IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN THE MATTER OF THE PERSONAL RESTRAINT OF: HECTOR SERANO SALINAS, Petitioner. No. 71383-3-1 DIVISION ONE UNPUBLISHED OPINION
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• * o</> CO o2 a:< PER CURIAM. In 2010, a jury convicted Hector Salinas ofthree counts of 

### rape inthe firstdegree. Salinasfiled this personal restraint petitioncontending 

### that appellate counsel was ineffective forfailing to raise a public trial claim in his direct appeal. We agree and reverse his convictions. 

### The State charged Salinas withthree counts ofrape inthe firstdegree and one count of kidnapping in the firstdegree. Prior to voir dire, defense counsel proposed a juryquestionnaire containing the following language: Some ofthese questions may call for information of a personal 

### nature that you may not want to discuss in public. Ifyou feel that your answerto any question may invade your right to privacy or 

### might be embarrassing to you, you may so indicate on the form thatyou would prefer to discuss your answer in private. As the State and defense counsel discussedjury 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 forindividual voir dire. The trial court responded: "I'mNo. 71383-3-1/2 going to ask ifthere's anybody inthe courtroom who has an objection, otherwise we have to do it in open courtroom." Once thejury 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 whatsoeverto the Court conducting a short interview with each ofthosejurors, potentialjurors with counsel and the defendant in my chambers all on the record to determine what their concerns are and be able to have them answerthose questions or tell them whattheir 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 thejurors here that are the ones that Ithink wish to 

### speak in private. Iwould ask ifanyone has an objection to us 

### speaking to them in private with us and counsel and defendant and the court reporter? Then Iwill go into chambers. Counsel will come in. The attorneys will come with me. The court reporterwill 

### set up, and Ms. Ortnerwill bring you inone at a time, and we'll 

### talk to you and find out what yourconcerns are, and we'll take it fromthere, and ifyou will all just be patient, we'll do itas quickly

as we can. 

### The record reflects that sixjurors were questioned inchambers. The trial court excused three ofthe privately questionedjurors for cause. 

### A jury convicted Salinas as charged. Salinas was sentenced to life in prison withoutparole as a persistentoffender. 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 Amendmentto the United States Constitution and article I, section 22 ofthe 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 oftheWashington Constitution guarantees the 

### public's open access to judicialproceedings. State v. Easterlinq, 157 Wn.2d 167, 174, 137 P.3d 825 (2006). To protectboth rights, certain proceedings must be 

### held in open court unless application of the five-factortest inState v. Bone-Club, 

### 128Wn.2d254, 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 individualprospectivejurors. 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 ofappellate 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 ofMorris, 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 fivefactors are: (1) the proponent ofclosure 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 itprivately questioned potentialjurors 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 errorwould 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 trialdespite 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 trialcannotclaimthatvery action as error on appeal and receive a new trial." Inre Pers. Restraint ofCoqqin, 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 identifythem 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 ifthey objected. However, the trial court did not considerwhether a compelling interest demanded closure, did not considerwhether questioningjurors inchambers was the least restrictive 

### closure possible, and did not weigh the competing interests ofSalinas and the public. Instead, this case is more similarto Coqgin. In Coggin:No. 71383-3-1/5 [djuringjury selection, defense counsel expressed a desire for individualjurorquestioning due to the publicity and sensitive nature ofthe case. The prosecutordrafted a jurorquestionnaire, and defense counsel approved the final version. The questionnaire advised the potentialjurors that ifthey 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 thatthese 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 ofthe public trial right. Butwaiver of a constitutional rightmust 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 offundamental rights." State v. Frawlev. 181 Wn.2d 452, 334 P.3d 1022 

### (2014). Here the record does notsupport 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 ofthejurors. 

### Finally, the State claims Salinas has failed to show that appellate counsel was ineffective forfailing 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 ofOrange. 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 theNo. 71383-3-1/6 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'sjudgment and sentence is reversed and the case is remanded to the superior courtfor a new trial. For the court:


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