IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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IN THE MATTER OF THE                               No. 71383-3-1                      C_          —*—!
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HECTOR SERANO SALINAS,                             DIVISION ONE                       en          5£ -'o
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                      Petitioner.                  UNPUBLISHED OPINION
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                                                             JUN 1 5 2015


       PER CURIAM. In 2010, a jury convicted Hector Salinas of three counts of

rape in the first degree. Salinas filed this personal restraint petition contending

that appellate counsel was ineffective for failing to raise a public trial claim in his

direct appeal. We agree and reverse his convictions.

       The State charged Salinas with three counts of rape in the first degree

and one count of kidnapping in the first degree. Prior to voir dire, defense

counsel proposed a jury questionnaire containing the following language:

       Some of these questions may call for information of a personal
       nature that you may not want to discuss in public. If you feel that
       your answer to any question may invade your right to privacy or
       might be embarrassing to you, you may so indicate on the form
       that you would prefer to discuss your answer in private.

As the State and defense counsel discussed jury selection, defense counsel

suggested the trial court question any jurors who wished to speak privately in

chambers prior to general voir dire. The prosecutor inquired regarding the trial

court's general practice for individual voir dire. The trial court responded: "I'm
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going to ask if there's anybody in the courtroom who has an objection,

otherwise we have to do it in open courtroom." Once the jury pool was present,

the trial court stated:

       Is there anyone in this group or anyone in this courtroom at this
       time who has any objection whatsoever to the Court conducting a
       short interview with each of those jurors, potential jurors with
       counsel and the defendant in my chambers all on the record to
       determine what their concerns are and be able to have them
       answer those questions or tell them what their concerns are in
       private? Is there anyone here that has any objection to that?

The record does not reflect that anyone responded. The trial court excused

jurors who did not wish to speak privately and then stated:

       We have the jurors here that are the ones that I think wish to
       speak in private. I would ask ifanyone has an objection to us
       speaking to them in private with us and counsel and defendant
       and the court reporter? Then I will go into chambers. Counsel will
       come in. The attorneys will come with me. The court reporter will
       set up, and Ms. Ortner will bring you in one at a time, and we'll
       talk to you and find out what your concerns are, and we'll take it
       from there, and if you will all just be patient, we'll do it as quickly
        as we can.


The record reflects that six jurors were questioned in chambers. The trial court

excused three of the privately questioned jurors for cause.

       A jury convicted Salinas as charged. Salinas was sentenced to life in

prison without parole as a persistent offender. Salinas appealed. Appellate

counsel did not raise a public trial claim on direct appeal. In a published opinion,

State v. Salinas, 169 Wn. App. 210, 279 P.3d 917 (2012), this court affirmed

Salinas's convictions but remanded to vacate the kidnapping conviction and

conduct a same criminal conduct analysis. Salinas now files this timely personal

restraint petition.
No. 71383-3-1/3



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

section 22 of the Washington State Constitution guarantee a criminal defendant

the right to a public trial. State v. Wise, 176 Wn.2d 1, 9, 288 P.3d 1113 (2012).

Additionally, article I, section 10 of the Washington Constitution guarantees the

public's open access to judicial proceedings. State v. Easterlinq, 157 Wn.2d 167,

174, 137 P.3d 825 (2006). To protect both rights, certain proceedings must be

held in open court unless application of the five-factor test in State v. Bone-Club,

128 Wn.2d 254, 258-59, 906 P.2d 325 (1995) supports closure of the courtroom.1

       It is well established that the public trial right in voir dire proceedings

extends to the questioning of individual prospective jurors. Wise, 176 Wn.2d at

16-19. 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.

       To establish ineffective assistance of appellate counsel, a petitioner must

establish that (1) counsel's performance was deficient and (2) the deficient

performance actually prejudiced the defendant. In re Pers. Restraint of Morris,

176 Wn.2d 157, 166, 288 P.3d 1140 (2012). "[Wjhere appellate counsel fails to

raise a public trial right claim, where prejudice would have been presumed on

direct review, a petitioner is entitled to relief on collateral review." Morris, 176

Wn.2dat161.




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 of the public and of the closure, and (5) the order must be no
broader in application or duration than necessary. Bone-Club, 128 Wn.2d at 258-59.
No. 71383-3-1/4



          Here, neither party disputes that the trial court closed the courtroom

when it privately questioned potential jurors during voir dire in chambers without

first conducting a full Bone-Club analysis. Thus Salinas's constitutional right to a

public trial was violated. Because this error would have been presumed

prejudicial on direct appeal, appellate counsel was ineffective for failing to raise

it.

          Relying on State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009) and in

re Pers. Restraint of Copland, 176 Wn. App. 432, 309 P.3d 626 (2013), the

State argues that Salinas is not entitled to a new trial despite the closure

because he invited the violation by proposing the questionnaire and process for

individual questioning. "The basic premise of the invited error doctrine is that a

party who sets up an error at trial cannot claim that very action as error on

appeal and receive a new trial." In re Pers. Restraint of Coqqin, 182 Wn.2d 115,

119, 340 P.3d 810 (2014). But Momah and Copland are distinguishable. In both

cases, the trial court fully and effectively considered the Bone-Club factors on

the record, even if it did not identify them by name. Momah. 167 Wn.2d at 156;

Copland, 176 Wn. App. at 446-450. Here, the trial court recognized the closure

issue and asked parties and the public if they objected. However, the trial court

did not consider whether a compelling interest demanded closure, did not

consider whether questioning jurors in chambers was the least restrictive

closure possible, and did not weigh the competing interests of Salinas and the

public.

          Instead, this case is more similar to Coqgin. In Coggin:
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       [djuring jury selection, defense counsel expressed a desire for
       individual juror questioning due to the publicity and sensitive
       nature of the case. The prosecutor drafted a juror questionnaire,
       and defense counsel approved the final version. The
       questionnaire advised the potential jurors that if they preferred to
       discuss their answers in private, the court would give them an
       opportunity to explain their answers in a "closed hearing."

Coggin. 182 Wn.2d at 117. The Washington Supreme Court held that these

actions did not rise to the level of invited error. Coggin. 182 Wn.2d at 119.

       In the alternative, the State claims Salinas's conduct amounted to a

waiver of the public trial right. But waiver of a constitutional right must be

knowing, voluntary, and intelligent. State v. Shearer. 181 Wn.2d 564, 571, 334

P.3d 1078 (2014). A court must "indulge every reasonable presumption against

waiver of fundamental rights." State v. Frawlev. 181 Wn.2d 452, 334 P.3d 1022

(2014). Here the record does not support a conclusion that Salinas waived his

public trial right. Defense counsel assented to the private questioning of jurors,

but there is no evidence that Salinas was ever advised of his right to a public

trial or consented to the private questioning of the jurors.

       Finally, the State claims Salinas has failed to show that appellate

counsel was ineffective for failing to raise the public trial issue on direct appeal.

The State argues that appellate counsel could have reasonably decided not to

raise a public trial issue, believing that Salinas was precluded from asserting

the issue on appeal. But at the time Salinas filed his direct appeal, the

Washington Supreme Court had decided In re Pers. Restraint of Orange. 152

Wn.2d 795, 100 P.3d 291 (2004). Orange "clarified, without qualification, both

that Bone-Club applied to jury selection and that closure of voir dire to the
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public without the requisite analysis was a presumptively prejudicial error on

direct appeal." Morris. 176 Wn.2d at 167.

         Salinas's personal restraint petition is granted. Salinas's judgment and

sentence is reversed and the case is remanded to the superior court for a new

trial.

                                  For the court:




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