State Of Washington v. Jose Luis Vazquez-santos ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, ) No. 80298-4-I
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JOSE LUIS VAZQUEZ-SANTOS, )
)
Appellant. )
BOWMAN, J. — Jose Luis Vazquez-Santos appeals his jury convictions for
one count of first degree and one count of second degree child molestation. He
argues that the trial court erred in denying his motion for a new trial where his
attorney interfered with his right to testify and that ineffective assistance of
counsel and cumulative error prevented a fair trial. He also filed a statement of
additional grounds asserting several claims of error. We affirm.
FACTS
The State charged Vazquez-Santos with one count of child molestation in
the first degree and one count of child molestation in the second degree for
repeatedly molesting his stepdaughter A.V. when she was between the age of 7
and 13 years old. A.V. did not report the abuse to the police until she was an
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80298-4-I/2
adult. A visit from Vazquez-Santos at her workplace after years of no contact
with him triggered her report to law enforcement.
The case proceeded to jury trial in March 2019. Jury selection
encompassed two days, during which Vazquez-Santos’ attorney questioned 70
prospective jurors with him present. After jury selection, the State disclosed it
would not offer at trial any of Vazquez-Santos’ statements made to law
enforcement at the time of his arrest. This included a statement by Vazquez-
Santos about a consensual sexual relationship he claims he had with A.V. when
she was 19 years old. The State also disclosed it would offer testimony about an
uncharged sexual assault of A.V. as evidence of Vazquez-Santos’ “lustful
disposition” toward her. Defense counsel agreed that the evidence was
admissible for that purpose.1
In its opening statement, the State described the uncharged sexual
assault allegation as “touching turned to rape.” In the defense opening
statement, counsel clarified that Vazquez-Santos “is not charged with rape . . . .
For whatever reason, the State has not charged that.” During a recess, in
response to counsel’s remark, the prosecutor argued that the court should allow
the State to call a filing deputy from the King County Prosecutor’s Office to testify
that the State could not have charged Vazquez-Santos with rape because the
statute of limitations had expired. Defense counsel argued that no explanation
1 “[E]vidence of collateral sexual misconduct may be admitted under ER 404(b) when it
shows the defendant’s lustful disposition directed toward the [victim].” State v. Ray, 116 Wash. 2d
531, 547, 806 P.2d 1220 (1991). “ ‘Such evidence is admitted for the purpose of showing
the lustful inclination of the defendant toward the [victim], which in turn makes it more
probable that the defendant committed the offense charged.’ ” Ray, 116 Wash. 2d at 547 (internal
quotation marks omitted) (quoting State v. Ferguson, 100 Wash. 2d 131, 134, 667 P.2d 68 (1983)).
2
No. 80298-4-I/3
was necessary but, after the trial court granted the State’s request, agreed to a
stipulated explanation instead of live testimony.
Before the State rested its case, defense counsel twice met with Vazquez-
Santos about whether he should testify.2 At the first meeting, defense counsel
and another attorney conducted a mock direct-examination of Vazquez-Santos to
explore the risks associated with his testimony. Both lawyers advised him
against testifying. According to Vazquez-Santos, the attorney assisting defense
counsel told him, “[Your attorney] will defend you, he will say everything for you.”
Vazquez-Santos did not make a final decision during the meeting about whether
he would testify.
A few days later, defense counsel again consulted Vazquez-Santos about
whether he should testify. Counsel repeated his opinion that Vazquez-Santos
should not testify. Counsel later explained that a significant factor for his advice
was concern that Vazquez-Santos’ testimony could “open the door” to prejudicial
statements he had made to law enforcement not offered in the State’s case in
chief. After the meeting, counsel believed that Vazquez-Santos planned to follow
his advice not to testify.
On the morning of the final day of trial, the court asked defense counsel
whether Vazquez-Santos would be testifying. Counsel told the court, “I do not
anticipate my client testifying. I mean, I have, you know, obviously, something
could change with this witness, but . . . I’m 99.9 percent confident and I shared
2 Vazquez-Santos told his lawyer he wanted to testify to explain to the jury his suspicions
that A.V. fabricated molestation allegations because she was jealous about his new marriage and
family. Vazquez-Santos claimed that he broke off a consensual sexual relationship with A.V. to
pursue a relationship with his new wife.
3
No. 80298-4-I/4
that with [the prosecutor] that I do not anticipate my client testifying or the
defense putting on a case.” Vazquez-Santos did not dispute his attorney’s
representations. After the State rested its case, the court looked to defense
counsel for a final determination about whether the defense would present a
case. Counsel told Vazquez-Santos, “ ‘I’m not going to have you testify’ ” and
advised the court, “[T]he defense rests.” Vazquez-Santos again said nothing.
The jury convicted Vazquez-Santos of both charges. Postconviction,
Vazquez-Santos obtained new counsel and filed a motion for new trial. He
alleged that his lawyer prevented him from testifying because counsel did not
affirmatively advise him he could testify even if his lawyer advised against it3 and
that he was misled into believing the jury would hear the substance of his
testimony even if he did not testify. He also argued that he lacked sufficient time
at trial to tell the court that he wanted to testify.
Vazquez-Santos moved the court for an evidentiary hearing to determine
whether defense counsel violated his right to testify. Instead, the court ordered
that defense counsel and the attorney who assisted with Vazquez-Santos’ mock
examination submit to interviews with the State. At a subsequent hearing, the
court reviewed declarations from Vazquez-Santos, trial counsel, and new
defense counsel along with a transcript of trial counsel’s interview by the State.
After oral argument, the court declined to order an evidentiary hearing and
3 Vazquez-Santos also claimed in his declaration that he did not recall his lawyer telling
him at all that he had the right to testify. But he did not raise that allegation in his motion for new
trial.
4
No. 80298-4-I/5
denied Vazquez-Santos’ motion for a new trial.4 The judge sentenced Vazquez-
Santos to a standard-range indeterminate sentence.
ANALYSIS
Vazquez-Santos argues the trial court erred in denying his motion for new
trial because his lawyer violated his right to testify. He also contends his attorney
performed deficiently by “opening the door” to prejudicial information. Finally,
Vazquez-Santos contends cumulative error denied him a fair trial. We address
each contention in turn.
Motion for New Trial
Vazquez-Santos argues that the trial court should have granted his motion
for a new trial because his attorney violated his right to testify. A trial court may
grant a motion for a new trial when “substantial justice has not been done” and “it
affirmatively appears that a substantial right of the defendant was materially
affected.” CrR 7.5(a)(8). The denial of a new trial is a matter mainly within the
discretion of the trial court. State v. McKenzie, 157 Wash. 2d 44, 51, 134 P.3d 221,
225 (2006). We review denial of a new trial for abuse of discretion. McKenzie,
157 Wash. 2d at 51. An abuse of discretion occurs only when no reasonable judge
would have reached the same conclusion. McKenzie, 157 Wash. 2d at 52.
Both federal and state law guarantee the right of criminal defendants to
testify. Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 97 L. Ed. 2d 37
(1987); State v. Lee, 12 Wash. App. 2d 378, 387, 460 P.3d 701, review denied, ___
4 It does not appear that either the State or Vazquez-Santos interviewed the attorney who
assisted in Vazquez-Santos’ mock examination. In any event, neither party provided a transcript
of an interview.
5
No. 80298-4-I/6
Wn.2d ___, 468 P.3d 622 (2020). Federally, the defendant’s right to testify is
implicitly grounded in the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution. Rock, 483 U.S. at 51-52. Article I, section 22 of the
Washington Constitution also protects a criminal defendant’s right to testify. Only
the defendant has the authority to decide whether to testify and any waiver of the
right must be a voluntary decision made by the defendant. State v. Thomas, 128
Wash. 2d 553, 558, 910 P.2d 475 (1996). “The conduct of not taking the stand may
be interpreted as a valid waiver of the right to testify.” Thomas, 128 Wash. 2d at
559.
Violations of the right to testify can include an actual refusal by counsel to
allow a defendant to testify in the face of an unequivocal demand, coercive acts
by counsel compelling a defendant to waive the right to testify, or
misrepresentations about the consequences of testifying to induce silence. State
v. Robinson, 138 Wash. 2d 753, 762, 982 P.2d 590 (1999). But counsel does not
prevent a defendant from testifying by “merely advis[ing] [him] against testifying
as a matter of trial tactics.” State v. King, 24 Wash. App. 495, 499, 601 P.2d 982
(1979).
Allegations that defense counsel violated a defendant’s right to testify are
treated as claims of ineffective assistance of counsel, subject to the two-prong
test of Strickland v. Washington, 467 U.S. 1267, 104 S. Ct. 2052, 80 L. Ed. 674
(1984). Robinson, 138 Wash. 2d at 766. Under Strickland, the defendant must
show both (1) deficient performance and (2) resulting prejudice to prevail on an
ineffective assistance claim. Strickland, 466 U.S. at 687; State v. Jones, 183
6
No. 80298-4-I/7
Wn.2d 327, 339, 352 P.3d 776 (2015). Performance is deficient if it falls “below
an objective standard of reasonableness based on consideration of all the
circumstances.” State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251
(1995). Prejudice exists if there is a reasonable probability that “but for counsel’s
deficient performance, the outcome of the proceedings would have been
different.” State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009); Strickland,
466 U.S. at 694; State v. Estes, 188 Wash. 2d 450, 458, 395 P.3d 1045 (2017).
“[T]he defendant must present substantial, factual evidence” that his right
to testify was violated “in order to merit an evidentiary hearing or other action.”
Thomas, 128 Wash. 2d at 561. “Mere allegations” that a defendant’s right to testify
has been violated are insufficient to warrant a hearing. Robinson, 138 Wash. 2d at
760. Instead, criminal defendants must set forth “specific facts” supporting their
claims that are verifiable in the record. Robinson, 138 Wash. 2d at 760.
Vazquez-Santos argues the trial court should have held an evidentiary
hearing to determine if his attorney violated his right to testify. He contends he
“offered more than bare assertions that counsel’s actions undermined his right to
testify under Robinson.” We disagree. In Robinson, the defendant claimed his
lawyer refused his demand to testify because the lawyer was personally
frustrated by trial court rulings and did not want to participate further in the case.
Robinson, 138 Wash. 2d at 757. In support of his claim, Robinson produced
affidavits from a jail transportation officer and another attorney who witnessed the
confrontation between him and counsel. Robinson, 138 Wash. 2d at 760.
Robinson’s lawyer also acknowledged Robinson “ ‘pleaded with’ ” him to testify,
7
No. 80298-4-I/8
yet he refused to call Robinson as a witness because he “ ‘only wanted to get
this case done with.’ ” Robinson, 138 Wash. 2d at 757. Our Supreme Court found
this to be sufficient corroboration entitling Robinson to an evidentiary hearing.
Robinson, 138 Wash. 2d at 760-61.
Here, Vazquez-Santos alleges his attorney violated his right to counsel
because he misrepresented his right to testify by omission. That is, he did not
specifically advise Vazquez-Santos he “had the absolute right to testify even if
counsel warned against it.” Vazquez-Santos cites no authority requiring such a
specific advisement.5 Defense counsel was “ ‘confident’ ” he told Vazquez-
Santos it was his choice whether to testify. “ ‘Unaccompanied by coercion, legal
advice concerning [the] exercise of the right to testify infringes no right, but
simply discharges defense counsel’s ethical responsibility to the accused.’ ”
Robinson, 138 Wash. 2d at 763-646 (quoting Lema v. United States, 987 F.2d 48,
52 (1st Cir. 1993)).
Vazquez-Santos also argues that the attorney who assisted defense
counsel during the mock direct-examination misled him into believing his attorney
would tell the jury the substance of his testimony as an alternative to testifying.
He claims the attorney told him, “[D]on’t worry, [your attorney] will defend you, he
will say everything for you.” Vazquez-Santos’ allegation is uncorroborated by the
record. Additionally, the statement at issue is vague and does not support
5When a party fails to cite to relevant authority, we generally presume that the party
found none. Edmonds Shopping Ctr. Assocs. v. City of Edmonds, 117 Wash. App. 344, 353, 71
P.3d 233 (2003).
6 Alteration in original.
8
No. 80298-4-I/9
Vazquez-Santos’ contention that the attorney promised that “the jury would hear
his theory of the case even if he did not testify.”
Finally, Vazquez-Santos provides no evidence that he made an
unequivocal demand to his attorney or the court that he wanted to testify.
Vazquez-Santos contends he had no chance to tell the court he wanted to testify
because when it was time to make a decision, his lawyer told him, “ ‘I’m not going
to have you testify[,]’ and then announced that the defense rested.” Vazquez-
Santos’ claim is not supported by the record. Before testimony on the final day of
trial, Vazquez-Santos’ attorney told the court he was “99.9 percent confident” no
testimony from the defense would be forthcoming. Vazquez-Santos had ample
time then to raise any disagreement he may have had about his lawyer’s
representation. He also had a chance to demand to testify at the close of the
State’s case. Without an “unequivocal demand[ ]” by a defendant that he be
allowed to testify, “we will presume that the defendant elected not to take the
stand upon the advice of counsel.” Robinson, 138 Wash. 2d at 765. Vazquez-
Santos’ allegations that his lawyer prevented him from testifying did not merit an
evidentiary hearing and the trial court did not abuse its discretion in denying his
motion for a new trial.7
7 Vazquez-Santos also argues that “[e]ven without an evidentiary hearing, the declaration
and interview establish” his claim. “If a defendant is able to prove by a preponderance of the
evidence that his attorney actually prevented him from testifying, he will have established that the
waiver of his constitutional right to testify was not knowing and voluntary.” Robinson, 138 Wash. 2d
at 764-65. For the reasons discussed above, Vazquez-Santos fails to meet his burden.
9
No. 80298-4-I/10
Ineffective Assistance of Counsel
Vazquez-Santos argues his attorney was ineffective at trial because he
“opened the door to information that . . . highlighted prejudicial uncharged
conduct” in his opening statement.
A successful ineffective assistance of counsel claim requires both deficient
performance and a showing of prejudice. Strickland, 466 U.S. at 687. We need
not “address both components of the inquiry if the defendant makes an
insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Strickland,
466 U.S. at 697. As discussed, to establish prejudice, a defendant must show
that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. In making this determination, we must consider the totality of the
evidence before the jury. Strickland, 466 U.S. at 695.
Vazquez-Santos points to defense counsel’s statement during opening
remarks that “[f]or whatever reason,” the State did not charge Vazquez-Santos
with rape, which led to an instruction from the court that the statute of limitations
legally prevented the State from charging him. The court told the jury that “this is
an agreed statement of the parties”:
Defense counsel mentioned in opening statement that the
State did not charge the defendant with rape for whatever reason.
The parties now stipulate and agree that the State was legally
prevented by the statute of limitations from charging the defendant
with any crimes of a sexual nature alleged to have occurred after
[A.V.] turned 15 years old.
10
No. 80298-4-I/11
Vazquez-Santos argues that the stipulation prejudice him because it
“highlighted prejudicial uncharged conduct and bolstered the complainant’s
credibility.” But the parties agreed that the rape allegation was admissible to
show Vazquez-Santos’ “lustful disposition” toward A.V. no matter if the State was
legally able to charge him for the crime. Also, the jury knew that A.V. delayed
reporting the rape for many years. Any prejudice from learning that the crime’s
statute of limitations had expired was low.
Nor did the instruction bolster A.V.’s credibility. The State offered the
allegation of rape as evidence of Vazquez-Santos’ “lustful disposition” toward
A.V. That the State found the allegation to be credible was readily apparent to
the jury. Vazquez-Santos does not establish that there is a reasonable
probability that, but for counsel’s error, the result of the trial would have been
different. His attorney was not ineffective.
Cumulative Error
Vazquez-Santos asserts that cumulative error entitles him to a new trial.
Cumulative error “is limited to instances when there have been several trial 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 Wash. 2d 910, 929, 10 P.3d
390 (2000); State v. Hodges, 118 Wash. App. 668, 673-74, 77 P.3d 375 (2003). As
discussed above, Vazquez-Santos establishes no error.
Statement of Additional Grounds
Vazquez-Santos filed a statement of additional grounds raising several
claims of error. First, he argues that the court should have appointed an
11
No. 80298-4-I/12
interpreter to assist him during the trial. But Vazquez-Santos did not request an
interpreter and it is not apparent from the record that an interpreter was
necessary. The record includes trial transcripts as well as the case scheduling
order and a time-for-trial waiver written in English and signed by Vazquez-
Santos. A trial court does not have an affirmative obligation to appoint an
interpreter for a defendant where that defendant’s lack of fluency or facility in the
language is not apparent. State v. Mendez, 56 Wash. App. 458, 462-63, 784 P.2d
168 (1989).
Vazquez-Santos also complains that jury selection was rushed and that
“[w]hen the jury was chosen, it was the lawyer . . . who picked them. He never
took my opinion into account.” Although the Rules of Appellate Procedure do not
require a criminal defendant to include citation to the record or legal authority in a
statement of additional grounds, under RAP 10.10(c), “the appellate court will not
consider [the argument] if it does not inform the court of the nature and
occurrence of [the] alleged errors.” Vazquez-Santos does not sufficiently explain
his claim so we do not consider it.
Vazquez-Santos next contends the trial court refused to accept or
consider multiple letters of support from his friends and family. Again, the record
does not support his claim. To the contrary, defense counsel filed the letters of
support with the court as attachments to the presentence memorandum and the
judge acknowledged the letters at sentencing.
Finally, Vazquez-Santos claims that the lifetime no-contact order issued
by the trial court at sentencing was too broad because it does not “let me see my
12
No. 80298-4-I/13
children.” But the judgment and sentence provides only that Vazquez-Santos is
permanently restricted from contact with minors “without supervision of a
responsible adult who has knowledge of this conviction.” And the trial court
noted that Vazquez-Santos’ current wife is a responsible adult who “has
knowledge of this conviction” and can supervise visits with his children.
We review the imposition of crime-related prohibitions for an abuse of
discretion. In re Pers. Restraint Petition of Rainey, 168 Wash. 2d 367, 374-75, 229
P.3d 686 (2010). Trial courts may impose “crime-related prohibitions” while a
defendant is in community custody. RCW 9.94A.505(9), .703(3)(f). A “crime-
related prohibition” prohibits “conduct that directly relates to the circumstances of
the crime for which the offender has been convicted.” RCW 9.94A.030(10).
“Directly related” includes conditions that are “reasonably related” to the crime.
State v. Irwin, 191 Wash. App. 644, 656, 364 P.3d 830 (2015); see also State v.
Kinzle, 181 Wash. App. 774, 785, 326 P.3d 870 (2014). The jury convicted
Vazquez-Santos of molesting his stepdaughter from the age of 7 through 13
years old. The prohibition restricting him from unsupervised contact with minors
reasonably relates to the crime.8
We conclude the trial court did not abuse its discretion in denying
Vazquez-Santos’ motion for a new trial, his lawyer was not ineffective, there is no
cumulative error, and he does not establish error in his statement of additional
grounds. We affirm his conviction and sentence for one count of child
8 Vazquez-Santos also raises in his statement of additional grounds the claim that his
attorney did not “allow” him to testify. As already discussed, sufficient evidence does not support
his claim.
13
No. 80298-4-I/14
molestation in the first degree and one count of child molestation in the second
degree.
WE CONCUR:
14