                                                                                •rr,V




                                                             2015 SEP 28 m 8=50




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



In the Matter of the Personal                      NO. 66055-1-1
Restraint Petition of:
                                                   DIVISION ONE
       BRIAN CHAMPACO,
                                                   UNPUBLISHED OPINION
                     Petitioner.
                                                   FILED: September 28, 2015


       Lau, J. — During Brian Champaco's trial for attempted first degree rape and first

degree burglary with sexual motivation, the court sealed his competency evaluation and

a defense expert's evaluation prepared during the exploration of a diminished capacity

defense. Following his convictions on both counts and an unsuccessful direct appeal,

Champaco filed this personal restraint petition. The acting chief judge dismissed all

issues in the petition except one—"whether the sealing of Champaco's competency

evaluations violated his right to a public trial and the public's right to open court

records." Because Champaco invited any error regarding his right to a public trial,

seeks relief that is not available on these facts, and does not demonstrate actual and

substantial prejudice, we deny his petition.
No. 66055-1-1/2



                                           FACTS


       Based on allegations that Champaco forced his way into a woman's apartment,

demanded sex, and threatened her with a hammer, the State charged him with

attempted first degree rape and first degree burglary with sexual motivation.

       Prior to trial, Champaco received a competency evaluation at Western State

Hospital. When he returned to court, the prosecutor and defense counsel agreed that he

was competent to stand trial. After reviewing the evaluation from Western State, the court

found Champaco competent and entered findings of fact and conclusions of law. The

evaluation was not filed or sealed at that time.


       Dr. David White subsequently evaluated Champaco to determine the feasibility of a

diminished capacity defense. In his report, Dr. White concluded that Champaco was

malingering and exaggerating his cognitive deficits. Defense counsel told the court that he

would not be asserting a diminished capacity defense and that Dr. White would not be

called as a witness at trial. The court then suggested that "for potential appellate

review ... I'm going to need a sealed statement from you as to what was involved with

that exploration, what you found out. . ." Report of Proceedings (RP) (Sept. 12, 2007) at

5. The prosecutor stated she had "no objection to filing a copy of Dr. White's report

under seal so it would be part of the record, but not open to the public." RP (Sept. 12,

2007) at 6.

       During trial, the parties and the court discussed whether Champaco's evaluations

should be sealed:

       [PROSECUTOR]: During pretrials we had talked - - fdefense counsel] and I
       had talked, discussed with the Court filing the Western State evaluation with
       the defendant, as well as the defense expert's report, I have photocopied

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No. 66055-1-1/3



       those, and I have an order for the Court to seal those, to file under seal.
       [Defense counsel] has signed off on that and so I'd ask the Court [to] file
       these under seal.
       THE COURT: Why do they need to be under seal?
       [PROSECUTOR]: Sensitive psychological information about the defendant.
       It's personal information. We routinely seal the Western State reports. And I
       don't think [Dr. White's] report is any different, and I believe under the statute
       it's permissible to file these under seal under [RCW] 10.77.
       [DEFENSE COUNSEL]: And we did talk about this pretrial on the first week.
       And your Honor was assuming that it was filed under seal already, but it had
       not been filed under seal, which is why we're providing the seal order.
       [PROSECUTOR]: That's correct.
       THE COURT: Under State vs lsh[i]kawa, if you file something under seal,
       I'm supposed to have a public hearing and opportunity for the press to
       appear. And the court, the superior court in general, has been getting
       some heat over the last couple of years from the newspapers, specifically
       the Seattle Times, for filing things under seal. So that's my only concern
       about filing it under seal.
       [PROSECUTOR]: I can look up the statutory citation that authorizes the
       Court to do that and provide that to the Court. I can let the Court know that
       routinely what happens when somebody is found competent and the Court
       enters the findings of fact and conclusions of law, the report is filed at that
       time under seal with a specific statutory cite on the order to file it under
       seal. For whatever reason that just wasn't done in this case and that's
       why we're asking to do it now.
       THE COURT: I need something on there to tell me this contains sensitive
       medical information.
       [PROSECUTOR]: I can get that later today, Your Honor.
       [DEFENSE COUNSEL]: Yes. Your Honor.
       THE COURT: That would help.

RP (Sept. 27, 2007) at 4 (emphasis added). Later, the prosecutor told the court that

"[RCW] 10.77.210 . . . directs that the defendant's mental health record shall remain

private and not subject to public view." RP (Oct. 1, 2007) at 20. She then told the court "I

have prepared an order that includes [the] statutory citation . . . that we would like to file

under seal.... [Defense Counsel] has signed off on that order, your Honor." RP (Oct. 1,

2007) at 20 (emphasis added).




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No. 66055-1-1/4



       The jury convicted Champaco of attempted first degree child rape and first degree

burglary with sexual motivation. Champaco appealed to this court and we affirmed.

       In October 2010, Champaco filed this personal restraint petition arguing, among

other things, that the trial court violated his right to a public trial and the public's right to

open court records when it sealed his competency and expert evaluations without

making the findings required by Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640

P.2d 716 (1982), and State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).

Following several stays, we requested supplemental briefing.

       In November 2013, the Acting Chief Judge issued an order dismissing all issues in

the petition except whether sealing Champaco's evaluations violated his right to a public

trial and the public's right to open court records. We subsequently stayed the petition

again pending the State Supreme Court's decisions in In re Coggin, 182 Wn.2d 115, 340

P.3d 810 (2014), and In re Speight. 182 Wn.2d 103, 340 P.3d 207 (2014). Following

those decisions, we lifted the stay and obtained supplemental briefing regarding their

effect on this case.

                                           ANALYSIS


       The Washington and United States Constitutions guarantee the right of a criminal

defendant to a public trial. Wash. Const, art. I, section 22; U.S. Const, amend. VI.

Article I, section 10 of the Washington Constitution provides a similar right to the public,

stating that "|j]ustice in all cases shall be administered openly." State v. Lormor, 172

Wn.2d 85, 91, 257 P.3d 624 (2011). These rights ensure that court proceedings and
No. 66055-1-1/5



court records, including competency evaluations, are presumptively open to the public.1

State v. Chen, 178 Wn.2d 350, 355-56, 309 P.3d 410 (2013). The presumption can be

overcome, and a court record sealed, only if the court finds that the factors discussed in

Ishikawa2 favor sealing. Chen, 178 Wn.2d at 355. To obtain relief for a public trial

violation, a personal restraint petitioner must establish actual and substantial prejudice.



       1 These rights apply to both trial and pretrial proceedings. State v. Njonge. 181
Wn.2d 546, 553, 334 P.3d 1068 (2014).
       2 The Ishikawa factors are:
               1. The proponent of closure and/or sealing must make some
       showing of the need therefor. In demonstrating that need, the movant
       should state the interests or rights which give rise to that need as
       specifically as possible without endangering those interests
               If closure and/or sealing is sought to further any right or interest
       besides the defendant's right to a fair trial, a "serious and imminent threat
       to some other important interest" must be shown.

               2. "Anyone present when the closure [and/or sealing] motion is
       made must be given an opportunity to object to the [suggested
       restriction]."

              3. The court, the proponents and the objectors should carefully
       analyze whether the requested method for curtailing access would be both
       the least restrictive means available and effective in protecting the
       interests threatened. . . . If the endangered interests do not include the
       defendant's Sixth Amendment rights, that burden rests with the
       proponents.
             4. "The court must weigh the competing interests of the defendant
       and the public", and consider the alternative methods suggested. Its
       consideration of these issues should be articulated in its findings and
       conclusions, which should be as specific as possible rather than
       conclusory. . . .
             5. "The order must be no broader in its application or duration than
       necessary to serve its purpose . . . ." If the order involves sealing of
       records, it shall apply for a specific time period with a burden on the
       proponent to come before the court at a time specified to justify continued
         sealing.
Ishikawa, 97 Wn.2d at 37-39 (citations omitted). Ishikawa's five-factor standard was
initially used in Article I, section 10 cases and later applied to Article I, section 22 cases
in Bone-Club, 128 Wn.2d at 258-59.
No. 66055-1-1/6



In re Pers. Restraint of Coggin, 182 Wn.2d at 120-22; In re Pers. Restraint of Speight,

182Wn.2dat107.3

       It is undisputed that Champaco's evaluations were court records and that the trial
court failed to apply the Ishikawa factors before granting the parties' joint motion to seal
them. The parties dispute, however, whether any errors arising from the sealing were
invited, whether Champaco must demonstrate actual and substantial prejudice before

he is entitled to relief, and what remedies are available on these facts.

                    Article I. Section 22 / Defendant's Right to a Public Trial

       The State contends Champaco invited any violation of his Article I, section 22

right to a public trial because the prosecution and defense jointly requested the sealing.
Despite the State's arguments and the recent discussion of invited error in Coggin,
Champaco does not address this issue in any of his filings. We conclude any error was

invited.

           Under the invited error doctrine, a party may not set up an error at trial and then

complain of it on appeal. In re Pers. Restraint of Copland, 176 Wn. App. 432, 442, 309
P.3d 626 (2013). "To determine whether the invited error doctrine is applicable to a
case, we may consider whether the petitioner 'affirmatively assented to the error,
materially contributed to it, or benefited from it.'" Copland. 176 Wn. App. at 442 (quoting
State v. Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009)). In this case, it is clear
from the record that Champaco's trial counsel and the prosecutor jointly presented the


       3Contrary to Champaco's assertions, a majority of the justices in Coggin and
 Speight agreed that a personal restraint petitioner must demonstrate actual and
 substantial prejudice to obtain relief for a public trial violation. In re Pers. Restraint of
 Schreiber. No. 40553-9-II (Wash. Ct. App. July 28, 2015).
No. 66055-1-1/7



sealing order.4 Although the prosecutor took the lead in presenting the order, the record

indicates that she spoke on behalf of defense counsel as well. It is also clear that

Champaco benefitted from the sealing since the documents contained sensitive mental

health information and suggested he was malingering. In these circumstances,

Champaco invited any error concerning his personal right to a public trial. See Copland.

176 Wn. App. at 442-43 (where defense counsel initiated and participated in the

closure, and the defendant benefitted from it, any error was invited); Coggin, 182 Wn.2d

at 119 (petitioner did not invite error by "merely assenting to the State's juror

questionnaire and where it was the trial judge who decided to question jurors in

chambers").

       Alternatively, even if Champaco had not invited the error, the sole remedy he

seeks—a new trial—is unavailable in these circumstances. Both federal and

Washington courts have held that a new trial is not always required for a public trial

violation and that "'the remedy should be appropriate to the violation.'" State v. Rainev,

180 Wn. App. 830, 843 n.38, 327 P.3d 56 (2014) (quoting Waller v. Georgia, 467 U.S.

39, 50, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) and holding that violation of public trial

right during posttrial hearing required remand for new posttrial hearing, not new trial).5


       4 In a declaration submitted with Champaco's personal restraint petition,
Champaco's trial counsel states that "the judge asked to see a copy of the mental status
evaluations of Mr. Champaco conducted by Western State Hospital and the
psychologist who we retained. I provided copies to the judge under seal." (Emphasis
added).
   5 See also Gibbons v. Savage. 555 F.3d 112, 120 (2d Cir.). cert, denied, 558 U.S.
932, (2009) ("It does not necessarily follow, however, that every deprivation in a
category considered to be 'structural' constitutes a violation of the Constitution or
requires reversal of the conviction, no matter how brief the deprivation or how trivial the
proceedings that occurred during the period of deprivation."); Hoi Man Yung v. Walker,
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No. 66055-1-1/8



In State v. Nionge. 181 Wn.2d 546, 554 n.3, 334 P.3d 1068 (2014), the Washington

Supreme Court stated:

       Where the error involves only the closure of a pretrial proceeding that can
       be repeated without any effect on the trial, a lesser remedy [than a new
       trial] may be appropriate. See Waller. 467 U.S. at 40 (directing new
       suppression hearing and noting, "A new trial need be held only if a new,
       public suppression hearing results in the suppression of material evidence
       not suppressed at the first trial or in some other material change in the
       positions of the parties.").

Accord State v. Wise, 176 Wn.2d 1, 19, 288 P.3d 1113 (2012). Thus, even if error, the

sealing of evaluations used in an uncontested pretrial ruling and the pretrial exploration

of an unasserted defense would not warrant a new trial. At most, they would warrant a

remand for reconsideration of the sealing decision following application of the Ishikawa

factors. The remedy Champaco seeks is unavailable on these facts.

       Given this conclusion, we need not decide whether the actual and substantial

prejudice requirement announced in Coggin and Speight applies in this case.6

Regardless of whether the requirement applies, Champaco cannot obtain the relief he

seeks. We note, however, that to the extent the requirement applies, Champaco fails to

satisfy it. In fact, he does not even attempt to demonstrate such prejudice. This is not

surprising, since the sealing of evaluations used for an uncontested pretrial competency

determination and an unasserted defense simply could not have affected the outcome

of his trial. There is no showing of actual and substantial prejudice. See In re Pers.


468 F.3d 169, 177 (2nd Cir. 2006) ("new trial is not required to remedy a violation of the
public trial guarantee if some other relief would cure the violation"); Salem v. Yukins,
414 F. Supp. 2d 687 (E.D. Mich. 2006) (appropriate remedy for closing entrapment
hearing was a new entrapment hearing, not a new trial).
    6 Champaco contends the prejudice requirement either does not apply here or
applies only to violations of the state, as opposed to the federal, constitutional right to a
public trial.
                                           -8-
No. 66055-1-1/9



Restraint of Schreiber. No. 40553-9-11 (Wash. Ct. App. July 28, 2015); In re Stockwell.

160 Wn. App. 172, 180-81, 248 P.3d 576 (2011).

                  Article I, Section 10 / Public's Right to Open Proceedings

       Champaco also contends that sealing his evaluations violated the public's right to

open proceedings under Article I, section 10. As noted above, once the evaluations

became court records, they were subject "to the constitutional presumption of

openness, which can be rebutted only when the court makes an individualized finding

that the Ishikawa factors weigh in favor of sealing." Chen, 178 Wn.2d at 352. We

conclude, however, that any violation of the public's Article I, section 10 rights is

unavailing for several reasons.

       First, Champaco's briefing on this issue is inadequate. He offers no argument or

analysis concerning his standing to assert,7 or the appropriate remedies for, a violation

of the public's right. Our courts have declined to consider conclusory claims based on

the public's right to open proceedings. See State v. Magnano, 181 Wn. App. 689, 693

n.1, 326 P.3d 845 (2014) (failure to provide "separate analysis, argument, or citation to




      7 Champaco arguably cannot assert the public's right to open proceedings
because he invited the very closure he challenges on appeal. See generally State v.
Herron, No. 89571-6, slip op. at 9, 12 (Wash. Aug. 20, 2015) (holding that Herron
lacked standing "to assert the general public's right to the open administration of justice"
and that his waiver of his own right to an open courtroom waived that right "for all
purposes"); In re Pet, of Reyes. 176 Wn. App. 821, 845-847, 315 P.3d 532 (2013),
review granted, 182 Wn.2d 1001 (2015) ("If a litigant declines, perhaps for tactical
reasons, to assert his own right to a public hearing, we do not see why he should be
allowed to assert someone else's right to attend. This essentially gives a litigant the
ability to try the case in his preferred manner (without public scrutiny) but obtain a new
trial if things do not go in his favor. ... We conclude that Mr. Reyes lacks standing to
assert the right of others to have attended his hearing.").
No. 66055-1-1/10



authority regarding the public's right to an open trial."); Coggin, 182 Wn.2d at 117 n.3;

Speight, 182 Wn.2d at 105 n.3.

       Second, the sole remedy he seeks—a new trial—is unavailable for the alleged

violation of the public's right to open proceedings. Such violations do not warrant a new

trial absent a violation of the defendant's own right to a public trial. State v. Beskurt,

176 Wn.2d 441, 446, 293 P.3d 1159 (2013); State v. Halverson, 176 Wn. App. 972,

977, 309 p.3d 795 (2013) (citing Beskurt and stating "when an appellant seeks a new

trial to remedy an alleged violation of public's article I, section 10 rights to open

proceedings—without also demonstrating an article I section 22 violation of the

defendant's public trial rights—the alleged error does not warrant a retrial.").

Furthermore, for the reasons discussed in our resolution of Champaco's Article I,

section 22 claim, a new trial is not a remedy "'appropriate to the violation.'" State v.

Rainev, 180 Wn. App. 830, 843 n.38, 327 P.3d 56 (2014) (quoting Waller v. Georgia,

467 U.S. 39, 50, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)); State v. Nionge, 181 Wn.2d

at 554 n.3.

       And third, to the extent the actual and substantial prejudice standard applies

here, Champaco fails to satisfy it.

        The petition is denied.




WE CONCUR:




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