State v. Galvan

1

STATE OF WASHINGTON, Respondent, v. RIGOBERTO GALVAN, Appellant.

No. 84609-4-I

Court of Appeals of Washington, Division 1

June 3, 2024

UNPUBLISHED OPINION

SMITH C.J.

Rigoberto Galvan broke into his ex-girlfriend Stephanie Cresswell-Brenner's apartment and waited for her to return home. When she did not answer his texts and calls Galvan crawled through a bathroom window and onto the balcony of the unit next door where he knew Cresswell-Brenner was visiting with a neighbor. He entered through the balcony doors, announced that Cresswell-Brenner was going to die, and proceeded to shoot her 15 times at close range. Galvan was later charged with and convicted of aggravated murder in the first degree, with a domestic violence and deadly weapon enhancement, and burglary in the first degree with a deadly weapon enhancement.

On appeal, Galvan contends that his right to a unanimous jury verdict was violated because the State submitted evidence that two robberies occurred, but did not require the jury to agree on which act supports its conviction. He also asserts that he is a youthful offender and that the trial court violated our state constitution's prohibition against cruel punishment by imposing a sentence of life without the possibility of parole. To this point, he maintains that the trial court violated the appearance of fairness doctrine by remarking that his sentence was appropriate. Finally, Galvan requests that this case be remanded for the trial court to waive restitution interest and strike several legal financial obligations from the judgment and sentence.

We find no violation of Galvan's right to a unanimous jury, nor to the prohibition of cruel punishment, nor to the appearance of fairness doctrine. However, we agree that remand is appropriate for the trial court to strike certain fees from the judgment and sentence and to consider waiving restitution interest.

FACTS

While attending Western Washington University, Rigoberto Galvan and Stephanie Cresswell-Brenner dated and lived together from July 2018 until May 2019. However, in early 2019, their relationship began to deteriorate. Galvan had cheated on Cresswell-Brenner several times and the two were fighting more frequently. Galvan also closely monitored Cresswell-Brenner's social media presence and forbade her from following male friends during the relationship. Cresswell-Brenner's roommates testified that Galvan was "mean," "condescending," and "controlling." One roommate, Kaylie Gerald recalled a verbal fight that ended with a "loud thud." Gerald noted that Cresswell-Brenner was "doing everything" for Galvan, including his laundry and cooking, but that Galvan "wasn't talking to her" and "he wasn't being kind to her."

In spring of 2019, Cresswell-Brenner ended the relationship. Galvan moved out shortly afterwards, in May 2019. After the breakup, Galvan continued to show up at Cresswell-Brenner's house unannounced and uninvited.^[1] Despite these unwelcome appearances, Cresswell-Brenner's roommates and friends noticed that she was happier and more social.

On August 11, 2019, Galvan asked his friend, Taylor Cameron, for a ride to Bellingham so he could break things off with Cresswell-Brenner. When they arrived at Cresswell-Brenner's house, Galvan told Cameron to wait in the car. When he emerged 45 minutes later, Galvan's demeanor was different. While Galvan had been emotionally distraught and crying before, he now appeared anxious and closed off. Galvan later relayed that he had asked Cresswell-Brenner for a second chance and that she said no. Galvan also asked Cresswell-Brenner to not date anyone else for a while.

The next day, Cameron reached out to Galvan and asked him to meet for lunch. Over lunch, Galvan repeatedly asked Cameron, "Would you be mad at me?" but did not explain further.

Around the same time, Galvan noticed that Cresswell-Brenner had unfollowed him on social media. He also noticed that she had started to follow her next door neighbor, Aiden Kuhne, on social media and became jealous.

On August 13, 2019, Galvan had dinner with his parents and told them that he and Stephanie were no longer dating. After dinner, he worked his shift as a volunteer firefighter. His coworker testified that he did not notice anything nusual about Galvan's demeanor and that Galvan had no difficulties performing his duties.

Later that evening, however, Galvan drove to Cresswell-Brenner's house, armed with a gun tucked into his waistband. He parked his car in a nearby alleyway to avoid being seen. When he arrived, Galvan stood outside, listening to Cresswell-Brenner and Kuhne talking in Kuhne's unit next door. Galvan then proceeded to enter Cresswell-Brenner's unit unannounced, using a hidden spare key that Cresswell-Brenner and her roommates kept outside to unlock the front door. Galvan went upstairs to Cresswell-Brenner's room and continued to listen to Cresswell-Brenner and Kuhne talking next door. As he waited and listened, Galvan repeatedly called and texted Cresswell-Brenner in an attempt to get her to come back to her unit. After looking through the bathroom window and seeing Cresswell-Brenner and Kuhne sitting on the couch, Galvan texted Cresswell-Brenner that he was in her room. Cresswell-Brenner texted back that he needed to leave or she would call the police.

Shortly thereafter, Galvan crawled through Cresswell-Brenner's bathroom window and onto the balcony of Kuhne's adjoining apartment. He entered Kuhne's apartment, drew his gun, and told Kuhne: "Aiden, run away. Call 911, she is going to die." Kuhne fled and immediately called the police. As he ran, he heard between 12 to 15 gunshots, punctuated by Cresswell-Brenner screaming. Kuhne later recalled that Galvan was "scarily calm" while Cresswell-Brenner screamed and cried.

Galvan fired 15 rounds from his gun, emptying the magazine. Ten bullets hit Cresswell-Brenner, killing her. After he shot Cresswell-Brenner, Galvan left Kuhne's unit and crawled back through Cresswell-Brenner's bathroom window and into her room. He deposited the empty gun on her bed and left. Once outside, Galvan called 911. Galvan told the 911 operator: "Hey, I'm at 939 20th Street, you need to send out here as many cops as you can. I just killed my girlfriend." When the operator told Galvan that help was on the way, Galvan replied: "She's dead, so there is no help. You don't need to send medics, trust me." Galvan then asked the operator, "Have you ever been jealous?" Galvan's 911 call was placed approximately one minute after Kuhne's.

Kuhne's roommate, Ian Stewart, was downstairs at the time. He heard arguing upstairs, followed by a male voice saying "run and I shoot" and then a female screaming. Cassidy Schlicke-Perez, one of Cresswell-Brenner's roommates, was home asleep when she heard gunshots. Shortly after the gunshots, she heard someone enter the unit and then heard a male voice start talking.

Police arrived on the scene to find Galvan walking in the middle of the street with his hands in the air. Galvan told the responding officers, "I'm the one you're looking for. I shot my girlfriend."

When officers reached Kuhne's unit, they immediately began administering aid to Cresswell-Brenner. Paramedics arrived shortly after and pronounced Cresswell-Brenner dead on the scene. Officers later described Galvan's demeanor as a "completely blank affect" and "unemotional." Despite being trained to provide medical aid, Galvan later relayed that he did not make any attempt to provide Cresswell-Brenner aid.

The State charged Galvan with aggravated murder in the first degree, with a domestic violence and deadly weapon enhancement, and burglary in the first degree with a deadly weapon enhancement. The jury convicted Galvan as charged. Galvan appeals.

ANALYSIS

Jury Unanimity

Galvan contends that the lack of a unanimity instruction as to the burglary charge combined with the State's failure to make an election as to which unlawful entry it was relying on for the charge violated his constitutional right to a unanimous jury verdict. We disagree. Because Galvan's actions constituted a continuing course of conduct, no unanimity instruction was necessary.

Before reaching the issue of jury unanimity, we must first address two threshold issues raised by the State. First, whether Galvan may raise jury unanimity for the first time on appeal and second, even if he can, whether the invited error doctrine precludes him from doing so. We conclude that neither precludes Galvan from arguing jury unanimity on appeal.

1. Raised for the First Time on Appeal

The State contends that Galvan may not argue jury unanimity on appeal because he did not object to the absence of a unanimity instruction before the trial court. Because jury unanimity is a constitutional issue, we disagree.

Under RAP 2.5(a), an "appellate court may refuse to review any claim of error which was not raised in the trial court." However, "a party may raise . . . manifest error affecting a constitutional right" for the first time on appeal. RAP 2.5(a)(3). Issues concerning jury unanimity are constitutional in nature and may be raised for the first time on appeal under the manifest constitutional error standard. State v. Aguilar, 27 Wn.App. 2d 905, 918, 534 P.3d 360 (2023).

Here, the lack of a unanimity instruction is an issue of manifest constitutional error that Galvan may raise for the first time on appeal.

2. Invited Error Doctrine

The State also argues that, under the invited error doctrine, Galvan may not address jury unanimity on appeal because he invited the jury to find him guilty of burglary in the first degree. We are unconvinced.

The invited error doctrine precludes a party from seeking appellate review of an error they helped create,...