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Filed 4/7/23 P. v. Cuadras CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sutter)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO ARIAS CUADRAS,

Defendant and Appellant.

C093607

(Super. Ct. No. CRF19-0822)

In the midst of the global COVID-19 pandemic, a jury found defendant Armando 

Arias Cuadras guilty of premeditated murder with special circumstances; torture with 

great bodily injury; aggravated mayhem; and first degree burglary of an inhabited 

dwelling with a violent felony enhancement allegation. On appeal, defendant argues the 

judgment must be reversed because certain health and safety protocols implemented 

during jury selection and trial in response to the pandemic violated his constitutional 
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rights. In particular, defendant argues (1) the trial court violated his right to a fair trial by 

refusing to order prospective members of the jury to remove any facial coverings (masks) 

during voir dire; (2) the trial court violated his rights to confront witnesses and to a fair 

trial by requiring members of the jury to sit in the public gallery instead of the jury box

or, to the extent this contention was forfeited, that his counsel rendered ineffective 

assistance; and (3) that defense counsel rendered ineffective assistance by asking

defendant to wear a face mask throughout trial. Defendant also argues he is entitled to 

reversal based on the cumulative effect of the errors. Finding no error, we affirm.

FACTUAL BACKGROUND

We briefly summarize the facts underlying defendant’s convictions, which are 

unnecessary to the resolution of this appeal. In accord with the usual rules on appeal, we 

state the facts in the manner most favorable to the judgment. (People v. Ochoa (1993) 

6 Cal.4th 1199, 1206.) 

On January 23, 2013, the victim, 94-year-old Leola Shreves, was found dead, 

facedown in her bedroom, covered in blood. The cause of death was determined to be 

multiple blunt force injuries and attempted strangulation. The evidence showed she had 

been severely beaten before death. The precise time of death was unclear, but 

circumstantial evidence suggested the killing occurred late on January 18, 2013, or early 

in the morning on January 19, 2013. 

Investigators found and collected blood samples from numerous locations around

the victim’s home, including a door in the kitchen, the living room wall, bedroom 

curtains, a mirror on the door between the bathroom and bedroom, and the wall around 

victim’s bed. Investigators also collected scrapings from underneath the victim’s 

fingernails. 

Investigators developed a DNA profile of the suspect from the biological material 

collected at the crime scene, and then compared it with the profiles contained in the 

Combined DNA Index System database. Initially, there were no matches. However, in
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2018, based on a familial DNA search, investigators identified defendant as a potential 

suspect. Investigators then collected a sample of defendant’s DNA and compared it to 

the crime scene DNA evidence. Defendant’s DNA was found to match blood samples

collected from the crime scene, and defendant could not be excluded as a potential 

contributor to the material collected from the victim’s fingernails. 

In an interview with detectives following his arrest, defendant initially denied any 

knowledge of the killing. However, after being confronted with the DNA evidence, 

defendant eventually admitted to entering the victim’s house and “stomping somebody 

out,” although he believed it had been a man. Defendant claimed that he was drunk to 

the point that he barely remembered what transpired, but he recalled being “out of 

control.” 

During the interview, defendant also recalled that around the time of the killing

law enforcement officers had found him—intoxicated—lying in the street near the 

victim’s home. Yuba City police records corroborated that defendant was contacted by 

officers around 3:30 a.m. on January 19, 2013, near the victim’s home. Medical records 

relating to that incident revealed defendant had a two-inch laceration on his right arm, 

swollen knuckles, and that he complained of a sore knee. 

PROCEDURAL BACKGROUND

The Sutter County District Attorney filed an amended information charging 

defendant with premeditated murder (Pen. Code, §§ 187, subd. (a), 189, subd. (a)—count 

1);1 torture with great bodily injury (§§ 206, 12022.7—count 2); aggravated mayhem 

(§ 205—count 3); and first degree burglary of an inhabited dwelling. (§ 459—count 4.) 

As to count 1, the information further alleged three special circumstance allegations: that 

the murder was committed while defendant was engaged in the commission or attempted 

commission of burglary (§ 190.2, subd. (a)(17)(G)) and mayhem (§ 190.2, subd. 

1 Undesignated section references are to the Penal Code.
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(a)(17)(J)), and that the murder was intentional and involved the infliction of torture. 

(§ 190.2, subd. (a)(18).) As to count 4, the information also alleged that the burglary was 

a violent felony within the meaning of section 667.5, subdivision (c)(21) because

“another person, other than an accomplice, was present in the residence during the 

commission of the [burglary].” 

A. COVID-19 procedures during trial

Defendant’s trial began in October 2020, in the early months of the COVID-19 

pandemic. At the time, “there was no vaccine yet available to protect against the spread 

of [the virus] and the best scientific evidence demonstrated the wearing of face masks 

was effective at reducing the spread of the virus and the risk of infection in indoor 

settings.” (People v. Lopez (2022) 75 Cal.App.5th 227, 233 (Lopez).) 

Due to the pandemic, the court imposed a variety of health and safety measures to 

protect the parties, court personnel, the jury, and the public during the trial. The 

measures included health screenings, enhanced cleaning procedures, and reconfigured 

seating arrangements to ensure social distancing. 

For purposes of voir dire, the trial court explained that prospective jurors would be 

seated in the audience of the courtroom, with eight potential jurors spread out on the right 

side of the room and another eight spread out on the left side of the room. A second 

courtroom would be used to allow other prospective jurors to watch jury selection via live

streaming. The trial court additionally explained that most of the jury would remain 

seated in the audience during trial and that the court would use audio and visual resources 

to allow the jury to be spaced out in the audience. To ensure defendant’s right to consult 

with counsel was not infringed, the court permitted defendant to sit near counsel at the 

defense table (approximately one or two feet apart). Defense counsel did not object to 

the proposed seating configurations. 

Except when social distancing could not be maintained, the trial court did not 

require witnesses or attorneys to wear masks during trial. All witnesses agreed not to 
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wear masks while testifying. With respect to jurors, the court indicated that it would not 

require jurors to wear a mask, but if a juror chose to wear a mask, the court would not 

order the juror to remove it. The record on appeal does not clearly establish how many 

jurors were masked during jury selection and trial, but evidence in the record suggests 

that at least one juror wore a mask during at least part of the trial. 

Defense counsel argued that prospective jurors should be required to remove their 

masks during jury selection “so we can talk to them and see their facial expressions.” 

Defense counsel warned that it was a Fifth Amendment issue. The court rejected 

counsel’s request, confirming that it would not order prospective jurors to take down their 

masks. The court acknowledged defendant’s constitutional rights but noted the need to 

balance the health and safety of courtroom participants during the pandemic. The court 

noted that it had conducted another trial during the COVID pandemic and felt that the 

attitude and expressions of a prospective juror could be appropriately gauged when the 

juror was wearing a mask. The court added that it would be granting deferrals for 

potential jurors who were uncomfortable serving jury duty during the pandemic or who 

were part of a high-risk health group. 

Because defendant was going to be seated at the defense table, defense counsel 

requested that defendant wear a mask throughout trial. The trial court expressed some 

general concerns with this request, but defense counsel noted that he had discussed it 

with defendant, who was at high risk for complications from COVID, and they agreed 

that defendant should wear a mask, both for his protection and the protection of others. 

When asked by the court, defendant confirmed that he was comfortable wearing a mask

during trial. The court accepted the decision. The court also admonished the jury not to 

consider why an individual is or is not wearing a mask during trial.

B. Verdict and sentencing

The jury found defendant guilty on all four counts, and found all the enhancement 

allegations (as to counts 1 & 4) true. On January 22, 2021, the court sentenced defendant 
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to life without the possibility of parole on count 1. The court imposed life sentences for 

counts 2 and 3, and the upper term of six years for count 4, but stayed the execution of

each of these sentences under section 654.

Defendant filed a timely notice of appeal. 

DISCUSSION

I

Facial Coverings of Prospective Jurors

Defendant contends the trial court’s refusal to order prospective members of the 

jury to remove any facial coverings (masks) during voir dire violated his constitutional 

right to a fair trial. We disagree.

A. Legal principles

A defendant has a fundamental constitutional right to a fair trial by an impartial 

jury. (People v. Breceda (2022) 76 Cal.App.5th 71, 89; accord, People v. Kocontes

(2022) 86 Cal.App.5th 787, 870, 878-879 (Kocontes).) “An impartial jury is one in 

which no member has been improperly influenced and every member is capable and 

willing to decide the case solely on the evidence before it. [Citation.]” (People v. Cissna

(2010) 182 Cal.App.4th 1105, 1115.) To effectuate this right, prospective jurors are 

subjected to voir dire examination under oath to uncover any biases and determine 

whether a prospective juror can and will follow the law. (Ibid.; People v. Chaney (1991) 

234 Cal.App.3d 853, 860.) 

“ ‘ “ ‘[D]espite its importance, the adequacy of voir dire is not easily subject to 

appellate review. The trial judge’s function at this point in the trial is not unlike that of 

the jurors later . . . in the trial. Both must reach conclusions as to impartiality and 

credibility by relying on their own evaluations of demeanor evidence and of responses to 

questions.’ ” ’ [Citations.] For these reasons, the court’s manner of conducting voir dire 

will not be disturbed on appeal unless it renders the trial fundamentally unfair.” (People 

v. Whalen (2013) 56 Cal.4th 1, 30-31, overruled on other grounds by People v. Romero 
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and Self (2015) 62 Cal.4th 1, 44, fn. 17; accord, People v. Fuiava (2012) 53 Cal.4th 622, 

653-654.) Where, as here, there are no disputed facts, we review de novo whether the 

court’s decision to allow prospective jurors to wear masks deprived defendant of a fair 

trial or his rights under the confrontation clause. (See People v. Alvarez (2022) 75 

Cal.App.5th 28, 35-36 (Alvarez).)

B. Analysis

Defendant argues that the court erred by failing to require prospective jurors to 

remove their masks during voir dire. He contends the trial court’s decision hindered 

counsel’s ability to read the prospective jurors’ facial expressions and detect potential 

bias, thereby depriving him of a fair trial. He contendsthis was structural error, requiring

automatic reversal. 

We are unpersuaded that the decision to allow prospective jurors to wear masks 

compromised defendant’s right to an impartial jury. Although we acknowledge that 

observing a prospective juror’s demeanor is important, defendant’s argument is premised 

on the notion that it is impossible to assess demeanor without being able to see a juror’s 

full facial expressions. We are unaware of any authority—and defendant has not cited 

any—holding that the right to an impartial jury demands the entirety of a juror’s face be 

visible during voir dire. 

The federal courts that have considered this issue repeatedly have reached the 

opposite conclusion. (See, e.g., United States v. Tagliaferro (S.D.N.Y. 2021) 531 

F.Supp.3d 844, 851 (Tagliaferro); United States v. Thompson (D.N.M. 2021) 543 

F.Supp.3d 1156, 1164; United States v. Ayala-Vieyra (6th Cir. Jan. 21, 2022, No. 21-

1177) 2022 U.S.App. Lexis 1783, at pp. *12-13 & fn. 1 [nonpub. opn.] and cases cited 

therein.)

2 The reasoning of these cases is that allowing prospective jurors to wear masks 

2 Unpublished federal decisions can be cited as persuasive authority. (Dimon v. 

County of Los Angeles (2008) 166 Cal.App.4th 1276, 1283, fn. 8.)
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during jury selection does not unconstitutionally infringe the defendant’s constitutional 

rights because there are other, adequate means to assess a prospective juror’s demeanor 

and potential bias. (See, e.g., Tagliaferro, supra, 531 F.Supp.3d at p. 851; United States 

v. Crittenden (M.D.Ga. Aug. 21, 2020, No. 4:20-CR-7 (CDL)) 2020 U.S.Dist. Lexis 

151950, at pp. *20, 23 [nonpub. opn.] (Crittenden).) Thus, to whatever extent masks 

may hinder counsel’s ability to read the facial expressions of prospective jurors, they are

justified by the important interest of protecting the health and safety of courtroom 

participants from a highly contagious and potentially lethal virus. (Tagliaferro, at p. 850; 

Crittenden, supra, at p. *22.) We find the reasoning of these cases persuasive. 

Covering the nose and mouth of a prospective juror does not significantly obstruct 

the ability to observe demeanor because “[d]emeanor consists of more than those two 

body parts.” (Crittenden, supra, 2020 U.S.Dist. Lexis 151950, at p. *20.) It “includes 

the language of the entire body.” (Ibid.) Thus, even without being able to see jurors’ 

noses and mouths, counsel may still adequately assess demeanor by observing various 

aspects of body language and tone, such as whether a prospective juror hesitates or has 

unusual pauses, maintains eye contact or rolls his/her eyes, or shifts and squirms during 

questioning. In addition, counsel still have access to the traditional tools to detect bias, 

including juror questionnaires and follow-up questioning during voir dire. Accordingly, 

we agree with the federal courts that allowing prospective jurors to wear masks during 

voir dire in this case did not significantly hinder observation of their demeanor and that 

the trial court’s mask protocol was warranted to protect courtroom participants from 

COVID-19. (Tagliaferro, supra, 531 F.Supp.3d at pp. 851-852; Crittenden, at pp. *23-

24.)

We find additional support for this conclusion in three recent California cases, 

which concluded that requiring witnesses to wear masks while testifying during the 

pandemic did not violate the defendant’s Sixth Amendment confrontation rights. 

(Alvarez, supra, 75 Cal.App.5th 28; Lopez, supra, 75 Cal.App.5th 227; People v. 
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Edwards (2022) 76 Cal.App.5th 523.) Those courts held that although the constitutional 

right of confrontation is important, it is not absolute. (Alvarez, at p. 35; Lopez, at pp. 230, 

233.) Thus, although there is a preference for face-to-face confrontation, this default 

setting must occasionally yield where denial of confrontation is necessary to further an 

important public policy and the reliability of the testimony is otherwise assured. (Lopez, 

at pp. 232-233.) Because the masking requirement for witnesses furthered an important 

public policy, and did so without materially undermining the jury’s ability to assess 

witness credibility, the courts found no confrontation violation. (Alvarez, at pp. 36-39; 

Lopez, at pp. 233-236; Edwards, supra, at pp. 526-527.) 

If an order requiring testifying witnesses to wear a mask does not violate a 

defendant’s right to a fair trial, we fail to see how giving prospective jurors the choice to 

wear a mask could do so. (United States v. Robertson (D.N.M. Nov. 13, 2020, No. 17-

CR-02949-MV-1) 2020 U.S.Dist. Lexis 212449, at pp. *2-4 [nonpub. opn.].) While 

assessing the demeanor of prospective jurors during voir dire is important, it is not as 

important as the jury’s need to assess the demeanor of testifying witnesses. Accordingly,

Alvarez, Lopez, and Edwards support our conclusion that the trial court’s mask policy did 

not violate defendant’s constitutional right to a fair trial. 

II

Juror Social Distancing

Defendant also contends that the trial court violated his constitutional rights by 

requiring members of the jury to sit in the public gallery instead of the jury box. 

Defendant contends that the court’s seating arrangements for jurors violated his Fifth and 

Sixth Amendment rights to due process and to confront witnesses because it interfered

with (1) defendant’s (and the court’s) ability to observe the demeanor of jurors during 

jury selection and trial; and (2) jurors’ ability to observe the demeanor of defendant and 

his accusers during trial. 
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Defendant concedes that he failed to object to the seating arrangements at trial, but 

argues this failure should be excused because he objected to the court’s mask protocol

and objecting to both measures would have been futile. Alternatively, if we find the issue 

was forfeited, defendant contends his counsel provided ineffective assistance by failing to 

object. 

Initially, we agree that defendant forfeited any challenge to the juror seating 

arrangements because he failed to raise a timely and specific objection in the trial court

and we are not persuaded that an objection would have been futile. (Premier Medical 

Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 

550, 564; American Indian Health & Services Corp. v. Kent (2018) 24 Cal.App.5th 772, 

789.) We therefore proceed to consider whether his attorney’s failure to raise the issue 

constituted ineffective assistance of counsel.

“ ‘To establish ineffective assistance of counsel, a defendant must show that 

(1) counsel’s representation fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, 

i.e., there is a reasonable probability that, but for counsel’s failings, the result would have 

been more favorable to the defendant.’ [Citation.]” (People v. Johnson (2015) 60 

Cal.4th 966, 979-980.) “If the defendant makes an insufficient showing on either 

component, the claim must fail. [Citation.]” (People v. Palmer (2005) 133 Cal.App.4th 

1141, 1158.)

Judicial scrutiny of counsel’s performance is highly deferential. (Strickland v. 

Washington (1984) 466 U.S. 668, 689 [80 L.Ed.2d 674, 694].) “It is all too tempting for 

a defendant to second-guess counsel’s assistance after conviction or adverse 

sentence . . . .” (Ibid.) “A fair assessment of attorney performance requires that every 

effort be made to eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate the conduct from 

counsel’s perspective at the time. Because of the difficulties inherent in making the 
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evaluation, a court must indulge a strong presumption that counsel’s conduct falls within 

the wide range of reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy.’ [Citation.]” (Ibid.) Where, as here, the record sheds no 

light on why counsel acted or failed to act in the manner challenged, the defendant must 

show there was no conceivable reason for the challenged act or omission. (People v. 

Lewis (2001) 25 Cal.4th 610, 674-675.) 

On this record, we cannot conclude that counsel’s failure to object to the 

courtroom seating arrangements amounted to ineffective assistance. Defendant has not 

cited any authority, and we have found none, holding that jurors must be seated in the

jury box or within a certain distance of the witness stand. While we acknowledge that 

counsel must be able to assess the demeanor of jurors, and jurors must be able to assess 

the demeanor of witnesses, there is nothing in this record to suggest the seating 

arrangement used in this case prevented that from occurring. There is no evidence, for 

example, that jurors could not see or hear the witnesses during trial. Defendant simply 

speculates that seating jurors in the gallery inhibited these functions. But a claim of 

ineffective assistance cannot be based on speculation. (People v. Quinn (2001) 86 

Cal.App.4th 1290, 1295.) 

“Reviewing courts will reverse convictions on the ground of inadequate counsel 

only if the record on appeal affirmatively discloses that counsel had no rational tactical 

purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581; 

accord, People v. Campbell (2020) 51 Cal.App.5th 463, 504.) Here, there is a rational

explanation for counsel’s decision not to object. Counsel reasonably could have 

determined—on facts not developed in this record—that there was no basis to object.

(Kocontes, supra, 86 Cal.App.5th at pp. 870-873 [concluding that social distancing 

protocols, including jurors seated throughout the courtroom, did not deprive defendant of 

his rights to a fair trial, to confront witnesses, or to present a defense].) 
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Because defendant has not carried his burden of showing there is no conceivable 

reason for counsel’s lack of objection, we reject defendant’s claim of ineffective 

assistance of counsel. (People v. McPeters (1992) 2 Cal.4th 1148, 1173 [counsel not 

obligated to advance unmeritorious arguments], superseded by statute on other grounds 

as stated in People v. Boyce (2014) 59 Cal.4th 672, 707; People v. Lucero (2000) 23 

Cal.4th 692, 732 [same].) 

III

Defendant’s Facial Covering

Defendant also argues that his counsel rendered ineffective assistance of counsel 

by asking him to wear a face mask during trial. 

Initially, we observe that if error occurred, it was invited by defense counsel, who 

discussed the issue of masking with defendant and gained defendant’s approval. The trial 

court even confirmed with defendant that he was comfortable wearing a mask during 

trial. It would be anomalous to allow defendant to gain a reversal based upon an act that 

defendant either requested or acquiesced in for his own safety. (People v. Majors (1998) 

18 Cal.4th 385, 409; Kocontes, supra, 86 Cal.App.5th at p. 879; People v. Snow (2003) 

30 Cal.4th 43, 116.)

In any event, defendant has failed to carry his burden of showing ineffective 

assistance of counsel. Defendant has not cited any authority supporting the proposition

that a defendant’s face must be fully visible to witnesses and the jury throughout trial.3

There are cases supporting the opposite conclusion, however. (See Tagliaferro, supra, 

531 F.Supp.3d at p. 850; Lopez v. Gamboa (C.D.Cal. Dec. 15, 2022, No. CV 22-4281-

3 The cases on which defendant relies address how the administration of 

antipsychotic medications to a defendant, or how blocking the defendant from seeing 

complaining witnesses while they testify, may interfere with the defendant’s right to 

confront witnesses. (See Riggins v. Nevada (1992) 504 U.S. 127, 129 [118 L.Ed.2d 479, 

485]; Coy v. Iowa (1988) 487 U.S. 1012, 1014 [101 L.Ed.2d 857, 862]; People v. Gurule

(2002) 28 Cal.4th 557, 598.) These cases are therefore distinguishable.
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JEM) 2022 U.S.Dist. Lexis 226427, at pp. *16-17 [nonpub. opn.]; see also People v. 

Garcia (1984) 160 Cal.App.3d 82, 91 [noting that a defendant’s nontestimonial conduct 

ordinarily does not fall within the definition of relevant evidence].) We find these cases 

persuasive. 

Further, to the extent requiring a defendant to wear a mask raises constitutional 

concerns, we find no constitutional violation here. Defendant’s trial was held at the 

height of the COVID-19 pandemic, before vaccines were widely available, when the best 

scientific evidence demonstrated that wearing face masks was effective at reducing the 

spread of the virus. (Lopez, supra, 75 Cal.App.5th at p. 233.) Defendant had an 

underlying health condition that placed him at higher risk for complications from the 

virus, and therefore defense counsel had a compelling reason to ask defendant to wear a 

mask during trial. In addition, the reliability of the testimony provided at trial was

otherwise assured. Under these circumstances, we cannot say counsel’s performance fell 

below an objective standard of reasonableness under prevailing professional norms. 

Accordingly, we reject his claim of ineffective assistance. (People v. Lucero, supra, 23 

Cal.4th at p. 732 [counsel not incompetent for failure to make meritless objections].)

IV

Cumulative Error

Defendant contends that even if no single error requires reversal, the cumulative 

effect of the errors does. Because we have found no error, we reject the claim of 

cumulative prejudice as well. (People v. Ramirez (2021) 10 Cal.5th 983, 1020.)
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DISPOSITION

The judgment is affirmed.

 KRAUSE , J.

We concur:

 HULL , Acting P. J.

 RENNER , J.