1

Filed 2/24/23 P. v. Valtierra CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

HILEBERTO VALTIERRA,

Defendant and Appellant.

 A165832

 (Fresno County

 Super. Ct. No. F19908265)

Hileberto Valtierra appeals after a jury convicted him of 

one count of second degree murder (Pen. Code, § 187, subd. (a); 

count one),1 one count of second degree attempted murder 

(§§ 187, subd. (a), 664; count two), and three counts of assault 

with a firearm (§ 245, subd. (a)(2); counts three, four, and five). 

The jury also found true the charged firearm enhancements—

that he personally and intentionally discharged a firearm causing 

great bodily injury or death (§ 12022.53, subd. (d)) in committing 

counts one and two and that he personally used a firearm 

(§ 12022.5, subd. (a)) in committing counts three through five. 

After the trial court found true allegations that Valtierra suffered 

two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. 

1 Undesignated statutory references are to the Penal Code. 

This matter was transferred by California Supreme Court order 

on August 9, 2022 from the Fifth Appellate District (No. 

F081769) to the First Appellate District.
2

(a)-(d)), Valtierra was sentenced to an indeterminate prison term 

of 200 years to life plus a determinate term of 30 years. 

Valtierra raises several arguments—that the trial court 

violated his constitutional rights to a public trial, to represent 

himself, and to confront the witnesses against him. He also 

contends the trial court improperly limited the scope of his crossexamination of a prosecution witness. We conclude Valtierra’s 

arguments are without merit and affirm. 

BACKGROUND

A.

In December of 2019, Valtierra and his girlfriend (Leticia 

R.) argued about her daughter P.T.’s alleged gang membership. 

Leticia decided to end their relationship and began moving out of 

the San Joaquin apartment she had been sharing with Valtierra’s 

sister. While Leticia’s brother and three of her children (P.T., 

A.T., and E.T.) helped load Leticia’s possessions, Valtierra 

repeatedly insulted Leticia using profanity and gang slurs. 

Sixteen-year-old A.T. told Valtierra to be respectful and the 

two engaged in a verbal argument. E.T. got out of Leticia’s 

brother’s truck, ran towards Valtierra, and the two physically 

fought—punching and wrestling each other on the ground. 

Members of both Leticia’s and Valtierra’s families crowded 

around the fight. 

The prosecution evidence is in conflict in some respects—

about whether A.T. kicked Valtierra in the head, who was 

winning the fight, and whether the fight was over when shots 

were fired. However, the prosecution witnesses agreed that 

neither Leticia nor any of her family members (her brother, A.T., 

E.T., or P.T.) had a gun that night. 

After pointing a gun at P.T.’s and Leticia’s heads, Valtierra 

shot at A.T. several times from no more than 10 feet away. 
3

Valtierra continued to fire at A.T.’s back as he fell to the ground. 

Prosecution witnesses also testified that, when E.T. ran towards 

the back of a nearby apartment building, Valtierra chased and 

shot him twice in the back. Valtierra also fired the gun at 

Leticia’s brother, as he ran to his truck, but missed. 

A.T. died as a result of suffering a gunshot wound to his left 

shoulder. He also suffered two other gunshot wounds—to his 

rear right hip and to the back of his head. E.T. suffered two 

gunshot wounds but survived. 

Valtierra fled to Salinas. Three weeks later, a gun was 

found, in a field near San Joaquin, about 20 feet from the side of 

a road. A firearms expert opined that all nine casings found at 

the crime scene had been fired from the recovered gun. 

When Valtierra was interviewed by a detective with the 

Fresno County Sheriff’s Department, he initially claimed to not 

remember anything that happened after the fight began. 

Valtierra later told detectives that there was no reason for the 

shooting, that he did not see any other guns, that he did not 

think he was going to die during the fight, that he was not afraid 

of A.T, and that he felt bad about what happened. 

B.

At trial, Valtierra changed his story. He testified that he 

was knocked out during the fight and woke up (on his back) with 

E.T. choking him. Valtierra pushed E.T. off, scrambled to his 

feet, and then fell back down. Valtierra then heard and saw 

shots being fired by Leticia’s brother, in Valtierra’s direction. 

Valtierra fired five to six rounds at E.T., who was coming toward 

him. 

Valtierra denied shooting A.T. and testified that he never 

pointed the gun at Leticia, her brother, or P.T. He believed 

Leticia’s brother shot A.T. 
4

Valtierra admitted discarding his gun as he drove to 

Salinas. He also acknowledged that he never told detectives that 

he had been kicked in the head or that Leticia’s brother had a 

gun. Valtierra said he suffered a concussion and could not 

remember details of the fight until seven or eight months later. 

C.

The jury acquitted Valtierra of first degree murder of A.T. 

but convicted him of second degree murder of A.T., second degree 

attempted murder of E.T., and three counts of assault with a 

firearm. 

DISCUSSION

A.

Valtierra argues that his state and federal constitutional 

rights to a public trial were violated because one of his family 

members was excluded from the courtroom during a portion of 

jury selection and during argument on motions in limine. We 

disagree.

1.

A criminal defendant has a constitutional right to a public 

trial. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, 

§ 15; People v. Woodward (1992) 4 Cal.4th 376, 382 (Woodward).) 

This right extends to jury selection and pretrial evidentiary 

hearings, which are presumptively required to be open to the 

public unless necessary to protect an overriding interest (such as 

the defendant’s right to fair trial). (Presley v. Georgia (2010) 558 

U.S. 209, 213; Waller v. Georgia (1984) 467 U.S. 39, 44-46; People 

v. Bui (2010) 183 Cal.App.4th 675, 680 (Bui).) 

“The value of openness lies in the fact that people not 

actually attending trials can have confidence that standards of 

fairness are being observed; the sure knowledge that anyone is 

free to attend gives assurance that established procedures are 
5

being followed and that deviations will become known.” (PressEnterprise Co. v. Superior Court of California (1984) 464 U.S. 

501, 508, italics omitted.) Violation of an accused’s constitutional 

right to public trial is structural error, requiring reversal without 

the necessity of showing prejudice. (Waller v. Georgia, supra, 467 

U.S. at pp. 49-50; Woodward, supra, 4 Cal.4th at p. 381.)

However, not every instance of exclusion from the 

courtroom violates an accused’s public trial rights. California 

courts deem some temporary and partial exclusions de minimis 

or trivial. (Bui, supra, 183 Cal.App.4th at pp. 688-689; People v. 

Esquibel (2008) 166 Cal.App.4th 539, 552-554.) Federal courts 

also recognize a de minimis exception. (See, e.g., Gibbons v. 

Savage (2d Cir. 2009) 555 F.3d 112, 121; United States v. AlSmadi (10th Cir. 1994) 15 F.3d 153.)

2. 

Valtierra was tried in July and August of 2020—amid the 

COVID-19 pandemic. Before trial began, the trial court, 

prosecutor, and defense counsel discussed access to the 

courtroom. The trial court explained that the trial would be open 

to the public, but that jury selection could limit access to the 

courtroom—because the court needed to prioritize space for 

prospective jurors and allow room for social distancing. 

Specifically, the court stated, “if I don’t have social 

distancing, [public access is] going to be limited, and we can 

probably accommodate as many folks as we need during the trial 

itself, but during jury selection when we have jurors actually 

sitting out there, if we have room, they can come in; if we don’t 

[have room], they don’t. [¶] . . . [¶] . . . Because there’s nothing 

else we can do unless we cut a hole in the roof and have folks 

sitting up there, and that’s not practical.” Defense counsel made 

no objection. 
6

On the third day of trial, the courtroom was initially 

cleared to hear Valtierra’s in camera motion to substitute his 

counsel, pursuant to People v. Marsden (1970) 2 Cal.3d 118 

(Marsden). The minute order shows jury selection began at 

around 10:00 a.m. The court spent 36 minutes taking roll and 

giving preliminary instructions to prospective jurors before they 

were dismissed until the following day. Next, the minute order 

and reporter’s transcript show that court reconvened for 

approximately 41 minutes (without prospective jurors) while 

counsel argued evidentiary issues. The court then took a break 

for lunch. 

When the court began its afternoon session , defense 

counsel made the following record outside the presence of 

prospective jurors:

“[DEFENSE COUNSEL]: . . . I just have a concern as to 

this being a public trial, and I know that the Court had 

previously ordered anyone who wanted to watch the trial and had 

approached downstairs and told them they were going to come to 

[the courtroom] to watch the trial, that they should be admitted. 

I was informed by my investigator that a member of Mr. 

Valtierra’s family did so and was . . . denied entry.

“THE COURT: Okay. Well, that’s incorrect, because he 

should have anybody he wants to come can come. . . . I think 

we’re going to have three different courtrooms. They may not 

necessarily be sitting in here. They may be sitting in a court next 

to us, but they’ll be able to see us, hear us, we’ll be able to hear 

them just like anything else.

“[DEFENSE COUNSEL]: I just want to make sure the 

procedure gets corrected.

“THE COURT: Absolutely.

“THE BAILIFF: We were told - - we advised during jury 

selection no one’s going to come in because we need to make room 
7

for the jurors. It’s not open - - you know, they’re not going to be 

hearing anything, so I don’t understand why someone needs to 

come and watch jury selection.

“THE COURT: No, but the thing is that’s part of the trial.

“THE BAILIFF: So you’d rather have a juror displaced and 

have someone come in here?

“THE COURT: No, no, no. I’m not arguing. What I’m 

saying is, we have to have it open, and we have three courtrooms 

that we can sit somebody, and somebody can sit in. We’re going 

to be done with jury selection very soon. [¶] . . . [¶]

‘THE BAILIFF: . . . I was gone. I was told by whoever sat 

in here they said your order was once the trial starts, then we 

advise the lobby, then they’ll let people in.

“THE COURT: Let’s do this: Let’s advise the lobby that 

folks can come in, assuming they don’t have a fever, assuming 

they are masked and so forth, and we will accommodate them. If 

that means them sitting here, all likely not, it’s more likely they’ll 

sit next door . . . but we have to make it open, otherwise, we have 

to broadcast it. Um, do you know how to do that, [clerk]?

“THE CLERK: Broadcast it, yes, we can.

“THE COURT: Are you requesting we broadcast it?

“[DEFENSE COUNSEL]: Your Honor, I would ask that it 

be broadcast to make it a public trial, although, I would note [the 

[prosecutor] had some concerns about that given the fact that 

there were minors testifying. [¶] . . . [¶]

“[PROSECUTOR]: My major concern was the witnesses 

watching other witnesses’ testimony.

“THE COURT: Right, right, right. That’s why we had this 

conversation before.
8

“[PROSECUTOR]: We did, and that’s why I agree with the 

procedure of anybody who wants to come into [the courtroom], 

comes into [the courtroom.]

“THE COURT: That’s what we’re going to do. Obviously, 

we had the discussion. I thought it out in the past. I’m not going 

to revisit it because there’s no new facts. So we’re going to leave 

that as it is, but we’re going to make absolutely certain that if 

Mr. Valtierra’s family or anybody else wants to come in and see, 

they’ll have access to come in.” 

After the jury was sworn, the trial court reiterated that 

Valtierra’s family (except for those who were witnesses) and any 

other members of the public were free to enter the courtroom. 

Defense counsel stated for the record, “Valtierra’s family was 

allowed in yesterday by the Court security. They were under 

subpoena, though, so they could not watch the trial but they were 

allowed in.” 

3.

Valtierra insists that the trial court committed structural 

error—requiring reversal without a showing of prejudice—by 

completely closing the trial to the public without articulating any 

overriding interest or ensuring that the closure was no broader 

than necessary. The People, on the other hand, argue that the 

record demonstrates only a de minimis exclusion that did not rise 

to the level of a constitutional violation. The People have the 

better argument.

Bui, supra, 183 Cal.App.4th 675, involved the temporary 

exclusion of three spectators, including two of the defendant’s 

family members, from about 40 minutes of jury voir dire. (Id. at 

pp. 679, 685-686, 688.) On appeal, the temporary and partial 

exclusion—which did not involve the evidentiary phase of trial 

and was rectified as soon as the trial court learned that the 

family members had been admonished not to talk before the 
9

prospective jurors—was deemed de minimis and not in violation 

of the defendant’s public trial right. (Id. at pp. 686-689.) This 

Division recognized that “the Sixth Amendment right to a public 

trial ‘is not trammeled . . . by a trivial, inadvertent courtroom 

closure.’ ” (Bui, supra, at p. 687, italics added; accord, id. at pp. 

688-689.)

In Woodward, supra, 4 Cal.4th 376, the trial court 

permitted the bailiff to temporarily lock the courtroom doors 

during the prosecutor’s closing argument. (Id. at pp. 379, 383.) 

Our Supreme Court held that the closure was de minimis because 

it lasted only one and one-half hours, did not exclude preexisting 

spectators (who were in the courtroom when the doors were 

locked), and did not involve the evidentiary phase of trial. (Id. at 

pp. 379, 381, 385-386.) 

Valtierra asks us to distinguish Bui and Woodward by 

presuming that, in this case, the courtroom was closed to all

spectators during the entire morning session of the third day of 

trial. The bailiff’s volunteered statements on the record before us 

do not make it clear that anyone other than Valtierra’s single 

family member (much less all spectators) was excluded from the 

courtroom. Furthermore, the bailiff appeared to believe that 

spectators could be excluded only during jury selection—to 

ensure prospective jurors could abide by spacing protocols. 

Accordingly, it is unclear whether anyone who tried to enter the 

courtroom during the other proceedings that morning would have 

been excluded. On this record, we must resolve this issue against 

Valtierra because he fails to meet his burden on appeal to 

demonstrate a complete closure of the courtroom. (See People v. 

Whalen (2013) 56 Cal.4th 1, 85; Denham v. Superior Court (1970) 

2 Cal.3d 557, 564.)

We also find limited support for Valtierra’s assertion that 

the exclusion involved an entire morning. Our review of the 

relevant minute order and reporter’s transcripts demonstrates 
10

only that one spectator was inadvertently excluded during (at 

most) one hour and 17 minutes of jury selection and argument on 

in limine motions. No evidence was received during this time. 

The trial court ordered the trial to be public and rectified the 

inadvertent closure as soon as it was brought to the court’s 

attention. 

Although we do not condone the mistake, we agree with the 

People that the trial court did not violate Valtierra’s right to a 

public trial. (See Woodward, supra, 4 Cal.4th at pp. 385-386; 

Bui, supra, 183 Cal.App.4th at pp. 686-689; United States v. AlSmadi, supra, 15 F.3d at pp. 154-155.)

B.

Valtierra also contends the trial court violated his Sixth 

Amendment rights when it terminated his self-representation. 

We conclude the trial court did not abuse its discretion. (See 

People v. Becerra (2016) 63 Cal.4th 511, 518-519 [standard of 

review] (Becerra).)

1.

A criminal defendant possesses two mutually exclusive 

constitutional rights with respect to representation. The accused 

has the right to be represented by counsel at all critical stages of 

a criminal prosecution. (United States v. Cronic (1984) 466 U.S. 

648, 658-659; People v. Marshall (1997) 15 Cal.4th 1, 20.) At the 

same time, because the Sixth Amendment grants the defendant a 

personal right to present a defense, the accused also possesses a 

right of self-representation. (Faretta v. California (1975) 422 

U.S. 806, 819 (Faretta); Marshall, supra, 15 Cal.4th at p. 20.) 

A trial court generally must grant a defendant’s request for 

self-representation if certain conditions are met. (People v. Doss

(2014) 230 Cal.App.4th 46, 54.) First, the defendant must be 

mentally competent, and must make their request knowingly and 

intelligently, having been apprised of the dangers of self-
11

representation. (Faretta, supra, 422 U.S. at p. 835; Becerra, 

supra, 63 Cal.4th at p. 519.) Second, the defendant must make 

their request unequivocally. (Faretta, supra, at p. 835; Becerra, 

supra, at p. 519.) Third, an accused must make their request 

within a reasonable time before trial. (People v. Welch (1999) 20 

Cal.4th 701, 729.) If a Faretta motion is made after trial begins, 

the defendant is no longer constitutionally entitled to selfrepresentation. An untimely motion is addressed to the trial 

court’s discretion. (People v. Windham (1977) 19 Cal.3d 121, 

128.) 

The right of self-representation has other limits. A 

defendant may not represent themself if they are unwilling or 

unable to abide by courtroom rules and protocol. (See McKaskle 

v. Wiggins (1984) 465 U.S. 168, 173; Becerra, supra, 63 Cal.4th at 

p. 518.) Accordingly, a trial judge may terminate an accused’s 

pro per status if they “deliberately engage[] in serious and 

obstructionist misconduct.” (Faretta, supra, 422 U.S. at pp. 834-

835, fn. 46; accord, Becerra, supra, at p. 518.) 

Erroneous revocation of an accused’s Faretta status is 

reversible per se. (People v. Butler (2009) 47 Cal.4th 814, 824–

825; see also McKaskle v. Wiggins, supra, 465 U.S. at p. 177, fn. 

8.)

2.

On the date set for trial, Valtierra appeared with appointed 

counsel. Both defense counsel and the prosecutor announced 

they were ready to proceed. The court heard argument and ruled 

on various motions in limine. Two court days later, Valtierra 

made a Marsden motion, which was denied. 

On the morning of the fifth court day, while jury selection 

was still ongoing, Valtierra moved to represent himself, under 

Faretta, supra, 422 U.S. 806. The court noted that it had 

discretion to grant the motion because Valtierra’s motion was 
12

made after trial began. The court also advised Valtierra of the 

consequences of self-representation and that it would not merit a 

continuance. 

During its admonitions, the trial court warned Valtierra: 

“You will be responsible for selecting the jury, asking the 

appropriate questions. You will get zero assistance. If you . . . 

[ask] inappropriate questions, I will shut you down.” It also 

advised Valtierra: “[Y]ou must not abuse the dignity of the 

Court. Understand the Judge may terminate your right to selfrepresentation in the event that you engaged in serious conduct 

[sic] or obstruct the conduct and progress of the trial.” 

After being further advised of the risks of selfrepresentation, the following exchange occurred on the record: 

“THE DEFENDANT: So regarding the jury, we’re not done 

selecting jury trial.

“THE COURT: No, we’re not.

“THE DEFENDANT: Okay. So then I just have one 

question to ask then. That is: Does any one of them have any 

issue or problem with the fact that I’ve tested positive for corona 

virus . . . within the past month and have not yet retested for a 

negative result, and inmates in my pod are experiencing 

symptoms like myself having a headache today.[2] Is that . . . 

okay to ask them? I think that should - -

“THE COURT: No. No, it’s not okay to ask them.

2 The record indicates that the Fresno County jail was 

under COVID-19 quarantine about a month earlier. Valtierra 

tested positive 16 days before he appeared in court for trial, but 

tested negative in the interim. At the time he made his Faretta 

motion, it had been at least 25 days since Valtierra’s positive test. 
13

“THE DEFENDANT: All right. Because they don’t know 

that information. . . . [T]hey’re not going to be concerned about 

that, and you are ordered not to tell them that.

“THE DEFENDANT: All right. That was on the record; 

right?

“THE COURT: That is on record. . . . [¶] . . . [¶]

“THE DEFENDANT: What I’m saying, Your Honor, is at 

this point I’m not ready to proceed to trial. I’m not ready to 

proceed with trial. [¶] . . . [¶]

“THE COURT: Trial’s going to go forward. Are you sure 

you want to represent yourself?

“THE DEFENDANT: Yes, I do.

“THE COURT: Okay. . . . I’m going to bring the jurors back 

in. I’m going to give you an opportunity to talk to them. I’m 

going to excuse and relieve [defense counsel]. . . . We’re going 

forward. And I know that sounds harsh, but you and I had this 

conversation before when I told you during the course of the 

Marsden [hearing], I said, ‘Look, the only way that you can steer 

the ship is if you represent yourself and file a Faretta motion.’ 

You waited over the weekend, and now we’re on Friday, and now 

you’re saying you want to have the Faretta, and I’ve granted your

Faretta, so you’re going to represent yourself, and we’re going to 

move forward. [¶] . . . [¶] 

“THE COURT: . . . [Defense counsel], we’ll see you later. 

Be prepared because I’m bringing the jury back in here, and 

you’re going to be required to question them. Do not bring up 

anything about no [sic] COVID, none of that.

“THE DEFENDANT: I’m going to be honest.

“THE COURT: What was that?

“THE DEFENDANT: I’m going to be honest.
14

“THE COURT: If you bring up anything about COVID - -

“THE DEFENDANT: Might as well revoke it now.

“THE COURT: You’re not going to - -

“THE DEFENDANT:· What I’m saying is it is a very 

serious issue.· People are dying, over 100,000 are dying, so why 

would we subject people to my infection?· Why would we do that?

“THE COURT:· All right.· The Court’s revoking selfrepresentation.· The record’s clear.” (Italics added.)

3.

Valtierra contends the trial court abused its discretion 

because it purportedly terminated his self-representation without 

warning, without making an adequate record that he engaged in 

misconduct sufficient to justify termination, and without 

considering alternative sanctions. He is wrong.

Termination of self-representation is a severe sanction that 

should be imposed as a last resort. (Becerra, supra, 63 Cal.4th at 

pp. 518, 520.) “ ‘When determining whether termination is 

necessary and appropriate, the trial court should consider several 

factors in addition to the nature of the misconduct and its impact 

on the trial proceedings,’ including (1) ‘the availability and 

suitability of alternative sanctions,’ (2) ‘whether the defendant 

has been warned that particular misconduct will result in 

termination of in propria persona status,’ and (3) ‘whether the 

defendant has “intentionally sought to disrupt and delay his 

trial.” ’ ” (Id. at p. 518.) 

People v. Carson (2005) 35 Cal.4th 1 (Carson) involved 

termination based on out-of-court misconduct. In that situation, 

the trial court must make additional efforts to create an adequate 

record supporting its decision. (Becerra, supra, 63 Cal.4th at p. 

518; Carson, supra, at p. 11.) But when in-court misconduct 

forms the basis for termination, the reporter’s transcript will 
15

generally suffice. (Carson, supra, at p. 11.) We defer to the trial 

court’s “ ‘assessment of the defendant’s motives and sincerity as 

well as the nature and context of his misconduct and its impact 

on the integrity of the trial.’ ” (Becerra, supra, at p. 518.) 

Here, Valtierra was warned that he could not use selfrepresentation to delay trial and that he needed to follow 

courtroom rules and protocol. The trial court also specifically 

(and repeatedly) warned Valtierra that he could not discuss his 

positive COVID-19 test result (or symptoms) with prospective 

jurors during voir dire. In response, Valtierra explicitly indicated 

that he understood his Faretta status could be revoked for his 

failure to heed the trial court’s orders on that subject. Despite 

this understanding and the court’s repeated orders not to, 

Valtierra persisted with his plan to inflame the prospective 

juror’s fears about COVID-19. Accordingly, the record amply 

supports the trial court’s implicit finding that Valtierra 

intentionally sought to use his self-represented status to disrupt 

and delay the trial. 

Valtierra insists that the trial court abused its discretion 

because it failed to consider lesser sanctions. However, his 

appellate briefs fail to demonstrate the adequacy of any other 

sanction. (See Carson, supra, 35 Cal.4th at p. 12.) Valtierra’s 

only suggestion is that the trial court should have allowed him to 

proceed and then—after the prospective jurors had been informed 

of the jail quarantine, Valtierra’s positive test result, and his 

purported symptoms—admonish the prospective jurors to 

disregard his statements and to trust the safety measures 

already in place. When considering the impact Valtierra’s 

disclosure would have on prospective jurors’ willingness to serve, 

the inadequacy of this lesser sanction is self-evident. 

This brings us to the crux of Valtierra’s argument—that his 

refusal to heed court orders was insufficient to warrant 

termination because the trial court did not permit him to 
16

continue his disobedience and to actually disrupt and delay the 

trial. But the trial court was under no such obligation. (See 

Carson, supra, 35 Cal.4th at p. 10 [“the defendant’s acts need not

result in a disruption of the trial” because “[t]he likely, not the 

actual, effect of the misconduct should be the primary 

consideration”], italics added.) 

Repeatedly refusing to obey court orders and intentionally 

attempting to delay trial is precisely the kind of serious 

misconduct that threatens to impair the integrity of trial. (See 

Carson, supra, 35 Cal.4th at p. 10; People v. Kirvin (2014) 231 

Cal.App.4th 1507, 1516.) The trial court did not abuse its 

discretion. 

C. 

Next, Valtierra maintains the trial court violated his Sixth

Amendment right of confrontation by requiring witnesses to wear 

protective face masks while testifying. Like the other courts of 

appeal that have considered similar arguments (see, e.g., People 

v. Edwards (2022) 76 Cal.App.5th 523, 525-527), we disagree.

The trial court ordered all persons in the court, including 

testifying witnesses, to wear a mask. Valtierra asked the trial 

court to lift that requirement for testifying witnesses, arguing the 

jury would otherwise be unable to judge credibility. The trial 

court denied his motion. 

The United States Supreme Court understands the 

confrontation clause to reflect a strong preference for face-to-face 

confrontation at trial. But that preference is not absolute and 

must occasionally give way to important public policy 

considerations. (Maryland v. Craig (1990) 497 U.S. 836, 844, 

847-850.) “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 
17

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.)

Accordingly, a defendant’s right to confront witnesses may 

be satisfied without a traditional face-to-face confrontation at 

trial where “denial of such confrontation is necessary to further 

an important public policy” and “the reliability of the testimony is 

otherwise assured.” (Maryland v. Craig, supra, 497 U.S. at p. 

850.)

Here, the trial court’s mask requirement was necessary to 

further an important public policy—protecting the health and 

safety of trial participants during a global pandemic. And all the 

confrontation clause’s central reliability concerns remained 

otherwise assured: witnesses testified in the defendant’s and 

jury’s physical presence, witnesses were under oath, and 

witnesses were subject to cross-examination and observation of 

demeanor by the trier of fact. True, Valtierra and the jury may 

have been impeded from observing witnesses’ full facial 

expressions because testifying witnesses wore face masks that 

covered their noses and mouths. But because Valtierra and the 

jury remained able to hear witnesses speak, as well as see their 

eyes and body language, they could meaningfully observe 

witnesses’ demeanor. 

Valtierra’s confrontation rights were not violated by the 

trial court’s requirement that witnesses cover their mouths and 

noses to further public safety during a global pandemic.3 (See 

3 We need not further consider Valtierra’s argument that 

the trial court should have ordered testifying witnesses to wear 

clear masks. In support of that argument, Valtierra filed a 

request for judicial notice of various advertisements showing the 

costs of clear masks on Amazon.com. The Fifth District deferred 
18

People v. Edwards, supra, 76 Cal.App.5th at pp. 525-527; People 

v. Lopez (2022) 75 Cal.App.5th 227, 230; People v. Alvarez (2022) 

75 Cal.App.5th 28, 37-39.) 

D.

Finally, Valtierra argues that the trial court abused its 

discretion and violated his constitutional rights to confront 

witnesses by limiting his cross-examination of one of Leticia’s 

children (P.T.). We disagree.

Before trial, the People moved to limit the defense’s 

questioning of P.T. regarding statements she made, to an 

employee of the Fresno County Department of Social Services 

(Department), which suggested P.T. was not present at the scene 

of the shooting. The purported prior statement conflicted with 

P.T.’s anticipated testimony at trial. P.T. testified that she was 

present at the scene of the shooting. Because every other witness 

to the shooting (including Valtierra himself) similarly placed P.T. 

at the scene, the People insisted the defense’s proposed line of 

questioning was on a collateral matter. 

Initially, the trial court concluded that defense counsel 

could ask P.T., on cross-examination, about her prior statement 

but that testimony from the Department employee would not be 

admitted. But when the court learned that P.T. had since denied 

telling anyone at the Department that she did not witness the 

ruling on the opposed motion, and we now deny the request for 

judicial notice. Valtierra fails to demonstrate that the 

advertisements were noticed by the trial court (Brosterhous v. 

State Bar (1995) 12 Cal.4th 315, 325-326) or that the content of 

the advertisements represent “[f]acts and propositions that are 

not reasonably subject to dispute and are capable of immediate 

and accurate determination by resort to sources of reasonably 

indisputable accuracy.” (Evid. Code, § 452, subd. (h); Searles 

Valley Minerals Operations, Inc. v. State Bd. of Equalization

(2008) 160 Cal.App.4th 514, 519.) 
19

shooting, the court granted the People’s motion and excluded the 

evidence. The trial court concluded that, under Evidence Code 

section 352, the evidence’s probative value was substantially 

outweighed by its undue consumption of time. 

The trial court did not abuse its discretion. Valtierra is 

correct that P.T.’s alleged statement to the Department employee 

was inconsistent with her testimony at trial. And the jury may 

consider any matter that tends to prove or disprove the 

truthfulness of a witness’s testimony. (People v. Harris (2005) 37 

Cal.4th 310, 337; accord, Evid. Code, § 780.) However, Evidence 

Code section 352 grants a trial court broad discretion to exclude 

impeachment evidence to “ ‘prevent criminal trials from 

degenerating into nitpicking wars of attrition over collateral 

credibility issues.’ ” (People v. Ayala (2000) 23 Cal.4th 225, 301.) 

And although the right of confrontation includes the right to 

cross-examine adverse witnesses on matters reflecting on their 

credibility, trial judges also retain wide latitude under the 

confrontation clause to impose reasonable limits on such crossexamination. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-

679.) 

Here, the proffered evidence did not directly suggest that 

P.T.’s testimony at trial was untruthful. Rather, because it was 

undisputed that she testified truthfully at trial that she 

witnessed the shooting, any inconsistency primarily tended to 

show P.T. had lied to a Department employee in the context of a 

child welfare investigation. 

Furthermore, because P.T. denied making the purported 

inconsistent statement, defense counsel would need to call the 

Department employee to testify about the content of P.T.’s earlier 

statement. Accordingly, her earlier statement would have no 

probative value unless actually inconsistent and at the same time 

required an undue consumption of time. The trial court did not 

abuse its discretion by excluding the evidence pursuant to 
20

Evidence Code section 352. (People v. Foster (2010) 50 Cal.4th 

1301, 1328; People v. Tidwell (2008) 163 Cal.App.4th 1447, 1456-

1457.)

Nor has Valtierra demonstrated a violation of the 

confrontation clause. A trial court’s limitation on crossexamination does not violate the confrontation clause unless a 

reasonable jury would have obtained a significantly different 

impression of the witness’s credibility had the excluded crossexamination been permitted. (Delaware v. Van Arsdall, supra, 

475 U.S. at p. 680; People v. Quartermain (1997) 16 Cal.4th 600, 

623-624.) Valtierra’s defense counsel impeached P.T. in other 

ways—by highlighting inconsistencies between her trial 

testimony and both her preliminary hearing testimony and her 

earlier statements to police. Where evidence would impeach a 

witness on a collateral matter and is only marginally probative of 

their veracity, application of Evidence Code section 352 to 

exclude the evidence does not infringe a defendant’s 

constitutional confrontation rights. (People v. Jennings (1991) 53 

Cal.3d 334, 372.)

E.

We need not consider Valtierra’s argument that the 

cumulative effect of trial errors requires reversal of the judgment 

because we have rejected all his arguments on the merits. 

DISPOSITION 

The judgment is affirmed.
21

______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J.

____________________________

SIMONS, J.

A165832