State v. Valdez ( 2024 )

142 July 31, 2024 No. 529
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
RAUL ALFONSO VILLANUEVA VALDEZ,
aka Raul Alfonso Villanuevavaldez,
Defendant-Appellant.
Clackamas County Circuit Court
19CR06621; A179445
Katherine E. Weber, Judge.
Submitted June 17, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for appel-
lant. Raul Alfonso Villanueva filed the supplemental brief
pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
AOYAGI, P. J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 142 (2024) 143
AOYAGI, P. J.
Defendant was convicted of first-degree sexual
abuse, ORS 163.427. On appeal, he raises four counseled
assignments of error and two supplemental pro se assign-
ments of error.1 For the following reasons, we affirm.
Closing Argument. In his counseled assignments
of error, defendant alleges that the prosecutor made two
improper statements during closing arguments and thereby
deprived defendant of a fair trial. Defendant did not object to
the statements when they were made, so he requests plain-
error review. See State v. Wyatt, 331 Or 335, 341, 15 P3d 22
(2000) (“Generally, an issue not preserved in the trial court
will not be considered on appeal.”); ORAP 5.45(1) (recogniz-
ing our discretion to correct “plain” errors).
In this specific context, plain-error review “is per-
mitted, and reversal may be warranted if it is beyond dis-
pute that the prosecutor’s comments were so prejudicial as
to have denied defendant a fair trial.” State v. Chitwood, 370
Or 305, 312, 518 P3d 903 (2022) (internal quotation marks
omitted). To meet that standard, the prosecutor’s statements
must have been “so egregious that striking them or giving
a curative instruction would have been insufficient.” State
v. Durant, 327 Or App 363, 365, 535 P3d 808 (2023). “In
other words, prosecutorial statements that were improper
but curable are not an appropriate subject of plain-error
review, because, in such circumstances, the defendant was
not denied a fair trial.” Id. (emphasis in original).
Having considered each of the challenged state-
ments, individually and together, we disagree with defen-
dant that he was denied a fair trial under the Chitwood
standard. To the extent that either statement was improper,
the impropriety did not rise to the level of requiring a mis-
trial and could have been addressed adequately by the trial
1
Defendant was originally convicted of two counts of first-degree sexual
abuse, and his counseled opening brief includes a fifth assignment of error chal-
lenging the failure to merge the two guilty verdicts. After briefing was complete,
however, the parties jointly moved the trial court to amend the judgment to merge
the two guilty verdicts, and the trial court granted that motion and amended the
judgment on October 18, 2023. As a result, defendant is now convicted of only
one count of first-degree sexual abuse, and he has withdrawn his counseled fifth
assignment of error.
144 State v. Valdez
court, had an objection been made. No reversible error has
been shown.
Interpreters. In his first pro se supplemental assign-
ment of error, defendant argues that the trial court erred
by providing only two court-certified interpreters for trial,
instead of three or four interpreters as defendant feels was
necessary. We agree with the state that defendant’s argu-
ment is not well taken.
Defendant’s trial was originally scheduled for
January 2020 but was postponed because only two court-
certified interpreters were available, which the trial court
deemed insufficient to meet the expected interpretation
needs at trial. The trial was rescheduled to March 2020,
but defendant failed to appear. Defendant was arrested two
years later, and his trial finally took place in July 2022. The
trial court was attentive to the interpretation issue during
the July 2022 trial and apparently had different technology
available than had been available in March 2020 (perhaps
due to the intervening COVID-19 pandemic). The court con-
cluded that it needed two court-certified interpreters for trial,
which is the number that were provided. Defendant made
no objection to the number of interpreters (or the quality of
the interpretation) and in fact thanked the court for “all the
attention” that it had given to the interpretation issue.
The claim of error is therefore unpreserved, which
means that the only review available is discretionary plain-
error review. Wyatt, 331 Or at 341; ORAP 5.45(1). An error
is “plain” when it is an error of law, the legal point is obvi-
ous and not reasonably in dispute, and the error is apparent
on the record without having to choose among competing
inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889
(2013). Here, defendant makes an underdeveloped argu-
ment for plain-error review in his “conclusion” section. Even
putting aside any procedural shortcomings, defendant has
not persuaded us that the court committed any plain error.
Based on the record of the July 2022 trial, it is not obvious or
beyond reasonable dispute that more than two interpreters
were needed, especially given the technology used during
trial. Any error therefore is not “plain,” and we reject the
first pro se supplemental assignment of error on that basis.
Nonprecedential Memo Op: 334 Or App 142 (2024) 145
Ethnicity of Jurors. In his second pro se supplemen-
tal assignment of error, defendant argues that the trial
court violated his constitutional rights by failing to “provide
[him] with jurors of his ethnic background,” which he iden-
tifies as “Hispanic Mexican,” and instead seating a panel
of jurors of “Caucasian descent.” Defendant appears to be
challenging the make-up of the jury pool, rather than the
process by which the jurors for his trial were selected from
that pool, but it is not entirely clear because he relies heavily
on Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed
2d 69 (1986), the seminal case holding that racial discrimi-
nation in the exercise of peremptory challenges violates the
Fourteenth Amendment to the United States Constitution.
If defendant is challenging how the prosecutor exer-
cised his peremptory challenges, defendant did not make
any Batson objection at trial, so the claim of error is unpre-
served. That again means that we are limited to plain-
error review, which defendant has nominally requested.
We readily conclude that any error is not “plain.” It would
be nearly impossible to establish a plain-error Batson vio-
lation, because it is usually the defendant’s objection that
leads to the creation of the record necessary to evaluate an
alleged Batson violation. Here, the record certainly does not
reveal any plain-error Batson violations; indeed, the record
does not even identify the racial or ethnic background of the
seated or stricken jurors.
If defendant does not mean to challenge the prose-
cutor’s use of peremptory challenges but instead means to
protest more generally a lack of “Hispanic Mexican” jurors,
on the theory that the court was constitutionally required
to provide him with a jury that was comprised of or at least
included “jurors of his ethnic background,” that argument
also fails. As noted, the record is silent regarding the racial
or ethnic background of the seated and stricken jurors, let
alone the composition of the larger jury pool from which
they were drawn. In any event, a criminal defendant “has
no right to a ‘petit jury composed in whole or in part of per-
sons of [the defendant’s] own race.’ ” Powers v. Ohio, 499 US
400, 404, 111 S Ct 1364, 113 L Ed 2d 411 (1991) (quoting
Strauder v. West Virginia, 100 US 303, 311, 25 L Ed 664146 State v. Valdez
(1879) (brackets in Powers)). Accordingly, we reject the sec-
ond pro se supplemental assignment of error.
Affirmed.