State v. Estrada

1

STATE OF WASHINGTON, Respondent, v. RENE MAYA ESTRADA, Appellant.

No. 83837-7-I

Court of Appeals of Washington, Division 1

February 5, 2024

UNPUBLISHED OPINION

Mann J.

Rene Maya Estrada^[1] was convicted of first degree rape. He appeals and argues that the (1) the lack of a Petrich^[2] instruction violated his constitutional right to a unanimous jury, and (2) the admission of multiple hearsay statements violated Evidence Rule (ER) 802 and his constitutional right to a jury trial. We affirm.

I

In October 2019, 17-year-old B.S.G.'s^[3] parents allowed Maya Estrada, who was homeless at the time, to stay in the living room of their apartment. Shortly after Maya Estrada came to stay, B.S.G. came home from work and was alone with Maya Estrada in the apartment. While B.S.G. was in her bedroom, Maya Estrada approached her from behind with a knife. Maya Estrada instructed B.S.G. to do what he said or he would kill her. Maya Estrada then covered B.S.G.'s mouth and held the knife to her stomach. Maya Estrada removed B.S.G.'s shirt, bra, pants, and underwear. He then told her not to shout and threw her on the bed while he continued to hold the knife. Maya Estrada then got on top of B.S.G. and covered her face with a pillow so that she couldn't scream. Maya Estrada told B.S.G. to do as he said then put his penis in B.S.G.'s mouth, kissed her, and touched her body with his mouth and hands. These events took about 30 to 45 minutes.

After Maya Estrada heard sounds coming from the stairs outside the apartment, he left the bedroom to take a look. Maya Estrada then returned to B.S.G.'s bedroom, tossed some clothes at her, and demanded that she get dressed and come with him. In fear for her life, B.S.G. put on a shirt and shorts but no bra or underwear and went with Maya Estrada to the laundry room located downstairs from the apartment. In the laundry room, Maya Estrada took out his penis; B.S.G. started to cry and said no. Maya Estrada then hit B.S.G. in the chest and put his penis in her mouth.

When the headlights of a car parking at the apartment building shone into the laundry room, Maya Estrada left and went upstairs. B.S.G. ran from the laundry room and approached a woman nearby, later identified as Martha Ramirez, asking for help. Ramirez testified that B.S.G. was running and crying and appeared "all stressed out, like in shock." B.S.G. was wearing only one sock and no shoes. Ramirez took B.S.G. to her apartment where B.S.G. asked to use the bathroom because she wanted to throw up and was feeling very nauseous. Ramirez testified that B.S.G. was trying to throw up, but couldn't so instead rinsed her mouth out with water. Ramirez and her son then called 911 and reported that there was a girl there that said someone is going to kill her. The caller told the 911 operator that the girl reported that the person was touching her breast and had a knife. B.S.G. talked to the responding police officers and was then taken to the hospital where she had a sexual assault examination.

A few days later, Maya Estrada approached B.S.G. while she was at work. B.S.G. called 911 and Federal Way Police officers responded and arrested Maya Estrada.

Maya Estrada was charged with rape in the first degree under RCW 9A.44.040(1). Maya Estrada was also charged under RCW 9.94A.825 and 9.94A.533(4) with being armed with a deadly weapon, a knife, at the time of the rape.

A jury trial was held over nine days in the fall of 2021. The jury heard testimony from the responding police officers and Federal Way Police Detective Mathew Novack. The sexual assault nurse, Chelsea Reed, testified about her examination of B.S.G. on the night of the rape. She testified that B.S.G answered a battery of question. B.S.G. told her that Maya Estrada put a knife on her stomach and put his penis in her mouth in the bedroom, and then, after dragging her down to the laundry room, threatened her again with the knife and again put his penis in her mouth. Reed testified that B.S.G answered "no" as to whether she had washed her mouth out or vomited since the incident.

The neighbor, Ramirez, testified about her encounter with B.S.G. and calling 911. Ramirez testified that B.S.G. told her that when she got home there was a man inside her house, and that he threatened her and forced her with a knife to the laundry room and forced her to perform oral sex.

B.S.G. testified to the following events. She explained that when she arrived home she went to her bedroom and felt Maya Estrada come up behind her with a kitchen knife and then covered her mouth and put the knife toward her stomach. He then undressed her and threw her onto the bed while holding the knife, climbed on top of her, and then put his penis in her mouth and that it tasted salty. B.S.G. testified that after hearing noises outside, Maya Estrada got up and left to go look. After he came back, he threw some clothes at her and told her to get dressed. B.S.G. testified that she was still scared he was going to kill her, but didn't remember if she saw a knife. B.S.G. testified that she could not remember how she got to the laundry room, but once there he hit her in the chest and put his penis in her mouth again. B.S.G. testified that she did not remember too well the events that took place in Ramirez's apartment and said, "The thing is that I don't remember well. I remember that I threw up in her bathroom, but I don't remember if she was or not with me."

Maya Estrada did not testify or present witnesses. He instead denied the allegations and focused on B.S.G.'s credibility.

The jury was instructed that "to convict" Maya Estrada for first degree rape under RCW 9A.44.040(1) each of the following must be proved beyond a reasonable doubt:

(1) That on or about October 12, 2019, the defendant engaged in sexual intercourse with B.S.G.;

(2) That the sexual intercourse was by forcible compulsion;

(3) That the defendant used or threatened to use a deadly weapon or what appeared to be a deadly weapon; and

(4) That any of these acts occurred in the State of Washington.

If you find from the evidence that elements (1), (2), (3), and (4), have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of elements (1), (2), (3), or (4), then it will be your duty to return a verdict of not guilty.

The jury instructions did not include a Petrich unanimity instruction.

The jury found Maya Estrada guilty of rape in the first degree. The jury did not decide the deadly weapon enhancement special verdict.

Maya Estrada moved for a new trial first arguing that a Petrich instruction was required because a reasonable juror could have believed the rape happened at one location, but not the other, and in believing so they may not have been unanimous about which incident met the first degree rape requirements. Maya Estrada also argued that his due process rights were violated because the jury did not decide the deadly weapon enhancement special verdict thus proving he was not convicted beyond a reasonable doubt of every element of the crime charged.

The trial court denied Maya Estrada's motion for a new trial. Maya Estrada appeals.

II

Maya Estrada was charged with one count of rape. He asserts that because the State presented evidence of two distinct acts the State should have elected which act they were relying on or, the jury should have been instructed to agree on a specific criminal act. Maya Estrada argues that his constitutional right to a unanimous jury was violated by the lack of a Petrich instruction. We disagree.

A

Criminal defendants have a right to a unanimous jury verdict. Wash. Const. art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231 (1994). When the State presents evidence of multiple acts that could constitute the crime charged, it generally must either tell the jury which act to rely on in its deliberations, or the court must instruct the jury that it has to unanimously agree on which specific act supports the conviction. State v. Kitchen, 110 Wn.2d 403, 409-11, 756 P.2d 105 (1988). The former is known as an "election" and the latter is known as a Petrich instruction after the case in which the instruction originated. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), abrogated on other grounds by Kitchen, 110 Wn.2d at 403. Whether a Petrich instruction was required is reviewed de novo. State v. Boyd, 137 Wn.App. 910, 922, 155 P.3d 188 (2007).

Failure to make an election or give a Petrich instruction can be constitutional error because of "the possibility that some jurors may have relied on one act or incident and some another, resulting in a lack of unanimity on all of the elements necessary for a valid conviction." Kitchen, 110 Wn.2d at 411. Neither an election by the State nor a Petrich instruction is required where multiple acts form a continuing course of criminal conduct. State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989).

To determine whether criminal acts are a continuing course of conduct, facts are evaluated using common sense. Handran, 113 Wn.2d at 17. We consider "whether the evidence shows conduct occurring at one place or at many places, within a brief or long period of time, and to one or multiple different victims, and whether the conduct was intended to achieve a single or multiple different objectives." State v. Lee 12 Wn.App. 2d 378, 393, 460 P.3d 701 (2020). Typically, a continuing course of conduct is "an ongoing enterprise with a single objective." State v. Love, 80 Wn.App. 357, 361, 908 P.2d 395 (1996). On the other hand, different times, locations, and parties suggest multiple acts. State v. Brown, 159 Wn.App....