Right To Fair Trial Not Violated By Use Of Face Masks During Trial  

People v. Molina (Cal. Ct. App., Oct. 17, 2023, No. G061280) 2023 WL 6834852

 Summary: Molina appealed after conviction of sexual penetration with a child 10 years or younger and lewd or lascivious acts upon a child under 14 years, after a trial in which safety protocols related to the COVID-19 pandemic were implemented.

The Court of Appeal held that: defendant’s right to a fair trial was not violated by use of face masks during trial; defendant’s right to a fair trial was not violated by jurors’ social distancing during trial; and defense counsel’s tactical decision to inform prospective jurors that defendant was in custody did not constitute ineffective assistance.

Facts: Trial began in June 2021, during the COVID-19 pandemic. The trial court implemented safety protocols at trial, including face masks and social distancing. At defense counsel’s request and with Molina’s permission, the court informed potential jurors during voir dire that Molina was in custody because he had not posted the bail set at his initial court appearance, and emphasized to the potential jurors that Molina was presumed innocent.

The jury found Molina guilty on all counts, and the trial court sentenced him to a combined term of 45 years to life. Molina appealed challenging the COVID-19 safety protocols used at trial and his counsel’s request to have the court disclose to the jury he was in custody.

COVID-19 Protocols during trial

In order to minimize the spread of COVID-19,  all parties and prospective jurors were required to wear masks during the first day of jury selection, and prospective jurors were seated six feet apart. Molina did not object to these protocols.

On June 15, 2021 (day two of jury selection), the trial court noted the governor had lifted many COVID-19 safety restrictions effective that day, but the Supreme Court’s emergency orders were still in place. The court continued with masking and social distancing and Molina did not object.

The following Monday, the trial court announced the courthouse was no longer requiring vaccinated individuals to mask or socially distance. Nine seated jurors and two alternates informed the courtroom deputy they were comfortable sitting in the jury box without socially distancing. Three jurors and one alternate, however, wished to socially distance, and the court permitted them to do so. The court noted that all witnesses would be asked to remove their masks while on the witness stand.

Molina had the option to take off his mask if he could prove that he had been vaccinated. Molina declined and wore his mask for the remainder of the day. The next day, however, he removed his mask.

Molina contends the use of masks and social distancing violated his constitutional right to a fair trial. In particular, he challenges the jurors’ use of face masks during voir dire, the trial court’s decision to allow certain jurors to continue to wear face masks and sit outside the jury box during trial even after the protocols were lifted, and the court’s initial requirement that Molina wear a face mask on the first morning of trial.

Molina forfeited these assertions by failing to object. Molina asserts his trial counsel rendered ineffective assistance by failing to object to the masking or social distancing protocols. The Court held that any objection to the COVID-19 safety protocols at issue here would have been meritless.

Constitutional challenges to the use of masks during the COVID-19 pandemic

California courts have rejected constitutional challenges to the use of masks during the COVID-19 pandemic for both defendants and testifying witnesses, citing the important state interest in protecting the public from a contagious disease, the lack of effective alternatives to masking, and the relatively minimal limitation that masks have on jurors’ ability to assess witness credibility. (See People v. Edwards (2022) 76 Cal.App.5th 523, 525-527) Cal.Rptr.3d 600

The state’s compelling need to protect the health and safety of courtroom participants from a highly contagious virus justified masking and social distancing.

Although counsel must be able to assess the demeanor of jurors, and jurors must be able to assess the demeanor of witnesses, there is nothing in this record to suggest the seating arrangement used in this case interfered with that process.

In custody status does not impair presumption of innocence

The fact that the jury is made aware of a defendant’s custodial status does not deprive the defendant of his constitutional rights.” (People v. Valdez (2004) 32 Cal.4th 73.)

Presumably, the jury understood and followed the court’s instruction to disregard Molina’s custodial status. (People v. Holt (1997) 15 Cal.4th 619, 662.) Molina fails to show he was prejudiced by his counsel’s tactical decision to inform prospective jurors he was in custody.

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