but [claimed] that it was Amalia who 20 got angry with him. He denied hitting Amalia, choking her, pulling her hair, raping 21 her, attempting to sodomize her, threatening her or saying any of the derogatory 22 statements to which she testified. 23 (LD 6 at 3-4.) 24 /// 25 /// 26 /// 27 28 3 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 4 of 12 Page ID #:1071

1 PETITIONER’S HABEAS CLAIM 2 Petitioner contends that his Sixth Amendment right to confrontation was violated when 3 the trial court required him and the testifying witnesses to wear face masks, preventing the 4 jury and counsel from observing their facial expressions below the eyes. (Pet. at 5, 18-24.) 5 STANDARD OF REVIEW 6 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the 7 Court's consideration of Petitioner’s cognizable federal claims. 28 U.S.C. § 2254(d), as 8 amended by AEDPA, states: 9 An application for a writ of habeas corpus on behalf of a person in custody 10 pursuant to the judgment of a State court shall not be granted with respect to any 11 claim that was adjudicated on the merits in State court proceedings unless the 12 adjudication of the claim - (1) resulted in a decision that was contrary to, or 13 involved an unreasonable application of, clearly established Federal law, as 14 determined by the Supreme Court of the United States; or (2) resulted in a 15 decision that was based on an unreasonable determination of the facts in light of 16 the evidence presented in the State court proceeding. 17 Under AEDPA, the “clearly established Federal law” that controls federal habeas 18 review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court 19 decisions “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 20 362, 412 (2000); see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (clearly 21 established federal law is “the governing legal principle or principles set forth by the Supreme 22 Court at the time the state court renders its decision”). “[I]f a habeas court must extend a 23 rationale before it can apply to the facts at hand, then by definition the rationale was not 24 clearly established at the time of the state-court decision.” White v. Woodall, 572 U.S. 415, 25 426 (2014) (internal quotation marks and citation omitted). If there is no Supreme Court 26 precedent that controls a legal issue raised by a habeas petitioner in state court, the state 27 28 4 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 5 of 12 Page ID #:1072

1 court's decision cannot be contrary to, or an unreasonable application of, clearly established 2 federal law. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam); see also Carey 3 v. Musladin, 549 U.S. 70, 76-77 (2006). 4 A federal habeas court may grant relief under the “contrary to” clause if the state court 5 “applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or if it 6 decides a case differently than the Supreme Court has done on a set of materially 7 indistinguishable facts. Williams, 529 U.S. at 405-406. “The court may grant relief under the 8 ‘unreasonable application’ clause if the state court correctly identifies the governing legal 9 principle . . . but unreasonably applies it to the facts of a particular case.” Bell v. Cone, 535 10 U.S. 685, 694 (2002). An unreasonable application of Supreme Court holdings “must be 11 objectively unreasonable, not merely wrong.” White, 572 U.S. at 419 (citing Andrade, 538 12 U.S. at 75-76; internal quotation marks omitted). “A state court's determination that a claim 13 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on 14 the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) 15 (citation omitted). The state court’s decision must be “so lacking in justification that there 16 was an error well understood and comprehended in existing law beyond any possibility for 17 fairminded disagreement.” Id. at 102. “If this standard is difficult to meet, that is because it 18 was meant to be.” Id. 19 A state court need not cite Supreme Court precedent when resolving a habeas corpus 20 claim. See Early v. Packer, 537 U.S. 3, 8 (2002). “[S]o long as neither the reasoning nor the 21 result of the state-court decision contradicts [Supreme Court precedent,]” the state court 22 decision will not be “contrary to” clearly established federal law. Id. 23 A state court’s silent denial of federal claims constitutes a denial “on the merits” for 24 purposes of federal habeas review, and the AEDPA deferential standard of review applies. 25 Richter, 562 U.S. at 98-99. When no reasoned decision is available, the habeas petitioner 26 has the burden of “showing there was no reasonable basis for the state court to deny relief.” 27 28 5 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 6 of 12 Page ID #:1073

1 Id. at 98. The federal habeas court must conduct an independent review of the record to 2 determine whether the state court decision is objectively reasonable. See Stanley v. Cullen, 3 633 F.3d 852, 860 (9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). 4 When a reasoned decision is available, the federal habeas court “looks through” a 5 state court’s unexplained decision to the last reasoned decision of a lower state court, and 6 applies the AEDPA standard to that decision. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 7 (2018) (federal habeas court should “look through” unexplained state court decision to last 8 state court decision “that does provide a relevant rationale” and “should then presume that 9 the unexplained decision adopted the same reasoning,” although presumption may be 10 rebutted); Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one 11 reasoned state judgment rejecting a federal claim, later unexplained orders upholding the 12 judgment or rejecting the same claim rest upon the same ground.”). 13 Petitioner presented his claim to the state courts on direct appeal. (LD 3, 7.) The 14 Court of Appeal denied it in a reasoned opinion and the California Supreme Court summarily 15 denied review. (LD 6, 8.) The Court looks through the California Supreme Court's silent 16 denial to the Court of Appeal's reasoned decision and applies the AEDPA standard to that 17 decision. See Wilson, 138 S. Ct. at 1192; Ylst, 501 U.S. at 803. 18 DISCUSSION 19 Petitioner contends that the trial court denied him “the right to confront witnesses, the 20 right to effective cross-examination, and the right to a reliable jury determination of the 21 charges” when it required him and the testifying witnesses to wear masks that prevented the 22 jury and counsel from observing facial expressions below the eyes. (Pet. at 5, 18-24.)1 For 23 the reasons set forth below, the state court reasonably denied this claim. 24 /// 25 /// 26 27 1 The court will use the page numbers assigned by the CM/ECF system. 28 6 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 7 of 12 Page ID #:1074

1 A. Background 2 At the time of Petitioner’s trial in September 2020, the Los Angeles County Superior 3 Courts were operating under safety protocols adopted in response to the Covid-19 4 pandemic. (LD 6 at 2.) The applicable administrative order mandated, among other things, 5 that all persons entering any courthouse wear a face mask covering the mouth and nose. 6 (Id.) 7 Trial counsel requested that Petitioner be allowed to remain maskless during the trial 8 so that the jury could see his face and could “observe his expressions based on different 9 testimony.” (LD 2, 2 Reporter’s Transcript (“RT”) 8.) She also requested that the witnesses 10 not wear masks while testifying, stressing the importance of facial expressions in assessing 11 credibility. (2 RT 8.) The trial court denied both requests. (2 RT 9.) It stated that the jury 12 would still be able see the witnesses’ eyes and upper cheeks, and made a finding that “in 13 light of the current Covid 19 pandemic and widespread recommendation requirements of a 14 protective mask” to be worn in public spaces, “wearing such mask is a matter of public 15 necessity both for the protection of the witness and protection of the other participants in 16 these judicial proceedings.” (2 RT 9.) Nevertheless, the trial court allowed Petitioner, trial 17 counsel, and the prosecutor to briefly remove their masks when introduced to the jury, as 18 long as they did not speak while their masks were off. (2 RT 9-10.) 19 Later, the trial court stated that trial was proceeding under the Covid-19 protocol 20 because Petitioner wanted to go ahead with the trial and the trial court needed to make sure 21 that everyone in the courtroom was safe. (2 RT 13.) The trial court told Petitioner that if he 22 wanted to continue the trial to an unknown time in the future when masks were no longer 23 required, it would consider his request. (2 RT 13-14.) Petitioner consulted with trial counsel 24 and opted to proceed with the trial. (2 RT 14.) 25 Later during the trial, the trial court put on the record that the witnesses all wore 26 standard masks that did not cover their eyes or extend to “beyond a standard area of where 27 28 7 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 8 of 12 Page ID #:1075

1 a standard mask would cover.” (3 RT 1326-27.) Trial counsel reiterated that she could not 2 “fully see expression in the mouth and the mouth expresses a lot of emotion.” (3 RT 1327.) 3 B. Applicable Federal Law 4 The Sixth Amendment gives a criminal defendant the right “to be confronted with the 5 witnesses against him.” U.S. Const. amend. VI. “[T]he Confrontation Clause guarantees the 6 defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. 7 Iowa, 487 U.S. 1012, 1016 (1988). But the Confrontation Clause does not guarantee 8 criminal defendants “the absolute right to a face-to-face meeting with witnesses against them 9 at trial.” Maryland v. Craig, 497 U.S. 836, 844 (1990) (emphasis in original). Face-to-face 10 confrontation at trial is preferred, but it is not an indispensable element of the Sixth 11 Amendment right to confront one’s accusers. Id. at 849-50. Exceptions to “a physical, face- 12 to-face confrontation at trial” are constitutionally permissible when “necessary to further an 13 important public policy,” as long as “the reliability of the testimony is otherwise assured.” Id. 14 at 850. 15 For instance, in Craig the Supreme Court held that the Confrontation Clause was not 16 violated when a child abuse victim was allowed to testify at trial by one-way closed circuit 17 television outside of the defendant’s physical presence. Id. at 855-57. And the Ninth Circuit 18 held that the Confrontation Cause was not violated when a confidential informant was 19 allowed to disguise his appearance with a wig and a fake moustache while testifying at trial. 20 United States v. de Jesus-Castaneda, 705 F.3d 1117, 1120 (9th Cir. 2013); see also Morales 21 v. Artuz, 281 F.3d 55, 56, 60-62 (2d Cir. 2002) (permitting witness to testify while wearing 22 dark sunglasses “resulted in only a minimal impairment of the jurors' opportunity to assess 23 her credibility” and state court reasonably found no confrontation violation). 24 Applying Craig, numerous federal district courts around the country have concluded 25 that no Confrontation Clause violation occurs when witnesses are required to wear masks 26 covering their mouth and nose to minimize the risk of transmission of the Covid-19 virus. 27 28 8 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 9 of 12 Page ID #:1076

1 See, e.g., United States v. Maynard, No. 2:21-cr-00065, 2021 WL 5139514, at *2 (S.D. W. 2 Va. Nov. 3, 2021); United States v. Holder, No. 18-cr-00381-CMA-GPG-01, 2021 WL 3 4427254, at *8-*9 (D. Colo. Sep. 27, 2021); United States v. Clemons, No. RDB-19-0438, 4 2020 WL 6485087, at *2 (D. Md. Nov. 4, 2020); United States v. James, No. 5 CR-19-08019-001-PCT-DLR, 2020 WL 6081501, at *2 (D. Ariz. Oct. 15, 2020); United 6 States v. Crittenden, No. 4:20-CR-7 (CDL), 2020 WL 4917733, at *7-*8 (M.D. Ga. Aug. 21, 7 2020). 8 C. Court of Appeal’s Opinion 9 The Court of Appeal rejected Petitioner’s Confrontation Clause claim. It noted that 10 “numerous federal district courts have concluded that, due to the unique and substantial 11 public health risks created by the ongoing global pandemic, the Confrontation Clause is not 12 violated by having a witness testify in a criminal proceeding with a mask covering the nose 13 and mouth.” (LD 6 at 5.) It stated that it “agree[d] with the reasoning in those federal 14 decisions which rely on the public interest exception to the face-to-face confrontation 15 requirement discussed in Craig.” (Id. at 5-6.) The Court of Appeal found that “the court's 16 mask requirement furthered the public policy of protecting against the substantial health risks 17 presented by the COVID-19 virus, particularly in an indoor setting like a courtroom,” and “did 18 not meaningfully diminish the face-to-face nature of the witness testimony.” (Id. at 8.) “The 19 witnesses testified in court, under oath and were subject to unfettered cross-examination by 20 counsel.” (Id.) “The mask requirement did not significantly obstruct the jury’s ability to 21 assess witness demeanor,” because “[t]he jurors could see the witnesses’ eyes, hear the 22 tone of their voices, and assess their overall body language.” (Id.) 23 The Court of Appeal rejected Petitioner’s argument that the trial court should have 24 considered other measures to minimize the risk of infection, such as allowing witnesses to 25 testify remotely without a mask or reconfiguring the courtroom so that the witnesses could 26 testify without a mask at a distance from other persons. (Id. at 8-9.) Petitioner did not ask 27 the trial court to adopt such measures, the record did not show that “the particulars of the 28 9 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 10 of 12 Page ID #:1077

1 courtroom here allowed for such accommodation,” and Petitioner’s argument that testifying 2 remotely from another location was preferable to testifying in his presence with a mask was 3 not supported by Sixth Amendment jurisprudence. (Id.) 4 D. Analysis 5 The state court’s rejection of Petitioner’s claim reflects a reasonable application of 6 governing Supreme Court precedent. The Supreme Court has never held that a criminal 7 defendant’s Sixth Amendment right to confront witnesses is violated when witness are 8 partially masked while testifying. On the contrary, the Supreme Court has held that 9 exceptions to a defendant’s right to confront witnesses face to face are constitutionally 10 permissible when “necessary to further an important public policy,” as long as “the reliability 11 of the testimony is otherwise assured.” Craig, 497 U.S. at 850. 12 Petitioner’s trial took place in September 2020, during the global Covid-19 pandemic 13 and before a vaccine was available. Petitioner does not dispute that minimizing the risks of 14 transmission of Covid-19 in the courtroom is an important public policy. See Crittenden, 15 2020 WL 4917733, at *3 (discussing “compelling policy reason[s]” for mask requirement). 16 He argues, however, that the trial court could have implemented alternative measures such 17 as social distancing, acrylic barriers, or clear face shields. (Pet. at 21, 23-24.) The trial 18 court’s mask requirement was based on the recommendations issued by the Centers for 19 Disease Control and Prevention at the time of Petitioner’s trial. See James, 2020 WL 20 6081501, at *1. Putting aside the comparative efficacy of masks and the measures 21 suggested by Petitioner, nothing in Craig suggests that in order to be constitutionally 22 permissible, the alternative to face-to-face confrontation must be the least restrictive means 23 of furthering the important public policy goal. Craig requires only that the reliability of the 24 testimony must be assured under the alternative means of confrontation. See Craig, 497 25 U.S. at 850. 26 The Supreme Court has explained that “[t]he combined effect of [the] elements of 27 confrontation—physical presence, oath, cross-examination, and observation of demeanor by 28 10 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 11 of 12 Page ID #:1078

1 the trier of fact—serves the purposes of the Confrontation Clause by ensuring that evidence 2 admitted against an accused is reliable” and subject to “rigorous adversarial testing.” Id. at 3 846. There was no impairment of the first three elements of confrontation at Petitioner’s trial. 4 The witnesses were physically present in front of the jury and Petitioner;2 they were under 5 oath; and they were subject to cross-examination. Only the fourth element, observation of 6 the witnesses’ demeanor, was slightly impaired because a mask covering the lower part of a 7 witness’s face prevented the jurors from seeing the facial expression as conveyed by the 8 mouth and nose. “The Confrontation Clause does not require that the jury be able to see a 9 witness's entire face or body.” James, 2020 WL 6081501, at *2. The jurors were still able to 10 see the witnesses’ eyes, observe their body language, and hear their tone of voice. 11 “Because the covering of the nose and mouth does not significantly hinder observation of 12 demeanor, allowing witnesses to testify while wearing masks does not materially diminish the 13 reliability of the witnesses’ testimony.” Id.; see also Crittenden, 2020 WL 4917733, at *7 14 (“being able to see a witness's nose and mouth is not essential to testing the reliability of the 15 testimony” and despite witnesses’ masks, “jurors will be able to observe most facets of the 16 witnesses’ demeanor,” including “how the witnesses move when they answer a question; 17 how the witnesses hesitate; how fast the witnesses speak” and whether “the witnesses blink 18 or roll their eyes, make furtive glances, and tilt their heads”); see also Maynard, 2021 WL 19 5139514, at *2 (noting that “[m]asks cover only the nose and mouth” and jurors “will be able 20 to assess tone, unusual pauses, shifting or squirming, eye contact, and body language to 21 evaluate demeanor and credibility”). 22 Petitioner also argues that his right to confrontation was violated because his own 23 mask prevented the jurors and the testifying witnesses from seeing his expression in 24 response to the witnesses’ testimony. (Pet. at 18.) The Supreme Court has never held that 25 a defendant’s Sixth Amendment right to confront the witnesses against him encompasses a 26 27 2 The Confrontation Clause assures the defendant the presence of witnesses “upon whom he can 28 look while being tried.” Coy, 487 U.S. at 1017. 11 Case 2:22-cv-04281-JEM Document 11 Filed 12/15/22 Page 12 of 12 Page ID #:1079

1 right to convey to the jury his reaction to their testimony through his facial expressions. The 2 witnesses testified in Petitioner’s physical presence and were able to see his full person, 3 which would “impress upon them the gravity of the proceedings at which they testif[ied].” 4 United States v. Tagliaferro, 531 F. Supp. 3d 844, 849-50 (S.D.N.Y. 2021) (rejecting 5 confrontation challenge to mask requirement for defendant). In any event, as discussed 6 above, the mask covering Petitioner’s nose and mouth did not significantly hinder 7 observation of his demeanor. 8 Accordingly, the state court’s rejection of Petitioner’s confrontation claim was not 9 contrary to, or an unreasonable application of, clearly established federal law as set forth by 10 the United States Supreme Court. Petitioner is not entitled to federal habeas relief. 11 CERTIFICATE OF APPEALABILITY 12 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must 13 issue or deny a certificate of appealability when it enters a final order adverse to the 14 applicant.” For the reasons stated above, the Court concludes that Petitioner has not made 15 a substantial showing of the denial of a constitutional right, as is required to support the 16 issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2). 17 ORDER 18 IT IS ORDERED that: (1) the Petition is denied; (2) an evidentiary hearing is denied; 19 (3) a certificate of appealability is denied; and (4) judgment shall be entered dismissing this 20 action with prejudice. 21 22 DATED: December 15, 2022 /s/ John E. McDermott

JOHN E. MCDERMOTT

23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 12