IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In Matter of the Personal Restraint of
KELDY ADALID GRANADOS ,

Petitioner

. )

) ) ) ) ) No. 33866

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UNPUBLISHED OPINION

S IDDOWAY , J.

— Through retained counsel, Keldy Granados seeks relief from personal restraint resulting from his 2015 Franklin County bench trial convic tion of unlawful possession of methamphetamine. He contends the evidence against him was insufficient including because, under the doctr ine of corpus delicti, the trial court should not have considered his uncorroborated confession. Alternatively, he seeks a new trial 

### FILED FEBRUARY 8 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 33866

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2 because he never knowingly, voluntarily and intelligently waived trial by jury and because his Spanish

- speaking lawyer int erpreted critical court do cuments without being statutorily qualified or certified to do so. The evidence against him was sufficient

. We reject his argument that his unwitting waiver of trial by jury in what was substantially a stipulated facts trial was structural error. Because he fails to make the showing of prejudice that is required on collateral review, w e dismiss the petition.

FACTS AND PROCEDURAL BACKGROUND In December 2013, t he State charged Keldy Granados with unlawful possession of methamphet amine, a class C felony, to which Mr. Granados pleaded not guilty. In early 2014, attorney George P. Trejo, Jr. began representing Mr. Granados and reached an agreement with the State to transfer proceedings from superior court to the Franklin County Dist rict Court, so that Mr. Granados could apply for the felony diversion p rogram administered by that court

. At a hearing taking place o n March 5, 2014, Mr. Granados, who is Spanish speaking only, applied for the felony diversion program on a three

- page, sin gle

- spaced “Application to the Felony Diversion Program and Waiver of Arraignment, Preliminary Appearance and Speedy Trial.” Mot. to Vacate under CrR 7.8 (CrR 7.8 Mot.) , Ex. 3. The application form is in English. It includes multiple signature lines: on e for the defendant , who declares that he or she has read or been read all of its 13 paragraphs ; oneNo. 33866

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3 for the defendant’s lawyer , who attests to reviewing the application with the defendant and being satisfied the defendant understands it; one for the prose cutor, who agrees to submit the case to the diversion prog ram; and one for the court, in order to make a finding that the agreement has been entered knowingly and voluntarily by the defendant. Mr. Granados, Mr. Trejo, and the prosecutor had all signed the application. The application form also includes an “Interpreter’s Declaration” that had been completed by Mr. Trejo . It states: I am a certified interpreter or have been found otherwise qualified by the court to interpret in the * language, which the de fendant understands, and I have translated this entire document for the defendant from English into that language. The defendant has acknowledged his or her understanding of both the translation and the subject matter of this document. I certify under pe nalty of perjury under the laws of the state of Washington that the foregoing is true and correct. Id. at 3. At the hearing, an unidentified interpre ter was present

. In Mr. Granados’s presence, and with the interpreter interpreting in the Spanish langua ge, Mr. Trejo represented to the court that he and Mr. Granados had gone over the appl ication and that Mr. Granados knew the rights he was waiving and was making the application knowingly, voluntarily, and without compulsion. The application was accepted by the
court , signed, and entered on the record

. Mr. Granados was approved for the program and execu ted a five

- page, single

spaced felony diversion program a greement. Similar to the diversion application, th eNo. 33866

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4 diversion agreement, which is also in English , contained Mr. Granados’s signed declaration that each of the paragraphs were read to him and explained by his attorney and that he freely and voluntarily agreed to enter into the felony diversion program.
It , too , contained Mr. Trejo’s signed interpret er declaration and statement that he had translated the entire document from English to the language that Mr. Granados understands. Mr. Granados and Mr. Trejo appeared in district court for entry of the felony diversion agreement on November 6, 2014. Onc e a gain, a court interpreter was present to interpret for Mr. Granados. The court asked Mr. Granados on the record if he had discussed the program with his attorney, whether he understood it, and whether he was entering the program freely, voluntarily and without compulsion. M r. Granados answered yes. CrR 7.8 Mot

. , Ex

. 4; Verbatim R eport of P roceedings (Nov. 6, 2014) , at 7

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. The felony diversion agreement provided that proceedings in Mr. Granados’s case would be stayed and if he complied with its term s and conditions the charges would be dismissed after two years. If he did not, the stay would be lifted and the State would proceed to prosecute the charge. As part of the agreement, Mr. Granados submitted a
sworn statement , entitled “Statement of Defen dant,” in which he admitted that on December 3, 20 13, he unlawfully possess ed m ethamphetamine. CrR 7.8 Mot. , Ex. 10. The statement acknowledged that he made this “confession” with the advice of Mr. Trejo

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5 Id. He stipulated in the agreement that the sta tement would be admissible in evidence if he violated the agreement and the matter proceeded to trial. B ecause of immigration
consequences, the State agreed that Mr. Granados could stop short of completely confessing to the controlled substance crime by o mitting the jurisdictional element . It would have to be proved later if the prosecution was revived. In December 2013, Mr. Granados violated the felony diversion agreement by testing positive for methamphetamine use. He also failed to appear for a compl iance hearing in January 2014. The felony diversion proceeding was dismissed as a result and the case was refiled in superior court. Attorney Trejo withdrew. The matter proceeded to a bench trial on April 7, 2015. A n interpreter was present. New defe nse counsel, Craig Stilwill, informed the court that Mr. Granados had waived the right to a jury trial by entering the felony diversion program. That would later prove to be inc orrect. W hile the diversion program ap plication and agreement include waiver s of many rights, jury trial i s not one of them. 1 The prosecutor then explained that for immigration reasons the State had agreed to omit a jurisdictional basis from Mr. Granados’s statement, so the officer who contacted Mr. Granados on December 3, 2013 ,

w ould be called to complete the State’s proof.

1 The State’s lawyer on appeal informs us that the d iversion agreement has since been revised to include a waiver of jury trial

. State’s Supp. Br. at 10.No. 33866

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6 In the bench trial that followed, t he court considered as evidence Mr. Granados’s admission that he unlawfully possessed methamphetamine on December 3, 2013. Officer Adam Brewster was called to the stand and t estified that on that date, while worki ng as a police officer for the c ity of Pasco, he contacted the defendant Keldy Granados during a vehicle stop on Court Street in Pasco. He identified Mr. Granados in the courtroom as the person he stopped. The court then found that the State had proved beyond a reasonable doubt that Mr. Granados unlawfully possessed methamphetamine in Franklin County, Washington, on December 3, 2013. It imposed a 30

- day jail sentence. Mr. Granados was advised of his appeal right by the court but d id not file a direct appeal. Mr. Granados initially filed the present petition in the superior court as a CrR 7.8 motion to vacate his judgment and sentence. The superior court transferred the motion to this court for consideration as a p ersonal restraint petition (PRP) . CrR 7.8(c)(2). The petition wa s timely filed under RCW 10.73.090(1). It was referred to a panel and, after requesting and receiving supplemental briefing , we considered it without oral argument. PRP Review Standard
To obtain relief in a PRP , a petitioner must show actual and substantial prejudice resulting from alleged constitutional errors, or for alleged nonconstitutional errors a fundamental defect that inherently results in a complete miscarriage of justice. In re Pers. Restraint of Cook , 114 Wn.2d 802, 813, 792 P.2d 505 (1990). To avoid dismissal, the petition must be supported by facts and not merely bald or conclusory allegations. Id.No. 33866

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7 at 813

- 14; In re Pers. Restraint of Rice , 118 Wn.2d 876, 886, 828 P.2d 1086 ( 1992). We address the i ssues raised by Mr. Granados in the order raised in his petition.
1. Insufficient E vidence The crime of unlawful possession of a controlled substance requires proof of two elements: (1) possession (2) of a controlled substance. RCW 69.50.4013(1)

. Methamphetamine is a controlled substance. RCW 69.50.206(d)(2). The State must also prove jurisdiction by presenting evidence that the crime was committed “in the state.” RCW 9A.04.030(1). Mr. Granados contends that the State’s evidence was insufficient to establish jurisdiction because when called to testify, Officer Brewster merely testified to stopping Mr. Granados in Pasco on December 3, 2013 , not that Mr. Granados was in possession of methamphetamine when stopped. Alternatively, he argues that u nder the corpus delicti rule, his confession alone was insufficient to convict and the State failed to provide independent evidence of his guilt. In reviewing a challenge to the sufficiency of the evidence, we view the evidence and all rea sonable inferences in a light most favorable to the State to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Green , 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Following a bench trial, review is limited to determining whether substantial evidence supports the findings of fact and, if so, whether the findings support the conclusions of law. State v.
Stevenson , 128 Wn. App. 179, 193, 114 P.3d 699 (2005). “Substantial evidenc e” isNo. 33866

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8 evidence sufficient to persuade a fair

- minded person of the truth of the asserted premise. Id. Proof of J urisdiction In first contending that the charge must be dismissed because the State failed to prove jurisdiction, Mr. Granados argues that bec ause Officer Brewster gave n o specific testimony linking his methamphetamine possession with the vehicle stop in Pasco , the evidence presented to the court amounts to proof that he possessed methamphetamine somewhere , sometime on December 3, 2013, but not that he possessed it in the State of Washington. He relies on two cases in which no testimony or reasonable inference established jurisdiction: State v. Hickman , 135 Wn.2d 97, 954 P.2d 900 (1998) ( State failed to prove insurance fraud occurred in Snohomis h County as required by the to

convict i n struction , only that the subject stolen car was found there) , and State v. Ford , 33 Wn. App. 788, 790

- 91, 658 P.2d 36 (1983) (jurisdiction not shown when there was no evidence presented that the r anch where incident occurred was in Washington State)

. Mr. Granados fails to consider the lack of specificity in his own sworn statement, from which the trial court could draw an inference negative to him. The statement he made as part of the diversion agreement was, “On De cember 3, 2013 [,] I did unlawfully possess a controlled substance, Metham phetamine.” CrR 7.8 Mot. , Ex. 10. He did not
say he possessed it for only part of the day. He did not say he possessed it only outside of the State of Washington. The trial court was therefore entitled to infer from Mr.No. 33866

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9 Granados’s statement that he possessed methamphetamine all day on December 3, 2013 , and therefore necessarily possessed it when stopped by Officer Brewster in Pasco. This would be a fair inference in any case , but was particularly reasonable here, since the court

was aware at the time Officer Brewster testified that the purpose of his testimony was to establish where Mr. Granados’s admitted possession of methamphetamine occurred.
D rawing all reasonable inferences i n favor of the State, the evidence of jurisdiction was sufficient. Corpus D eli cti R ule Mr. Granados next argues that without further corroboration by the State, his confession to guilt was insufficient for conviction under the corpus deli cti rule

. “Th e doctrine of corpus delicti protects against convictions based on false confessions, requiring evidence of the ‘“ body of the crime. ”’” State v. Cardenas

- Flores , 189 Wn.2d 243, 247, 401 P.3d 19 (2017) (quoting S tate v. Aten , 130 Wn.2d 640, 655, 927 P.2d 2 10 (1996)). Under the corpus delicti rule, a defendant’s confession alone is insufficient to convict and must be corroborated by independent evidence of guilt. State v. Brockob , 159 Wn.2d 311, 327

- 28 , 150 P.3d 59 (2006) ); Aten , 130 Wn.2d at 655

- 56. “[T] he State must present evidence independent of the incriminating statement that the crime a defendant described in the [ confession ] actually occurred.” Brockob , 159 Wn.2d at 328. “ [ I ] f no such evidence exists, the defendant’s confession

. . . cannot be us ed toNo. 33866

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10 establish the corpus delicti and prove the defendant’s guilt at trial.” Aten , 130 Wn.2d at 656.
In Cardenas

- Flores , our Supreme C ourt examined two distinct senses in which Washington courts have used the corpus delicti rule: as the evidentiary fo undation required before admitting a defendant’s confession into evidence, and as referring to the sufficiency of the evidence to support a convic tion. 189 Wn.2d at 251

- 52. The characterization of corpus delicti invoked is not consequential at trial, the S upreme C ourt observed, since a prosecution that fails under one rationale will fail under the o ther. Id. at 251. The characterization has proved consequential on appeal, however, because in appeals in which this court analyzed corpus delicti as a rule of admissibility, it ha s sometimes held that the ab ility to rely on the doctrine is waived if no objection i s made to admitting the confession at trial. Cardenas

- Flores disapproved of those cases, holding that the doctrine is principally a rule of suffic iency that can be raised for the first time on appeal. Id. at 263. In addressing the novel ar gument advanced by Mr. Granados it is helpful ( and does not offend the reasoning in Cardenas

- Flores ) to examine corpus delicti’s
characterization and use as a ru le of admissibility. Again, as observed in Cardenas

Flores , at the trial court level “either characterization should yield the same result.”
Id. at 251.No. 33866

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11 Had defense counsel objected to the trial court’s consideration of Mr. Granados’s

“ Statement of D efendant” at trial , the objection would reasonably have been overrule d

—
not because there was corroborating evidence that the crime actually occurred, but because Mr. Granados stipulated to the statement’s admissibility. In his felony diversion agreement, while represented by counsel, he agreed to the following: The defendant, with full knowledge of the alternative courses of action open to him/her, admits that he/she committed the acts alleged . . . above and as more particularly set out in the a ttached sw orn statement (see a ttachment A) and further stipulates that said statement is freely and voluntarily given and may be admitted into evidence in any court of law without objection should this matter come on for trial at a later time

. CrR 7.8 Mot. , Ex. 6 a t 2 (emphasis added)

. Many reported decisions recognize a criminal defendant’ s stipulations as valid and binding, including stipulations made as a condition of a diversion or deferred prosecution
program . E.g. , State v. Johnson , 104 Wn.2d 338, 705 P.2d 773 (1985) (recognizing as valid an Oregon conviction following a stipulated facts trial); State v. Mierz , 127 Wn.2d 460, 469, 901 P.2d 286 (1995) (stipulated facts trial based on defendant’s stipulation to
factual findings prepared by prosecutor after an adverse ruling is “not problematic”) ; State v. Shattuck , 55 Wn. App. 131, 776 P.2d 1001 (1989) (stipulation in deferred prosecution agreement to admissibility of police report and waiving procedural or legal defenses treated as valid and binding); State v . Melick , 131 Wn. App. 835, 129 P.3d 816 (2006) ( stipulation in drug court agreement to information contained in police andNo. 33866

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12 laboratory reports and waiving right to call and cross

- exami ne witnesses treated as valid and binding); State v. Drum , 143 Wn. App. 608, 617, 181 P.3d 18 (2008), aff’ d on other grounds , 168 Wn.2d 23, 225 P.3d 237 (2010) (stipulation in drug court agreement that trial court would determine guilt based solely on the police report and that evidence in the report was sufficient to support a finding of guilt treated as valid and binding )

. C f. State v. Humphries , 181 Wn.2d 708, 715, 336 P.3d 1121 (2014) (a defendant can stipulate to “crucial facts” and is presumed to consent to stipulations by his lawyer unless he expressly objects). The onl y basis for avoiding such stipulations that is recognized by these cases is where the stipulation i s equivalent to a gu ilty plea and is not voluntary and knowing, thereby violating due process. See, e.g. , In re Det. of Moore , 167 Wn.2d 113, 120

- 21, 216 P. 3d 1015 (2009) ( citing Johnson , 104 Wn .2d 338 ). Mr. Granados, who told the district court that his entry into the felony diversion agreement was knowing and voluntary, has not raised a due process challenge in this petition

. Mr. Granado s has not identifi ed any case that hold s that a criminal defendant, represented by counsel, cannot validly stipulate to the admissibility of the defendant’s
confession unless the State offer s corroborating evidence. He cites State v. Colquitt , 133
Wn . App. 789, 137 P.3d 89 2 (2006) , but that case hurts rather than help s him. T he court
in Colquitt found the defendant’s waivers and stipulations in a drug court agreement were
b inding but were quite limited. C ritically, Mr. Colquitt did not stipulate to possessing aNo. 33866

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13 controlled substance. If he had (as Mr. Granados did in this case ) it is clear the appellate court would have found the stipulation to be valid and the evidence sufficient to convict. Together, Mr. Granados’s admissible confession and Officer Brewster’s testimony are substantial evidence supporting the trial court’s finding of guilt. 2
2. Unwitting Jury Trial W aiver As Mr. Granados contends, nothing in the record shows that he waived his right to a jury trial. No written waiver was filed under CrR 6.1(a). The State now concedes that whil e it and defense attorney Stilwi ll believed at the time of trial that Mr. Grana dos had waived his right to trial by jury as part of the felony diversion paperwork , the forms use d in Mr. Granados’s case did not in fact include a waiver of that right. 3

2 We believe ours is the simplest analysis of the issue : a criminal defendant can validly stipulate to the admissibility of his confession and if he do e s, no analysis of corpus delic t i or any other forgone objection is required. We point out, however, that courts that have proceed ed to analyze the corpus delicti issue have found that there can be “judicial confessions” to which the corpus delicti rule do es not apply. See Com mw ealth v. McCabe , 345 Pa. Super. 495, 499

- 500, 498 A.2d 933 (1985) (independent evidence of a corpus delicti has no application to judicial admissions that are deliberately made under oath during formal proceedings and are generally free from the inherent infirmity of verbal confessions made out of court) (citing State v. Schomaker , 303 N.W.2d 129 (Iowa 1981); Commw ealth v. Granese , 37 Montg. Cty. L. Rep. 15 (Pa. 1920) ; 30 Am. Jur. 2d Evidence § 1139 )

.

3 The federal and state constitu tions both guarantee a criminal defendant the right to a jury trial. U.S. C ONST
. amend VI; C ONST
. art . I, § 21; see Pasco v. Mace , 98 Wn.2d 87, 653 P.2d 618 (1982). A criminal defendant may waive the constitutional right to a jury trial if the waiver is knowing, voluntary and intelligent. State v. Stegall , 124 Wn.2d 719, 724

- 25, 881 P.2d 979 (1994); City of Bellevue v. Acrey , 103 Wn.2d 203, 207, 691 P.2d 957 (1984). The record must contain the defendant’s personal expression of waiver, either in writing or orally on the record. State v. Wicke , 91 Wn.2d 638, 645

- 46, 591 P.2dNo. 33866

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14 Despite the error, the State argues that Mr. Stilwell agreed to a bench trial and Mr. Granados’s informed acquiescence in that agreement is demonstrated by the record

. Alternatively, it argues that Mr. Granados fails to meet his burden o n collateral review of demonstrating actual and substantial prejudice. Mr. Granado s denies any acquiescence 4 and contends that deprivation of the right to jury trial is structural error, from which prejudice is presumed. We first address whether an inval id jury waiver is structural error and then turn to whether it is per se prejudicial on collateral review.

452 (1979); State v. Treat , 109 Wn. App. 419, 427

- 28, 35 P.3d 1192 (2001). Counsel’s waiver on the defendant’s behalf is insufficient. State v. Hos , 154 Wn. App. 238, 250, 225 P.3d 389 (2010) (citing Wicke , 91 Wn.2d at 644). And failure to demand a jury trial is not sufficient to meet constitutional waiver requirements. Acrey , 103 Wn.2d at 208. The State bears the burden of establishing the validity of the defendant’s jury trial waiver, and “every reasonable presumption should be indulged against the waiver . . . absent an adequate record to the contrary.” Wicke , 91 Wn.2d at 645; see also Stegall , 124 Wn.2d at 730. Whether a waiver is valid is an issue of law that we review de n ovo. Treat , 109 Wn. App. at 427.

4 State v. Cham , on which the State relies in arguing informed acquiescence, involved a defense lawyer’s report to the court, twice, that her client wanted to waive his right to a jury trial. 165 Wn. App. 438, 449 , 267 P. 3d 528 (2011), modified on remand , 175 Wn.2d 1022 (2012). Cham was present for one of those representations and during a colloquy with the court on another matter Cham demonstrated his knowledge of the function and role of the jury. In addition, Cham had invoked his right to a jury trial on the underlying charges twice before agreeing to a bench trial. The court concluded that the specific facts of Cham’s case overcame any presumption that he did not make a knowing, intelligent, and voluntary waiver

. M ost of the facts that were material in Cham are absent in this case. Because we find that Mr. Granados was required to allege and demonstrate actual prejudice and has failed to do so, we need not consider the State’s argument of informed acquiescence furt her.No. 33866

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15 Error G enerally

“ ‘ [ M ]ost constitutional errors can be harmless

. ’ ” Neder v. United States , 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Arizona v. Fulminante , 499 U.S. 279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) )

. “ ‘ [ I ] f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [ constitutional ] errors that may have o ccurred are subject to harmless

- error analysis. ’ ” Id. (alterations in original) (quoting Rose v. Clark , 478 U.S. 570, 579, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)). In Fulminante , the Court stated that some constitutional rights are so basic to a fair trial that the violation of those rights requires an automatic reversal and is not subject to harmless error analysis. The Court explained that constitutional error essentially falls within two different categories: 1) trial errors “which [occur] during t he presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [their] admission was har mless beyond a reasonable doubt ” ; and 2) structural defects that a ffect “the framework within which the trial proceeds, rather than simply an error in the trial process itself” and thus are so inherently unfair that they are not subject to harmless error analysis. 499 U.S. at 307

- 08, 310. Most recently, the Supreme Co urt has suggested “[ t]here appear to be at least three broad rationales” for deeming error to be structural: (1) where the right at issue is not designed to protect a defendant from erroneous conviction but protects some otherNo. 33866

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16 interest, (2) where the effec ts of the error are simply too hard to measure, or (3) where the error always results in fundamental unfairness. Weaver v. Massachusetts , ___ U.S. ___, 137 S. Ct. 1899, 1908, 198 L. Ed. 2d 420 (2017). “Despite its name, the term ‘structural error’ carrie s with it no talismanic significance as a doctrinal matter. It means only that the government is not entitled to deprive the defendant of a new trial by showing that the error was harmless beyond a reasonable doubt. ” Id. at 191 0 (internal quotation marks omitted).
A n invalid waiver of the right to a jury trial has not been identified by the United States Supreme Court as a structural error , 5 n or have the justices of the Washington State Supreme C ourt identified it as such. See In re Pers. Restraint of S tockwell , 179 Wn.2d 588, 608, 316 P.3d 1007 (2014) (McCloud, J., concurr ing); In re Khan , 184 Wn.2d 679,

5 Examples of errors deemed structural defects by the United States Supreme Court include: (1) complete lack of counsel ( Gideon v. Wainwright , 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)); (2) judicial bias ( Tumey v. Ohio , 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927)); (3) racial discrimination in the selection of a grand jury ( Vasquez v. Hillery , 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986)); (4) denial of self

- representation at trial ( McKaskle v. Wiggins , 465 U.S. 168, 104 S. Ct . 944, 79 L. Ed. 2d 122 (1984)); (5) denial of a public trial ( Waller v. Georgia , 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)); (6) defective reasonable doubt instruction depriving defendant of right to jury trial ( Sullivan v. Louisiana , 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993)); and (7) deprivation of right to counsel of choice ( United States v. Gonzalez

- Lopez , 548 U.S. 140, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006)). While not labeling the error structural, the United States Supre me Court has also granted automatic relief to defendants who prevailed on claims of race or gender discrimination in jury selection. Batson v. Kentucky , 476 U.S. 79, 100, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 12 7, 145

- 46, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).No. 33866

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17 691

- 92, 363 P.3d 577 (2015) (plurality opinion) , and see Khan , 184 Wn.2d at 695

- 96 (Yu, J., concurring). While not calling it “structural error,” howe ver, the Supreme Court has held that a voluntary waiver of the right to jury trial cannot be inferred from a silent record , and when the record of a criminal conviction obtained by guilty plea contains no evidence that a defendant knew of that right and ot hers he was putatively waiving, the conviction must be reversed. United States v. Dominguez Benitez , 542 U.S. 74, 84 n.10, 124 S. Ct. 2333, 159 L. Ed. 2d 157 (2004) (citing Boykin v. Alabama , 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)); St ate v. Wicke , 91 Wn.2d 638, 645, 591 P.2d 452 (1979)

. Mr. Granados asks us to find that an unwitting jury waiver is structural error, relying for support on direct appeal cases from the Ninth Circuit that have found an invalid waiver of the right to jury t rial to be structural because it defies harmless error analysis

. He emphasizes one case, United States v. Duarte

- Higareda , 113 F.3d 1000, 1003 (9 th Cir. 1997), which , like this court’s decision in State v. Vreen , 99 Wn. App. 662, 670

- 71, 994 P.2d 905 (200 0), aff’d , 143 Wn.2d 923, 26 P.3d 236 (2001) , relied on the reasoning of United States v. Annigoni , 96 F.3d 1132 (9th Cir. 1996) 6 , a Batson 7 case.

6 Overruled by Rivera v. Illinois , 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009), as recognized in United States v. Lindsey , 634 F.3d 541, 544 (9 th Cir. 2011).

7 Batson v. Kentucky , 476 U.S. 79 , 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).No. 33866

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18 Annigoni held that automatic reversal was the remedy for erroneous outright denial of the right to a preem

ptory challenge because it would be “difficult if not impossible for a reviewing court to determine the degree of h arm resulting” from the error. 96 F.3d at 1145. The court reasoned that trying to assess the harm would require an appellate court to “reco nstruct what went on in jury deliberations through nothing more than post

- trial hearings and sheer speculation.” Id. Mr. Granados suggests that the error in his case would require us to speculate about how he would have fared before a jury

. But ano the r f

ederal appellate court, in a decision cited by the State, has held that the correct and feasible way to measure the effect of an invalid jury trial waiver is to look at whether a defendant would have waived trial by jury if fully informed. U nited States

v . Williams , 559 F.3d 607, 614 (7 th Cir. 2009)

. C f. Dominguez Benitez , 542 U.S. at 76, ( rule

- based case in which a defendant, to show plain error, was “obliged to show a reasonable probability that, but for the erro r, he would not have entered [a guilty] p lea,” not how he would have fared in a hypothetical trial); accord Lee v. United States , U.S. , 137 S. Ct. 1958, 1967, 198 L. Ed. 2d 476 (2017)

. The State argues that Mr. Granados has not shown and likely could not show that he would have wan ted a jury trial, since trying stipulated fact trials to the bench is the norm. Applying Williams ’s reasoning , it should be possible to assess the likelihood that Mr. Granados would have exercised his jury right had he been properly informed of it. But c f. Stockwell , 179No. 33866

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19 Wn.2d at 602 (“[A] hindsight review of defendant’s motivations[ ] is distinct from consideration of actual and substantial prejudice, which looks to the practical effects of a
sentence

. ”). Nevertheless, w e can decide Mr. Granados’s peti tion without reaching the difficult issue of whether his unwitting jury trial waiver would have been structural error on appeal . We decline his request to resolve that issue.

Is an u nwitting jury waiver per se prejudicial on collateral review?
Mr. Grana dos ’s petition do es not contend that if informed of his right to a jury trial, he would have exercised it. 8 He does not demonstrate any particular way in which the constitution al error of not obtaining a voluntary and intelligent waiver of his jury trial right worked to hi s actual and substantial prejudice

. 9 The dispositive question then, is

8 Mr. Granados, who has been represented by counsel throughout this collateral proceeding, supplies no personal declaration with his petition and also does not request a reference hearing. Perhaps he cannot tru thfully state that he would have demanded a jury trial. Nor does he claim ineffective assistance of trial counsel.

9 In supplemental briefing, Mr. Granados argues for the first time that by invalidly waiving his right to a jury trial he gave up a numbe r of trial rights, including the right to contest the State’s evidence, make suppression motions, confront State witnesses, and submit his own evidence. H e contends the denial of his jury trial right was therefore in herently prejudicial. Pet ’ r ’ s Supp . Br

. at 5. These arguments ignore his stipulation that he possessed methamphetamine , obviating any motion to suppress the evidence (a right he also waived in the felony diversion agreement ) . He had the opportunity to cro ss - examine Officer Brewster and the c ourt asked if he wished to present any furthe r defense, but c ouns el declined on both accounts.No. 33866

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20 whether he is required to make that showing or is, instead, entitled to the presumption of prejudice he perhaps would have enjoyed on direct appeal

. I n In re Pers onal Restraint of St. Pierre , 118 Wn.2d 321, 328, 823 P.2d 492 (1992) , our Supreme C ourt rejected the proposition that a constitutional error that is never considered harmless on direct appeal will also be presumed prejudicial for the purposes of PRP s, explain ing, “A personal restraint petition is not to operate as a substitute for a direct appeal. ” The availability of collateral relief is limited “ because it undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes d eprives society of the right to punish admitted offenders. ” Id. at 329 (citing In re Pers. Restraint of Hagler , 97 W n.2d 818, 824 , 650 P.2d 1103 (1982) )

. 10 In adhering to this finality principle in later cases, members of the court have provided several formulations of the burden borne by a petitioner who contends that what the court has termed a “conclusive presumption of prejudice” remains present on

10 In St. Pierre , the cou rt found no per se prejudice from a defective charging document. Examples of errors the Washington Supreme Court has found per se preju dicial, although not labeled as “structural error,” include double jeopardy violations ( In re Pers. Restraint of Moi , 184 Wn.2d 575, 579, 360 P.3d 811 (2015) , cert. denied , U.S. , 137 S. Ct. 566, 196 L. Ed. 2d 456 (2016) ) ; In re Pers. Restrain t of Orange , 152 Wn.2d 795, 820

- 22, 100 P.3d 291 (2004)); failure to require the State to prove its case beyond a reasonable doubt ( In re Pers. Restraint of Gunt er , 102 Wn.2d 769, 774, 689 P.2d 1074 (1984)); and conflict of in terest resulting in deprivatio n of counsel ( In re Pers. Restraint of Richardson , 100 W n.2d 669, 679, 675 P.2d 209 (1983) , overruled on other grounds by State v. Dhaliwal , 150 Wn.2d 559, 568, 79 P.3d 432 (2003))

.No. 33866

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21 collateral review. In re Pers. Restraint of Coggin , 182 Wn.2d 115, 120, 340 P.3d 810 (2014). In Cogg in , a public trial right violation was not presumed prejudicial on collateral review . T he lead opinion limited conclusive presumption s to situations where,

“ in light of the essential purpose of the constitutional right at issue, a violation of the right w ould necessarily prejudice the defendant.” Id. (citing In re Pers. Restraint of
Morris , 176 Wn.2d 157, 181

- 82, 288 P.3d 1140 (2012) (Wiggins, J., dissenting) )

. Elsewhere, it explained that unlike the appellate process, which exists in part to develop the body of law governing all cases, “ collateral review focuses on the facts of the individual defendant, and its purpose is to correct the most egregious errors that cause actual harm. ” Id. at 122

. The concurring opinion in Coggin described a conclusive
pr esumption as applying only where a petitioner “can demonstrate that the error in his case ‘infect[ed] the entire trial process’ and deprive[d] the defendant of ‘basic protections,’ without which ‘no criminal punishment may be regarded as fundamentally
fair

. ’” Id

. at 123 (Madsen, C.J., concurring) (first alteration in original) (internal quotation marks omitted) (quoting Neder , 527 U.S. at 8

- 9 )

. Mr. Granados distinguishes Coggin on the basis the public trial right is not
absolute because courtroom closure can be justified under the factors in State v. Bone

Club , 128 Wn.2d 254, 906 P.2d 325 (1995), whereas the right to a jury trial is absolute.
Pet ’ r ’ s Supp

. Br. at 4 ( citing Sullivan v. Louisiana , 508 U.S. 275, 281

- 82, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (19 9 3)). He claims to show that in light of the essential purposeNo. 33866

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22 of the jury trial right, a violation would necessarily prejudice him. Yet at the same time, and inconsistently, he reverts to his “structural error” argument that a jury waiver by an
uninform ed defendant has “consequences that are necessarily unquantifiable and indeterminate,” again citing Sullivan , 508 U.S. at 282

. He points to the admonition in Rose v. Clark that when the right to a jury trial in a serious criminal case is altogether denied , “the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty .” 478 U.S. at 578 (emphasis added)

. Yet even if Mr. Granad os presented evidence and established that he would have elected a jury trial, the fact that the judge who found him guilty was the “wrong entity” would not show that Mr. Granados was “ necessarily prejudiced, ” or “ actually harmed, ” or “ deprived of a protec tion without which his sentence cannot be regarded as fundamentally fair. ”
Mr. Granados had counsel and was tried by an impartial adjudicator. Under Coggin ’s several formulations of his burden to show conclusive prejudice, his evidence and argument falls short. The actual and substantial prejudice standard applies. Mr. Granados does not carry his threshold evidentiary burden as required under
Rice , and he ultimately does not show actual and substantial prejudice under Cook

. 3. Deprivation of Right to an I nterpreter Finally, Mr. Granados argues that he was denied his right to an interpreter in those instances where Mr. Trejo translated the felony diversion paperwork for him. A criminalNo. 33866

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23 defendant has a statutory and constitutional right to an interpreter t hroughout the proceedings if one is needed. In re Pers. Restraint of Khan , 184 W n.2d at 689 (lead opinion ) (citing RCW 2.43.010, .030, .040(2); State v. Gonzales

- Morales , 138 Wn.2d 374, 379, 979 P.2d 826 (1999) )

. “The purpose of [the statutory procedures at] RCW 2.43 is to uphold the const itutional rights of non

- English speaking persons.” State v. Acquino

Cervantes , 88 Wn. App. 699, 706, 945 P.2d 767 (1997). In Washington, a criminal defendant’s rig ht to an interpreter is based on the Sixth Amendment ri ght to confront witnesses and “ ‘ the right inherent in a fair trial to be present at one’s own trial. ’ ” Gonzales

- Morales , 138 Wn.2d at 379 (quoting State v. Woo Won Choi , 55 Wn. App. 895, 901, 781 P.2d 505 (1989) ). The policy of the State as identified i n chapter 2.43 RCW is to provide for the use of interpreters so as to “secure the rights, constitutional or otherwise” of non

- English speakers who “cannot be fully protected in legal proceedings unless qualified interpreters are available to assist them.” RCW 2.43.010. Under RCW 2.43.030, when an interpreter is appointed, unless there is a wr itten waiver by the non

- English speaking person, “a certified or qualified interpreter [is] to assist the person throughout the [legal] proceedings. ” RCW 2.43.030(1) . If good cause is found for using a non certified interpreter or if a qualified interpreter is appointed , the appointing authority must makeNo. 33866

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24 certain findings that the proposed interpreter is able to interpret accurately all communications to and from th at person in that particular proceeding. RCW 2.43.030(2)

. All language i nterpreters are required to take a statutory oath and “abide by a code of ethics established by supreme court rule.” RCW 2.43.080. The code of ethics is found
in General Rule (GR) 1 1.2

. Among other provisions, the code of conduct provides that language interpreters “ shall not give legal advice ” and shall not serve in any matter in which the interpreter “ has an interest

. . . in the outcome ” or “has participated in the choice of coun sel. ” GR 11.2(g), (d). The appointment of an interpreter is a matter within the discretion of the trial
court , reviewable only for abuse of that discretion

. Gonzales

- Morales , 138 Wn.2d at 381

. Under this standard of review, appellate courts have typical ly upheld trial court decisions concerning the use of interpreters. Id. and n.27 (citing cases).
T he Washington Supreme Court has thus far decided that the decision not to provide an interpreter is not a structural error mandating a reversal without a sho wing of prejudice. Khan , 184 Wn.2d at 691 (lead opinion) , 695

- 96 (Yu, J., concurring)

. In a concurring opinion to the four

- justice lead opinion, Justice Yu states that as jurisprudence continues to evolve, “[t]here may come a time where we hold that the lack of a language interpreter in a criminal proceeding constitutes such an error. ” Id. at 695. In a personal declaration submitted with the State’s response to the petition, Mr. Trejo states that he grew up in a bilingual Spanish/English environment and has spokenNo. 33866

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25 both languages his entire life. He uses Spanish on a daily basis and no Spanish speaking person has ever told him they do not understand him. He has represented over 1 , 000 clients who were monolingual in the Spanish language and not a single client has alleged they did not understand his Spanish. He states that he and Mr. Granados always communicated with one another in the Spanish language, and at no time did Granados question his Spanish speaking ability or express that he d id not understan d his Spanish.
Mr. Granados provides no evidence to the contrary in this petition . Instead, he relies on United States v. Bailon

- Santana , 429 F.3d 1258 (9 th Cir. 2005 ) , in which two members of the three

-

judge panel reversed a conviction because the distri ct court accept ed an English language jury waiver from a monolingual Spanish

- speaking defendant based on defense counsel’s representation that he had translated the waiver for his client. The opinion holds that the court should have inquired of the defend ant directly, through a certified or court

- appointed interpreter, because a defense lawyer may not be a reliable judge of his or her own fluency. For several reasons, Bailon

- Santana is not persuasive in this collateral attack

. First, the opinion implies t hat under federal statutes the lawyer could have been certified or found qualified to interpret but failed to do so. By contrast, Mr. Trejo would not be able to qualify as a language translator under chapter 2.43 RCW , since his representation of Mr. Grana dos disqualifies him under the code of ethics. RCW 2.43.080; GR 11.2 (d), (g). Unlike under federal law, if a criminal defense lawyer in Washington is a competentNo. 33866

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26 translator for some purposes, it appears the analysis under chapter 2.43 RCW would be to det ermine that no certified or court

- appointed translator is needed for thos e purposes

—
not to require the lawyer to obtain certification or court appointment as an interpreter

. Second, the record contains more than Mr. Trejo’s self

- certification. At the hear ing at which the district court accepted Mr. Granados’s application for felony diversion, Mr. Granados heard Mr. Trejo (through the court interpreter) tell the district court that he and Mr. Granados had reviewed the application and Mr. Granados understood it. At the hearing at which the district court accepted the felony diversion agreement, Mr. Granados himself told the court, through the court interpreter, that his entry in the felony diversion program was knowing, voluntary and intelligent. Third, an d most importantly, Bailon

- Santana was a direct appeal to which the heightened showing required for collateral review did not apply. Since the onl y evidence is that Mr. Gran a dos knowingly, voluntarily and intelligently entered the felony diversion program, there is no constitutional violation and hence no actual and substantial prejudice under Cook

. If and to the extent that the district court erred by not applying chapter 2.43 RCW and complying with its requirements, Mr. Granados shows no fundamental defe ct that inherently results in a complete miscarriage of justice under the Cook standard.No. 33866-5-111 In re Pers. Restraint of Granados

The petition is dismissed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.

WE CONCUR:

Pennell, J.

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