                                                                  201&HAR2I MH 5-

   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

In the Matter of the Personal              No. 71377-9-1
Restraint of:




JUSTIN CASTILLO,
                                           UNPUBLISHED OPINION
                     Petitioner.
                                           FILED: March 21, 2016

       PER CURIAM. Justin Castillo challenges his convictions and sentence in King

County Superior Court Case No. 08-1-00970-6 SEA. After the jury in Castillo's first

trial could not agree on a verdict, the jury in a second trial convicted Castillo of two

counts of first degree rape of a child and one count of first degree child molestation.

On appeal, this court affirmed the convictions and sentence in an unpublished

opinion. State v. Castillo, noted at 169 Wn. App. 1023, 2012 WL 2989248. In order

to obtain collateral relief by means of a personal restraint petition, Castillo must

demonstrate either an error of constitutional magnitude that gives rise to actual

prejudice or a nonconstitutional error that inherently results in a "'complete

miscarriage of justice.'" In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d

506 (1990) (quoting Hill v. United States. 368 U.S. 424, 428, 82 S. Ct. 458, 7 L. Ed.

2d 417 (1962)). Because Castillo has not made such a showing, his petition is

denied.
No. 71377-9-1/2



                               Sufficiency of the Evidence

       First, Castillo challenges the sufficiency of the evidence supporting his

convictions. In reviewing a challenge to the sufficiency of the evidence, the test is

whether, after viewing the evidence in a light most favorable to the State, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. State v. Green. 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

"When the sufficiency of the evidence is challenged in a criminal case, all reasonable

inferences from the evidence must be drawn in favor of the State and interpreted

most strongly against the defendant." State v. Salinas. 119 Wn.2d 192, 201, 829

P.2d 1068(1992).

       In Castillo's direct appeal, this court recited the following facts:

      At the second trial, the State's evidence established that P and her
       mother resided with Castillo for most of four years. Castillo often cared
      for P and her cousin A, who also lived in the home.

               P testified that Castillo raped her when she was five or six years
       old. They were driving to McDonald's with A, who was also five.
       Castillo, who was then 17 or 18 years old, stopped in a parking lot and
       had P perform oral sex on him. Castillo told P that if she told anyone,
       he would hurt her mother. A testified that he did not remember this
       incident.


              P testified that another incident of oral sex in a car occurred
       sometime during the next year. A was not present during this incident.
       P recalled kneeling under the steering wheel in order to perform the act.

              During this same time, P alleged that Castillo would come into
       the bedroom she shared with her mother and tell P to come with him.
      They would then have intercourse in the living room. P testified that
      this happened many times, but she had a complete memory of only one
       occasion.
No. 71377-9-1/3



              P did not tell anyone about the rapes because Castillo had told
      her he would hurt her mother if she did. She was also afraid that
      disclosing the incidents would divide her family.

           P first disclosed the rapes to several friends in 2006. In
      November 2006, P's father found a note in which P and a school friend
      traded comments about P being sexually abused. He took P to a
      medical clinic for a sexual assault examination. P told a pediatric nurse
      practitioner that she had been sexually abused for several years by her
      uncle who had moved to California. The nurse notified Child Protective
      Services (CPS). CPS contacted police.

             P's cousin, A, testified that he and P were roughly the same age
      and lived in the same house with Castillo. A alleged that Castillo forced
      him to have sexual contact with P in the garage when he was between
      4 and 6 years old. A said Castillo guided his penis into P's vagina.
      Immediately afterward, Castillo asked P to perform oral sex on him and
      directed A to act as a lookout. P testified that she did not recall this
      incident. A did not disclose this incident until the 2007 investigation of
      P's rape allegations. P alleged other sexual assaults by Castillo in
      Pierce County and California, but the defense succeeded in excluding
      them.


Castillo. 2012 WL 2989248 at *1.

      Citing State v. Haves. 81 Wn. App. 425, 914 P.2d 788 (2009), and State v.

Edwards. 171 Wn. App. 379, 294 P.3d 708 (2012), Castillo argues that the victims'

"generic testimony" was not specific enough to sustain his convictions. Personal

Restraint Petition (PRP) at 25-28. In Haves, this court adopted a three-part test to

assess the specificity of evidence in such child molestation cases, concluding that

"the evidence need only be specific as to the type of act committed, the number of

acts committed, and the general time period." Haves. 81 Wn. App. at 437. In

Edwards. Division Two of this court held that evidence that did not "clearly delineate

between specific and distinct incidents of sexual abuse during the charging period"
No. 71377-9-1/4



was insufficient to convict the defendant of two separate and distinct counts of first

degree child molestation. Edwards. 171 Wn. App. at 403.

       Castillo's claim fails. The victim, P, testified about two specific rapes in a car,

alleging that Castillo forced her to perform oral sex on him. P also testified about a

rape that occurred in the home where she and Castillo both lived at the time. Finally,

P's cousin A testified that Castillo forced him to have sexual contact with P. Contrary

to Castillo's assertion in his petition, these were not "'general instances' of abuse,"

PRP at 27, but sufficiently specific as to the type and number of acts committed and

the general time period. P's and A's testimony clearly delineated between specific

and distinct incidents of sexual abuse during the charging period and sufficiently

supported Castillo's convictions for rape of a child and child molestation.

       Insofar as Castillo alleges "numerous inconsistencies" and "obvious

contradictions" in the victims' testimony, PRP at 11, 12, this court noted in its decision

on direct appeal that defense counsel highlighted these discrepancies at trial,

focusing on both P's and A's credibility and memory issues. Castillo. 2012 WL

2989248 at *2. Thus, the jury had the opportunity to assess the witnesses' credibility

and reliability, and this court is not in a position to reweigh the evidence the jury

considered. "This court must defer to the trier of fact on issues involving conflicting

testimony, credibility of the witnesses, and the persuasiveness of the evidence."

State v. Hernandez. 85 Wn. App. 672, 675, 935 P.2d 623 (1997).
No. 71377-9-1/5



                                  Right to a Public Trial

       Next, Castillo argues that the trial court violated his right to a public trial under

article I, section 22 of the Washington Constitution and the Sixth Amendment to the

United States Constitution when it "closed the courtroom for substantial portions of

jury selection, at the request of some of the jurors." PRP at 28.

       During voir dire at Castillo's second trial, the court called a recess in order to

respond to a question from Juror69. State's Response (SR) at Appx. E, p. 79-80
(Supplemental Report of Proceedings for December 9, 2010). The court excused the
rest of the jury venire to the hallway outside the courtroom and asked Juror 69 to take
a seat near the bench. SR at Appx. E, p. 80. When Juror 69 asked to confer with the

court in chambers, the court at first demurred: "There is the issue about the right to

an open courtroom. That's my hesitancy. It wouldn't be ex parte because both
lawyers would be present in chambers. Is there a very important reason why this
can't be addressed in open court?" Juror 69 replied, "Yes," and the court said, "All
right. Let's take this matter in chambers." SR at Appx. E, p. 80. Castillo, both
counsel, and the court reporter were all present with the court and Juror 69 in
chambers. SR at Appx. E, p. 81. Juror 69 then reported to the court an exclamation
she had heard from a spectator in the courtroom during voir dire:

       (Juror 69): I'm sorry, Judge. When the prosecutor asked whether DNA
       evidence should be required, the woman sitting right of the door in the
       brown sweater said yes loud enough for me to hear and otherjurors to
       hear. I do not know who she is. But, she said yes. And she said it
       loudly.

SR at Appx. E, p. 81.
No. 71377-9-1/6



       The trial court learned from defense counsel that the spectator was Castillo's

mother. SR at Appx. E, pp. 81-82. The court then directed that the jury be brought

back in, and instructed the spectators in the courtroom:

       You may be seated. The Court is ordering all the observers in the
       courtroom not to say anything that is audible to anybody other than
       yourself, if you are together. You can whisper, but you are not to say
       anything that anybody else can hear. Is that understood? I am hearing
       a yes.


SR at Appx. E, p. 83.

       The Sixth Amendment to the United States Constitution and article I, section 22

of the Washington Constitution guarantee a criminal defendant the right to a public

trial, which extends to the juror selection process. State v. Wise. 176 Wn.2d 1, 9, 288

P.3d 1113 (2012). Certain proceedings must be held in open court unless the five

factors listed in State v. Bone-Club. 128 Wn.2d 254, 906 P.2d 325 (1995), justify

closing the courtroom.1 The wrongful deprivation of the public trial right is a structural

error presumed to be prejudicial on direct appeal. Wise. 176 Wn.2d at 14.

       Our Supreme Court has held that a petitioner claiming a public trial violation for

the first time on collateral review must generally show actual and substantial prejudice.

In re Pers. Restraint of Coqqin. 182 Wn.2d 115. 116. 340 P.3d 810 (2014): In re Pers.




    1The five factors are: (1) the proponent of closure must make a showing of
compelling need, (2) any person present when the motion is made must be given an
opportunity to object, (3) the means of curtailing open access must be the least
restrictive means available for protecting the threatened interests, (4) the court must
weigh the competing interests ofthe public and ofthe closure, and (5) the order must
be no broader in application or duration than necessary. Bone-Club. 128 Wn.2d at
258-59.
No. 71377-9-1/7



Restraint of Speight. 182 Wn.2d 103, 104, 340 P.3d 207 (2014). But the court has

recognized an exception in cases where the petitioner shows that appellate counsel

failed to raise a meritorious public trial right violation on direct appeal. In In re Pers.

Restraint of Morris. 176 Wn.2d 157, 166, 288 P.3d 1140 (2012), the court held that it

would presume prejudice where the petitioner alleged a public trial right violation by way

of an ineffective assistance of appellate counsel claim because "[h]ad Morris's appellate

counsel raised this issue on direct appeal, Morris would have received a new trial. No

clearer prejudice could be established." (citation omitted). A defendant asserting a

violation of the right to a public trial has the burden to show that a closure occurred.

State v. Nionqe. 181 Wn.2d 546, 556, 334 P.3d 1068 (2014): see also State v. Russell.

183 Wn.2d 720, 729 n.6, 357 P.3d 38 (2015); State v. Koss. 181 Wn.2d 493, 503-04,

334 P.3d 1042 (2014).

       Our Supreme Court has adopted a three-step inquiry to analyze alleged

violations of the right to a public trial. The threshold question is whether, under the

experience and logic test, the proceeding at issue implicates the public trial right. State

v. Sublett. 176 Wn.2d 58, 71, 292 P.3d 715 (2012). Ifthe answer to this first question

is yes, then the reviewing court considers whether there was a closure and, if so,

whether the closure was justified. State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049

(2014). But a reviewing court need not reach the second and third steps if it

determines that the proceeding at issue does not implicate the right to a public trial.

Smith. 181 Wn.2d at 519-20.
No. 71377-9-1/8



       Under the experience and logic test, courts consider (1) "'whether the place and

process have historically been open to the press and general public'" and (2) '"whether

public access plays a significant positive role in the functioning of the particular

process in question.'" Sublett, 176 Wn.2d at 73 (quoting Press-Enterprise Co. v.

Superior Court. 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L Ed. 2d 1 (1986)).

       Here, Juror 69 wished to alert the trial court to a spectator's comment during

voir dire in a setting outside the presence of that spectator. SR at Appx. E, p. 82. The

juror's information did not have to do with the juror's qualifications to serve or with the

specifics of Castillo's case. While Castillo attempts to analogize to cases in which trial

courts closed portions of voir dire by questioning jurors in chambers, see, e.g.. Wise.

176 Wn.2d at 9-20 (collecting cases), his case is more like State v. Rivera. 108 Wn.

App. 645, 653, 32 P.3d 292 (2001). In that case, this court held that closing the

courtroom for a hearing on one juror's complaint about another juror's personal

hygiene did not violate the defendant's right to a public trial.2 Since then, appellate

courts in Washington have determined that a variety of alleged closures do not

implicate the right to a public trial. See, e.g.. State v. Wilson. 174 Wn. App. 328, 342,

298 P.3d 148 (2013) (administrative juror excusals); Smith. 181 Wn.2d at 519

(sidebars or evidentiary conferences); Koss. 181 Wn.2d at 495-96 (jury instructions

conference); State v. Slert. 181 Wn.2d 598, 606-07, 334 P.3d 1088 (2014) (in-



    2Although in Sublett. our Supreme Court rejected the Courtof Appeals'
"ministerial" versus "adversarial" analysis in this and other cases involving public trial
issues, the court denied review in Rivera. Sublett. 176 Wn.2d at 72; see also State v.
Rivera. 146 Wn.2d 1006, 45 P.3d 551 (2002).


                                               8
No. 71377-9-1/9



chambers examination of jury questionnaires); Sublett. 176 Wn.2d at 76-77

(conference to discuss question from a deliberating jury).

         Here, Castillo does not show either that the chambers conference constituted

a proceeding that has been historically open to the public or that public access plays

a significant positive role in the functioning of such a proceeding. Moreover, the

conference was "contemporaneously memorialized and recorded, thus negating any

concern about secrecy." Smith. 181 Wn.2d at 518. And the trial court promptly

instructed observers in the courtroom according to the results of the conversation.

Because he fails to meet either prong of the experience and logic test, Castillo does

not establish that the chambers conference implicated his public trial right.

Therefore, no closure occurred, and the trial court did not violate his right to a public

trial.


         Castillo's petition is denied.


                                           FOR THE COURT:
