Personal Restraint Petition Of: Daniel Galeana Ramirez ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
November 23, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In Re the Personal Restraint of: No. 54813-5-II
DANIEL GALEANA RAMIREZ,
UNPUBLISHED OPINION
Petitioner.
WORSWICK, J. — Daniel Galeana Ramirez seeks relief from personal restraint imposed as
a result of his 2016 convictions for two counts of first degree assault while armed with a firearm.
He argues (1) that the trial court erred when it admitted speculative testimony, (2) that he was
denied a fair trial because police interviewed a Spanish-speaking victim without using a certified
interpreter, (3) that he was denied due process when the trial court allowed the State to ask a
compound question to the jury venire during voir dire, (4) that he was denied due process and a
fair trial when the trial court sentenced him to a higher sentence than the State recommended,
and (5) cumulative error denied him of a fair trial. We deny Galeana Ramirez’s petition.
FACTS
I. BACKGROUND AND PRETRIAL PROCEDURE
A. October 2014 Robbery and Assault
Galeana Ramirez filed this petition to seek relief from a 2016 conviction that arises out of
two related incidents that occurred in October 2015. State v. Ramirez, 7 Wn. App. 2d 277, 280,
432 P.3d 454 (published in part), review denied, 193 Wn.2d 1025, 445 P.3d 567 (2019). We
previously decided Galeana Ramirez’s direct appeal, along with those of his codefendants,
Alejandro Ramirez and Steven Nicolas Russell, in January 2019. Ramirez, 7 Wn. App. 2d at
280. We set forth the relevant factual background in that opinion:
No. 54813-5-II
Jose Leiva-Aldana and Agustin Morales-Gamez were walking home on the
night of October 24, when they were accosted by two men. The men demanded
money, tried to take Leiva-Aldana’s wallet and took Morales-Gamez’s cell phone.
The men, later identified as [Alejandro] Ramirez and Russell, physically assaulted
Leiva-Aldana and Morales-Gamez; during the assault, Morales-Gamez was hit in
the head with a hard metal object.[1] Morales-Gamez fought back with a small knife
and the attackers fled. Leiva-Aldana and Morales-Gamez reported the incident to
the police.
After reporting the incident to police, Leiva-Aldana and Morales-Gamez
walked home in the early morning hours of October 25. As they approached their
home, they were again accosted and assaulted by two men, later identified as
Russell and [Daniel] Galeana Ramirez. During this second assault, the attackers
shot Leiva-Aldana in the stomach and shrapnel from a bullet hit Morales-Gamez in
the foot.
Officers discovered a cell phone at the scene of the October 24 robbery
incident. Detective Dave Cox sent the cell phone to the Computer Crime Institute
at Dixie State University in order for them to perform a “chip-off” procedure.
Verbatim Report of Proceedings (VRP) (June 30, 2016) at 19. Chip-off forensics
is a high-tech method of extracting and analyzing data stored on flash memory
chips. This method often allows the extraction of data from devices even if the
device is damaged or the data has been deleted. See VRP (June 30, 2016) at 26.
Detective Cox later received the cell phone back with hundreds of pages of data
extracted from the cell phone.
...
. . . Based solely on the October 25 incident, the State charged Galeana Ramirez
with first degree assault of Leiva-Aldana (count I) and first degree assault of
Morales-Gamez (count II).
Ramirez, 7 Wn. App. 2d at 280-81. The State also charged Russell and Ramirez with multiple
crimes. Ramirez, 7 Wn. App. 2d at 281.
B. Joinder and Transportation
Before trial, the State moved to join Russell’s, Ramirez’s, and Galeana
Ramirez’s cases. The trial court granted the motion and ordered the cases joined
for trial over defense counsels’ objections. Subsequently, each appellant filed
motions to sever which the trial court denied.
1
To avoid confusion, we follow our convention on direct appeal and refer to the petitioner here,
Daniel Galeana Ramirez, as “Galeana Ramirez,” and Alejandro Ramirez as “Ramirez.”
2
No. 54813-5-II
Prior to voir dire, Galeana Ramirez’s counsel expressed concern about how
the defendants were being brought into the courtroom. Counsel stated that while
the defendants were obviously in custody and being guarded by jail staff, they were
brought down a hallway past the room where jurors were sitting. The trial court
responded that counsel could ask about this during voir dire and declined the
request to start the trial on another day. Despite the trial court’s invitation, none of
the defense counsel questioned the jury panel about this issue.
Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 10
https://www.courts.wa.gov/opinions/pdf/D2%2049245-8-II%20Published%20Opinion.pdf.2
C. Pretrial Motion to Admit Cell Phone Testing Results
Before trial, the parties learned that William Matthews, the technician who
performed the chip-off data extraction from the cell phone found at the scene of the
robbery, could not be located for trial. The State sought to admit the data extraction
results by laying a foundation with Joan Runs Through, the assistant director of the
Computer Crime Institute.
At the hearing on this matter, Runs Through admitted that she did not
extract the data and that her testimony relied entirely on the report of testing done
by Matthews. Runs Through testified generally about the type of data Matthews
could have extracted from the cell phone, which included text and short message
service messages, pictures, Internet activity, and calendar information. Runs
Through also testified that she was familiar with the chip-off process and that she
had taught the process to other technicians at the university. Specifically, she
testified that there is nothing that a technician or an examiner can do to change data
on the chip. Runs Through further testified that she looked through the extracted
cell phone information and that the process had worked correctly.
Defense counsel objected to Runs Through’s testimony and argued that the
cell phone evidence should be excluded unless Matthews testified. The trial court
disagreed and ruled that Runs Through could testify about the chip-off process.
Ramirez, 7 Wn. App. 2d at 281-82.
2
The unpublished portion of the case is cited here for its recitation of the facts, not for its
precedential value.
3
No. 54813-5-II
D. Jury Venire Voir Dire
During voir dire of the jury venire, the State asked prospective jurors questions about
whether the prospective jurors had been victims of a crime and whether it would affect their
ability to be impartial decision-makers. The State first questioned the jury venire generally if
anyone had been a victim of a crime, before turning to individual prospective jurors to ask
questions.
The State asked five different prospective jurors, who had identified themselves as
victims, to generally describe the crime, how long ago it had been, and whether it would be
difficult for them to sit as jurors. After questioning the initial five, the State asked the jury venire
generally if any of them had been a victim of a crime:
[PROSECUTOR]: Anybody here—a lot of people answered yes to that question so
I’m just going to throw it out to anybody here who has been a victim of a crime, is
there anything about that experience, is the wound too raw?
Is there something about that experience that makes you think, ‘Hey, I don’t
know if I can sit on this jury and be fair?’ Ma’am, what’s your number?
PROSPECTIVE JUROR: 83.
[PROSECUTOR]: 83. And may I inquire what happened to you ma’am?
PROSPECTIVE JUROR: Violence.
[PROSECUTOR]: Okay. And is that something fairly recent?
PROSPECTIVE JUROR: Yes.
[PROSECUTOR]: All right. And, you know, I don’t want to get into your private
affairs, understandably this is something that has affected you. You’re telling me
that this is going–if you were selected to sit on this jury, that you could not put what
happened to you to one side, is that what you’re saying?
PROSPECTIVE JUROR: Yes.
4
No. 54813-5-II
2 VRP (June 28, 2016) at 69-70. The trial court then excused prospective juror 83 for cause
without objection.
II. TRIAL
The case proceeded to joint trial of Galeana Ramirez, Ramirez, and Russell. The victims,
police officers, and Runs Through all testified. We summarized their testimony on direct appeal.
A. Cell Phone Analysis
At trial, Runs Through testified extensively about the chip-off process and
the preparation of the resulting report. She did not testify about the contents of the
cell phone found at the scene of the robbery. The trial court admitted portions of
the report. Based on the report exhibits, Detective Cox testified about the data
extracted from the phone that allowed him to connect the cell phone to Russell and
then to connect Russell to Ramirez. Detective Cox also testified that the data
extracted from the cell phone included text messages from Russell to Ramirez
inviting Ramirez to go out for a beer at 7:00 pm on the night of October 24.
Ramirez, 7 Wn. App. 2d at 282.
B. October 24 Incident
At trial, the jury heard the following evidence related to the October 24 incident.
On October 24, 2015, Morales-Gamez and Leiva-Aldana were walking
home when they were attacked from behind in an alley near their home. The event
was captured by [nearby] video cameras.
Morales-Gamez testified that when the men attacked them ‘they were
yelling and they wanted [Morales-Gamez and Leiva-Aldana] to give them the
wallet, [their] money.’ VRP (June 29, 2016) at 92. The men hit Morales-Gamez
in the head with something metal and he fell to the ground. Morales-Gamez also
testified that the men took his cell phone. Morales-Gamez defended himself with
a knife during the incident. After the attack, Morales-Gamez asked a nearby
woman who witnessed the incident to call the police.
Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 10-11. Leiva-Aldana’s testimony and
that of two witnesses corroborated Morales-Gamez’s account. Ramirez, No. 49245-8-II, slip op.
(unpublished portion) at 11-12.
5
No. 54813-5-II
Detective Jason Perkinson testified that on October 24, he was working
security at Grays Harbor Community Hospital. While working, he saw two men,
later identified as Russell and Ramirez, come into the emergency room. Detective
Perkinson later found out that the two men were at the hospital because Ramirez
had been stabbed.
Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 12-13. Later that same night, Russell
came to Ramirez’s hospital room with Galeana Ramirez. Ramirez, No. 49245-8-II, slip op.
(unpublished portion) at 13. Russell and Galeana Ramirez left the hospital around 2:00 AM on
the morning of October 25. Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 13.
C. October 25 Incident
Morales-Gamez testified that after the initial attack near their home, he and
Leiva-Aldana went to the police station to give statements about the incident.
Leiva-Aldana and Morales-Gamez left the police station around 2:00 AM on
October 25. Morales-Gamez testified that as he and Leiva-Aldana again
approached their home, two men, later identified as Russell and Galeana Ramirez,
were waiting for them and that one of them shot Leiva-Aldana. Morales-Gamez
testified that some shrapnel also hit him in the foot.
Leiva-Aldana testified that during the second confrontation, Galeana
Ramirez shot him ‘in the stomach.’ VRP (June 30, 2016) at 102-04. Leiva-Aldana
was taken to the hospital for his gunshot wound. . . .
...
Officer Monte Glaser testified that Leiva-Aldana suffered a ‘through and
through [gunshot] wound’ to his upper left abdomen. VRP (July 1, 2016) at 228.
Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 13-14.
Detective Cox also testified that when he went to the hospital at 8:30 AM on October 25,
he presented Leiva-Aldana with a photo line-up. Detective Cox admitted he did not speak any
Spanish and communicated with Leiva-Aldana through a staff member at the hospital who spoke
Spanish. Detective Cox testified that from the stack of six photographs he gave Leiva-Aldana,
Leiva-Aldana set aside the first two photos, stopped at the third, scanned the fourth through sixth
6
No. 54813-5-II
photos, then returned to the third and pointed to it. Detective Cox then asked Leiva-Aldana to
sign the third photograph, which depicted Galeana Ramirez.
Police Officer Robert Green, one of the officers involved in Galeana Ramirez’s arrest,
also testified. He testified that early on the morning of October 25, he observed Galeana
Ramirez leave the hospital with Ramirez in a white car. Officer Green then testified that he saw
the same white car later in the day on the 25th and called other officers to the location: a house
where officers arrested Galeana Ramirez. When the State asked Officer Green why police were
looking for Galeana Ramirez, Green testified, “Daniel Galeana Ramirez was—we were advised
he had—we had probable cause for his arrest for the shooting.” 2 VRP (July 1, 2016) at 265.
Two weeks after the incidents, Police Officer Jason Capps retrieved a .38 caliber revolver
from Josiah Rhodes. Officer Capps testified that the surrender of the firearm resulted in a
criminal investigation of a Rigo Rivera and his being charged with unlawful possession of a
firearm. Detective Cox found out about the firearm and had it sent for examination by the crime
lab along with a bullet that Cox had retrieved from the shooting scene. Detective Cox testified
that he investigated the firearm as possibly being connected to Galeana Ramirez because Rivera
and Galeana Ramirez “kn[ew] each other.” 3 VRP (July 6, 2016) at 493-96. A forensic scientist
with the Washington State Patrol testified that he test-fired the firearm and the test-bullet
matched the one recovered from the October 25 shooting scene.
D. Jury Verdicts, Sentencing, and Direct Appeal
The jury found Galeana Ramirez guilty of two counts of first degree assault. The jury
also found that he was armed with a firearm when he committed the crimes. The State
7
No. 54813-5-II
recommended a standard range sentence of 176 months for each count, to be served
consecutively.
At the sentencing hearing, the trial court made only brief comments, stating that Galeana
Ramirez showed “no remorse” and was a “blank slate. . . . [S]tone cold.” 4 VRP at 759-60. The
trial court then sentenced Galeana Ramirez to the recommended sentence of 176 months for each
count.
Galeana Ramirez and his codefendants filed a direct appeal. Ramirez, 7 Wn. App. 2d at
282. We affirmed Galeana Ramirez’s convictions, resolving multiple arguments on their merits.
Ramirez, 7 Wn. App. 2d at 286. We held that (1) the State proved that the shooting victim
suffered great bodily harm, Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 29,
(2) Galeana Ramirez did not show that joinder deprived him of a fair trial and that any potential
prejudice was outweighed by judicial economy, Id. at 21, (3) Galeana Ramirez’s trial counsel
was not deficient, Id. at 32, (4) Galeana Ramirez’s confrontation rights were not violated,
Ramirez, 7 Wn. App. 2d at 285-86, and (5) there was insufficient evidence to show that a jury
saw Galeana Ramirez in restraints, Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 37.
Galeana Ramirez now files this personal restraint petition (PRP).
ANALYSIS
Of Galeana Ramirez’s ten arguments in his PRP, we previously decided five on direct
appeal, and we do not consider those arguments again here. Galeana Ramirez additionally
argues that the trial court erred when it admitted testimony about the firearm; that he was denied
a fair trial because police interviewed a Spanish-speaking victim without using a certified
interpreter; that he was denied due process when the trial court allowed the State to ask a
8
No. 54813-5-II
compound question to the jury venire during voir dire; and when the trial court sentenced him to
a higher sentence than the State recommended. He also argues cumulative error denied him a
fair trial. But Galeana Ramirez fails to make an adequate showing of error or cite to applicable
authority that would entitle him to relief. Thus, Galeana Ramirez’s arguments are either barred
or they fail.
I. STANDARD OF REVIEW
“To succeed on a PRP, the petitioner must prove unlawful restraint.” In re Pers.
Restraint of Dyer, 175 Wn.2d 186, 195, 283 P.3d 1103 (2012) (Dyer III). Restraint is unlawful
when “the sentence . . . was imposed or entered in violation of the Constitution of the United
States or the Constitution or laws of the State of Washington.” RAP 16.4(c)(2).
A. Procedural Requirements for Review
“The petitioner in a personal restraint petition is prohibited from renewing an issue that
was raised and rejected on direct appeal unless the interests of justice require relitigation of that
issue.” In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P.3d 872 (2013) (quoting In re Pers.
Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004)) (internal quotation marks omitted).
A petitioner can overcome this prohibition “in the ‘interests of justice’” only if “[m]aterial facts
exist which have not been previously presented and heard” or “[t]here has been a significant
change in the law, whether substantive or procedural, which is material to the conviction,
sentence, or other order entered in a criminal proceeding.” In re Pers. Restraint of Copland, 176
Wn. App. 432, 437, 309 P.3d 626 (2013); RAP 16.4(c)(3)-(4); see also Sanders v. United States,
373 U.S. 1, 16-17, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963) (holding that in motions for a writ of
habeas corpus, where a petitioner argues on grounds previously heard and determined, “the
9
No. 54813-5-II
applicant may be entitled to a new hearing upon showing an intervening change in the law or
some other justification for having failed to raise a crucial point or argument in the prior
application”). A petitioner does not create a new issue merely by supporting previous grounds
for relief with different factual allegations or legal arguments. Davis, 152 Wn.2d at 671.
The interests of finality of litigation demand a high standard be satisfied in a collateral
proceeding. Davis, 152 Wn.2d at 672. Accordingly, the standards of review for constitutional
and nonconstitutional issues are different. Davis, 152 Wn.2d at 672. To obtain relief in a
constitutional challenge, Galeana Ramirez must show “that he was actually and substantially
prejudiced by a violation of his constitutional rights.” In re Pers. Restraint of Lord, 152 Wn.2d
182, 188, 94 P.3d 952 (2004). Galeana Ramirez must show that the constitutional error has
actually prejudiced him by a preponderance of the evidence. Lord, 152 Wn.2d at 188; Davis,
152 Wn.2d at 671-72.
Nonconstitutional error requires a showing of more than mere prejudice. Davis, 152
Wn.2d at 672. To be entitled to full collateral review, the nonconstitutional error must constitute
a “‘fundamental defect which inherently results in a complete miscarriage of justice.’” Davis,
152 Wn.2d at 672 (quoting In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506(1990)).
B. Available Relief
When considering a PRP, we may (1) deny the petition, (2) grant the petition, or
(3) transfer the petition to superior court for a determination on the merits or a reference hearing.
State v. K.A.B., 14 Wn. App. 2d 677, 704–05, 475 P.3d 216 (2020); see also RAP 16.11(b). We
dismiss PRPs where the petitioner fails to make a prima facie showing of actual prejudice for
10
No. 54813-5-II
constitutional errors or a complete miscarriage of justice for nonconstitutional errors. Yates, 177
Wn.2d at 17-18. To make such a showing, the petitioner must offer facts to support the claim of
unlawful restraint and evidence to support those factual allegations. Yates, 177 Wn.2d at 18.
II. ISSUES DECIDED ON DIRECT APPEAL
We previously decided many of Galeana Ramirez’s arguments on the merits on direct
appeal. He fails to show that the interests of justice require us to review these issues. 3
First, Galeana Ramirez argues that there was insufficient evidence to support the finding
by a rational trier of fact that he caused “great bodily harm” to Leiva-Aldana, who Galeana
Ramirez shot in the abdomen. Br. of Petitioner at 11-14. Next, Galeana Ramirez argues that his
right to a fair trial was prejudiced when his case was joined with that of his codefendants for
trial. He argues that he received ineffective assistance of counsel because his trial counsel failed
to object to Officer Greene’s testimony that he had probable cause to arrest Galeana Ramirez,
and that his right to confront witnesses against him was denied when the court admitted the cell
phone “chip-off” testing evidence when testimony on the results was given by someone other
than the individual who did the testing. Br. of Petitioner at 22. Finally, he argues that he was
denied his right to a fair trial when he was escorted to the courtroom by correctional staff past a
room where jurors were sitting.
3
Galeana Ramirez argues for the first time in his reply brief that we should reach issues that we
decided and rejected on direct appeal because the interests of justice so require. Citing Yates,
Galeana Ramirez summarizes his argument in one conclusory sentence without elaboration.
Even assuming we would consider arguments raised for the first time in a reply brief, “‘[b]ald
assertions and conclusory allegations’ are insufficient to justify a reference hearing.” Yates, 177
Wn.2d at 18 (quoting In Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992)).
Thus, his argument fails.
11
No. 54813-5-II
As explained above, petitioner does not create a new issue merely by supporting previous
grounds for relief with different factual allegations or legal arguments. Davis, 152 Wn.2d at 671.
Galeana Ramirez’s arguments in his PRP and in his reply brief are attempts to relitigate the
determinations we made on direct appeal. See Ramirez, No. 49245-8-II, slip op. (unpublished
portion) at 20-24, 30-32, 37-38; Ramirez, 7 Wn. App. 2d at 283. Accordingly, because these
arguments in Galeana Ramirez’s PRP are the same as those argued on direct appeal, these
arguments are procedurally barred. Thus, we do not reach the merits of these arguments.
III. DETECTIVE COX’S TESTIMONY
Galeana Ramirez argues that his right to a fair trial was prejudiced when the trial court
allowed Detective Cox to “speculate” that the firearm recovered by Officer Capps was the one
used in the shooting. Br. of Petitioner at 18. The State argues that this argument is procedurally
barred because it was already litigated on direct appeal. We reach the merits, but hold that
Galeana Ramirez’s argument fails.
As an initial matter, Galeana Ramirez argued on direct appeal that the trial court erred
when it admitted Detective Cox’s testimony regarding the firearm. Ramirez, No. 49245-8-II,
slip op. (unpublished portion) at 30. However, on direct appeal we held that Galeana Ramirez
waived the issue under RAP 2.5. Ramirez, No. 49245-8-II, slip op. (unpublished portion) at 30
(citing State v. Korum, 157 Wn.2d 614, 648, 141 P.3d 13 (2006)).
A petitioner is barred from renewing in a PRP a claim he or she argued on direct appeal
only if the issue was fully litigated on the merits and disposed of on direct appeal. See In re
Pers. Restraint of Knight, 196 Wn.2d 330, 341, 473 P.3d 663 (2020). Because on direct appeal
12
No. 54813-5-II
we disposed of Galeana Ramirez’s argument under RAP 2.5, we did not reach the merits.
Accordingly, Galeana Ramirez is not barred under Yates from relitigating that issue here.
Turning to the merits, Galeana Ramirez argues that the trial court erred when it allowed
Detective Cox to “speculate” that there was a connection between him and the firearm, based on
the detective’s testimony that the prior possessor of the weapon and Galeana Ramirez “kn[ew]
each other.” Br. of Petitioner at 18-19. We disagree.
Assuming without deciding that Galeana Ramirez raises a constitutional challenge, he
must further show “that he was actually and substantially prejudiced by a violation of his
constitutional rights.” Lord, 152 Wn.2d at 188. He must show this prejudice by a preponderance
of the evidence. Lord, 152 Wn.2d at 188. But Galeana Ramirez makes no such showing.
Instead, Galeana Ramirez reasserts his argument that the trial court erred by admitting a
speculative statement but makes no showing that Detective Cox’s testimony was speculative.
Moreover, there is nothing in the record on appeal to support that Detective Cox’s testimony was
speculative. Galeana Ramirez asserts this testimony prejudiced him without explaining what the
prejudice is, making only the conclusory argument that he was deprived of due process and a fair
trial. Br. Petitioner at 19. But Detective Cox’s testimony was not critical to connecting Galeana
Ramirez to the firearm, and therefore he cannot show he was more likely than not prejudiced by
the testimony.
Leiva-Aldana was shot. Ramirez, 7 Wn. App. 2d at 280. Leiva-Aldana identified
Galeana Ramirez as one of his attackers. Police recovered a .38 caliber bullet from the scene of
the crime. A Washington State Patrol forensic scientist testified that the recovered bullet was
fired from the recovered firearm. Thus, the firearm was linked to Galeana Ramirez regardless of
13
No. 54813-5-II
Detective Cox’s testimony. Accordingly, we hold that Galeana Ramirez fails to show that he
was substantially prejudiced by a preponderance of the evidence.
IV. POLICE INVESTIGATION INTERPRETER
Galeana Ramirez argues that he was denied his right to due process and a fair trial when
the investigating detective presented a photo montage to a victim who does not speak English
without a certified interpreter. He further argues that we should expand on our holding in State
v. Gonzales-Hernandez, 122 Wn. App. 53, 92 P.3d 789 (2004),4 and adopt a rule requiring
certified interpreters at “all stages of a criminal investigation” to “ensure due process.” Reply
Br. of Petitioner at 17-18. We disagree and decline to adopt such a rule.
Although Galeana Ramirez frames his argument in constitutional terms, he makes no
showing of how his constitutional rights were violated during Detective Cox’s interview with
Leiva-Aldana. Accordingly, we treat this argument as a nonconstitutional assignment of error.
Under that standard, Galeana Ramirez must show that the claimed error “‘constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.’” Davis, 152
Wn.2d at 672 (quoting Cook, 114 Wn.2d at 813). He fails to do so.
No statute or case law requires police officers to use a certified interpreter when
interviewing a victim or witness. Statutes and rules regarding certified interpreters are specific
to court proceedings and criminal defendants. More importantly, there is no evidence that
admission of the photo montage interfered with any of Galeana Ramirez’s rights, let alone led to
4
There, we held that the trial court erred when it admitted a detective’s testimony that the
defendant said he was “sorry” during an interview with an uncertified interpreter. Gonzales-
Hernandez, 122 Wn. App. at 55, 59-60.
14
No. 54813-5-II
a complete miscarriage of justice. Leiva-Aldana testified at trial and identified Galeana Ramirez
as one of the perpetrators.
Galeana Ramirez’s reliance on Gonzales-Hernandez, 122 Wn. App. 53, is inapt. In
Gonzales-Hernandez, two police officers questioned a Spanish-speaking suspect about alleged
child abuse. 122 Wn. App. at 56. The officers had some working knowledge of Spanish but
were not certified interpreters. Gonzales-Hernandez, 122 Wn. App. at 56. The officers testified
that they questioned the defendant in Spanish, but used English words when they did not know
the Spanish word. Gonzales-Hernandez, 122 Wn. App. at 56. From this, the officers formulated
what amounted to a confession, with the Spanish-speaking defendant having used the English
words for “sorry” and “rape.” Gonzales-Hernandez, 122 Wn. App. at 56-57. We reversed
Gonzales-Hernandez’s conviction based on hearsay and held that testimony relating the implied
confession based on the officers’ mixing of English and Spanish was not harmless error. 122
Wn. App. at 59-60.
Galeana Ramirez interprets Gonzales-Hernandez to mean that certified interpreters are
required when interviewing a suspect. But he is mistaken. We based our holding in Gonzales-
Hernandez on the rule that a witness cannot testify about statements made by a defendant
through an interpreter absent some exception to the hearsay rule. Here, Detective Cox testified
about statements made to him by an interpreter. Galeana Ramirez did not object at trial to this
hearsay testimony, and makes no argument based on hearsay here. Nonetheless, even assuming
error, Galeana Ramirez has made no showing of any miscarriage of justice. As stated above,
Leiva-Aldana identified Galeana Ramirez at trial as a perpetrator.
15
No. 54813-5-II
No Washington law mandates that police interview witnesses using a certified
interpreter.5 We hold that Galeana Ramirez does not show that the use of an uncertified
interpreter here was a fundamental defect which resulted in a complete miscarriage of justice.
V. VOIR DIRE AND COMPOUND QUESTIONS
Galeana Ramirez argues that he was denied his right to due process and a fair trial when
the State asked the jury venire a compound question during voir dire. He argues that we should
adopt a standard from Maryland that prohibits using a compound question when inquiring of a
jury venire whether they have strong feelings about the crime at issue. See Collins v. State, 463
Md. 372, 205 A.3d 1012 (2019). We disagree and decline to adopt the Maryland rule.
Although Galeana Ramirez couches his argument in constitutional terms, he again makes
no showing that his constitutional rights were violated. Instead, he relies only on Maryland law.
Thus, Galeana Ramirez must show a fundamental error resulting in a complete miscarriage of
justice. Davis, 152 Wn.2d at 672. He cannot. There is no Washington law or trial court rule
that prohibits a trial court from asking compound questions during voir dire. Moreover, Galeana
Ramirez misstates the Maryland rule.
In Maryland, a trial court may permit the parties to conduct voir dire, or the trial court
judge may conduct the examination of the jury venire and pose questions proposed by the
5
Requiring law enforcement to use certified interpreters at all stages of investigation or in all law
enforcement scenarios would be problematic, especially in exigent circumstances. For example,
as the State explained in oral argument, the Grays Harbor police department employs several
officers whose first language is not English. Public policy does not support placing restrictions
on officers whose first language is not English from speaking with victims and other witnesses
who share a first language—especially in law enforcement settings where officers are required to
react quickly.
16
No. 54813-5-II
parties. Maryland Rule 4-312(e)(1).6 Under Maryland precedent, on request of one party, a trial
court must ask the jury venire: “‘Do any of you have strong feelings about [the crime with which
the defendant is charged]?’” Collins, 463 Md. at 396 (quoting Pearson v. State, 437 Md. 350,
354, 86 A.3d 1232 (2014)). Under procedure particular to Maryland, the trial court judge must
ask a “strong feelings” question when requested by one of the parties, but need not necessarily
ask follow-on questions. See Collins, 463 Md. at 394-95. Thus, Maryland courts have held that
asking any compound form of the “strong feelings” question is an abuse of the trial court’s
discretion because it impermissibly shifts the responsibility to decide whether a juror is biased
from the trial court to the prospective juror. Collins, 463 Md. at 394, 396-97; Pearson, 437 Md.
at 362.
Washington has no analogous rule and the Maryland rule is wholly inapplicable to
Washington procedure, let alone the facts here. The record on appeal shows that the State asked
multiple potential jurors questions about whether they were victims of crimes, then opened the
question up to the jury venire generally, stating:
Anybody here—a lot of people answered yes to that question so I’m just going to
throw it out to anybody here who has been a victim of a crime, is there anything
about that experience, is the wound too raw?
6
Md. Rule 4-312(e)(1) provides:
Examination. The trial judge may permit the parties to conduct an examination of
qualified jurors or may conduct the examination after considering questions
proposed by the parties. If the judge conducts the examination, the judge may
permit the parties to supplement the examination by further inquiry or may submit
to the jurors additional questions proposed by the parties. The jurors’ responses to
any examination shall be under oath. On request of any party, the judge shall direct
the clerk to call the roll of the array and to request each qualified juror to stand and
be identified when called.
17
No. 54813-5-II
Is there something about that experience that makes you think, ‘Hey, I don’t
know if I can sit on this jury and be fair?’
2 VRP (June 28, 2016) at 69. One juror raised her hand and the State asked follow-up questions.
2 VRP (June 28, 2016) at 69-70.
Furthermore, it is clear from the context of the State’s voir dire questions that the State
was asking jurors who were victims of crimes to describe whether those experiences might be
problematic so that the trial court and trial counsel could determine bias. See 2 VRP (June 28,
2016) at 65-70. Contrary to Galeana Ramirez’s argument, defense counsel easily could have
followed up on the State’s line of questioning. But Galeana Ramirez did not follow up or even
object to the line of questioning. We decline to adopt the Maryland rule on compound questions,
and we hold that Ramirez fails to show a fundamental error resulting in a complete miscarriage
of justice.
VI. STANDARD RANGE SENTENCE
Galeana Ramirez argues that he was denied his right to due process and a fair trial when
the trial court sentenced him to more than the prosecutor recommended.7 He further appears to
argue that the trial court sentenced him to an exceptional sentence because of “‘aggravating
circumstances.’” Reply Br. of Petitioner at 20 (quoting Br. of Resp’t at 41). We disagree for
several reasons.
7
Because he does not cite to the record, it is unclear from Galeana Ramirez’s petition if or when
the State recommended a lesser sentence than what the trial court adopted. To the extent that he
argues that his resulting sentence is harsher than that offered in a plea deal, his argument fails for
two reasons. First, the record on appeal contains no information on abandoned plea agreements.
Second, the statute is clear: “The sentencing judge is not bound by any recommendations
contained in an allowed plea agreement and the defendant shall be so informed at the time of
plea.” RCW 9.94A.431(2).
18
No. 54813-5-II
First, Galeana Ramirez misstates the record. Galeana Ramirez bases his argument on the
statement that the State “recommended that Mr. Galeana Ramirez be sentenced to the bottom of
the sentencing range.” Br. of Petitioner at 35. This is false. The lowest sentence available in the
statutory range was 153 months for each count. The State recommended a standard range
sentence of 176 months for each count.
Second, the trial court sentenced Galeana Ramirez to a standard range sentence, not an
exceptional sentence. Under RCW 9.94A.030(46)(v), assault in the first degree is a “serious
violent offense.” Under RCW 9.94A.589(1)(a), Galeana Ramirez’s two convictions for assault
in the first degree are separate criminal conduct because they do not involve the same victim.8
Accordingly, the sentences for his convictions “shall be served consecutively.”9 RCW
8
RCW 9.94A.589(1)(a) reads, in pertinent part:
[W]henever a person is to be sentenced for two or more current offenses, the
sentence range for each current offense shall be determined by using all other
current and prior convictions as if they were prior convictions for the purpose of
the offender score: PROVIDED, That if the court enters a finding that some or all
of the current offenses encompass the same criminal conduct then those current
offenses shall be counted as one crime. . . . ‘Same criminal conduct,’ as used in this
subsection, means two or more crimes that require the same criminal intent, are
committed at the same time and place, and involve the same victim.
9
RCW 9.94A.589(1)(b) reads, in pertinent part:
Whenever a person is convicted of two or more serious violent offenses arising
from separate and distinct criminal conduct, the standard sentence range for the
offense with the highest seriousness level under RCW 9.94A.515 shall be
determined using the offender’s prior convictions and other current convictions that
are not serious violent offenses in the offender score and the standard sentence
range for other serious violent offenses shall be determined by using an offender
score of zero. . . . All sentences imposed under this subsection (1)(b) shall be served
consecutively to each other and concurrently with sentences imposed under (a) of
this subsection.
19
No. 54813-5-II
9.94A.589(1)(b). Under RCW 9.94A.515, “Assault 1” has a seriousness level of XII. On the
sentencing grid, RCW 9.94A.510, Galeana Ramirez’s offender score of 0 and seriousness level
of XII correlate to a standard range sentence of 93-123 months for each count.
The jury also found that Galeana Ramirez used a firearm in the commission of his crimes.
Accordingly, under RCW 9.94A.533(3)(a), 60 months is added to this standard range. This
results in a total standard range for each count of 153 to 183 months. The trial court sentenced
Galeana Ramirez to the recommended 176 months on each count, for a total of 352 months
confinement. Thus, contrary to Galeana Ramirez’s argument, his sentence is properly within the
standard range.10
Third, because the trial court sentenced Galeana Ramirez to a standard range sentence, he
may not appeal his sentence absent the trial court failing to comply with constitutional
requirements or the procedural requirements of the Sentencing Reform Act (SRA).11 State v.
Osman, 157 Wn.2d 474, 481-82, 139 P.3d 334 (2006). Galeana Ramirez makes no attempt to
meet this requirement.
A sentence within the standard sentence range, under RCW 9.94A.510 or
9.94A.517, for an offense shall not be appealed. For purposes of this section, a
sentence imposed on a first-time offender under RCW 9.94A.650 shall also be
deemed to be within the standard sentence range for the offense and shall not be
appealed.
RCW 9.94A.585(1).
10
Nor is it at “the top” of the sentencing range, as Galeana Ramirez contends. Br. of Petitioner
at 35.
11
Chapter 9.94A RCW.
20
No. 54813-5-II
The record simply does not support Galeana Ramirez’s contention that the trial court
gave an exceptional sentence, nor does the record on appeal show any “aggravating
circumstances.” Indeed, Galeana Ramirez fails to show that the trial court erred either
constitutionally or procedurally under the SRA. Without making any showing, Galeana Ramirez
asks us to infer that the trial court was imposing a “trial tax” on him for going to trial—
apparently as punishment for not taking a plea deal. Br. of Petitioner at 35; Reply Br. of
Petitioner at 20-21. But he cites no law and nothing in the record on appeal supports this
argument. We decline to make that inference. Thus, under RCW 9.94A.585(1), Galeana
Ramirez may not appeal his standard range sentence. Accordingly, we hold that the trial court
properly sentenced Galeana Ramirez to a standard range sentence.
VII. CUMULATIVE ERROR
Finally, Galeana Ramirez argues that cumulative errors resulted in an unfair trial that
violated his due process rights. We disagree.
The cumulative error doctrine applies when a trial is affected by several errors that
standing alone may not be sufficient to justify reversal but, when combined may deny a
defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). To determine
whether cumulative error requires reversal of a defendant’s conviction, we must consider
whether the totality of circumstances substantially prejudiced the defendant. In re Pers.
Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds by
State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). The cumulative error doctrine does not
apply when there are no errors or where the errors are few and have little or no effect on the
trial’s outcome. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006).
21
No. 54813-5-II
Here, we previously considered the errors Galeana Ramirez alleges and do not reconsider
them here. To the extent Galeana Ramirez alleges errors in his new arguments, he fails to show
any prejudice. Thus, this claim fails.
CONCLUSION
We deny Galeana Ramirez’s petition. Five of his arguments are procedurally barred
because the issues were decided on direct appeal. Regarding the remaining arguments, we hold
that Galeana Ramirez fails to show that he was substantially prejudiced by Detective Cox’s
testimony about the firearm. We hold that Galeana Ramirez fails to show that testimony
regarding a victim who had been interviewed through an interpreter and the trial court’s voir dire
were fundamental defects which inherently resulted in a miscarriage of justice. Likewise, we
hold that the trial court properly sentenced Galeana Ramirez to a standard range sentence. We
further hold that there was no cumulative error. Thus, we deny Galeana Ramirez’s petition.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Glasgow, A.C.J.
Veljacic, J
22