Filed 2/14/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS HECTOR ALVAREZ, 

Defendant and Appellant. 

 B309269

 (Los Angeles County

Super. Ct. No. KA123941)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Jacqueline H. Lewis, Judge. Affirmed.

Daniel Milchiker, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, and Colleen M. Tiedemann, Deputy Attorney 

General, for Plaintiff and Respondent. 

_________________
2

A jury convicted Carlos Hector Alvarez of one count of first 

degree residential burglary. On appeal Alvarez contends the trial 

court erred in admitting his statement to law enforcement 

officers obtained in violation of Miranda v. Arizona (1966)

384 U.S. 436 (Miranda). Alvarez also contends the court’s order 

during the COVID-19 pandemic that all persons in the 

courtroom, including testifying witnesses, wear a mask covering 

the mouth and part of the nose interfered with the jury’s ability 

to assess witness demeanor and thus violated his 

Sixth Amendment right to confrontation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

An information filed February 19, 2020 charged Alvarez 

with one count of first degree residential burglary (Pen. Code,

§ 459)1 with a person other than an accomplice present (§ 667.5, 

subd. (c)(21)). Alvarez pleaded not guilty.

2. The Evidence at Trial

On January 22, 2020 Elen and Stephan Arabian’s young 

son alerted them to a man standing in their yard. The Arabians 

checked their home security camera and saw Alvarez standing 

underneath their son’s window. After calling the 911 emergency 

number, the Arabians checked the security camera again and 

saw Alvarez trying to open the door to their converted, furnished 

garage, which Stephan Arabian used as a cigar room. When 

Los Angeles County Sheriff’s deputies arrived at the Arabians’ 

home, Elen led them in through the house and unlocked the door

of the cigar room leading to the outside. As soon as it was 

1 Statutory references are to this code.
3

unlocked, the door “flung open” from the outside, and Alvarez 

stepped into the house. Los Angeles County Sheriff’s Deputies

Luis Capilla and Vincent Soto immediately apprehended him. 

Alvarez was wearing socks on his hands. Deputy Capilla testified 

that, in his training and experience, individuals covered their 

hands with socks and similar items to prevent them from leaving 

fingerprint evidence. 

Alvarez was handcuffed and led to the patrol car. Before 

reaching the car, the deputies noticed a large plastic trash bag 

near the side gate. Deputy Vincent Soto asked Alvarez whether 

the bag was his. Alvarez replied, “Yeah.” Soto picked up the bag 

and took it to his patrol car. Deputies did not provide Alvarez 

with Miranda warnings before this exchange took place.

Surveillance footage from the home security camera 

introduced at Alvarez’s trial showed Alvarez climbing over a 

locked fence to enter the Arabians’ yard and then standing at the 

door to the converted garage for more than nine minutes. The 

outside doorknob was damaged. Elen Arabian testified the 

doorknob had not been damaged prior to Alvarez’s appearance at 

the home. 

Alvarez did not testify, and the defense presented no 

witnesses. The theory of the defense was that, while Alvarez had 

been in the backyard, he never actually entered the home, so 

there was no burglary. Alternatively, even if he had entered the 

home, he did not do so with intent to commit a theft. 

3. Verdict and Sentence 

The jury convicted Alvarez of first degree residential 

burglary with a person present. The court sentenced Alvarez to 

the middle term of four years in state prison. 
4

DISCUSSION

1. Alvarez Forfeited His Miranda Objection 

a. Governing law 

“A defendant who is in custody . . . must be given Miranda 

warnings before police officers may interrogate him.” (People v. 

Haley (2004) 34 Cal.4th 283, 300.)2 Custodial interrogation 

means “questioning initiated by law enforcement officers after a 

person has been taken into custody or otherwise deprived of his

freedom of action in any significant way.” (Miranda, supra, 

384 U.S. at p. 444; accord, Illinois v. Perkins (1990) 496 U.S. 292, 

296; People v. Thomas (2011) 51 Cal.4th 449, 476.) Statements 

obtained in violation of Miranda are generally inadmissible; they 

may be admitted for the limited purpose of impeachment if 

otherwise voluntarily made. (Harris v. New York (1971) 401 U.S. 

222, 225; People v. Case (2018) 5 Cal.5th 1, 26.) 

b. Relevant proceedings

At trial the prosecutor asked Deputy Capilla on direct 

examination, “When you saw that plastic bag, did you ask the 

defendant if the plastic bag was his?” Capilla responded, “My 

partner [Deputy Soto] asked him in my presence if it was his.” 

2 “As a prophylactic safeguard to protect a suspect’s Fifth 

Amendment privilege against self-incrimination, the United 

States Supreme Court, in Miranda, required law enforcement 

agencies to advise a suspect, before any custodial law 

enforcement questioning, that ‘he has the right to remain silent, 

that anything he says can be used against him in a court of law, 

that he has the right to the presence of an attorney, and that if he 

cannot afford an attorney one will be appointed for him prior to 

any questioning if he so desires.’” (People v. Martinez (2010) 

47 Cal.4th 911, 947, quoting Miranda, supra, 384 U.S. at p. 479.)
5

The prosecutor asked, “And what did the defendant say—”

Before the prosecutor finished the question, defense counsel 

interrupted with an objection, citing Miranda. The court 

responded, “Well, the question at this point was, ‘Did you ask the 

defendant if the plastic bag was his?’ And he said, ‘My partner 

ask[ed] him.’” To that question the court overruled the “Miranda 

objection” as well as defense counsel’s hearsay objection, which 

he made immediately following the court’s statement. The 

prosecutor continued, “And what did the defendant say?” 

Defense counsel did not object. Deputy Capilla replied Alvarez

had said, “yeah,” indicating the bag belonged to him. Deputy 

Soto also later testified without objection that he had asked 

Alvarez whether the plastic bag was his and Alvarez had 

responded it was. During closing argument the prosecutor cited 

the presence of the trash bag, along with the socks on Alvarez’s 

hands and the surveillance footage showing Alvarez scaling a 

locked gate, as evidence Alvarez intended to commit a theft.

c. Alvarez’s argument is forfeited 

Alvarez contends the court erred in overruling his Miranda 

objection because the evidence was undisputed the officers had 

asked him an incriminating question while he was handcuffed 

and in police custody. At the very least, he argues, the court 

should have stopped proceedings and held an evidentiary hearing 

to determine whether a custodial interrogation had occurred.3 

3 Alvarez did not move prior to trial to suppress or exclude 

his statement nor request an evidentiary hearing at trial. In any 

event, there were no disputed facts around the statement for the 

court to resolve at an evidentiary hearing.
6

Contrary to Alvarez’s argument, the trial court overruled 

the objection because it was premature, not because the court 

found a Miranda violation had not occurred. The court observed 

the only question put to Deputy Capilla at the time defense 

counsel objected was whether Deputy Capilla had asked Alvarez 

if the bag was his. Because that question was limited to Capilla’s 

statements, the court overruled the objection. 

The trial court’s reasoning may well have been faulty—the 

prosecutor had, in fact, asked the question (or, at least, most of 

the question) to which a Miranda objection would be properly 

directed. But after the court explained why it was overruling the 

objection and the prosecutor again asked what Alvarez had said 

in response to Deputy Soto’s question, it was defense counsel’s 

responsibility to reassert his objection. He did not, nor did he 

object when the prosecutor asked Deputy Soto the same question 

later at trial. Alvarez’s Miranda argument is forfeited. 

(See Evid. Code, § 353; see generally People v. Flinner (2020) 

10 Cal.5th 686, 726 [“a defendant forfeits an argument on appeal 

where he fails to object” at trial]; People v. Seijas (2005)

36 Cal.4th 291, 301 [“We have long held that a party who does 

not object to a ruling generally forfeits the right to complain of 

that ruling on appeal”; “[t]his bar ‘is but an application of the 

general rule that questions relating to the admissibility of 

evidence will not be reviewed on appeal in the absence of a 

specific and timely objection in the trial court on the ground 

sought to be urged on appeal’”].)
7

2. The Court’s Order Requiring Testifying Witnesses To 

Wear Face Coverings During the COVID-19 Pandemic

Did Not Violate Alvarez’s Sixth Amendment Right To 

Confrontation

a. Relevant proceedings

Alvarez’s trial occurred during the COVID-19 pandemic. 

During a pretrial hearing, Alvarez’s counsel stated his concern 

that allowing people to wear masks on the witness stand to 

protect against the spread of the virus would deprive Alvarez of 

his constitutional right to confrontation. Judge Mike Camacho

responded witnesses might be able to drop their masks below 

their mouths while testifying behind a plastic shield, which had 

been installed on the witness stand following the COVID-19 

outbreak, and return the masks to cover the tip of their nose and 

mouths when not speaking. After the case was transferred from 

Judge Camacho to Judge Jacqueline Lewis for trial, defense 

counsel raised his concern again, asking that witnesses testify 

without any facial covering. Judge Lewis stated, “Well, the 

court’s not going to be granting that in full, but I do think having 

them remove their mask so they can be seen, I think 

momentarily, is appropriate.” However, the court continued, “we 

do have issues in regard[] to safety obviously during the COVID 

pandemic, and we can address that further as well.” 

When the trial began and defense counsel again raised his 

objection to testifying witnesses wearing masks, the court (Judge 

Lewis) overruled the objection, explaining, “[I]t’s not being used 

as a disguise for the witnesses. I do believe that, and again, I will 

describe this particular mask on the record, that you can still see 

their eyes. You can see a lot of expression in that part of their 

face. I understand what your request is, but I’m going to have 
8

them use the mask for protection based on the orders of the 

presiding judge.”4

 

The court described on the record the mask each witness 

wore. As described, the masks covered the tip of the nose and 

mouth of the witnesses, allowing the jury to see each witness’s

eyes and face from the tip of the nose to the top of the head. 

b. Governing law and standard of review

The confrontation clause of the Sixth Amendment, 

applicable to the states through the 14th Amendment, provides, 

“In all criminal prosecutions, the accused court shall enjoy the 

right . . . to be confronted with the witnesses against him . . . .” 

This right “‘provides two types of protections for a criminal 

defendant: The right physically to face those who testify against 

him, and the right to conduct cross-examination.’” (Coy v. Iowa 

(1988) 487 U.S. 1012, 1016; see Maryland v. Craig (1990) 

497 U.S. 836, 845) (Craig) [confrontation implies more than 

physical presence in the courtroom; it means compelling a 

witness “‘to stand face to face with the jury in order they may 

4 At the time of trial the Los Angeles Superior Court 

operated under general order 2020-GEN-016-01, issued July 6, 

2020, by Presiding Judge Kevin C. Brazile. The order stated in 

part, “All persons entering any courthouse or courtroom shall 

wear a face covering/mask over his or her nose and mouth at all 

times within public areas of the courthouse or courtroom. Face 

coverings may include a mask, scarf, or any other fabric that 

covers both the mouth and nose. Individuals who elect to wear 

face shields must ensure that the shield covers both the nose and 

mouth. The face shield must wrap around the sides of the 

wearer’s face and extend to below the chin with a cloth drape 

from the bottom of the face shield to below the neck. Children 

under the age of three (3) are exempt from the order.” 
9

look at him, and judge by his demeanor upon the stand and the 

manner in which he gives his testimony whether he is worthy of 

belief’”].)5

Nonetheless, while “face-to-face confrontation forms ‘the 

core of the values furthered by the Confrontation Clause’ . . ., it is 

not the sine qua non of the confrontation right.” (Craig, supra, 

497 U.S. at p. 847; accord, People v. Wilson (2021) 11 Cal.5th 259, 

290.) Rather, “‘the Confrontation Clause reflects a preference for 

face-to-face confrontation at trial,’ [citation], a preference that 

‘must occasionally give way to considerations of public policy and 

the necessities of a case.’” (Craig, at p. 849; accord, Wilson, at 

p. 290 [the criminal defendant’s constitutional right of 

confrontation, while fundamental, is not absolute; neither, 

however, is it easily disregarded].) 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.” (Craig, at p 850; accord, People v. Arredondo (2019) 

8 Cal.5th 694, 709.) This public policy exception is not a general 

5 While American jurisprudence has for centuries identified 

demeanor as an important tool for assessing credibility 

(see Mattox v. United States (1895) 156 U.S. 237, 243; Coy v. 

Iowa, supra, 487 U.S. at p. 1016; Craig, supra, 497 U.S. at 

p. 850), some scholars have more recently urged reconsideration 

of that understanding, arguing assessments of demeanor are 

often based on widespread stereotypes and flawed assumptions. 

(See Simon-Kerr, Unmasking Demeanor (Sept. 2020) 88 Geo. 

Wash. L.Rev. Arguendo 158, 170 [“witnesses whose behavior or 

appearance ‘diverges from the observer’s expectation’—namely 

the white male normativity of the courtroom—are perceived as 

less credible,” citing studies].) 
10

one; it must be applied on a case-by-case basis. (Craig, at 

pp. 848-849 [exceptions to face-to-face confrontation will be 

permissible but only in “narrow circumstances” on a “casespecific” basis]; Arredondo, at p. 709.) 

When, as here, there are no disputed facts, our review of 

the court’s determination that its mask order did not violate 

Alvarez’s rights under the confrontation clause is de novo. (Lilly 

v. Virginia (1999) 527 U.S. 116, 136; People v. Wilson, supra, 

11 Cal.5th at p. 291; People v. Bharth (2021) 68 Cal.App.5th 801, 

813.) 

c. The masking order satisfied an important public 

policy and retained essential safeguards of

reliability 

Alvarez contends partial facial coverings worn by witnesses 

at trial interfered with the important face-to-face aspect of 

confrontation. While acknowledging the order requiring 

courtroom participants to wear such coverings served an 

important public policy during the COVID-19 pandemic, he 

argues there were less restrictive alternatives available, as 

evidenced by Judge Camacho’s suggestion of allowing a witness 

to testify behind a plexiglass shield. If a different judge was 

prepared to allow unmasked testimony in this manner, Alvarez 

argues, the court’s decision to require witnesses wear face masks

that covered their mouths and the lower part of the nose while 

testifying was not necessary to further the important health and 

safety policy of protecting the public during the COVID-19 

pandemic. 

Whatever Judge Camacho, or even Judge Lewis for that 

matter, may have considered before the court ruled at trial, there 

is no doubt that requiring people to wear masks covering the 
11

mouth and the lower part of the nose while testifying in the 

courtroom during the COVID-19 pandemic served an important 

state interest in protecting the public from a contagious, and too 

often, lethal, disease. As far as the less restrictive alternatives

Alvarez cites, we find the response of the federal district court in 

United States v. Crittenden (M.D. Ga. Aug. 21, 2020, No. 4:20-

CR-7 (CDL)) 2020 U.S.Dist. Lexis 151950 (Crittenden) to the 

same argument to be particularly apt: “The [c]ourt’s masking 

requirement is based upon the best available scientific 

information and advice. The Centers for Disease Control and 

Prevention (‘CDC’) strongly recommends that to avoid infection 

from the dangerous coronavirus, individuals should practice 

social distancing and wear masks over the nose and mouth. 

Considerations for Wearing Masks, Ctrs. for Disease Control 

and Prevention (updated Aug. 7, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/cloth-face-cover-guidance.html. The wearing of the mask not 

only protects the wearer of the mask, but more significantly, 

protects others who may be in the same room with the person. 

[Citation.] These precautions are particularly important inside of 

a building. The CDC also makes a distinction between ‘masks’

and ‘face shields,’ which is what the Government recommends 

here. The CDC finds that face shields are not as effective as 

masks, and it does not recommend substituting face shields for 

masks. [Citation.] Given the CDC recommendations, which are 

based on the best available science in this area, the [c]ourt finds 

that its social distancing and mask protocols are necessary and 

essential to protect the courtroom participants during a trial. 

The [c]ourt further finds that face shields and plexiglass screens 

are not an adequate substitute and standing alone do not provide 
12

reasonable protection for the trial participants. Thus a 

compelling policy reason exists for the mask requirement—

protection of the health and safety of the trial participants and 

members of the public who may attend the trial.” 

Alvarez alternatively argues, even if the mask rules

furthered an important public policy by inhibiting the spread of 

COVID-19, reliability, the cornerstone of the confrontation clause 

protection (Crawford v. Washington (2004) 541 U.S. 36, 63; Craig,

supra, 497 U.S. at p. 850), cannot be assured when the defendant 

and jury are deprived of the ability to fully assess a witness’s 

demeanor while testifying. A smirk, for example, can bear on 

witness credibility, but could go undetected in a masked 

individual. And, he adds, witness credibility was critical in this 

case because the surveillance video never showed him actually 

entering the house, an essential element of burglary. The 

evidence on that point, he asserts, was testimonial and 

conflicting.6

The “ultimate goal” of the confrontation clause, ensuring 

the reliability of evidence (Crawford v. Washington, supra,

541 U.S. at p. 63), “is a procedural rather than a substantive 

guarantee. It commands, not that evidence be reliable, but that 

reliability be assessed in a particular manner: by subjecting it to 

the crucible of cross-examination” and other procedural 

safeguards. (Id. at p. 61.) Those procedural safeguards are: 

6 Two sheriff’s deputies testified Alvarez took one step into 

the home, while Elen Arabian testified at the preliminary 

hearing Alvarez did not enter the home, testified on direct 

examination at trial he had entered the home, and admitted on 

cross-examination the deputies standing in front of her for her 

safety impeded her view. 
13

(1) in-person testimony; (2) given under oath; (3) subjected to 

cross-examination and (4) the ability of the defendant and fact

finder to view witness demeanor for the purpose of evaluating 

credibility. (Craig, supra, 497 U.S. at pp. 845-846.) The 

“combined effect” of these elements of confrontation “ensur[es]

that evidence admitted against an accused is reliable and subject 

to the rigorous adversarial testing that is the norm of AngloAmerican criminal proceedings.” (Ibid.) 

Here, all four safeguards inherent in confrontation were 

present. Witnesses testified in the solemnity of the courtroom

and in the presence of the defendant, under oath, and subject to 

rigorous cross-examination, “‘“the greatest legal engine ever 

invented for the discovery of truth.”’” (Craig, supra, 497 U.S. at 

p. 846.) Although face masks covered the witnesses’ mouths and

the lower part of their noses, significant aspects of their 

appearance, including the eyes, tops of the cheeks, and the body,

were readily observable as was posture, tone of voice, cadence 

and numerous other aspects of demeanor: “Demeanor includes 

the language of the entire body [and] jurors will still be able to 

observe most facets of the witnesses’ demeanor. They can 

observe the witnesses from head to toe. They will be able to see 

how the witnesses move when they answer a question; how the 

witnesses hesitate; how fast the witnesses speak. They will be 

able to see the witnesses blink or roll their eyes, make furtive 

glances, and tilt their heads. The Confrontation Clause does not 

guarantee the right to see the witness’s lips move or nose sniff, 

any more than it requires the jurors to subject the back of a 

witness’s neck to a magnifying glass to see if the hair raised 
14

during particularly probative questioning.” (Crittenden, supra, 

2020 U.S.Dist. Lexis 151950).

7

In arguably less compelling circumstances, courts have 

found no confrontation clause violation when all four procedural 

safeguards for ensuring reliability were present, despite some 

minimal limitation on a jury’s ability to assess witness demeanor. 

(See e.g., People v. Bharth, supra, 68 Cal.App.5th at p. 818 [court 

did not violate defendant’s right to confrontation by allowing 

victim to turn slightly in the witness chair to avoid staring at 

defendant directly; while the defendant’s view was somewhat 

impeded, “[t]his minor interference with defendant’s line of sight 

was fully justified given the need to complete the victim’s 

testimony and her documented distress”]; United States v. 

de Jesus-Castaneda (9th Cir. 2013) 705 F.3d 1117, 1120-1121 

7 For these reasons, nearly every state and federal court to 

consider the issue during our current COVID-19 pandemic has 

found no confrontation violation because a witness was wearing a 

mask. (See, e.g., United States v. Holder (D.Colo. Sept. 27, 2021, 

No. 18-cr-00381-CMA-GPG-01) 2021 U.S.Dist. Lexis 184017; 

United States v. Maynard (S.D.W.Va. Nov. 3, 2021, No. 2:21-cr00065) 2021 U.S.Dist. Lexis 211943; State v. Jesenya O. (N.M. Ct. 

App. Mar. 11, 2021, No. A-1-CA-39148) 2021 N.M. Ct. App.

Lexis 17; United States v. James (D.Ariz. Oct. 14, 2020, No. CR19-08019-001-PCT-DLR) 2020 U.S.Dist. Lexis 190783; States v. 

Clemons (D.Md. Nov. 4, 2020, No. RDB-19-0438) 2020 U.S.Dist.

Lexis 206221; but cf. United States v. Thompson (D.N.M. 

June 11, 2021, No. 19-1610 MV-4) ___ F.Supp.3d ___ [2021 

U.S.Dist. Lexis 109762] [granting motion in limine requesting 

unvaccinated testifying witnesses to wear a clear face shield to 

protect against virus transmission; such an order “appropriately 

strike[s] the balance of minimizing health risks” while “retaining 

the full force of Mr. Thompson’s Sixth Amendment rights”].)
15

[confidential informant’s wearing of a wig and fake mustache 

during testimony to protect his identity served an important 

public policy and did not unduly prohibit jury from evaluating 

demeanor]; Morales v. Artuz (S.D.N.Y. 2000) 2000 U.S.Dist. Lexis 

16405 [trial court’s ruling permitting prosecution witness to 

testify while wearing sunglasses did not violate defendant’s right 

to confrontation; “permitting Sanchez to wear sunglasses while 

testifying is a relatively modest imposition on the right to face-toface confrontation”].) 

In concluding Alvarez’s confrontation rights were not 

violated, we are mindful of the importance of the issue Alvarez 

raises and the likelihood it will recur as courts continue to 

grapple with the need to balance the health and safety of 

courtroom participants during the COVID-19 pandemic with the 

defendant’s constitutional right to confrontation. There may well 

be occasions, due to the fluid nature of the pandemic and evolving 

health and safety measures, as well as the type of face covering

that may be at issue, when the balance tips differently, and does 

not fit as neatly, within the public policy exception identified in 

Craig. That is not the case on the record before us. 

DISPOSITION

The judgment is affirmed. 

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.