California Cases October 20, 2022: People v. Lowe

Case Description

NOT TO BE PUBLISHED

Order Filed Date 10/25/22

APPEAL from a judgment of the Superior Court of Fresno County. No. F14907858 F. Brian Alvarez, Judge.

Linnea M. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION

It is hereby ordered that the opinion filed herein on October 20, 2022, be modified to reflect that review was granted in People v. Dunn (2022) 81 Cal.App.5th 394 as follows:

1. On page 39, the last citation of the first full paragraph, is modified as follows: ( People v. Dunn (2022) 81 Cal.App.5th 394, 402-403, review granted Oct. 12, 2022, S275655.)

2. On page 40, the last citation of the first full paragraph, is modified as follows: ( People v. Dunn, supra, 81 Cal.App.5th at p. 401, rev. granted.)

Except for the modification set forth, the opinion previously filed remains unchanged. This modification does not effect a change in the judgment.

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OPINION

FRANSON, J.

On August 7, 2015, an information was filed charging Ronnie Kevin Lowe with the following: in count 1, possession for sale of a controlled substance, heroin (Health &Saf. Code, § 11351); in count 2, possession of a controlled substance while armed with a firearm

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(Health & Saf. Code, § 11370.1, subd. (a)); in count 3, possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) ; in counts 4 and 5, possession of ammunition by a person prohibited from owning a firearm (§ 30305, subd. (a)(1)); in count 6, possession of cannabis of more than 28.5 grams (Health &Saf. Code, § 11357, subd. (c)); and in count 7, possession of a short-barreled shotgun or rifle (§ 33210). A personal arming enhancement was alleged as to count 1 (§ 12022, subd. (c)).

After numerous delays and continuances, jury trial began on July 9, 2020. On July 22, 2020, a jury found Lowe guilty of counts 2 through 7, and convicted him of the lesser included offense of count 1, possession of heroin (Health &Saf. Code, § 11351).

The trial court sentenced Lowe to the upper term of four years on count 2, and imposed but stayed upper term sentences on counts 3, 4, 5, and 7, pursuant to section 654. It imposed jail time of five days as to counts 1 and 6.

On appeal, Lowe contends the trial court violated the qualified statutory and constitutional rights to a public trial belonging to him, the press, and the general public due to COVID restrictions; that he made a prima facie showing that the jury venire was not drawn from a representative cross-section of the community; that his trial was fundamentally unfair in violation of the due process clause of the 14th Amendment; and that the minute order must be corrected to accurately reflect the jury's verdict. Through supplemental briefing, Lowe contends, and the People concede, that his sentence must be vacated, and his case remanded for resentencing in light of Senate Bill No. 567's (2021-2022 Reg. Sess.) (Senate Bill 567) amendments to section 1170, subdivision (b). We will vacate Lowe's sentence and remand for resentencing consistent with amended section 1170, subdivision (b). We also agree that the minute order must be corrected. In all other respects, we affirm.

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STATEMENT OF THE FACTS

On the evening of May 13, 2014, Lowe drove his vehicle northbound on Maroa near Ashlan Avenue in Fresno County. Detective John Capriola noticed Lowe commit two traffic violations and signaled for Lowe to pull over.

Detective Capriola made contact with Lowe, the sole occupant of the vehicle, and detected the smell of burnt and fresh marijuana in the vehicle. Lowe said he had a blunt in the ashtray, a medical marijuana card, and about an ounce of marijuana in a bag on the backseat of the car.

Detective Capriola located a duffle bag on the backseat, which contained a gun, ammunition, a pill bottle with two plastic baggies of heroin, a pill bottle containing marijuana, and numerous pill bottles with a variety of drugs, including oxycodone, methadone, and hydrocodone. The gun was illegal due to the length of the barrel. It was not registered and was loaded with live rounds of ammunition, both .45 magnum ammunition and .410-gauge shotgun slugs. The heroin seized from Lowe's vehicle totaled 8.095 grams; the marijuana 42.721 grams.

After Lowe waived his Miranda rights, Detective Capriola, using a personal recording device, recorded Lowe's statement, which was played for the jury at trial. Lowe told Detective Capriola that he knew of the presence of the firearm and that he carried it for protection, although he admitted that he was aware he could not legally possess a firearm as he was an ex-felon. Lowe also told Detective Capriola that the heroin was his as he was an addict.

DISCUSSION

Lowe contends that, due to the various delays encountered between when he was first charged and trial, his trial did not begin until the middle of the COVID-19 pandemic, causing numerous due process issues. We address each issue in turn.

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I. DID THE TRIAL COURT VIOLATE THE QUALIFIED STATUTORY AND CONSTITUTIONAL RIGHTS TO A PUBLIC TRIAL BELONGING TO LOWE, THE PRESS, AND THE GENERAL PUBLIC DUE TO COVID RESTRICTIONS?

Lowe contends that the trial court violated qualified statutory and constitutional rights to a public trial belonging to him, to the press, and to the general public due to COVID restrictions. He further contends these restrictions also violated his right in conducting jury selection. We find no error.

Background

On March 4, 2020, Governor Gavin Newsom declared a state of emergency in response to the global outbreak of COVID-19, a" 'new disease, caused by a novel (or new) coronavirus that has not previously been seen in humans.' [Citation.] ... [On March 19] the Governor issued an executive order requiring all Californians to stay at home except for limited activities." ( Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 167 ( Stanley ).)

On March 23, 2020, Chief Justice Tani Cantil-Sakauye, in her capacity as Chairperson of the Judicial Council, issued an emergency statewide order pursuant to Government Code section 68115 authorizing superior courts to adopt proposed local rules or local rule amendments to address the impact of the COVID-19 pandemic to take effect immediately. ( In re M.P. (2020) 52 Cal.App.5th 1013, 1016.)

On March 27, 2020, the Governor issued Executive Order No. N-38-20, which "suspended any limitations in Government Code section 68115 or any other provision of law that limited the Judicial Council's ability to issue emergency orders or rules, and suspended statutes that may be inconsistent with rules the Judicial Council may adopt." ( Stanley, supra, 50 Cal.App.5th at pp. 167-168.) The executive order also acknowledged that" 'the Judicial Branch retains extensive authority, statutory and otherwise, to manage its own operations as it deems appropriate to mitigate the impacts of COVID-19.'" ( In re M.P., supra, 52 Cal.App.5th at pp. 1016-1017, citing Exec. Order No. N-38-20.)

On April 6, 2020, the Fresno County Superior Court issued an "ORDER RESTRICTING COURTHOUSE ENTRY AND PERMITTING ACCESS ONLY TO

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AUTHORIZED PERSONS." In pertinent part, this order provided that "access to any and all Fresno County Superior courthouses is restricted to those authorized persons required to appear in person for a court hearing, including judges, court commissioners, court staff, and other authorized persons such as parties, their attorneys, and witnesses subpoenaed to testify, until further notice. No other persons will be permitted without good cause." The order prefaced this restriction by noting "[p]rotection of public health and safety given the COVID-19 threat has created significant operations obstacles" to the services provided by the court. Consequently, the court's operations "have been limited to proceedings that are required to comply with the constitutional rights of detained criminal defendants or juveniles, to protect the health and immediate safety of litigants .."

While the order acknowledges, in pertinent part, constitutional prohibition against closing substantive proceedings in criminal cases, it found "the current COVID-19 pandemic, resulting in shelter-in-place orders and social distancing mandates to mitigate infection, clearly demonstrates an overriding interest which supports restricting courthouse entry and access to only those persons who are required to be present in a Fresno Superior Court courthouse." The order further provided that "[p]ublic health and safety will be prejudiced absent such a restriction, which is nearly tailored to permit only those persons required to enter any Fresno Superior Court courthouse; there exists no less restrictive means of achieving this overriding interest of protecting general public health while respecting the constitutional rights of detained criminal defendants or juveniles, protecting the health and immediate safety of litigants, and addressing in-custody population concerns."

On July 2, 2020, the court executive officer of Fresno County Superior Court issued COVID-19 Courthouse Safety Protocols, which provided that "Law Enforcement ... personnel, attorneys, defendants, witnesses, victims, media and individuals who have identified business in the court for that specific day" will be allowed entrance.

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Trial began on July 9, 2020, and on July 13, 2020, during motions in limine, defense counsel raised the issue of the violation of Lowe's right to a public trial, contending deputies were selectively denying individuals access to the courthouse.

The trial court addressed the issue, stating that, because the courtroom could not accommodate more than 30 prospective jurors at a time, another 30 prospective jurors, already pre-screened for hardship, would be in a courtroom next door and would view the proceedings via Zoom. It was also expected that the proceedings would be live on "YouTube." The court acknowledged the need to balance the right to a public trial with the ongoing pandemic, and asked if Lowe had "specific people" he wished to be allowed into the court as "support people." Lowe responded, "Yes," and the trial court stated that that should not be an issue.

Following a lunch recess, the trial court called Fresno County Sheriff's Deputy Mark Chapman, assigned to the court security duty, who testified that he was involved in the enforcement and training of the deputies of the superior court and State of California policies. According to Deputy Chapman, the policy then in place under the April 6 and July 2, 2020, orders as to entry into the courthouse allowed law enforcement, personnel, attorneys, defendants, witnesses, victims, media, and individuals who had identified business with the court for that specific day. In order to have access, those individuals had to pass the medical screening, the health screening questions, and were required to wear a face mask. Deputy Chapman explained that support people on behalf of the accused are not allowed in unless "we have direction from the Court to allow that."

Following Deputy Chapman's testimony, defense counsel asked that the trial court make an order "which directs the Clerk's Office as well as the security detail downstairs to allow members of the public" into Lowe's trial proceedings. The court questioned counsel on the YouTube option for anyone wanting to view the proceedings, but counsel stated that not everyone had access to the internet or YouTube.

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The trial court, citing the increased number of COVID-19 cases, further shutdown of services, and the overriding concern to protect the public health, found the closure "no more broad[] than needed to protect the public interest." The court also stated that, should Lowe "wish to bring somebody into the court, he certainly can. The Court will enter an order that Mr. Lowe can bring in a support person or people," "[b]ut otherwise, the Court does deem that the YouTube live will address any issues to the extent the First Amendment applies," and "the general public will not be able to come in as you heard and watch as normally they could under any other circumstances."

On July 14, 2020, prior to jury selection, defense counsel noted that the proceedings were being streamed on YouTube and that, because of the position of the recording devices, he could "only assume that during voir dire jury selection, that the camera will ... be in relatively the same place, meaning that it will capture my client, myself, and the prosecutor." Counsel stated his worry was that the juror's "images" would be kept "secret." Counsel argued that this denied Lowe his right to a public trial. He also argued that the jurors "in the other room will not be able to see all of what's going on," and suggested a different angle for the camera.

The trial court interjected, stating it did not have the capability to reposition the camera and that "[w]e're doing to best we can with what we have." After reiterating that Lowe had a right to a public trial even under COVID-19 circumstances, defense counsel submitted on the issue. The prosecutor argued that there was a competing interest based on the global pandemic and that the trial court had employed the least restrictive means possible under the circumstances.

The trial court stated the following:

"We're doing the very best that we can with what we have under the circumstances, trying to afford Mr. Lowe his public trial during the time of a pandemic is -- is difficult, frankly. But with the hardware that we have and with the procedure that we're going through, this is the best that we can do so that way it, in some manner, comports with a public trial within the meaning

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of the Sixth Amendment because those who would want to see these proceedings would be able to do so at least to the portion of the Defendant, Defense Counsel and the Prosecutor. The camera angle is the best that we can do under the circumstances. We're unable to put the camera at the back of the courtroom because we don't have the capability or ability to do that. It would require some significant changes to some infrastructure here in the courtroom itself, if not the courthouse, something that we're not able to do at this time unfortunately. So, the Court is of the opinion still that the ruling it made yesterday with regards to the public trial aspect and the use of Zoom and the hearing that we had still comports with the Sixth Amendment under the circumstances of the pandemic. But your objection is noted."

Applicable Law

"Every person charged with a criminal offense has a constitutional right to a public trial, that is, a trial which is open to the general public at all times. (See U.S. Const., amends VI, XIV; Cal. Const., art. I, § 15; see also Pen. Code, § 686, subd. 1.)" ( People v. Woodward (1992) 4 Cal.4th 376, 382 ( Woodward ).) "The right to a public trial entitles a criminal defendant 'at the very least ... to have his friends, relatives and counsel present, no matter with what offense he may be charged.' [Citations.] Nonetheless, in some circumstances, exclusion of members of the public from a judicial proceeding does not implicate the constitutional guarantee." ( United States v. Rivera (9 Cir. 2012) 682 F.3d 1223, 1229.) A criminal defendant's constitutional right to a public trial extends to jury selection. ( Presley v. Georgia (2010) 558 U.S. 209, 210, 214-215.)

"The Sixth Amendment public trial guarantee creates a 'presumption of openness' that can be rebutted only by a showing that exclusion of the public was necessary to protect some 'higher value,' such as the defendant's right to a fair trial, or the government's interest in preserving the confidentiality of the proceedings. [Citation.] When such a 'higher value' is advanced, the trial court must balance the competing interests and allow a form of exclusion no broader than needed to protect those interests. [Citation.] Specific written findings are required to enable a reviewing court to determine the propriety of the exclusion." ( Woodward, supra, 4 Cal.4th at p. 383.)

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We consider de novo a defendant's claim that he was denied his constitutional right to a public trial, but review the trial court's underlying factual determinations for closure for substantial evidence. ( People v. Scott (2017) 10 Cal.App.5th 524, 531.) Where a defendant has been deprived of the right, "no showing of prejudice is required '[b]ecause the right to a public trial protects the defendant from very subtle but very real injustices,' and '[r]equiring such a defendant to prove actual prejudice would deprive most defendants of the right to a public trial.'" ( Id. at p. 532.)

Analysis

We first note that, here, although the public was physically excluded from the courtroom in Lowe's trial, the courtroom was not completely closed, as the trial was contemporaneously video and audio broadcast over YouTube to the public. (See Gov. Code, § 54953 [audio and video teleconference qualify as an open and public meeting for purposes of the Brown Act].) In addition, Lowe was permitted to have a support person or people in court with him, if he so chose.

In any event, even if Lowe had a constitutional right to have the public physically attend his trial, as we discuss below, this right was properly limited by a compelling state interest, the current pandemic, that was narrowly tailored.

The Supreme Court in Waller v. Georgia (1984) 467 U.S. 39 ( Waller ), identified four requirements necessary to justify exclusion: (1) the existence of an overriding interest that is likely to be prejudiced absent the closure; (2) the closure is narrowly tailored, i.e., no broader than necessary to protect that interest; (3) no reasonable alternatives to closing the proceeding are available; and (4) the trial court must "make findings adequate to support the closure." ( Id. at p. 48; accord Woodward, supra, 4 Cal.4th at p. 383.) The court cannot determine the application of the above principles in the abstract; they must be determined by reference to the facts of the particular case. ( People v. Pena (2012) 207 Cal.App.4th 944, 949.) Having those considerations in mind, we are persuaded that the Waller test was satisfied in this case.

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Here, the restriction on public access to the courtroom was essential to a higher value, protecting the health and immediate safety of litigants, trial participants and court employees from exposure to people who may be contagious for COVID-19 and limiting the spread of COVID-19 to the broader public. Furthermore, the exclusion of the public was narrowly tailored and not broader than necessary to protect the public health. Not everyone was excluded from the courtroom and, specifically, Lowe was permitted a support person or people. As noted above, the public was able to watch the proceedings via the streamed video and audio transmission on YouTube. And importantly, Lowe was not excluded from participating in his trial in person and witnesses were not restricted from testifying in court.

We find no merit to Lowe's argument, nor has he cited any authority for the proposition, that the partial closure of a courtroom to protect the public, litigants, and courthouse employees from the spread of COVID-19 violated his constitutional right to a public trial or constituted structural error.

We similarly find no merit to Lowe's argument that the limitation of prospective jurors in a courtroom to 30, supplemented by a live video feed from another courtroom, was a form of closure and violated his First and Sixth Amendment rights to a public trial. Lowe argues specifically that the trial court failed to consider any less restrictive alternatives to the fact that it did not have the hardware capability to position the camera to the back of the courtroom to give the public access to images of jurors during jury selection.

"While the accused does have a right to insist that the voir dire of the jurors be public, there are exceptions to this general rule." ( Presley v. Georgia, supra, 558 U.S. at p. 213.) "[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." ( Waller, supra, 467 U.S. at p. 45.) "Such circumstances will be rare, however, and the balance of interests must be struck with special care." ( Ibid. ) As addressed, Waller provided standards for courts to apply before excluding the public from any stage of a criminal trial: "[T]he party seeking to close the hearing must

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advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." ( Id. at p. 48.)

Lowe's trial occurred at the beginning of the pandemic, when courts were beginning to grapple with unprecedented challenges. In upholding the exclusion of the public from being physically present at juror voir dire, the court's restrictions in the instant case were necessary and narrowly tailored under Waller to preserve a higher value - protecting the health and immediate safety of litigants from exposure to COVID-19. Voir dire was conducted in separate courtrooms in order to accommodate the six-foot social distancing requirements to prevent the spread of COVID-19. Importantly, for the public, the entire voir dire was broadcast in real time via YouTube, allowing the press and public to observe the proceedings. The only limitation on public participation was the exclusion of the public from physically sitting in the courtroom.

We find no error on the part of the trial court and reject Lowe's claim to the contrary.

II. DID LOWE MAKE A PRIMA FACIE SHOWING THAT THE JURY VENIRE WAS NOT DRAWN FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY?

Lowe contends the trial court erred when it denied his motion to quash the petit jury panel of 48, as there were no African-Americans in the panel. We find no error.

Background

Before jury selection began on July 13, 2020, defense counsel stated that he might make a motion to quash the petit jury panel once he had seen the entire venire of 48. According to counsel, counsel was concerned about the racial make-up of the venire, as African-Americans made up 5.8 percent of the population of Fresno County, and that, according to the Center for Disease Control (CDC), the risk of an African-American contracting COVID-19, or experiencing severe illness from it, was five times higher than

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that of non-Hispanic white people, meaning 178 per 100,000 for African-American and 40 per 100,000 for whites.

During jury selection, on July 14, 2020, defense counsel stated that, once he saw the entire jury panel, there were no African-Americans among them, and he reiterated his belief that this was so because African-Americans were getting COVID-19 at a five times higher rate than whites. The trial court stated, "Well, it might be true that the COVID-19 pandemic might discriminate, I can guarantee you the process here does not." The trial court then invited defense counsel to "make you record and go forward as you see fit."

The following day, July 15, 2020, still during jury selection, defense counsel filed a written motion to quash the petit jury panel of 48 as there were no African-Americans in the panel. In the written motion, counsel represented that the CDC had recognized longstanding systemic health and social inequities that put some members of racial and ethnic minority groups at increased risk of contracting COVID-19 or experiencing severe illness, regardless of age. According to the motion, as of June 12, 2020, age adjusted hospitalization rates of non-Hispanic Black persons were five times that of non-Hispanic white people.

In addressing the motion, defense counsel stated that the trial court and jury commissioner should be aware that there are disparities in the frequency of COVID-19 among the African-American community, which impacted the venire selection process. The trial court noted that counsel did not provide "any information" "about the jury eligible African American community in Fresno County" referring to adults only. Counsel conceded that he did not have that information, but that he had looked for it but could not find it. Counsel acknowledged that this was a "deficiency in the paperwork."

The trial court agreed that Lowe was entitled to a "panel drawn from a representative cross section," but that the question here was whether or not the "process of the Court somehow denies ... your client that right." The court asked how counsel's argument was attributable to the court.

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Defense counsel argued that it was a "failure" of the trial court to not make allowance for the fact that African-Americans are five times more likely to be hospitalized for COVID-19, and therefore unable to respond to a jury selection process. The court questioned whether counsel thought the court had to make an affirmative effort to go out into the community and "try to round up African American people." Counsel stated there had to be "measures and safeguards taken" in order to preserve Lowe's right to a jury of his peers. Counsel pointed to the fact that jurors used to be taken strictly from voter registration rolls, but since those were found to be not necessarily representative, driver's licenses and identification cards are now also used.

The trial court stated that it did not disagree with defense counsel that African-Americans might have less access to healthcare and the death rates attributed to COVID-19 might be higher, but asked "How is that attributable to the Court and whether or not the Court is doing something that it shouldn't be doing or whether it should be doing something more than what it's already doing to get African American people to come to court on a summons to serve? ... [T]here's a disconnect between that logic to me, but maybe you can fill that gap."

Defense counsel stated that the "proof is in the pudding," noting that the jury venire in this case did not include any African-Americans. The trial court conceded there were no African-Americans in the jury venire, but stated it wanted to know "how that's attributable to the Court's process and especially for COVID-19."

Defense counsel again argued that the jury commissioner had a "duty to be sure to make efforts to be sure that the racial makeup of panels is as near and close as possible to the actual demographics of the county, of the adult jury eligible population." The trial court stated that "it wished" there were African American jurors on this panel, but that, in a random selection system, "you kind of get what you get," but that the lack thereof in this case was not attributable to this court.

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The People, citing several cases, argued that a defendant is entitled to a jury panel that is as near an approximation of the ideal cross-section of the community as the process of random drawing permits. It further argued that systematic exclusion of a group from the jury selection process cannot be established if the only evidence presented is statistical evidence of disparity, but that there must be proof of deliberate systematic exclusion.

Defense counsel then acknowledged the deficiencies in his argument, but thought that, with a venire of 48 there should have been "approximately" three African Americans.

In denying the motion, the trial court stated the following, in relevant part:

"The Court's had an opportunity to review People v. De Rosans , which is cited in the moving papers .... [(1994)] 27 Cal.App.4th 611.... [T]he leading case is Dur[e]n v. Missouri [(1979)] 439 U.S. 357 1979 U.S. Supreme Court opinion. And the opinion itself gives three issues that need to be addressed or elements in order to make a prima facie case/ The first is the group alleged that is excluded is a quote, "distinctive" end quote, group in the community. And here, no one argues to the contrary that African American citizens are a distinctive group in the community for purposes of this motion. The second element is the representation in the group in the jury panel is not fair and reasonable in relation to the number of distinctive group in the community. And the community for purposes of cross-representation is our judicial district which is the County of Fresno, according to People v. Jenkins [(2000)] 22 Cal.4th [900,] ... 982.... The Court must consider the evidence proffered by Defendant including any expert witness or testimony or declaration and employ the method applicable to the specific challenge to the -- in the context of the called jury panel. The third element is that any underrepresentation is due to, quote, "systematic exclusion," end quote, of the group from the jury selection process. The Court does note that systematic exclusion can't be shown -- cannot be shown if the only evidence presented is statistical evidence of disparity.... [T]hat's People v. Horton [(1995)] 11 Cal.4th [1068,] ...1088. There must be proof of some systematic exclusion, according to People v. Ramos [(1997)] 15 Cal.4th [1133,] ... 1156 which requires a showing that the disparity is the result of an improper feature of the jury selection process. Looking at De Rosans , also, it -- it holds that a Defendant does not establish the underrepresentation requirement by showing a disparity on the particular jury panel assigned to the Court in which his or her jury is to be selected. That's at page 618. Underrepresentation on the Defendant's particular panel is not relevant, same page. And that's the citation of People v. Bell [(1989)] 49 Cal.3d [502,] . 525. So, it is lamentable in the sense that we have no African

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American jurors of the 48 people that were summoned before the Court. Certainly, the Court believes that having a cross-representation of our community adds credibility to the process and it's very important that that happen. That didn't happen here. The issue for the Court, however, is whether or not that was done by some systematic exclusion in the jury selection process to include the way the jurors were summoned to Courts The Court does note that Dur[e]n v. Missouri dealt with the statute that excluded women based upon their request to be relieved of the obligation, thereby, 54 percent of the jury-eligible women in that particular judicial district were not reporting or were reporting at a rate of about 15 percent, which is grossly disproportionate at that point. So, there was a statute in place in that case that allowed women to opt out, thereby denying a criminal Defendant the right to have women on his jury panel. That was a systematic exclusion that was shown to the U.S. Supreme Court. The next case that ... addressed _ a systematic exclusion showing to the panel -- or to the process under the Sixth Amendment was another United States Supreme Court case. This is a case from 2010. This case was Berghuis v. Smith [(2010)] 559 U.S. 314..... That arose in the context of a habeas corpus petition under the AEDPA. That also dealt with the systematic exclusion and primarily what the Court held in that case, one, it reaffirmed its decision in Dur[e]n v. Missouri , but, two, it says there is no particular manner or way in which to come to the statistical disparity. I think there were several methods that were used for statistical disparity, including an absolute disparity, also including relative disparity to determine whether or not there was some percentage that can be shown and there is no correct way necessarily to do it. All this being said, the Court does not find under the circumstances that the third element, in any event, has been established for the prima facie case. I do not see and I cannot understand how underreporting of African American jurors or eligible jurors by virtue of this pandemic is attributable to the Court's process at all. Accordingly, Defense has failed to make a prima facie case to have this panel quashed."

Applicable Law and Analysis

A criminal defendant has a "right, under the Sixth and Fourteenth Amendments, to a petit jury selected from a fair cross section of the community." ( Duren v. Missouri, supra, 439 U.S. at p. 359 ( Duren ); see People v. Howard (1992) 1 Cal.4th 1132, 1159.) "In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this

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underrepresentation is due to systematic exclusion of the group in the jury-selection process." ( Duren , at p. 364.) If a defendant establishes a prima facie violation, the burden then shifts to the state to show "attainment of a fair cross section to be incompatible with a significant state interest." ( Id. at p. 368.)

The parties do not dispute that African-Americans are a "distinctive" group for purposes of Duren's first prong. (See People v. Bell, supra, 49 Cal.3d at p. 526.) As for the second prong, the parties dispute whether defendant has carried his burden of demonstrating that the proportion of African-Americans in the jury pool is not "fair and reasonable" relative to their numbers in the community. Lowe's counsel, without documentary support, alleged that African Americans comprised 5.8 percent of the population in Fresno County according to U.S. census data.

But even assuming Lowe met the second Duren requirement, we agree that the trial court properly found he did not fulfill the third Duren requirement, under which a defendant must show that the claimed underrepresentation was "due to systemic exclusion of the group in the jury-selection process." ( Duren, supra, 439 U.S. at p. 364.)

"The third Duren element -- that there has been a systematic exclusion of a distinctive group -- constrains a defendant to establish that 'the cause of the underrepresentation was ... inherent in the particular jury-selection process utilized.' ( Duren [ , supra, ], 439 U.S. at p. 366...." ( Sistrunk v. State (Ala.Crim.App. 1993) 630 So.2d 147, 149.) It is the source from which the venire is selected that must be fairly representative of the community, rather than the jury actually chosen. "The United States Constitution 'does not require an exact proportion between the percentage of blacks in the population and those on the jury list. What is required is that no qualified person can be excluded from jury service.'" ( Jackson v. State (Ala.Crim.App. 1989) 549 So.2d 616, 619; see also Holland v. Illinois (1990) 493 U.S. 474, 478.)

Even if Lowe has carried his burden of showing that African-Americans are underrepresented in Fresno County juries, he has not carried his burden of showing that this

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underrepresentation is the product of systematic exclusion. Lowe's primary argument is that African-Americans have been impacted by COVID-19 at rates five times that of whites, thereby demonstrating a systematic exclusion from the jury pool. However, "[a] defendant does not discharge the burden of demonstrating that the underrepresentation was due to systematic exclusion merely by offering statistical evidence of a disparity. A defendant must show, in addition, that the disparity is the result of an improper feature of the jury selection process." ( People v. Burgener (2003) 29 Cal.4th 833, 857.) "Where ... a county's jury selection criteria are neutral with respect to the distinctive group, the defendant must identify some aspect of the manner in which those criteria are applied that is not only the probable cause of the disparity but also constitutionally impermissible. [Citation.] ... Speculation as to the source of the disparity is insufficient to show systematic exclusion [citation], as is evidence the disparity is unlikely to be a product of chance [citation] or has endured for some time [citation]." ( Id. at p. 858.) No one with COVID-19 was permitted to enter the courthouse, regardless of race. An evenhanded application of a neutral criterion (having or not having COVID-19) will not support a Sixth Amendment violation. ( People v. Bell, supra, 49 Cal.3d at p. 530.)

We find no error on the part of the trial court in denying Lowe's motion to discharge the venire.

III. WAS THE TRIAL FUNDAMENTALLY UNFAIR IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14th AMENDMENT?

Lowe contends that the six-year gap between the May 13, 2014, traffic stop and the July 9, 2020, commencement of trial fundamentally violated his due process right to a fair trial. Lowe lists numerous "irregularities" or "errors" during his trial which he contends cumulatively violated his fundamental due process rights to a fair trial. He attributes some of these errors to the Fresno County Sheriff Department's (department) failure to timely

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provide Pitchess documents ordered by the court, thereby delaying the trial date. He contends other errors are unfair evidentiary rulings.

We find no prejudicial error, first addressing the applicable procedural background and then each alleged "error" in turn.

Background

As noted above, the traffic stop occurred on May 13, 2014. A criminal complaint was filed on August 12, 2014, and the information on August 7, 2015. The following is a procedural chronology of Lowe's Pitchess motion, along with various other pertinent procedural happenings during the six-year gap.

On March 9, 2016, Lowe's attorney Kojo Moore filed a Pitchess motion to have the personnel records of Detective Capriola reviewed for any conduct involving dishonesty or fabrication of charges or evidence. An in camera hearing was held April 14, 2016, at which the court granted the motion and ordered the department to provide Lowe with names and contact information of certain witnesses involved in an internal affairs investigation of Detective Capriola for a past incident of alleged misconduct, subject to a protective order, within 10 days. A second in camera hearing was held on April 26, 2016. Both in camera hearing transcripts were sealed as confidential and have been filed with this court.

Between May 19, 2016, and August 10, 2017, Moore obtained 12 continuances.

On January 24, 2018, Moore filed a motion seeking production of Deputy Capriola's private audio recorder.

On February 8, 2018, the trial court denied Moore's motion to dismiss based on the department's alleged non-compliance with the Pitchess discovery order, noting the department had begun to comply according to defense investigator Rubio. The court also denied Moore's motion to compel production of the device on which Detective Capriola

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recorded Lowe's statement, finding it pure speculation that there might be anything else "on that device that would constitute any kind of evidence related to this case."

On June 4, 2018, Moore moved to withdraw as Lowe's counsel. The court granted the motion and appointed the public defender. On July 11, 2018, the public defender declared a conflict and the court appointed the Alternate Defense Office (ADO) to represent Lowe.

On August 16, 2018, the ADO declared a conflict. The court relieved the ADO and appointed Richard Beshwate as counsel for Lowe. That same day, private counsel Robert Lamanuzzi appeared to represent Lowe, and Beshwate was relieved. Lamanuzzi declared a conflict two weeks later and Gerald Schwab was appointed on August 30, 2018, to represent Lowe.

After Schwab declared a conflict, he was relieved and Linden Lindahl was appointed on September 5, 2018, to represent Lowe.

On October 25, 2018, Lindahl moved to dismiss the case, as a sanction for the department's refusal to comply with the Pitchess order of 2016. The court denied the motion without prejudice.

On December 13, 2018, Lindahl made an oral motion to dismiss, which was denied.

On December 19, 2018, Lindahl declared a conflict, was relieved and Charles Barrett was appointed to represent Lowe. A month later, on January 15, 2018, Barrett declared a conflict and the court appointed Kendall Simsarian to represent Lowe. It was Simsarian who tried the case and represented Lowe through judgment and sentencing.

On February 20, 2019, Lowe filed a motion to dismiss all charges, alleging a failure to provide "meaningful information ordered by the trial court" deprived Lowe of "any chance at a fair trial." On March 14, 2019, the court denied the motion without prejudice.

On March 18, 2019, the date set for trial, Lowe requested the trial be pushed back to May 21, 2019; the prosecutor objected due to the age of the case.

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On June 7, 2019, Lowe filed a motion for supplemental Pitchess discovery, asserting that the information provided was inadequate to allow the defense to prepare for trial. The department filed a response, followed by Lowe's reply to the department's response.

On July 18, 2019, Lowe filed pleadings in support of his supplemental Pitchess motion conditionally under seal, with declarations attached. On September 12, 2019, the trial court determined that the witness information provided to Lowe was inadequate and granted an in camera hearing. Following a hearing on October 18, 2019, the court ordered the department provide supplemental disclosure verbatim records associated with the 2013 misconduct allegation, including court-ordered redactions, by November 22, 2019. On November 22, 2019, a Pitchess motion was set for December 18, 2019. The department complied with the order.

On December 18, 2019, Lowe filed a Marsden motion against Simsarian, which was denied.

Both parties consented to continue the March 18, 2020, trial date due to COVID-19, and a new trial date was set for April 20, 2020. Trial eventually began on July 9, 2020, but not before Lowe requested he be able to make a Faretta motion, which was denied, and he made another Marsden motion which was heard and denied.

Alleged Errors

We first note, as evidenced above in the chronological history of this case, that the six-year gap between the initial traffic stop and trial cannot be attributed strictly to the department's handling of the order to provide the Pitchess material. Many other procedural events, by both parties, have contributed to this delay. In any event, we address each alleged "error" Lowe complains of and find Lowe was not deprived of a fair trial.

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A. Did the delay cause the lab to destroy criminalist Loera-Stokes' lab notes and gas chromatograph mass spectrometer test result printout prior to trial, preventing the prosecution from showing the chain of custody of the drugs tested?

At trial in July of 2020, Eva Loera-Stokes testified that, in 2014, she was a criminalist specialist, whose job it was to perform tests on suspect narcotics. When doing an analysis, she took detailed notes, weighed each item, did chemical screening tests on the items and then ran them on a gas chromatograph mass spectrometer, which provided the chemical structure and identity of a substance. Loera-Stokes testified that she did not have her lab notes or the gas chromatograph mass spectrometer test result printout on this particular case because it was lab procedure to "discard" those notes and lab reports after four years.

Loera-Stokes' two controlled substance analysis reports, exhibit 6, which confirmed substances in useable amounts containing heroin and marijuana, and exhibit 7, which confirmed the presence of oxycodone, hydrocodone, and carisoprodol pills and methadone, were admitted into evidence. The reports in exhibits 6 and 7 are dated May 14, 2014, and signed by Loera-Stokes, and include the item numbers with weights and results, but because she did not have her notes, she was unable to say what day she received the substances and when she took them back to the property department. Loera-Stokes testified that the items she tested were the results of those tests adequately reflected in the report. She further testified that all "work" is reviewed by another qualified analyst, who then signs off on the accuracy of the report. According to Loera-Stokes, the fact that she no longer had her lab notes did not change her opinion on those results.

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Lowe contends on appeal that his trial was unfair because, without her notes or the gas chromatograph mass spectrometer test result printout, Loera-Stokes could not establish the integrity of the chain of custody followed in this case, whether she returned the evidence back to the property, whether the drugs had been destroyed, how the heroin was packaged, what form the methadone was in, and what presumptive tests she performed.

We disagree any unfairness occurred. At trial, Lowe's counsel was able to aggressively cross-examine Loera-Stokes and elicited a concession that, without her notes and the gas chromatograph mass spectrometer test result printout, she could not attest to the structural integrity of the substances she tested or vouch for the chain of custody.

B. Did the trial court's failure to give CALCRIM No. 332, sua sponte, leave the jury without guidance on how to view the testimony of Loera-Stokes that several substances contained heroin?

Lowe next contends the testimony Loera-Stokes gave to identify heroin and marijuana was expert opinion because it required special knowledge, experience and training and the trial court was therefore required, sua sponte, to give CALCRIM No. 332. Evidence Code section 801, subdivision (a), defines expert testimony as opinion testimony "[r]elated to a subject that is sufficiently beyond common experience." Evidence Code section 720, subdivision (a) states that a person is "qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates."

The prosecutor did not tender Loera-Stokes as an expert, and Lowe did not stipulate to her expertise. Assuming Loera-Stokes testimony amounted to expert testimony, it triggered the court's sua sponte duty to instruct on expert witness testimony. ( People v. Reeder (1976) 65 Cal.App.3d 235, 241.) Accordingly, the trial court had a sua sponte duty to instruct the jury with CALCRIM No. 332 regarding the weight to be given to Loera-Stokes testimony. However, an" 'erroneous failure to instruct the jury regarding the weight of expert testimony is not prejudicial unless the reviewing court, upon an examination of the

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entire [case], determines that the jury may have rendered a different verdict had the omitted instruction been given.'" ( People v. Lynch (1971) 14 Cal.App.3d 602, 610.)

Assuming Loera-Stokes provided expert testimony and the trial court a duty to instruct under CALCRIM No. 332, Lowe cannot show it is reasonably probable he would have obtained a more favorable result had the jury been so instructed.

CALCRIM No. 226 was given at trial and instructed the jury on evaluating witness testimony. CALCRIM No. 332 , which was not given at trial, instructs a jury on evaluating expert testimony: to consider the expert's knowledge, skill, experience, training, education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. The trial court's failure to instruct the jury with CALCRIM No. 332, however, is harmless error, in part because CALCRIM No. 226 broadly and similarly instructs the jury to a substantial degree and incorporates the methodology of CALCRIM No. 332.

Like CALCRIM No. 332, which incorporates CALCRIM No. 226 and instructs the jury to follow instructions about the believability of witnesses generally in evaluating the

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believability of an expert witness, CALCRIM No. 226 instructed the jury to judge the credibility or believability of the witness. Furthermore, like CALCRIM No. 332, which instructs the jury that the meaning and importance of an expert's opinion are for it to decide, CALCRIM No. 226 instructed the jury to use its common sense and experience to decide which testimony it found true and accurate and how much of the witness testimony it believed. Additionally, similar to CALCRIM No. 332, which instructs the jury to consider the expert's opinion but states it is not required to accept the opinion as true or correct, CALCRIM No. 226 instructed the jury to consider the testimony of each witness and decide how much of the testimony it believes, noting that the jury may believe "all, part, or none of any witness's testimony." Finally, CALCRIM No. 226 adequately equipped the jury to evaluate Loera-Stokes testimony because the instruction broadly instructed the jury to consider anything that reasonably tended to prove or disprove the truth or accuracy of her testimony.

Moreover, jury instructions are not considered in isolation; the entire charge to the jury must be considered in determining whether instructions were correct and adequate. ( People v. Holt (1997) 15 Cal.4th 619, 677.) The trial court instructed the jury with CALCRIM No. 200 , which informed the jurors they must decide the facts of the case and that the jury alone must decide what happened. CALCRIM No. 200 also instructed the jury to consider all of the jury instructions together, and to consider them equally. The trial

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court further instructed the jury with CALCRIM No. 301 which states that the testimony of only one witness can prove any fact and CALCRIM No. 302 , which instructs the jury on how to deal with conflicting evidence. Considering the jury instructions given and the specific instruction to consider all the jury instructions together, the jury was adequately equipped to evaluate Loera-Stokes.

Assuming Loera-Stokes testimony was expert testimony, the trial court's failure to instruct the jury with CALCRIM No. 332 was also harmless error because it is not reasonably probable that without her testimony, the jury would have rendered a verdict more favorable to Lowe, since there was strong evidence to support the jury's verdict.

Lowe was charged with possession for sale of a controlled substance, heroin (Health & Saf. Code, § 11351) and possession of a controlled substance, heroin, while also armed with a firearm (Health & Saf. Code, § 11370.1). Both offenses require, in part, that the controlled substance in Lowe's possession was heroin. (CALCRIM Nos. 2302, 2303.) He was also charged with possession of 28.5 grams of cannabis (Health &Saf. Code, § 11357), which requires, in part, that the controlled substance was cannabis. (CALCRIM No. 2375.)

Not only did Loera-Stokes identify the drugs found in Lowe's possession as heroin and marijuana, Detective Capriola did as well, and Lowe himself acknowledged both the presence of marijuana and heroin in the vehicle. Detective Capriola testified at trial that he had been a police officer for 14 years at the time of Lowe's traffic stop and had received "quite a bit of -- training" in narcotics. In his career, he had come across individuals possessing drugs "almost every day" and had testified previously as an expert regarding

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drug sales approximately 10 times. When Detective Capriola pulled Lowe over and approached his vehicle, he immediately smelled burnt marijuana, which he recognized based on his training and experience. Lowe told Detective Capriola he had a blunt in the ashtray and showed it to Detective Capriola. Detective Capriola then smelled fresh marijuana, which according to his training and experience, meant there was marijuana in the vehicle. When Detective Capriola asked Lowe about it, Lowe told him he had an ounce of marijuana in the back of the car, and he had a medical marijuana card.

In examining some baggies found in pill bottles in Lowe's vehicle, Detective Capriola smelled heroin and, based on his training and experience, identified the substance as such. Lowe, in talking to Detective Capriola, stated that the heroin in the vehicle belonged to him and he was addicted to it.

We find the trial court's failure to give CALCRIM No. 332 on expert testimony harmless in this instance. It is not reasonably probable the jury would have reached a more favorable verdict had the instruction been given, especially since the jury found Lowe guilty of a lesser included offense of the alleged charge of possession for sale of a controlled substance, heroin (Health & Saf. Code, § 11351), possession of a controlled substance, heroin (Health & Saf. Code, § 11350).

C. Was the admission of People's exhibit 7 (the controlled substance report dated May 16, 2014, regarding oxycodone, carisoprodol pills and methadone) fundamentally unfair?

Lowe contends the trial court erred and violated his federal due process rights by admitting People's exhibit 7 into evidence.

At trial, Lowe's counsel argued that the controlled substances analysis report completed by Loera-Stokes on May 16, 2014, was irrelevant, as it listed various drugs and pills that were "uncharged" and, pursuant to Evidence Code section 352, any probative value was outweighed by prejudice. The prosecutor argued that two of the charges against Lowe "involve sales" and the evidence was "highly probative in terms of when establishing

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sales." Lowe's counsel argued that admitting the report on the pills was "an attempt by the prosecutor to bootstrap the sales concept onto the jury so they'll believe, well, if he's selling one item, he must be selling another."

The trial court denied the motion, finding the evidence relevant and having "some tendency and reason to prove or disprove an issue, that is the issue of possession with the intent to sell." It further stated, "While it's true that [Lowe is] not charged with possession with the intent to sell oxycodone or hydrocodone or for that matter even Viagra or Cialis, it is probative, to the Court's way of thinking, to his intent over all with possessing the substances, as the Court understands, that were found collectively in the vehicle with the firearm." The trial court found that it was not unduly prejudicial to allow the criminalist to testify about what she found and identified, that the testimony would not necessitate an undue consumption of time, and Loera-Stokes was subject to cross-examination.

Lowe now contends that the evidence included in exhibit 7, both controlled substances that were not charged and non-controlled substances listed, such as Viagra and Cialis pills, plus the destruction of Loera-Stokes's notes, made the evidence in exhibit 7 unduly prejudicial and rendered his trial fundamentally unfair.

We disagree. "To prove a deprivation of federal due process rights, [a defendant] must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial. 'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is ... whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." '" ( People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.)

Assuming exhibit 7 was not relevant and not probative of sales of controlled substances, we review prejudice under People v. Watson (1956) 46 Cal.2d 818, 836, and

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find the evidentiary error is harmless unless it is reasonably probable Lowe would have received a more favorable result absent the error or errors. ( People v. Felix (2019) 41 Cal.App.5th 177, 187.) Even without admission of exhibit 7, Lowe admitted having the pills in his possession (including the Viagra and Cialis) in the recording between Detective Capriola and Lowe, which was played for the jury. And, as addressed above, even if the jury did consider the presence of the pills found, other credible evidence amply supported the finding that Lowe was in possession of heroin and marijuana, and it is not reasonably probable Lowe would have received a more favorable verdict had exhibit 7 been excluded as other credible evidence supported Lowe's convictions.

D. Did the timing of Lowe's trial (during the COVID-19 pandemic) have additional unfair consequences?

Aside from Lowe's argument that holding his trial during the COVID-19 pandemic resulted in an unfair trial by violating his Constitutional right to a public trial and a jury venire that represented a cross-section of the community, which we addressed in parts I. and II., above, he further contends holding his trial during the COVID-19 pandemic resulted in an unfair trial because the trial court allowed witnesses to decide whether to wear masks when testifying, even though it interfered with the jury's ability to assess credibility and affected their determination of reasonable doubt.

In support of his argument, Lowe notes that, during voir dire, prospective jurors No. 3, and No. 14, both of whom ended up on the jury, thought the masking of witnesses would impair the juror's ability to assess credibility, and some of the jurors also thought the credibility impairment would affect their determination of reasonable doubt.

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The transcript of juror voir dire shows the following: At one point Lowe's counsel stated that the witnesses would likely be wearing masks when they testify and asked, "does anybody feel like having a mask on a witness will make it more difficult to determine their -the truthfulness of their statements?" Juror No. 3 stated: "Not so much their credibility. But just the reaction they give when they're asked the question, it's really hard to see expression." Juror No. 3, continued, stating "Expression, you don't know if they are lying. You can't tell, they've got a mask on." Juror No. 14 stated he agreed, but stated, "If I'm on the jury, of course I'm gonna do my best to be fair, but it's nice to be able to see facial expression."

Counsel then asked juror No. 3, "do you think that it affects the determination of reasonable doubt?" Juror No. 3 stated, "I think that, uh, if enough people have the same concerns that I do, then I think it would affect it." Juror No. 14, when asked, stated, "Um, yeah."

During a break in voir dire, the prosecutor asked that the trial court "reiterate the mask policy and if I can then question on whether or not anybody is going to have an issue if a ... witness's preference is to keep the mask on or not." The prosecutor was told that such questions were "fair game." The trial court then stated that it would make an order "that witnesses if they are comfortable in removing their masks can do so for purposes of the jury observing them while they testify," "but that's up to them." The trial court subsequently clarified, "I'll leave it to the witness to make the decision whether or not they want to remove their mask while they testify. I won't make an order that they'll have their mask on while they testify and that[ it's] required. I think in balancing the interests of . the sensibilities including the sensibilities of the jurors, I'll leave that up to the witness." When asked if either party wanted to make a further record, Lowe's counsel stated, "Not on that issue."

The prosecutor then questioned the venire and asked juror No. 3, "If a witness makes a choice to wear a mask for health concerns, . would you determine their credibility any

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different based on the fact that they chose to mask up?" Juror No. 3 stated, "As far as their personal credibility, I don't know. But with the questions that are asked while they're wearing the mask, you can tell a lot from a person's expressions. And it would be really hard to see their expressions." When asked if that meant putting "that witness automatically behind other witnesses," juror No. 3 stated "No," but that it would be "really hard" because "I can read a lot more into people just based on their expressions."

As addressed in part I., above, the policy in place under the April 6 and July 2, 2020, orders as to entry into the courthouse required that, in order to have access, allowed individuals had to pass the medical screening, the health screening questions, and were required to wear a face mask. Lowe's argument appears to be that he was denied a fair trial due to the mask policy in place because it interfered with the jury's ability to assess credibility of the witnesses. We note that, while it is not clear from the record whether the witnesses here testified with or without masks, it is evident from the record that Detective Capriola, the primary witness in this case, chose to remove his mask during his testimony.

In any event, even if the witnesses wore masks during testimony, we find no fundamental unfairness under the circumstances. A criminal defendant's Sixth Amendment confrontation right includes the right"' "physically to face those who testify against him, and the right to conduct cross-examination." '" ( People v. Alvarez (2022) 75 Cal.App.5th 28, 35 ( Alvarez ).) "The central concern of the confrontation clause 'is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.' [Citation.] This concern is satisfied when the witness: (1) is physically present for his or her testimony; (2) testifies under oath; (3) is subject to cross-examination; and (4) may have his or her demeanor observed by the trier of fact." ( People v. Bharth (2021) 68 Cal.App.5th 801, 814.)

A defendant's failure to object to an alleged confrontation clause violation forfeits the claim on appeal. ( People v. Arredondo (2019) 8 Cal.5th 694, 710.) The purpose of the forfeiture rule is to allow the trial court to justify its ruling and, if applicable, to correct the

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error. ( Ibid. ) At trial, defense counsel questioned prospective jurors on their views of the mask policy for witnesses, but he raised no objection to the mask order, and his claim is forfeited. ( Ibid. ; People v. Gonzales (2012) 54 Cal.4th 1234, 1292, fn. 27.) On appeal, Lowe offers no persuasive justification to deviate from the forfeiture rule. ( In re S.B. (2004) 32 Cal.4th 1287, 1293 ["appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue"].)

We also reject the claim on the merits, following a trio of cases concluding that trial court orders requiring witnesses to wear face coverings during the early months of the pandemic did not violate the confrontation clause. ( People v. Edwards (2022) 76 Cal.App.5th 523, 525-527; People v. Lopez (2022) 75 Cal.App.5th 227, 232-236; Alvarez, supra, 75 Cal.App.5th at pp. 34-39). Alvarez is particularly instructive. In that case, witnesses testified while wearing masks covering the tip of their "nose and mouth," but jurors could "see each witness's eyes and face from the tip of the nose to the top of the head." ( Alvarez, supra, at p. 35.) On appeal, the defendant argued the mask order "interfered with the jury's ability to assess witness demeanor and thus violated his Sixth Amendment right to confrontation." ( Id. at pp. 30-31.)

The Second District Court of Appeal rejected that argument. ( Alvarez, supra, 75 Cal.App.5th at p. 34.) It began by explaining"' "the Confrontation Clause reflects a preference for face-to-face confrontation at trial,"... a preference that "must occasionally give way to considerations of public policy and the necessities of a case." '" [Citations.] The face-to-face requirement can be dispensed with, but '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.' [Citations.] This public policy exception is not a general one; it must be applied on a case-by-case basis." ( Alvarez , supra, at pp. 3536, quoting Maryland v. Craig (1990) 497 U.S. 836, 845-849.)

Next, Alvarez held the masking order furthered an important public policy - protecting the public from a lethal and contagious disease - while retaining essential

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safeguards of reliability - witnesses testified in the courtroom, in the presence of the defendant, under oath, and subject to rigorous cross-examination. ( Alvarez , supra, 75 Cal.App.5th at pp. 36-38.) The Alvarez court acknowledged the witnesses' masks partially covered their faces, but held jurors were nevertheless able to observe significant aspects of the witnesses' appearance, including their "eyes, tops of the cheeks, and the body," as well as their "posture, tone of voice, cadence and numerous other aspects of demeanor." ( Alvarez, supra, at p. 38.) Alvarez explained the jurors could" '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.'" ( Ibid. , fn. omitted.)

Finally, Alvarez observed that "nearly every state and federal court to consider the issue during [the] COVID-19 pandemic has found no confrontation violation because a witness was wearing a mask." ( Alvarez, supra, 75 Cal.App.5th at p. 38 & fn. 7.)

Lopez, supra, 75 Cal.App.5th 227, reached the same conclusion, holding the "mask 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. 'To whatever slight extent masks impinge on [a defendant's] Confrontation Clause right to see a witness's full facial expressions, requiring them is justified by important public policy interests to protect the health and safety of those in the courthouse while allowing court functions to proceed during a pandemic.'" ( Id. at p. 234, brackets in original.)

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Edwards echoed these holdings. There, the appellate court concluded the mask order did not violate the defendant's confrontation rights because the jurors "saw and heard [the] witnesses. Under oath, the witnesses responded to ... 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.)

The circumstances here are indistinguishable from Alvarez, Lopez , and Edwards. We are persuaded by these well-reasoned decisions, and we join them in holding the mask policy in place did not violate Lowe's constitutional right to a fair trial.

E. Did Brady violation occur?

Within the context of his argument regarding face masks, part III.D. above, Lowe makes a cursory allegation that "the Pitchess material here was also Brady material" and was not timely disclosed. He also makes a somewhat confusing request "that this court review the Pitchess material identified and included in the sealed transcripts filed with this court to confirm that the Pitchess material was impeachment material used in Lowe's cross-examination of Pitchess ." We assume Lowe means "cross-examination of Detective Capriola," as he was the subject of the Pitchess motion. We decline to review the Pitches material, and, as explained below, find no merit to his argument.

Under Brady, supra, 373 U.S. 83, 87, a criminal defendant has a due process right to pretrial discovery of information favorable to the defense."' "There are three components to a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." '" ( People v. Letner and Tobin (2010) 50 Cal.4th 99, 175.) But" '[E]vidence that is

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presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery.'" ( People v. Verdugo (2010) 50 Cal.4th 263, 281.)

Here, the department provided the Pitchess material prior to trial, which defense counsel then used to bolster his attack on Detective Capriola's credibility. Therefore, the information was not suppressed and we reject Lowe's Brady claim.

F. Was Detective Capriola's disclosure of Lowe's tape-recorded Miranda waiver and statement, two years after he "secretly" made the recording, fundamentally unfair?

Lowe next contends that Detective Capriola's disclosure of Lowe's Mirandized statement two years after the statement was recorded on Detective Capriola's personal digital recording device was fundamentally unfair. We find no merit to his argument.

On the first day of trial, July 9, 2020, the trial court first addressed the defense motion raising an objection to a statement Lowe was alleged to have made in violation of Miranda and to the authentication of an audio recording of that statement.

An Evidence Code section 402 hearing was held in which the prosecutor called Detective Capriola, who testified that, in 2014, he had been a peace officer for 14 years. He testified to his training and assignments involving drug sales, and that he had testified at least 10 times as an expert regarding drug sales. Detective Capriola testified that, on May 13, 2014, he was on patrol when a vehicle caught his attention when it went straight from a turn lane instead of turning left, a violation of the Vehicle Code. He initiated a traffic stop, made contact with the driver, Lowe, and, after conversation with Lowe and search of the vehicle, placed Lowe under arrest.

When Lowe was seated in the back of Detective Capriola's patrol car parked outside the Fresno County Jail, Detective Capriola read Lowe his Miranda rights. At the time, Detective Capriola had a non-department issued recording device which he used to record the conversation. According to Detective Capriola, the department did not provide them with recording devices, but he purchased the device so that he could "more accurately"

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record the statement given him. When he recorded Lowe's statement, it was the first time he had used it. Detective Capriola testified that the contents of the disk shown him accurately depicted the conversation he had had with Lowe on May 13, 2014.

The recording was played during the Evidence Code section 402 hearing. Detective Capriola testified that, when he submitted his report involving the case, he did not submit the recording as well because he "didn't know how to work it." He knew how to record and knew that it was recorded, but did not know how to get the recorded interview from the recording device to a computer disk. Detective Capriola was subsequently reminded of the recording when he was served a Pitchess motion. At that point, he stated, "I read that Pitchess motion. And from my memory, it wasn't what I remembered at all. And, um, so I thought to myself, I'm pretty sure this is recorded and this isn't how this happened. I went looking for the recording. I found it and I was able to take some time and get it burned from my recording device to a disk. Upon doing so, I immediately contacted ... a deputy D. A. that had the case at this time. I notified her of what had occurred and why it had occurred. She asked to me document it in a report, which I did. And I think that date was documented on that supplement report that is attached to this case."

Detective Capriola clarified that he was notified on April 15, 2016, about the Pitchess motion and turned over the recording to the D.A.'s office on April 20, 2016. Up until that time the recording device had been in Detective Capriola's possession and no one else had access to it.

Lowe testified that the recording was "[n]ot at all" an authentic recording of the conversation he had with Detective Capriola. Lowe claimed it was not his voice, tone, or choice of words. He also testified that he was placed in handcuffs as soon as he was ordered out of the vehicle and he did not get his Miranda warnings until he was at the jail. He testified that he did not understand the warnings and he never waived them.

The audio recording was then again played and stopped several times to ask Lowe questions. At one point, Lowe admitted that "[s]ome of that audio is me but then some it's

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not." He thought some of the conversation heard had been taken from his cell phone, which he claimed was not returned to him.

After lengthy argument by the parties, the trial court denied Lowe's motion, and ruled that there was sufficient evidence for the recording to be admissible and offered to the jury for their "decision about its weight ultimately." The trial court also found that:

"Now, the issue of Miranda really is whether or not in the Court's way of thinking, somehow the statements made were involuntary or in violation of Miranda or whether Miranda itself warning was sufficient itself to give Mr. Lowe the opportunity to understand his rights. And I would note and I think the parties would agree that there really is no talismanic statement about what Miranda ought to be or what it -- what it should be. I do see that what's been offered in the exhibit and what the Court heard was sufficient to put Mr. Lowe on notice of Miranda that he had the right to remain silent and anything he said could be used against him in a Court of law. He had the right to an attorney and if he can't afford one, one will be provided to him free of charge. And so with that, he was asked whether he understood those rights and having those rights in mind, whether he wished to talk. And the testimony and what the Court heard also on the audio portion, which is Exhibit Zero is "mm-hmm" and the testimony also was there was a nod of the head. This is also, would note, to be consistent with some of the Defendant's testimony in his responses. The Court does not deem that the Miranda warning to be insufficient or that he could not understand his Miranda Rights at all. I don't credit that testimony whatsoever, frankly. To the Court's way of thinking, this is not really an issue about whether or not he had the right to remain silent, it's whether or not he had the capacity to do so. He offered a lot of information and a lot of it was just given it seems. And it seems the conversation, from what the Court heard in the interview, was really more jovial in nature. It wasn't as if he was being sweated out for information. It was some banter and talk and some conversation and so, to the Court's way of thinking, this really isn't an issue of voluntariness, more an issue of the two-step process of softening up Mr. Lowe. Mr. Lowe was very -- and as the testimony also showed, Mr. Lowe was very, um, collegial, if you will, and jovial and engaging with the detective. They were talking in a manner and it's consistent with the conversation of joking around about certain things if it is to be believed, which I do credit the recording itself. Accordingly, the Court does not find that there is a Miranda violation and, accordingly, the Court will deny the request to suppress the evidence under the Fifth Amendment."

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At trial, the trial court allowed the prosecution to introduce the recording of Lowe's statement over Lowe's objection.

Lowe now contends that the prosecution should have learned of the recording "much earlier" in the litigation and disclosed it to Lowe, and not to have done so was fundamentally unfair. However, as addressed in part III.E., above," '[E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery.'" ( People v. Verdugo, supra, 50 Cal.4th at p. 281.) Here, while Detective Capriola testified that he did not alter any portion of the record, Lowe's counsel was able to thoroughly cross-examine him on his clandestine recording of Lowe and was able to highlight the fact that Detective Capriola did not mention the recording to anyone until 2016, two years after the crime. Lowe's counsel was also able to argue that the recording did not actually exist at the time of the crime, but was fabricated by Detective Capriola in 2016.

We find no merit to Lowe's argument of fundamental unfairness.

G. Was Lowe forced to choose between going to trial during a pandemic under a standing order that violated his First and Sixth Amendment rights or forgoing his right to a speedy trial and continuing the trial to a date uncertain?

Lowe also contends that, due to the six-year delay, he was forced to go to trial under a standing order that violated his First and Sixth Amendment rights or to forgo a speedy trial and continue trial to an uncertain date.

As we have addressed above, in parts I. and II., the standing order in place at the time of trial, intended to protect him, as well as the public, from COVID-19, was not a violation of his First and Sixth Amendment rights. As for the claim that he had to forego a speedy trial, it is noted that, at various times, in the procedural history of this case, it was Lowe who continued the timeline, and he, at various times, agreed to give up his right to a speedy trial. We need not address this contention further.

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H. Did cumulative error occur?

Lowe contends his convictions should be reversed because, even if the individual errors did not violate his constitutional rights, the cumulative prejudice of the alleged errors violated his due process right to a fundamentally fair trial under the Constitution. ( Parle v. Runnels (9th Cir. 2007) 505 F.3d 922, 928, citing Chambers v. Mississippi (1973) 410 U.S. 284, 298, 302-303.) We disagree. Here we have found no trial error occurred and any conceivable errors to be harmless, and as a result, collectively they were not prejudicial. (See People v. Lua (2017) 10 Cal.App.5th 1004, 1019.)

I. Must the minute order be corrected to accurately reflect the jury's verdict?

Lowe contends, and respondent agrees, that the first corrected minute order dated August 19, 2020, inaccurately states that Lowe was sentenced, on count 1, to county jail for possession of a controlled substance with intent to sell. However, the jury acquitted him of that charge and convicted him of the lesser included offense of straight possession. We shall order the trial court to correct the August 19, 2020, minute order to accurately reflect the jury's verdict.

J. Senate Bill 567

Finally, in supplemental briefing, the parties agree that Lowe is entitled to remand for resentencing pursuant to Senate Bill 567, which became effective January 1, 2022. As amended by Senate Bill 567, section 1170 now provides, "When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2)." ( Id. , subd. (b)(1).) "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial...." ( Id. , subd. (b)(2).) An exception to those requirements is that a sentencing court

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may rely on prior convictions when supported by certified records of conviction. (§ 1170, subd. (b)(3).)

Although Lowe was sentenced in 2020, "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation's effective date." ( People v. Gentile (2020) 10 Cal.5th 830, 852, citing In re Estrada (1965) 63 Cal.2d 740, 744-745; accord, People v. Esquivel (2021) 11 Cal.5th 671, 673 & 675-676.) "This presumption 'rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.'" ( People v. Gentile, supra , at p. 852; accord, People v. Esquivel, supra , at p. 675.) Senate Bill 567 is ameliorative and, therefore, it applies in this nonfinal case. ( People v. Dunn (2022) 81 Cal.App.5th 394, 402-403.)

Here, the trial court selected the upper term for count 2, possession of a controlled substance while armed with a firearm. The trial court also imposed upper term sentences on counts 3, 4, 5, and 7 (based on the same reasons it selected the upper term for count 2), but it stayed the latter sentences pursuant to section 654. However, none of the aggravating factors the trial court cited in imposing the upper term were either admitted by Lowe or found to be true beyond a reasonable doubt.

In imposing the upper term, the trial court relied on three aggravating factors cited in the probation report: that Lowe's prior convictions are increasing in seriousness; that he served two prior prison terms, and that his performance on probation or parole was unsatisfactory. However, this information in the probation report was neither stipulated nor proven, and therefore did not satisfy section 1170, subdivision (b). The trial court also relied on a fourth factor: Lowe's "lack of remorse ... in the face of overwhelming evidence of his guilt." Lack of remorse, however, was not an element of the crimes that were proven to the jury.

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While section 1170, subdivision (b)(3), allows the trial court to "consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to the jury," no such certified records were introduced. And a probation report is not a certified copy of the record of conviction. ( People v. Dunn, supra, 81 Cal.App.5th at p. 401.)

" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,'" and where the defendant has been sentenced in the absence of informed discretion, "the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.'" ( People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; accord, People v. Flores (2020) 9 Cal.5th 371, 431432.) In light of the amendments to section 1170 under Senate Bill 567 and the record in this case, we accept the People's concession that remand is the appropriate remedy. On remand, the trial court shall reconsider its sentencing choices and impose the terms it determines are appropriate under section 1170 as amended by Senate Bill 567.

DISPOSITION

The matter is remanded for resentencing consistent with this opinion. Following resentencing, the trial court shall forward an amended abstract of judgment to the appropriate authorities. The trial court is also directed to prepare a corrected August 19, 2020, minute order to accurately reflect the jury's verdict on count 1. The judgment is otherwise affirmed.

WE CONCUR: LEVY, ACTING P. J. SMITH, J.

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