State v. Salvador

• Decision Date: 01 June 2021
• Docket Number: No. 81212-2-I,81212-2-I
• Citation: 487 P.3d 923,17 Wash.App.2d 769
• Parties: STATE of Washington, Respondent, v. Alejandro PEÑA SALVADOR, Appellant.
• Court: Washington Court of Appeals

17 Wash.App.2d 769

487 P.3d 923

STATE of Washington, Respondent,

v.Alejandro PEÑA SALVADOR, Appellant.

No. 81212-2-I

Court of Appeals of Washington, Division 1.

FILED June 1, 2021

Nielsen Koch PLLC, Attorney at Law, Jennifer M. Winkler, Nielsen Koch PLLC, 1908 E Madison St., Seattle, WA, 98122-2842, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, Stephanie Finn Guthrie, King County Prosecuting Attorney's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Hazelrigg, J. ¶1 Alejandro Peña Salvador seeks reversal of his convictions for one count of child molestation in the first degree, two counts of rape of a child in the second degree, and one count of child molestation in the third degree. He contends that the trial court erred in denying his request to excuse a prospective juror for cause, resulting in the seating of a biased juror. Because Peña Salvador has not shown that the juror expressed actual bias, we affirm the jury verdict.

¶2 Peña Salvador also challenges three of the conditions of community custody imposed by the court and requests that a scrivener's error in the judgment and sentence be corrected on remand. We accept the State's concessions that the trial court mistakenly failed to consider Peña Salvador's constitutional right to parent his biological children when prohibiting contact with any minors and that the judgment and sentence contains a scrivener's error. We remand for reconsideration of the condition prohibiting contact with any minors in light of Peña Salvador's right to parent his biological children, to strike the condition requiring payment of the supervision fees, and to correct the scrivener's error in the judgment and sentence.

FACTS

¶3 Alejandro Peña Salvador started dating Maria C. in 2009. Maria had three daughters: L.O., born in 1999, J.O., born in 2001, and K.O., born in 2006. Peña Salvador had a son around K.O.’s age who lived in Mexico. Peña Salvador soon moved in with Maria and her daughters. He and Maria had a son, K.P., in 2013.

¶4 In April 2015, when L.O. was 16 years old, she disclosed to a counselor that Peña Salvador had touched her inappropriately when she was 13 or 14 years old. The counselor contacted Child Protective Services (CPS), who referred the case to police. The investigating detective was not able to make contact with L.O. or Maria, and the case was inactivated.

¶5 In February 2018, J.O. disclosed to a counselor that Peña Salvador had sexually abused her repeatedly, starting when she was nine or ten years old. The counselor contacted the police, and Peña Salvador was arrested. During the investigation of J.O.’s allegations, a detective also spoke with L.O. about the disclosure she had made in 2015. As to J.O., Peña Salvador was charged with one count of child molestation in the first degree for events occurring between March 2009 and March 2013 and two counts of rape of a child in the second degree for events occurring between March 2012 and March 2015. As to L.O., the State charged Peña Salvador with child molestation in the third degree for events occurring between March 2011 and March 2015.

¶6 At the beginning of jury selection, prospective jurors completed a questionnaire regarding the general subject matter of the case. Based on their answers, many of the jurors were called in for individual questioning. Juror 44 was one of the jurors questioned individually about his questionnaire responses. In response to a question asking if there was any reason that he would be unable to be fair and impartial to both sides in a case involving an accusation of sexual abuse of a child, he indicated that he was not sure that he could be impartial: "As a school bus driver, I think of the students as my kids and [grandkids]." Defense counsel asked if he had formed an opinion on Peña Salvador's guilt when he heard the charges, and Juror 44 said that he had not, but stated, "I don't know if I can be impartial, and that would be unfair to your client." He said that he "would like to think [he's] an impartial person" but referenced the unconscious bias video that had been shown to the venire and stated, "I believe in the system. I don't want this gentleman to have me have bias against him from the get-go." Defense counsel asked, "[A]re you telling me that you think that you would be biased against my client?" and the prospective juror responded, "I'm afraid I might be [ ] and I'm just being honest with you."

¶7 The prosecutor then asked what bias he was concerned about, and Juror 44 responded that he was worried that the nature of the charges would induce him to make an incorrect decision. The prospective juror was not sure how to answer the question of whether he would be able to presume the defendant innocent. He stated that he believed it was possible for children to both lie and tell the truth about such allegations, and was not sure that he could evaluate the credibility of witnesses: "Sometimes I've had the wool pulled over my eyes by people I've trusted." He believed that he could follow the court's instructions on the law and on which evidence to consider. The prosecutor asked, "[I]s there anything, other than your regular interaction with children and family that would make you think that you would rush to judgment on a case like this?" and the juror responded, "No, because I believe in the system." Juror 44 had served on a jury before, and the prosecutor inquired about his understanding of the system:

[PROSECUTOR]: But, like you said, you understand the process and what's necessary to sit on a jury and to keep an open mind throughout the course of trial?

JUROR: Yes.

[PROSECUTOR]: Is that something, even with the charges, that you think you could try to do?

JUROR: Yes, I think I could.

¶8 Defense counsel proceeded to ask a number of follow-up questions:

[DEFENSE COUNSEL]: ... Sir, have you—after hearing the allegations—well, not—have you formed an opinion about whether or not you feel my client is guilty or innocent?

JUROR: Oh, no, that's—that's why I'm afraid if my bias gets in. I don't want to especially go conviction style if I don't feel he's guilty of it. I don't want me, my possible—and I don't know where it sits. I don't want to make a mistake.

[DEFENSE COUNSEL]: Do you think that you would give more weight to the victims, since you're around children and you interact with them all the time?

JUROR: I'm more afraid of what evidence might be brought—

[DEFENSE COUNSEL]: Out against—

JUROR: —and it would be upsetting.

[DEFENSE COUNSEL]: Okay.

JUROR: But, no, I would—I would listen to both sides.

[DEFENSE COUNSEL]: But you do have a question in your mind whether or not you could be fair or impartial, does that still stand?

JUROR: I think so.

¶9 Defense counsel moved to exclude the prospective juror for cause. The court denied the motion, explaining, "[H]e doesn't want to make a mistake. The conscientiousness of this juror is exactly what we look for in a juror. He is concerned. He is aware of implicit bias and is conscientiously making efforts to keep that in check." The juror served on the jury and deliberated.

¶10 At trial, L.O. and J.O. both testified that Peña Salvador had touched them inappropriately on multiple occasions. L.O. testified that she had been called a liar when she reported Peña Salvador's behavior in 2015, so she avoided being interviewed by police and CPS because she did not want to talk about it anymore. J.O. testified that she had told a childhood friend in confidence about the abuse as it was happening but did not tell anyone else until 2018, when she became concerned that Peña Salvador might be abusing her younger sister, K.O. Peña Salvador testified in his own defense and denied the allegations. The jury found Peña Salvador guilty as charged. He was sentenced to a total of 240 months of confinement. Peña Salvador appealed.

ANALYSIS

I. Biased Juror

¶11 Peña Salvador first contends that he did not receive a fair trial because the court denied his request to dismiss Juror 44 for cause, therefore allowing a biased juror to deliberate.

A. Preservation

¶12 As a threshold issue, the State argues that Peña Salvador has waived review of this issue because he accepted the jury panel, which included Juror 44, without exhausting his peremptory challenges. Peña Salvador disagrees, arguing that "[t]he only way to preserve an improperly denied ‘for cause’ challenge is to refrain from using a peremptory challenge and allow the juror to serve."

¶13 Throughout the 21st century, Washington courts largely adhered to the rule, articulated in State v. Stentz, that "[a] refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury." 30 Wash. 134, 143, 70 P. 241 (1902), abrogated by State v. Fire, 145 Wash.2d 152, 34 P.3d 1218 (2001) In Stentz, the Washington Supreme Court determined that the trial court erred in denying a for-cause challenge to a potential juror who was later removed from the venire using the defendant's last peremptory challenge. Id. at 137, 141, 70 P. 241. Even though the court's error did not result in the seating of a biased juror, the court found that the error resulted in prejudice because "the accused was deprived of one peremptory challenge to which he was by law entitled." Id. at 147, 70 P. 241.

¶14 This rule was reiterated in State v. Parnell, which involved a similar factual scenario. 77 Wash.2d 503, 507–08, 463 P.2d 134 (1969), abrogated by Fire, 145 Wash.2d 152, 34 P.3d 1218. The court found that "[a]ny error involved in failing to grant the defendant's challenge for cause against venireman Martin was not obviated by the fact that he did not sit on the jury" because the defendant had to use one of her peremptory challenges, which ...