Marilyn Joy Zemek v. Anissa De La Cruz, Warden

• Court: District Court, C.D. California
• Decided: March 5, 2026
• Docket: 5:24-cv-02642
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARILYN JOY ZEMEK, Case No. 5:24-cv-02642-MEMF (BFM)

12 Petitioner, ORDER ACCEPTING REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 ANISSA DE LA CRUZ, Warden, 15 Respondent. 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records 18 on file, and the Report and Recommendation of the United States Magistrate Judge 19 (“Report”). Further, the Court has engaged in a de novo review of those portions of 20 the Report to which objections have been made. 21 The Report recommends the denial of the Petition and the dismissal of this 22 action with prejudice. (ECF No. 18.) Petitioner objects to the Report’s analysis of 23 her claim that her Sixth Amendment right to a public trial was violated. (ECF No. 24 20 at 5-15.) Because the trial was held during the COVID-19 pandemic in October 25 2020, Petitioner’s husband and her sister were not permitted to watch the trial from 26 within the courtroom but, instead, the trial court permitted the public to follow the 27 trial via livestream. (ECF No. 16-36 at 6.) Petitioner’s objections do not merit a 28 change to the Report’s findings or recommendations. 1 Petitioner objects that she has cited numerous cases “that allowed members 2 of the public to attend when this complied with social distancing requirements.” 3 (ECF No. 20 at 11.) The California Court of Appeal’s rejection of this argument 4 was not objectively unreasonable. As the California Court of Appeal found, 5 “[a]lthough social distancing could lessen possible virus exposure, it was no 6 guarantee. In the face of the increasing threat of COVID-19, we cannot fault the 7 trial court here for limiting the individuals physically in the courtroom to those 8 necessary for the trial: the parties, attorneys, courtroom personnel, jurors, and 9 testifying witnesses.” (ECF No. 16-36 at 19-20.) 10 Petitioner objects that closure of the courtroom was not essential “in light of 11 the fact that the two people who wished to attend could be seated under social 12 distancing requirements, or they could replace the second prosecutor and one or two 13 alternate jurors.” (ECF No. 20 at 11, 16.) The Court agrees with the Report that 14 the argument “misses the mark.” (ECF No. 18 at 17.) “Trial courts are required to 15 consider reasonable alternatives to closure but need not consider alternatives ‘that 16 would potentially have a significant impact on the defendant’s right to a fair trial 17 [or] substantially alter the nature of the proceedings.’” (Id. at 17-18 (quoting 18 United States v. Yazzie, 743 F.3d 1278, 1290 (9th Cir. 2014).) 19 Petitioner similarly objects that the California Court of Appeal, in rejecting 20 the claim, relied on cases that did not involve the circumstances of this case. (ECF 21 No. 20 at 11.) The circumstances were “that there was space in the courtroom for 22 the public under social distancing protocol” and that Petitioner’s relatives could 23 have taken “the place of persons with no constitutional right to attend but who were 24 allowed to attend.” (Id.) As stated above, it was not objectively unreasonable for 25 the California Court of Appeal to conclude that the trial court cannot be faulted for 26 limiting the individuals physically in the courtroom, and it would have substantially 27 altered the nature of the proceedings to exclude an alternative juror or prosecuting 28 attorney. 1 Petitioner objects that the Report’s analysis does not comport with Waller v. 2 Georgia, 467 U.S. 39 (1984), under which Petitioner argues that members of the 3 public who wish to attend a trial need not “establish conclusively that their 4 attendance would not result in the spread of the virus.” (ECF No. 20 at 15.) But it 5 was not objectively unreasonable for the California Court of Appeal to conclude 6 that the exclusion of the public was narrowly tailored to achieve its interest of 7 prohibiting the spread of the COVID-19 virus. As the California Court of Appeal 8 reasoned, the trial was held in October 2020, and “[i]n a time with no vaccinations, 9 stay-at-home orders, and rising infection, hospitalization, and death rates in 10 Riverside County, we think it unfair, from our pristine perch in May 2023, to 11 declare that the trial court did not narrowly tailor its order to address the crisis 12 because it simply did not allow [Petitioner’s] spouse and sister to sit in the back of 13 the courtroom during the trial.” (ECF No. 16-36 at 19.) Even for trials postdating 14 the October 2020 trial in this case, federal courts have held that the closures of 15 courtrooms for COVID-19 protocols were permissible where, as here, the public 16 had access to a video feed of the trial. See United States v. Smith, 117 F.4th 584, 17 596-600 (4th Cir. 2024) (2022 trial); United States v. Hunt, 82 F.4th 129, 140-42 18 (2d Cir. 2023) (2021 trial); United States v. Ansari, 48 F.4th 393, 401-03 and n.10 19 (5th Cir. 2022) (2021 trial; commenting that such measures may become unjustified 20 over time, so that what was “deemed reasonable for this trial in May of 2021 may 21 be patently unreasonable in May of 2023”). 22 Petitioner objects that the Report incorrectly relied on Wright v. Van Patten, 23 552 U.S. 120 (2008), to determine that Petitioner’s claim was not governed by 24 clearly established federal law. (ECF No. 20 at 16.) The Court agrees with the 25 Report that it is not clearly established by Supreme Court precedent “that a trial 26 court is required to tolerate a certain measure of risk to the health of required 27 participants in order to facilitate in-person attendance of a criminal trial by the 28 public, even where spectators are provided an audio and video feed.” (ECF No. 18 1 |) at 17.) Indeed, it is clearly established “that the right to an open trial may give way 2 || in certain cases to other rights or interests[.]” Waller, 467 U.S. at 45. “Stemming 3 || the spread of COVID-19 is unquestionably a compelling interest.” Roman Catholic 4 || Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 18 (2020). 5 Petitioner similarly objects that the Report unreasonably rejected her 6 || argument that there were alternatives to closure, such as reducing the number of 7 || alternative jurors or prosecuting attorneys in the courtroom. (ECF No. 20 at 17.) In 8 || particular, Petitioner argues that the parties could have stipulated to deciding the 3 || case by fewer than twelve jurors if they ran out of alternates, or one of the 10 || prosecuting attorneys could have watched the trial in another room via 11 || livestreaming. (/d.) The Court again agrees with the Report that the trial court was 12 || not required to consider such alternatives, which would “materially change the 13 || nature of the proceedings.” (ECF No. 18 at 17-18 (citing Yazzie, 743 F.3d at 14 |} 1290)). 15 ORDER 16 It is ordered that (1) the Report and Recommendation is accepted and 17 || adopted; (2) the Petition is denied; and (3) Judgment will be entered dismissing this 18 || action with prejudice. 19 20 || DATED: March 5, 2026 Af — a 21 ~ 22

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