The opinion
Filed 3/9/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G059322
v. (Super. Ct. No. 15WF1446)
JOHN RAMON BRECEDA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Affirmed.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
“Jury trial began in March 2020”—ominous words for a court of review.
This is the first case in California where a state appellate court must decide
whether a pause in a criminal jury trial due to the coronavirus disease 2019 (COVID-19)
pandemic violated an accused’s due process right to a fair trial.
In this case, the prosecution nearly completed its case-in-chief against John
Ramon Breceda when the trial court paused proceedings on March 16, 2020, because
three of the 14 jurors were ill. Breceda refused to waive time and refused to proceed with
11 jurors. The trial court denied his motion for a mistrial and continued the case.
Beginning that day, and for months after, the COVID-19 pandemic caused
California officials to issue a flurry of orders to continue to provide essential government
services, safeguard constitutional rights, and protect people from a mysterious,
contagious, and deadly virus. The effect of some of those orders was jury trials could not
proceed.
Seventy-two days after the trial court paused proceedings, the court denied
Breceda’s second motion for a mistrial. Trial resumed the following day. The
prosecution completed its case-in-chief, and Breceda testified. The jury acquitted
Breceda of first degree murder but convicted him of second degree murder and arson of
another’s property.
Breceda argues the trial court erred by denying his mistrial motions because
the pause in his jury trial due to the COVID-19 pandemic violated his due process right to
a fair trial.1 We disagree.
Although the pause in the trial was lengthy, 10 weeks, Breceda’s
constitutional rights were not set aside and forgotten. (See Roman Catholic Diocese of
Brooklyn v. Cuomo (2020) ___ U.S. ___ [141 S.Ct. 63, 68] [“But even in a pandemic, the
1 Breceda notes he is not asserting he was denied his right to a speedy trial.
2
Constitution cannot be put away and forgotten”].) On the contrary, the record
demonstrates the court remained appropriately focused on Breceda’s constitutional rights
during the onset of an unprecedented global health crisis. We affirm the judgment.
FACTS
In 2015, Breceda fatally stabbed Floriberto Villaseñor in the neck. The
only issue at trial was whether Breceda did it intentionally or acted in self-defense. The
jury resolved that issue against Breceda.
I. Pretrial
A 2016 information charged Breceda with murder (Pen. Code, § 187, subd.
(a),2 count 1), and arson of another’s property (§ 451, subd. (d), count 2). The
information alleged Breceda personally used a deadly weapon. (§ 12022, subd. (b)(1).)
The information also alleged Breceda suffered a prior serious and violent conviction
(§§ 667, subds. (d), (e)(1), 1170.12, (b), (c)(1)), and a prior prison term (§ 667.5, subd.
(b)).3
After numerous pretrial motions and replacement of the assigned
prosecutor, the matter was progressing toward trial in early 2020. Then the novel
coronavirus upended our lives.
On February 26, 2020, the County of Orange declared a local health
emergency to prepare for the COVID-19 outbreak and requested Governor Gavin
Newsom to declare a state of emergency.4
2 All further statutory references are to the Penal Code.
3 The prosecution filed an amended information to correct count 2’s offense
date.
4 <https://occovid19.ochealthinfo.com/sites/virus/files/2020-
03/1.%2002.26.20%20COVID-19%20Emergency%20Press%20Release%20and%20
Declarations.pdf> (as of Mar. 9, 2022). On the court’s own motion and for good cause,
we take judicial notice of the various official acts referenced in this decision. (Evid.
Code, § 452, subd. (c).)
3
On March 4, 2020, the trial court empaneled the jury. That same day, the
Governor declared a state of emergency due to the global COVID-19 outbreak.5 Witness
testimony began the following day on March 5, 2020.
II. Trial
A. March 5, 2020—Thursday
On the first day of testimony, the prosecution called a witness, an
emergency responder, a forensic pathologist, and the lead detective, Michelle Bradbury.
The evidence demonstrated that around 4:30 p.m., 44-year-old Villaseñor was running on
a sidewalk holding his hand to his neck and asking for help. Villaseñor collapsed on the
witness’s front yard, and the witness called 911. Emergency responders arrived, treated
Villaseñor’s neck laceration, and transported him to the hospital—he died en route.
Villaseñor had on his person $1,806 in cash, 14.9 grams of methamphetamine, and a
motel key card.
Police officers found a broken taillight and sun visor on the ground.
Officers went to the motel and learned Maricela Lee registered for the room that
corresponded to the motel key card. Motel surveillance video showed Villaseñor,
Maricela Gomez-Lee, Breceda, and an unknown male entering and exiting the motel
room the morning of the stabbing. The video showed Villaseñor holding a cooler
entering and exiting the room.
A little later, officers spotted Gomez-Lee’s car, stopped her, spoke with her,
and covertly placed a tracking device on her car. Two days after the incident, officers
found Villaseñor’s burned car in San Juan Capistrano, California. There was a cooler in
the trunk.
Villaseñor suffered a three and one-half inch long and four-inch deep
laceration to the right side of his neck. A sharp cutting instrument severed the right
5 <https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-
SOE-Proclamation.pdf> (as of Mar. 9, 2022).
4
carotid artery and jugular vein. Villaseñor had no defensive wounds, but he did have
methamphetamine and amphetamine in his system.
Forensic testing connected Breceda to the sun visor, and officers arrested
him. A few weeks later, officers tracked Gomez-Lee to a residence in Lake Elsinore,
California. They interviewed her, arrested her, and transported her to the police station
where they interviewed her again.
B. March 9, 2020—Monday
Gomez-Lee and her friend Sally S. testified for the prosecution. Gomez-
Lee was charged with being an accessory after the fact and arson of another’s property
for her role in Villaseñor’s death; she testified pursuant to a grant of use immunity. She
and Breceda were romantically involved before he went into custody, and when he was
released, they resumed their friendship.
Early on the morning of the incident, Breceda, who was with Villaseñor
and the unnamed man, asked Gomez-Lee to rent a motel room for Villaseñor. After she
rented the motel room, the four went to the room; she and Breceda smoked
methamphetamine. Later that morning, Villaseñor and Breceda left in Villaseñor’s car,
Gomez-Lee left in her car, and the unnamed man left in his vehicle.
Around noon, Breceda called Gomez-Lee and asked her to pick him up on
Peppertree Lane. When she arrived, she saw Villaseñor asleep in his car and picked up
Breceda nearby. He was frustrated because the man that he and Villaseñor were waiting
for did not arrive and he felt Villaseñor was wasting his time. Gomez-Lee and Breceda
drove around smoking methamphetamine. Breceda told her that he needed a knife to
open packages so she drove to a grocery store. Inside the store, she picked up a box
cutter but Breceda said it was not sharp enough to cut the thick wrapping. Gomez-Lee
stole a knife with a two to three-inch blade and gave it to Breceda.
5
In the car, Breceda told Gomez-Lee to take him back to Peppertree Lane.
Gomez-Lee dropped him off near Villaseñor’s car. Gomez-Lee drove to a nearby gas
station where she eventually sold her jumper cables to buy gas.
About an hour later, she noticed police activity in the area where she had
dropped off Breceda and drove back to the area but did not see Villaseñor’s car. Her cell
phone was dead, and she went to a store and stole a charger. When her phone charged,
Breceda called her and told her “shit went down” and to meet him at the Tustin
Marketplace because he needed his backpack, which he had left in her car.
When she arrived, Breceda was alone and driving Villaseñor’s car. He
said, “It’s all bad” and left.
After midnight, Breceda called Gomez-Lee and asked her to meet him at
the Tustin Marketplace. When she arrived, Breceda was alone and driving Villaseñor’s
car. Gomez-Lee followed Breceda south on the I-5 freeway to a field. Breceda parked
Villaseñor’s car, poured gas on it, and lit it on fire. Breceda told Gomez-Lee that he
needed to get rid of the car. As Gomez-Lee drove Breceda home, she asked him what
had happened. Breceda told her “shit went down” and “to keep [her] fucking mouth
shut.” She saw Breceda again a couple of times before going to stay with her friend Sally
in Lake Elsinore.
Gomez-Lee admitted she did not tell police officers about stealing the knife
when they interviewed her at the police station. She did not mention it until agreeing to
testify and receiving immunity. Gomez-Lee admitted she suffered two felony
convictions for receiving stolen property.
Cross-examination of Gomez-Lee paused to allow Sally to testify. Sally
testified she and Gomez-Lee smoked methamphetamine, and Gomez-Lee told her
“something went wrong” and she and Breceda lit a car on fire. Sally did not recall telling
police that Gomez-Lee told her the knife was in the car they set ablaze. Sally agreed she
6
told police that Gomez-Lee said Breceda went to collect money, something went wrong,
and a person had been stabbed.
Cross-examination of Gomez-Lee resumed. Gomez-Lee met Breceda
through her ex-husband, who was a drug dealer; Breceda was his “muscle,” collecting
money for him. She knew Breceda collected drug debts and sold drugs occasionally.
The trial court recessed for the day.
C. March 10, 2020—Tuesday
Cross-examination of Gomez-Lee resumed. Gomez-Lee agreed she did not
mention the knife until she received immunity. On redirect examination, she stated
Breceda never claimed he acted in self-defense.
The prosecution also offered the testimony of the deputy sheriff who
responded to the call regarding Villaseñor’s burning car, the motel manager who
produced the surveillance video, and another witness to what transpired on Peppertree
Lane.
This witness was outside with his children when he heard someone yell,
“Hey, hey.” He saw one man chasing another man. He saw the man who was being
pursued, who he identified as Breceda, get into a car, start the car, put it into reverse, and
crash into another car. The other man tried to open the passenger side door, but Breceda
drove away. When shown photographs, the witness identified Timothy Murphy as living
in the neighborhood.
D. March 11, 2020—Wednesday
On the fourth day of testimony, the prosecutor offered three more
witnesses, Villaseñor’s girlfriend (Girlfriend), a crime scene investigator, and a fire
investigator. One witness was Eugene Nott.
Nott lived on Peppertree Lane and rented a room to Timothy Murphy. Nott
testified Murphy was a drug dealer, and Villaseñor regularly visited the apartment to
collect money from Murphy. On the day of the incident, Murphy was not home. Nott
7
believed Murphy owed Villaseñor money. That afternoon, Nott heard someone yell,
“Stop. Don’t go anywhere” or something similar. He looked out of his window and saw
a person walking on the sidewalk and collapse; later he learned it was Villaseñor. Nott
saw a man start a car and drive away leaving a sun visor on the ground. Earlier that day,
Nott saw the car parked on the street positioned so a person could see if Murphy came
home. Nott admitted he suffered prior convictions, including for possessing drugs for
sales.
Girlfriend testified she knew Murphy. After her recollection was refreshed,
Girlfriend stated she told police officers Villaseñor sold drugs to Murphy and Murphy
also sold drugs. She also told officers Murphy owed Villaseñor money. She added
Villaseñor collected martial arts swords and Murphy had swords.
On March 11, the World Health Organization (WHO) declared COVID-19
a pandemic.6
E. March 12, 2020—Thursday
The prosecution offered the testimony of a forensic scientist, a police
officer, Bradbury, and Detective Jose Morales.
Morales testified he interviewed Sally in Lake Elsinore. Sally stated
Gomez-Lee told her that Breceda went to collect money from someone and “[i]t went
wrong.” She added they were supposed to “beat . . . up” the person, but they stabbed him
and killed him. Gomez-Lee told her that she and Breceda lit a car on fire and pushed it
down a hill. Gomez-Lee told her they put the knife in the car. The trial court recessed
for the day, reminded the jury the court was dark on Friday, and stated proceedings
would resume on Monday.
6 <https://www.who.int/dg/speeches/detail/who-director-general-s-opening-
remarks-at-the-media-briefing-on-covid-19---11-march-2020> (as of Mar. 9, 2022).
8
The next morning, former President Donald Trump declared a national
emergency concerning the COVID-19 outbreak.7
F. March 16, 2020—Monday
Proceedings did not resume on Monday. The trial court stated two jurors
were absent because they were ill. The court explained “[w]e are in the midst” of the
COVID-19 pandemic and recited guidance from the Centers for Disease Control and
Prevention (CDC), the California Department of Public Health, and the Orange County
Health Care Agency. That guidance included canceling mass gatherings to slow
community transmission to protect the most at-risk people, including those 65 years old
and older or those with serious chronic medical conditions. The court noted six jurors
were older than 65 years old and two older than 60. The court stated another juror was
coughing and inquired of counsel whether they objected to sending that juror home;
neither counsel objected.
The trial court stated only 11 jurors were remaining and its preference was
to declare a four-week recess. Breceda’s trial counsel (Counsel) consulted with Breceda
and said he did not want to waive time and wanted to proceed with the trial. The court
asked Counsel whether Breceda would stipulate to less than 12 jurors. Counsel said,
“No, he is not.” When the court asked how Breceda wanted to proceed, Counsel moved
for a mistrial. The court stated it intended to declare a recess. Counsel objected because
of the uncertainty of when the trial would resume, juror availability, and the
“ramifications” of asking jurors over 60 years old to return. He specified a lengthy delay
would cause jurors to forget the evidence and increase the possibility they would discuss
the case and conduct inappropriate research. After the court noted Counsel’s position
7 <https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-
declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak>
(as of Mar. 9, 2022).
9
was inconsistent, he and Breceda repeated his request for a mistrial. The prosecutor
objected to granting a mistrial.
The trial court opined resolution of the matter would be quicker if the court
delayed proceedings rather than beginning again. The court explained it wanted to
preserve Breceda’s speedy trial rights and protect the jurors’ health. The court took a
short recess to consider the matter.
When the trial court returned, it denied without prejudice Breceda’s mistrial
motion because a mistrial was unnecessary to preserve Breceda’s due process rights. The
court said that “if circumstances change in the future” Breceda could renew his motion.
The court reasoned that because there were only 11 jurors and Breceda would not
stipulate to less than 12 jurors, it would continue the matter. The court noted that if
someone contracted the coronavirus, “[t]he recommendation [was] a quarantine of 14
days.” The court placed the jurors on a one-day call and ordered them back on April 6,
2020. The court admonished the jury to not form any opinions about the evidence,
discuss the case or the evidence, conduct any independent research, or read or listen to
any news reports about the case. The court ruled good cause existed to recess the matter
until April 6, 2020. The court ordered counsel and Breceda to appear the next morning or
the next day courts were open.
G. COVID-19 Emergency Orders & Trial Court Proceedings
On March 16, 2020, the same day the court continued the case, Chief
Justice Tani Cantil-Sakauye, acting in her capacity as Chairperson of the Judicial Council
of California (Judicial Council), issued an order upon the request of Superior Court of
Orange County Presiding Judge Kirk Nakamura authorizing that court to declare March
17, 2020 to March 27, 2020, holidays for purposes of computing time under numerous
10
statutes.8 The following day, the presiding judge issued an emergency order declaring
those dates holidays.9
On March 19, 2020, the Governor issued Executive Order N-33-20,
requiring all Californians to stay home but identified courts as essential and exempted
workers who support the courts from the order.10 The following day, the Chief Justice
sent an “advisory” to the superior courts “to provide guidance on ways that might
mitigate some of the health risks to judicial officers, court staff, and court users” during
the COVID-19 pandemic.11 The advisory noted the Governor’s shelter in place order
was “not meant to close our courts” because the courts are “considered as an essential
service.” The Chief Justice continued, “I recognize, however, that this new adjustment to
health guidelines and direction likely may require further temporary adjustment or
suspension of certain court operations, keeping in mind . . . we are balancing
constitutional rights of due process with the safety and health of all court users and
employees.” The Chief Justice “strongly encourage[d]” superior courts to consider
specified measures that could “be taken immediately to protect constitutional and due
process rights of court users.”
On March 23, 2020, the Chief Justice issued an order pursuant to
Government Code section 68115 explaining courts could not continue to operate and
8 <https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/
Orange%25203.16.20.pdf> (as of Mar. 9, 2022).
9 <https://www.occourts.org/media-relations/covid/Signed_COVID-
19_Pandemic_Order_3_16_20.pdf> (as of Mar 9, 2022).
10 <https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-
EO-N-33-20-COVID-19-HEALTH-ORDER.pdf> (as of Mar. 9, 2022).
11 <https://newsroom.courts.ca.gov/sites/default/files/newsroom/2020-
12/Chief-Justice-Advisory-on-COVID-19-and-Court-Operations%20%281%29_0.pdf>
(as of Mar. 9, 2022).
11
comply with the increasingly stringent social distancing measures. She ordered, inter
alia, all jury trials suspended for 60 days.12 The order stated in part as follows: “Courts
cannot comply with these health restrictions and continue to operate as they have in the
past. Court proceedings require gatherings of court staff, litigants, attorneys, witnesses,
and juries, well in excess of the numbers allowed for gathering under current executive
and health orders. Many court facilities in California are ill-equipped to effectively allow
the social distancing and other public health requirements required to protect people
involved in court proceedings and prevent the further spread of COVID-19. Even if court
facilities could allow for sufficient social distancing, the closure of schools means that
many court employees, litigants, witnesses, and potential jurors cannot leave their homes
to attend court proceedings because they must stay home to supervise their children.
These restrictions have also made it nearly impossible for courts to assemble juries.”
On March 26, 2020, the Chief Justice issued an order authorizing the
Superior Court of Orange County to declare March 30, 2020 to April 24, 2020, holidays
for purposes of computing time under numerous statutes.13 The following day, the
presiding judge issued an order extending the time for purposes of computing time under
numerous statutes from March 30, 2020 to April 24, 2020.14 The same day, the
12 <https://newsroom.courts.ca.gov/sites/default/files/newsroom/2020-
09/Statewide%20Order%20by%20the%20Chief%20Justice-Chair%20of%20the%20
Judicial%20Council%XXX-XX-XXXX.pdf> (as of Mar. 9, 2022).
13 <https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/
032620.Orange.SIGNED%2520Supp%2520Emergency%2520Order.pdf> (as of Mar. 9,
2022).
14 <https://www.occourts.org/media-relations/covid/Supp_Trial_court_Impl_
Emerg_Order_COVID-19_032720.pdf> (as of Mar. 9, 2022).
12
Governor issued Executive Order No. N-38-20 giving the Judicial Council emergency
authority to take action to maintain safe and orderly court operations.15
On March 30, 2020, the Chief Justice issued an order authorizing superior
courts to extend statutory deadlines and use available technology to conduct remote
judicial proceedings.16 The order stated in part as follows: “The continuous operation of
our courts is essential for our constitutional form of government, for providing due
process and protecting the public. However, courts are clearly places with high risks
during this pandemic because they require gatherings of judicial officers, court staff,
litigants, attorneys, witnesses, defendants, law enforcement, and juries—well in excess of
the numbers allowed for gathering under current executive and health orders.”
On April 1, 2020, the presiding judge issued an order extending statutory
deadlines, clarified the date from which the 60-day jury trial continuance was to be
calculated, and to use available technology to conduct remote judicial proceedings.17
The next day, the trial court issued a minute order that relied on the numerous orders
described above to conclude there was good cause to continue Breceda’s jury trial to
April 28, 2020. That same day, the presiding judge issued Administrative Order
No. 20/11 establishing the procedures to determine whether good cause existed to
conduct jury trials during the 60-day jury trial suspension.18
15 <https://www.gov.ca.gov/wp-content/uploads/2020/03/3.27.20-N-38-
20.pdf> (as of Mar. 9, 2022).
16 <https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/
Statewide%2520Order%2520by%2520the%2520Chief%2520Justice-Chair%2520of%
2520the%2520Judicial%2520Council%25203-30-2020.pdf> (as of Mar. 9, 2022).
17 <https://www.occourts.org/media-relations/covid/Supp_Trial_court_Impl_
Emerg_Order_COVID-19_040120.pdf> (as of Mar. 9, 2022).
18 <https://www.occourts.org/media-relations/covid/20_11_AdminOrderGood
CauseJuryTrial.pdf> (as of Mar. 9, 2022).
13
On April 24, 2020, the Chief Justice issued an order authorizing the
Superior Court of Orange County to declare April 27, 2020 to May 22, 2020, holidays for
purposes of computing time under numerous statutes.19 The same day, the presiding
judge issued an amended order declaring those dates holidays.20
On April 28, 2020, Breceda filed a motion for a mistrial and a motion to
dismiss for violation of speedy trial rights. In his mistrial motion, Breceda argued the
delay interrupted the trial flow, the evidence was stale in the jurors’ minds, and jurors
may have engaged in prohibited research and discussions. In a minute order that day, the
trial court relied on the Chief Justice’s and the presiding judge’s orders to conclude there
was good cause to continue Breceda’s jury trial to May 26, 2020.
On April 29, 2020, the Chief Justice issued an order extending the jury trial
suspension from 60 to 90 days.21 The order stated in part as follows: “[C]ourts are
clearly places of high risks during this pandemic because they require gatherings of
judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement,
and juries—well in excess of the numbers allowed for gathering under current executive
and health orders.”
The effect of these orders was the Superior Court of Orange County was
closed to the public and handling only time-sensitive matters from March 17, 2020 to
May 22, 2020, because of the COVID-19 pandemic. Breceda did not file a motion to
19 <https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/
Signed%2520EO%2520-%2520Orange%2520renewed%2520COR.pdf> (as of Mar. 9,
2022).
20 <https://www.occourts.org/media-relations/covid/Third_Trial_court_
Implementation_Emergency_Order_COVD-19_-_4.23.pdf> (as of Mar. 9, 2022).
21 <https://newsroom.courts.ca.gov/sites/default/files/newsroom/document/
Chief_Justice_Statewide_Emergency-Order_04292020S.pdf> (as of Mar. 9, 2022).
14
determine whether good cause existed to resume his jury trial during this time pursuant to
the presiding judge’s Administrative Order No. 20/11.
H. May 26, 2020—Tuesday
Seventy-two days later, proceedings resumed outside of the jury’s presence.
The trial court detailed the COVID-19 safety measures and the courtroom modifications
to protect court users. The court explained the measures it took to ensure there was
public access to the proceedings. The court listed the various orders from the Chief
Justice, the presiding judge, and the Governor and took judicial notice of them without
objection.
The trial court noted the clerk advised the jurors the trial would resume the
following day and inquired whether each juror was willing to return. The court said 13 of
the 14 jurors would return. The court detailed how the trial would proceed logistically
while adhering to COVID-19 safety measures.
The trial court addressed Breceda’s pending motions. Counsel argued, and
the court denied Breceda’s motion to dismiss for violation of speedy trial rights. Citing
to the WHO, the CDC, and the orders detailed above, the court explained the delay was
reasonable given the unprecedented COVID-19 pandemic. The court opined Breceda
was not prejudiced because lengthy trials are common and jurors routinely remember
testimony, which the court was confident jurors could do that in this case. The court
added jurors had their notebooks, counsel could refresh jurors’ recollection during
summation, and jurors could request testimony be readback. Based on all of these
factors, the court concluded the delay was reasonable and justified, and Breceda suffered
no prejudice.
15
After counsel argued, the trial court denied without prejudice Breceda’s
motion for a mistrial.22 The court reasoned that based on the evidence and assuming
there were 12 jurors, the trial could proceed. The court stated it would ask jurors whether
they followed the court’s admonishments. The court opined Breceda’s right to a fair trial
was “preserved and . . . safeguarded.” The court declared a recess until the following
morning.
I. May 27, 2020—Wednesday
That morning, the parties stipulated to the trial court excusing the juror who
was unwilling to return. In the jury’s presence, the trial court welcomed and thanked
them for returning. The court advised jurors of the COVID-19 safety measures.
The trial court asked the jurors a series of questions to ensure they obeyed
the court’s admonishments when the court paused the proceedings in March. The court
reminded jurors they had to decide the case based on the evidence presented and the law
the court would provide to the jury. The court asked whether jurors had discussed the
case with anyone, whether they learned anything intentionally or unintentionally, whether
they were upset about being there, and about scheduling. An alternate juror, Juror No.
192, responded affirmatively to the first question.
Juror No. 192 explained he spoke generally to his wife about the case being
a murder trial, and this was why he was being asked to return. This juror did not believe
he told her the facts of the case, but he was not sure. She did not provide him any
information about the case. He told his employer he had to return for jury duty for a
serious case, but he did not discuss the facts of the case. He confirmed these interactions
would not affect his ability to remain an impartial juror. Breceda moved to excuse him.
The trial court denied the motion because Juror No. 192 did not intentionally violate the
22 During Counsel’s argument, a juror called in and informed the trial court he
had a medical procedure scheduled for June 1. The court asked whether the attorneys
objected to scheduling around June 1 and June 2. Counsel said he had no objection.
16
court’s orders. Before recessing for the morning, the court replaced the juror unwilling to
return with Juror No. 192.
Trial resumed that afternoon with testimony from a police officer,
Bradbury’s cross-examination, and a prosecution investigator. Bradbury confirmed she
could not verify whether Gomez-Lee stole a knife from the grocery store because
Gomez-Lee did not reveal this detail until four years after the incident.23
The prosecution investigator testified he analyzed Breceda’s and Gomez-
Lee’s cell phone activity. The court declared a recess before the investigator could finish
testifying.
J. May 28, 2020—Thursday
The following day, the investigator testified Breceda’s and Gomez-Lee’s
cell phone data was consistent with them stopping at the grocery store. Additionally, the
data was consistent with them calling each other while in the grocery store. The
prosecution rested. The trial court denied Breceda’s section 1118.1 motion as to count 1.
K. June 8, 2020—Monday
Breceda testified he was a debt collector—he collected money on behalf of
drug dealers for drug debts. Breceda admitted he suffered prior convictions for armed
carjacking, methamphetamine sales, evading a police officer, and two convictions for
vehicle theft. He had worked for Villaseñor on three prior occasions and was paid with
money or drugs.
On the morning of the incident, Breceda was with Gomez-Lee at an internet
café when Villaseñor called him to work. Villaseñor arrived at the café and asked
Breceda to rent a motel room. After Gomez-Lee rented a motel room, Breceda,
Villaseñor, Gomez-Lee, and another man went to the room and used methamphetamine.
23 During Bradbury’s testimony, there was a short recess where the trial court
informed counsel a juror had a medical appointment the following day and another juror
was unavailable the week of June 1. Counsel did not object to resuming on June 8.
17
Breceda acknowledged Villaseñor had a cooler, but he could not remember what was in
it, and he did not take anything from it. Villaseñor told Breceda that they were going to a
couple of cities, and they all left the motel room.
Villaseñor and Breceda left in Villaseñor’s car to collect drug debts.
Breceda usually carried a gun when he worked, but he was not armed because he did not
expect Villaseñor’s call. They made two stops before arriving at Nott’s apartment on
Peppertree Lane.
Nott allowed them inside, and they went to a back room where they met
Murphy. Murphy gave Villaseñor some money, they used methamphetamine, and
Murphy made a few telephone calls because he still owed Villaseñor money. Villaseñor
told Breceda they were going to wait in the car until Murphy collected the unpaid debt.
Before they left the apartment, Murphy agreed to let Villaseñor take a 10-inch long
martial arts type knife as collateral. Villaseñor and Breceda returned to the car to wait.
Breceda was uncomfortable waiting because he was unfamiliar with the area and was
concerned for his safety.
Villaseñor fell asleep, and Breceda became increasingly agitated and
paranoid. Breceda went for a walk and called Gomez-Lee, who picked him up. They
drove around and used methamphetamine. Breceda denied they went to a grocery store
and stole a knife and denied he was armed. Breceda felt revitalized and told Gomez-Lee
to take him back.
Breceda got back into the car, saw Villaseñor sleeping, and unsuccessfully
tried to rouse him. Breceda waited about 20 minutes and tried again.
Villaseñor awoke, angrily yelled at Breceda, and with his left hand reached
down and grabbed the knife he took from Murphy. Breceda used both hands to grab his
left hand and take the knife. Villaseñor moved over the center console toward Breceda
who had his back to the passenger side door. Villaseñor was inches away from Breceda
trying to take the knife. With the knife in his left hand, Breceda pushed both hands
18
towards Villaseñor’s upper chest area to keep him away and prevent him from getting the
knife. Breceda saw blood coming from Villaseñor’s upper chest area.
Villaseñor saw the blood and got out of the car. Breceda also got out of the
car, but he saw the keys in the ignition, got in the driver’s side, and drove away. He
touched the sun visor earlier that day, but he did not know how it ended up on the ground.
He did not know what happened to the knife, but it may have burned in the car.
Breceda explained he did not call the police because he was on parole and
probation, they would not believe him, he was committing a crime collecting drug debts,
and he did not want to be considered a snitch. He drove around repeatedly calling
Gomez-Lee who finally answered, and they met. Very early the next morning, he met
Gomez-Lee again and told her that he needed to get rid of Villaseñor’s car. They met,
and she followed him to a field in San Juan Capistrano. Breceda doused Villaseñor’s car
in gasoline and lit it on fire to destroy evidence. Breceda repeatedly denied he and
Gomez-Lee developed a plan to kill Villaseñor so he could take control of Villaseñor’s
drug dealing operation or to steal money from him.
L. June 9, 2020—Tuesday
The trial court instructed the jury. During her closing argument, the
prosecutor vigorously argued for a first degree murder verdict. Counsel began his
argument before the trial court recessed for the day.
M. June 10, 2020—Wednesday
Counsel concluded his closing argument during which he conceded
Breceda committed count 2. After the prosecutor delivered her rebuttal, the trial court
gave the case to the jury.
During the first day of deliberations, the jury asked the trial court for a
readback of Gomez-Lee’s and Girlfriend’s testimony concerning the knife, and Nott’s
testimony. The court reporter readback the testimony. The jury recessed for the evening.
19
N. June 11, 2020—Thursday
The next morning, the jury resumed deliberations, and the court reporter
completed the readback of testimony. The jury sent the trial court two questions on their
inability to reach a unanimous verdict on first degree murder. The court instructed the
jury further. Less than one hour later, the jury returned its verdicts. The jury acquitted
Breceda of first degree murder. The jury convicted Breceda of count 1, second degree
murder, and count 2, and found true the firearm allegation.
III. Posttrial
At a bifurcated bench trial, the trial court found true the prior serious and
violent conviction but found not true the prior prison term. Breceda filed a motion for a
new trial, which the trial court denied. The court sentenced Breceda to prison for 35
years to life as follows: count 2-two years doubled to four years; and count 1-15 years to
life doubled to 30 years to life plus one year for the firearm enhancement.
DISCUSSION
Breceda argues the trial court violated his due process right to a fair trial by
denying his motions for a mistrial. We disagree.
I. Motions for Mistrial
A. Forfeiture
Relying primarily on People v. Mills (2010) 48 Cal.4th 158 (Mills), the
Attorney General argues Breceda forfeited appellate review of this issue because he did
not renew his motion for a mistrial. Breceda replies that renewing his motion would have
been futile because the trial court denied his previous two motions and overruled his
objection to Juror No. 192 remaining on the jury.
It is true that, “[a]s a general matter, when a trial court denies a motion
without prejudice the matter is forfeited if not renewed. [Citation.]” (Mills, supra,
48 Cal.4th at p. 170 [counsel abandoned motion when counsel did not file renewed
briefing].) After the trial court denied Breceda’s oral motion for mistrial on March 16
20
without prejudice, Breceda filed a written motion for a mistrial during the pause in
proceedings. When proceedings resumed on May 26, the trial court denied that mistrial
motion without prejudice. Breceda did not renew his motion for a mistrial. Although he
did not file additional written argument, we do not conclude he forfeited appellate review
of this issue.
“[A]ppellate courts have discretion to address constitutional issues raised
on appeal [citation], particularly where the issue presented is ‘a pure question of law’
turning on undisputed facts [citation] or when ‘“important issues of public policy are at
issue . . .”’ [citation].” (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1323.) Needless
to say, this is a constitutional issue that concerns important public policy issues. Even
assuming Breceda forfeited his claim, we exercise our discretion to reach the issue.
(People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [appellate court discretion to
address forfeited issue].)
B. Did the Trial Court Err?
Breceda contends the unprecedented 73-day delay and the 11-day delay
caused “a high probability of prejudice [and] reversal is warranted . . . .” He asserts the
delays resulted in the following concerns: (1) because the jurors only heard the
prosecution’s evidence, jurors would decide the case, “even if unintentionally,” in the
prosecution’s favor; and (2) jurors would discuss the case with others.24 We address
each of his mistrial motions separately.
24 In his reply brief, Breceda clarifies his argument as follows: “[His] concern
is not that the jurors would forget the evidence they had heard as much as it is that during
the lengthy separation they would dwell on it, recall it over and over again, and
intentionally or unintentionally, decide he was guilty before hearing the defense’s case
and his testimony.”
Because the jurors could not both forget the evidence and deliberate on the
evidence, we conclude Breceda has abandoned any argument jurors would forget the
evidence. In any event, during deliberations, the jury requested and the clerk readback
Gomez-Lee’s, Girlfriend’s, and Nott’s testimony refreshing the jury’s recollection of the
21
A criminal defendant has a fundamental constitutional right to a fair trial by
an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Duncan v.
State of Louisiana (1968) 391 U.S. 145, 149.) “It is well settled that legal necessity for a
mistrial ‘arises from an inability of the jury to agree, or from physical causes beyond the
control of the court, such as the death, illness, or absence of judge or juror, or of the
defendant.’ [Citation.]” (People v. Coleman (1992) 9 Cal.App.4th 493, 496 (Coleman);
People v. Manson (1976) 61 Cal.App.3d 102, 202.) “‘A mistrial should be granted if the
court is apprised of prejudice that it judges incurable by admonition or instruction.
[Citation.] Whether a particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable discretion in ruling on
mistrial motions. [Citation.]’ [Citation.] A motion for a mistrial should be granted when
‘“‘a [defendant’s] chances of receiving a fair trial have been irreparably damaged.’”’
[Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 198-199.)
1. First Mistrial Motion
Breceda first moved for a mistrial on Monday, March 16, 2020, the day the
trial court paused the proceedings because three jurors were ill and Breceda refused to
waive time and refused to proceed with 11 jurors. Stripped down, Breceda’s arguments
were prospective. He argued it was uncertain when proceedings would resume and
whether jurors would be available, and a lengthy delay would cause jurors to forget the
evidence, prejudge the case, and discuss the case with others. His motion for a mistrial at
this stage of the proceedings was premature. Juror illness can amount to a legal necessity
to grant a mistrial. (Coleman, supra, 9 Cal.App.4th at p. 496.) But at this time, the jurors
were expected to return and the length of the jurors’ absence was speculative beyond the
ordered three-week recess. Not every juror illness necessitates a mistrial.
evidence, including on what the parties agree was the critical evidence at trial—who
procured the knife, Villaseñor or Breceda?
22
Breceda was asking the trial court to assume jurors would forget the
evidence and violate its orders, and to conclude he was prejudiced at the outset. Indeed,
the trial court explained a mistrial was unnecessary at that time to protect Breceda’s due
process rights and if circumstances changed, he could renew his motion, which he did.
The court’s ruling denying his mistrial motion without prejudice was not beyond the
bounds of reason. It was too early to tell what impact, if any, a pause in proceedings
would have on Breceda’s constitutional rights. There was no legal necessity to grant a
mistrial at this juncture of the proceedings.
Although Breceda claims “[g]ood cause for a continuance is not the proper
lens to view his claim in this case,” it is necessary to examine if the trial court’s denial of
his mistrial motion and grant of a continuance struck the proper balance of protecting his
constitutional rights and the jurors’ health, and preserving judicial resources. (People v.
Thomas (1990) 218 Cal.App.3d 1477, 1487 [“remedy of mistrial would necessitate a
second expenditure of substantial prosecution, defense, and judicial resources”].)
A trial court may grant a continuance in a criminal case only for good
cause. (§ 1050, subd. (e).) “‘The cases recognize that, as a general matter, a trial court
“has broad discretion to determine whether good cause exists to grant a continuance of
the trial” [citation], and that, in reviewing a trial court’s good-cause determination, an
appellate court applies an “abuse of discretion” standard.’ [Citation.] ‘[I]n making its
good-cause determination, a trial court must consider all of the relevant circumstances of
the particular case, “applying principles of common sense to the totality of circumstances
. . . .”’ [Citation.]” (Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 169
(Stanley).) “‘“‘The granting or denial of a motion for continuance in the midst of a trial
traditionally rests within the sound discretion of the trial judge who must consider not
only the benefit which the moving party anticipates but also the likelihood that such
benefit will result, the burden on other witnesses, jurors and the court and, above all,
whether substantial justice will be accomplished or defeated by a granting of the
23
motion.’” [Citation.] In the absence of a showing of an abuse of discretion and prejudice
to the defendant, a denial of a motion for a continuance does not require reversal of a
conviction. [Citation.]’ [Citations.]” (People v. Panah (2005) 35 Cal.4th 395, 423.)
Health quarantines to prevent the spread of infectious diseases have long
been recognized as good cause for continuing a trial date. Three cases are illustrative.
In In re Venable (1927) 86 Cal.App. 585, 587 (Venable), the court denied
habeas corpus relief to a prisoner whose trial was delayed because “an epidemic of
infantile paralysis was prevalent in the town wherein the sessions of the . . . court were
held and . . . for that reason no juries were called during that period.” The court held the
epidemic constituted good cause for continuing the trial and, where the trial was
continued eight days, there was no “unreasonable delay in bringing the case to trial after
the cessation of the epidemic.” (Id. at pp. 587-588.)
In People v. Tucker (2011) 196 Cal.App.4th 1313, 1315, 1318 (Tucker), the
court upheld a one-week delay to commence a trial when defendant was in custody at a
correctional facility that was under quarantine because a prisoner had contracted the
H1N1 flu virus. The court opined the following: “A contrary holding would require trial
court personnel, jurors, and witnesses to be exposed to debilitating and perhaps life
threatening illness. Public health concerns trump the right to a speedy trial.” (Id. at
p. 1314.)
Although decided after the trial court’s pause here, the court in Stanley,
supra, 50 Cal.App.5th 164, held similarly because of the COVID-19 pandemic. At issue
in Stanley were the Chief Justice’s March 23 and April 29, 2020, orders continuing all
jury trials for a total of 90 days and extending by a total of 90 days the time period in
section 1382 for holding a criminal trial. (Id. at pp. 167-168.) The court relied on
Venable and Tucker and stated, “Health quarantines to prevent the spread of infectious
diseases have long been recognized as good cause for continuing a trial date.” (Id. at p.
169.) In reaching its conclusion, the Stanley court relied on the Chief’s Justice’s April 29
24
order stating “‘[c]ourts are clearly places of high risk during this pandemic because
they’” are well populated and opined “the severity of the COVID-19 pandemic and the
impact it has had within this state” constituted good cause for the 90-day continuances
and extensions of time (id. at p. 166).
Venable, Tucker, and Stanley all support the trial court’s conclusion the
COVID-19 pandemic provided good cause to continue Breceda’s trial.25 Breceda does
not assert good cause was lacking. Foremost on the trial court’s mind was protecting
Breceda’s due process and speedy trial rights and the jurors’ health. But the court was
also cognizant of the fact the matter would be resolved quicker if it paused the
proceedings and tried to proceed than if it declared a mistrial and started over. Twenty
one of the prosecution’s 23 witnesses had already testified. Only three witnesses
remained. Five of the seven days of trial testimony were complete. The court’s decision
to pause the proceedings when almost three-fourths of the testimony had been heard in
the face of a public health crisis was not irrational or arbitrary—to the contrary, it was the
product of a careful and reasoned weighing of a defendant’s constitutional rights, jurors’
health, and judicial resources in real time during the outbreak of a pandemic. (People v.
Vasquez (2021) 72 Cal.App.5th 374, 394 (dis. opn. of O’Leary, P. J.) [trial court in
“proverbial catbird seat” viewing cases in real time].)
True, it was unknown when the trial would resume. Breceda faults the trial
court for “blind[] optimis[m]” and “whimsical thinking” in believing the recess would
last only three weeks. Breceda’s appellate counsel is unnecessarily harsh. The trial court
repeatedly said it was trying to protect Breceda’s constitutional rights and the jurors’
health while dealing with widespread confusion and uncertainty during a rapidly evolving
25 Other cases where the COVID-19 pandemic caused delays are not
instructive here. Bullock v. Superior Court (2020) 51 Cal.App.5th 134, 156, and Lacayo
v. Superior Court (2020) 56 Cal.App.5th 396, 399-400, concerned delayed preliminary
hearings. In re M.P. (2020) 52 Cal.App.5th 1013, 1021, concerned a juvenile
dependency case continued past the statutory deadline.
25
global pandemic. We commend the trial court for its apparent evenhandedness and
steadiness during an unprecedented crisis and for making an exemplary record detailing
its rulings and the COVID-19 safety measures the court implemented. Yes, the recess
lasted 73 days, the COVID-19 pandemic continues on, and courts, like us all, are still
grappling with its effects and impact. But only hindsight is 20/20. We do not expect trial
judges to be omnipotent.
It is also true that it was unknown how a lengthy recess would impact the
jurors and what prejudice, if any, that recess would cause Breceda. But all of those issues
were better addressed after the recess, not before, and best at the end of the trial when the
trial court could consider the motion after hearing all the evidence. Thus, the trial court
did not abuse its discretion by denying Breceda’s first mistrial motion and concluding
there was good cause for a continuance. These rulings did not violate Breceda’s due
process right to a fair trial.
2. Second Mistrial Motion
Breceda filed a motion for a mistrial during the recess. Before the court
declared the recess on March 16, 2020, the court admonished jurors not to form any
opinions about the evidence, discuss the case or the evidence, conduct any independent
research, or read or listen to any news reports about the case.
The trial court considered Breceda’s mistrial motion, and speedy trial
motion, when proceedings resumed on May 26. The court explained the delay was
reasonable because of the COVID-19 pandemic, jurors’ memories could be refreshed if
necessary, and Breceda did not suffer any prejudice. The court stated it appeared the
jurors were willing to return and proceed with the trial subject to a few scheduling
conflicts. The court ruled it would deny the mistrial motion “[w]ith one caveat.” The
court said it would ensure jurors obeyed its orders.
The following day, the trial court did just that. The court reminded jurors
they had to decide the case based on the evidence and the law. The court asked jurors
26
whether they had discussed the case with anyone, whether they learned anything
intentionally or unintentionally, and whether they had concerns or were upset about being
there. Only one juror, Juror No. 192, responded affirmatively to one question, which we
discuss anon.
Breceda asserts the unprecedented 73-day delay during the prosecution’s
case-in-chief resulted in jurors deciding the case in the prosecution’s favor and jurors
discussing the case with others. The parties cite to no case, and we found none, where
there was a midtrial recess approaching 73 days in a criminal jury trial. The parties do
cite to the following cases where there were recesses at various stages of the proceedings.
Breceda cites to the following cases to support his claim the delay violated
his due process right to a fair trial: People v. Santamaria (1991) 229 Cal.App.3d 269,
277 (Santamaria) (11-day delay during deliberations); People v. Engleman (1981)
116 Cal.App.3d Supp. 14, 20 (Engleman)26 (three-week delay after prosecution rested
but before defendant presented his case); and U.S. v. Hay (9th Cir. 1997) 122 F.3d 1233,
1235-1236 (Hay) (48-day delay after instruction but before summation).
The Attorney General cites to the following cases to support his assertion
there was no violation: People v. Gray (2005) 37 Cal.4th 168, 226 (Gray) (338-day delay
between guilt phase and penalty phase of capital trial), People v. Stanley (1995)
10 Cal.4th 764, 836 (Stanley) (more than three-month delay during penalty phase);
People v. Gopal (1985) 171 Cal.App.3d 524, 544 (Gopal) (10-week delay during trial
testimony in bench trial); and United States v. Diggs (9th Cir.1981) 649 F.2d 731,
737-738 (Diggs)27 (11-day recess between close of evidence and closing argument due to
illness of juror).)
26 Disapproved on another ground in People v. Lively (1992) 10 Cal.App.4th
1364, 1370-1373.
27 Overruled on other grounds in United States v. McConney (9th Cir. 1984)
728 F.2d 1195, 1201 (en banc).
27
Our research uncovered other cases where there were delays of varying
lengths. (People v. Erno (1925) 195 Cal. 272, 282 (Erno) [10-day adjournment during
trial not prejudicial denial of fair trial]; People v. Katzman (1968) 258 Cal.App.2d 777,
789 (Katzman)28 [13-day continuance during trial error but not prejudicial]; United States
v. Pearson (11th Cir. 2020) 832 Fed.Appx. 679, 684 [denial of mistrial motion after
22-day delay during presentation of evidence not abuse of discretion]; U.S. v. Smith (4th
Cir. 1995) 44 F.3d 1259, 1267 [denial of mistrial motion after 32-day delay during
prosecution’s case-in-chief not abuse of discretion]; Knuckles v. Com. (Ky. 2010)
315 S.W.3d 319, 322 (Knuckles) [14-day delay during trial testimony not prejudicial and
did not violate right to speedy trial or right to due process]; State v. White (Vt. 1971) 274
A.2d 690, 693-694 [62-day separation of jury between empanelment and trial in
misdemeanor case prejudicial].)29
Needless to say, the delay in this case was long—73 days—longer than all
but the delay in Gray and Gopal, neither of which are on all fours here. (Gray, supra, 37
Cal.4th at p. 226 [delay between guilt and penalty phases of capital trial]; Gopal, supra,
171 Cal.App.3d at p. 544 [delay in bench trial].) But Breceda cites to no case, and we
found none that states a lengthy delay alone establishes a violation of due process. The
Attorney General notes that when addressing whether there was a speedy trial violation,
the Supreme Court of the United States approved a four-part balancing test. (Barker v.
28 Disapproved on another ground in Rhinehart v. Municipal Court (1984) 35
Cal.3d 772, 780, footnote 11.
29 There are also cases where there was a break during jury deliberations.
(See People v. Bolden (2002) 29 Cal.4th 515, 561-562 [13-day break for Christmas
holidays].) But jury deliberations are a critical point in the proceedings where jurors are
particularly susceptible to influence from outside sources. (Santamaria, supra,
229 Cal.App.3d at pp. 278-279.)
28
Wingo (1972) 407 U.S. 514, 530 [length of delay, reason for delay, defendant’s assertion
of right, and prejudice].)
Here, although the delay was long, it was unavoidable due to the pandemic.
The COVID-19 pandemic was unprecedented. The trial court continued the case for
three weeks, from March 16 to April 6, 2020. But the Governor’s, the Chief Justice’s,
and the presiding judge’s orders kept this case in recess until May 26, 2020. The trial
court had no alternative—it could not restart proceedings and proceed with the trial.
As we explain above, Breceda contends there was a probability the 73-day
delay near the end of the prosecution’s case-in-chief caused the jurors to decide the case
in the prosecution’s favor and to discuss the case with others. Essentially, his claim is we
must presume jurors violated the trial court’s orders. Breceda’s concerns are belied by
the record.
There was no evidence jurors had already decided the case when they
returned to court on May 26. It can just as easily be speculated that because the
prosecution’s case was more remote in time, the strength of the prosecution’s evidence
faded in the jurors’ minds. The record demonstrates all but one of the jurors, many of
whom were over 60 years old, willingly returned to court to continue with the
proceedings. The record includes no evidence any of the jurors expressed any concern
about the COVID-19 safety measures the court implemented prior to their return or that
they feared infection because they were in a courtroom. The court reminded jurors they
had to decide the case based on the evidence and the law and asked whether they had any
concerns or were upset about continuing with the trial. No one responded in the
affirmative. “We do not agree that, in the absence of any proof and in the face of the trial
court’s admonitions to the jury, it is ‘reasonable to infer’ the jury’s impartiality was
compromised.” (Gray, supra, 37 Cal.4th at p. 229.)
The only evidence Breceda cites to in support of his claim there was error
was Juror No. 192’s admission he spoke to his wife and employer about returning to jury
29
service during the COVID-19 pandemic. The record reveals the juror explained to them
he had to return to jury service during the pandemic because it was a murder case. He
could not remember what he shared with his wife beyond that, if anything. The trial
court inquired of this juror and reasonably concluded he did not intentionally violate the
court’s orders. Although Breceda moved to have Juror No. 192 dismissed, he did not
claim his actions were misconduct or formed the basis of a mistrial motion. We note
Breceda does not complain on appeal of any juror misconduct. Based on this record,
Breceda’s concerns the delay caused jurors to disobey the court’s orders were sheer
speculation.
In arguing the delay requires reversal, Breceda relies on Santamaria, supra,
229 Cal.App.3d 269, Engleman, supra, 116 Cal.App.3d Supp. 14, and Hay, supra,
122 F.3d 1233, to support his assertion the trial court erred by denying his mistrial
motion. All three cases are inapposite.
In Santamaria, the jury had been deliberating for two days when the trial
court adjourned for 11 days due to the judge’s absence. (Santamaria, supra,
229 Cal.App.3d at pp. 281-283.) The trial had involved 12 days of testimony, 32
witnesses and 60 exhibits. (Id. at pp. 281-282) The court stated the following: “A long
adjournment of deliberations risks prejudice to the defendant both from the possibility
that jurors might discuss the case with outsiders at this critical point in the proceedings,
and from the possibility that their recollections of the evidence, the arguments, and the
court’s instructions may become dulled or confused. [Citations.] Obviously, the longer
the separation, the greater the risk. A long adjournment of deliberations also disrupts the
very process and pattern of the jury’s orderly examination of the evidence.” (Id. at
pp. 277-278.) In addition to the risk of prejudice, the court noted the trial court could
have substituted in another judge. (Id. at p. 278.) Based on the risk of prejudice, the lack
of a showing of good cause for the delay and the availability of an alternative to
suspending deliberations, the court concluded the trial court “exceeded the bounds of
30
reason and abused its discretion with this inordinate interruption in deliberations” and the
error compelled reversal. (Id. at pp. 278-279, fn. omitted.) Breceda’s reliance on
Santamaria is misplaced because in that case there was no good cause for the delay, but
here there was. Also, the delay in that case occurred during a critical point in the trial,
jury deliberations, but here it did not. Finally, due to the court’s closure, the case could
not be transferred to another judge.
In Engleman, the trial judge was on temporary assignment in a different
jurisdiction. (Engleman, supra, 116 Cal.App.3d Supp. at p. 20.) Instead of transferring
the case to another judge in the jurisdiction, the judge adjourned the trial for three weeks
immediately after the prosecution rested its case so that he could return to his home court.
(Ibid.) The appellate department of the superior court concluded the error was inherently
prejudicial and compelled reversal because the jury was left with a one-sided presentation
for three weeks. (Id. at p. 21.) The court explained the following: “This would cause the
jurors to determine the case before hearing both sides. Given the length of the delay, we
think it must have been practically impossible for the jurors to keep an open mind as to
possible answers to the [prosecution’s] case.” (Ibid.) Breceda’s reliance on Engleman is
also misplaced because here, again, there was good cause for the pause in proceedings
and there were no simple solutions such as transferring the case to another judge.
In Hay, the trial began in February but unexpectedly extended into summer
and some jurors informed the trial court the trial might overlap with their vacations.
(Hay, supra, 122 F.3d at pp. 1234-1235.) Prior to the continuance, defendant offered to
proceed with only 11 jurors to avoid a lengthy recess and an alternate juror was available.
(Id. at p. 1235.) The trial court granted a 48-day continuance to accommodate juror
vacations after the parties rested and the trial court instructed the jury, but before closing
argument and jury deliberations. (Id. at p. 1235.) The Hay court held the 48-day
continuance was reversible error, despite the absence of a showing of actual prejudice
because the case was nearly over, an alternate juror was available, and the parties
31
stipulated to 11 jurors. (Id. at pp. 1235-1236.) Acknowledging the court in Diggs, supra,
649 F.2d at page 738, held a defendant must establish actual prejudice for the separation
to constitute reversible error, the Hay court opined the 48-day separation “‘involve[d]
such a probability that prejudice will result’” that defendant’s due process rights were
violated. (Hay, supra, 122 F.3d at p. 1236.) The court relied on the facts the case
involved “complex, technical evidence against two defendants over a period of nearly
four months” and the length of the recess risked that jurors would be exposed to improper
outside influences. (Ibid.) Hay is inapt because here there was good cause for the delay
and there was no complex or scientific evidence such that a delay would have been
detrimental to jurors’ ability to recall specific, complicated evidence. Also, Counsel did
not provide the court with the options that were available to the trial court in Hay.
Breceda also contends an 11-day delay resulted in similar concerns about
deciding and discussing the case. But Counsel did not object to any of the scheduling
issues that arose when proceedings resumed. He cannot now complain that delay
prejudiced him. (People v. Harris (2013) 57 Cal.4th 804, 849 [“Because defendant did
not raise this basis for his [mistrial] motion at trial, he has forfeited the claim on
appeal”].) Therefore, the trial court’s denial of Breceda’s second mistrial motion was not
arbitrary or capricious and it did not violate his due process rights.
3. Was Breceda Prejudiced?
Assuming for the sake of argument the trial court erred by denying
Breceda’s mistrial motions, the next step would be to determine whether he was
prejudiced. Breceda asserts a 73-day midtrial delay during the COVID-19 pandemic
“defies harmless error analysis” and was a structural error requiring reversal.
“[Chapman v. California (1967) 386 U.S. 18 (Chapman)], established that
federal constitutional errors are properly subject to review for harmlessness. In the nearly
50 years since Chapman was decided, the high court repeatedly has emphasized that most
errors implicating a federal constitutional right . . . are amenable to harmless error
32
analysis and that only a ‘very limited class of cases’ are subject to per se reversal.
[Citations.] In Arizona v. Fulminante (1991) 499 U.S. 279 . . . , the high court
categorized constitutional errors into two groups. Most errors, the court explained, are
‘“trial error[s],”’ occurring ‘during the presentation of the case to the jury.’ [Citation.]
They are amenable to harmless error review because they can be ‘quantitatively assessed
in the context of other evidence presented in order to determine whether [their] admission
was harmless beyond a reasonable doubt.’ [Citation.] ‘Structural defects,’ on the other
hand, ‘defy analysis by “harmless-error” standards’ [citation] because they are not
‘simply an error in the trial process,’ but rather an error ‘affecting the framework within
which the trial proceeds’ [citations]. [¶] The high court has identified as structural error
constitutional violations such as the denial of counsel or of self-representation, racial
discrimination in jury selection, and trial before a biased judge. [Citations.] The court
also has provided further guidance on categorizing errors as structural. For example, it
explained . . . structural errors ‘deprive defendants of “basic protections”’ [citation] and
‘necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.’ [Citations.] In other pronouncements on the subject of
structural error, however, the court has focused, not on the effect of the constitutional
violation at trial, but on ‘the difficulty of assessing the effect of the error’ or the
‘irrelevance of harmlessness.’ [Citation.]” (People v. Aranda (2012) 55 Cal.4th 342,
363-364.)
A midtrial continuance, if it were determined to be error, is not the type of
error affecting the framework within which the trial proceeds. Nor is it a situation that
defies harmless error analysis. It is possible to determine whether jurors’ memories have
faded during the recess, either by inquiring directly of them or inferentially through the
types of questions they ask. It is possible to determine whether jurors improperly
discussed the case with others or were subjected to an improper outside influence. A
midtrial continuance does not deny a criminal defendant basic protections that render the
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trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.
Thus, any error would be reviewed pursuant to the standard articulated in Chapman,
supra, 386 U.S. 18—was the error harmless beyond a reasonable doubt? Our conclusion
is supported by California, federal, and other state cases that had addressed midtrial
continuances.
About 100 years ago, our Supreme Court in Erno, supra, 195 Cal. at pages
282-283, concluded defendant failed his burden to establish he was prejudiced by the
10-day adjournment before submission of the case to the jury. In Katzman, supra,
258 Cal.App.2d at pages 789-790, the court concluded defendant failed to demonstrate he
was prejudiced by the 13-day delay during the trial. In Gray, supra, 37 Cal.4th at
page 229, addressing whether a 338-day delay between the guilt and penalty phases
violated defendant’s due process right to a fair trial, our Supreme Court stated, “We do
not agree that, in the absence of any proof and in the face of the trial court’s admonitions
to the jury, it is ‘reasonable to infer’ the jury’s impartiality was compromised.”
Federal and other state authority also support our conclusion. In Diggs, the
court stated, “[t]he circuits are virtually unanimous that in order for a jury separation to
constitute reversible error, the defendant must show that he suffered actual prejudice
because of the separation.” (Diggs, supra, 649 F.2d at p. 738 [collecting cases].) In
Knuckles, supra, 315 S.W.3d at page 322, the Kentucky Supreme Court cited to Diggs
and stated, “Ordinarily, to constitute reversible error, a defendant must show actual
prejudice resulting from a continuance or other separation of the jury.” (Fn. omitted.)
Here, the record does not establish Breceda suffered actual prejudice.
Before the pause in proceedings, the trial court admonished the jury to not form any
opinions about the evidence, discuss the case or the evidence, conduct any independent
research, or read or listen to any news reports about the case. When jurors returned, the
court inquired of them whether they had obeyed the court’s orders and the record
demonstrates they had, except the one instance where a juror told his wife and employer
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he had to return to jury service because he was on a murder case. It is pure speculation to
conclude that during the recess jurors decided the case in the prosecution’s favor or were
influenced by outside sources. We presume jurors follow the trial court’s instructions.
(Richardson v. Marsh (1987) 481 U.S. 200, 211; Gray, supra, 37 Cal.4th at p. 231 [“[w]e
presume that jurors understand and follow the court’s instructions”].)
Additionally, the record demonstrates jurors willingly returned to complete
their jury service. The record also establishes jurors kept an open mind and fairly
weighed the evidence. During deliberations, the jury asked for a readback of testimony
from Gomez-Lee, Girlfriend, and Nott. Had there been a rush to judgment the jury would
not have bothered to have their recollections refreshed. Finally, the prosecution argued
vigorously for a first degree murder verdict. In acquitting Breceda of that charge and
convicting him of second degree murder, the verdict demonstrates the jury carefully
considered the evidence and did not hastily accept the prosecution’s case in its entirety.
Although the Knuckles court stated actual prejudice was required, it cited to
Hay, and stated, “[e]ven absent a showing of actual prejudice, a delay may still ‘involve[]
such a probability that prejudice will result that it must be deemed inherently lacking in
due process.’” (Knuckles, supra, 315 S.W.3d at pp. 322-323, fn. omitted.) The Knuckles
court stated the following: “Where there is no showing of actual prejudice, courts have
considered a number of factors to determine whether a due process violation has
occurred, including the length of the delay, whether there was a good reason for the
delay, whether the trial court properly admonished the jurors against communicating
about the case with others prior to the separation, whether the case was so complex that a
prolonged interruption would have a significant effect on the jurors’ ability to remember
complicated facts, whether alternatives to delaying the trial existed, and the extent of
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publicity surrounding the case. In addition, prejudice is much more likely to be presumed
where the delay occurs after jury deliberations have begun.”30 (Knuckles, supra,
315 S.W.3d at p. 323, fn. omitted.)
Here, a consideration of these factors causes us to conclude Breceda’s due
process right to a fair trial was not violated. The delay was long, but that was the only
factor weighing in favor of a violation. The COVID-19 pandemic was good cause to
continue the trial. The trial court properly admonished the jurors before the pause, and
when they returned, ensured they obeyed the court’s orders. Unlike in Hay, the case was
not complex—Breceda admitted he inflicted the mortal wound and the only issue was
whether he did so intentionally or in self-defense. Because of the Governor’s, the Chief-
Justice’s, and the presiding judge’s orders keeping the courts closed from March 17 to
May 22, 2020, there was no alternative to delaying the trial. The record is silent on
whether there was any trial publicity, but it is extremely likely the hourly updates on the
COVID-19 pandemic overshadowed any courthouse reporting on the local news. Finally,
the fact the delay occurred before jury deliberations began weighs against presuming
there was prejudice. Based on these factors, we part company with the courts in
Engleman, supra, 116 Cal.App.3d Supp. 14, and Hay, supra, 122 F.3d 1233, and cannot
find the delay was inherently prejudicial. Therefore, Breceda’s due process right to a fair
trial was not violated as a matter of law.
II. Abstracts of Judgment
Breceda contends we must order two errors in the abstracts of judgment
corrected. The Attorney General agrees.
30 The Knuckles court adopted the factors articulated in State v. Kanae
(Hawaii Ct.App. 1998) 970 P.2d 506, 510, a case where there was a 17-day hiatus during
jury deliberations, and Santamaria, supra, 229 Cal.App.3d 269, another case involving a
delay during jury deliberations.
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“An abstract of judgment is not the judgment of conviction; it does not
control if different from the trial court’s oral judgment and may not add to or modify the
judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181,
185.) A court may correct a clerical error in an abstract of judgment at any time. (Ibid.)
The indeterminate abstract of judgment indicates Breceda was convicted of
count 1 by plea. The indeterminate abstract of judgment must be corrected to indicate the
jury convicted him of count 1. The determinate abstract of judgment indicates he earned
1,873 of actual credit, but he had “0” total credits. The determinate abstract of judgment
must be corrected to indicate he had “1,873” total credits.
DISPOSITION
The judgment is affirmed. The clerk of the superior court is ordered to
prepare corrected abstracts of judgment reflecting the above modifications and to forward
certified copies to the Department of Corrections and Rehabilitation, Division of Adult
Operations.
O’LEARY, P. J.
WE CONCUR:
GOETHALS, J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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