Personal Restraint Petition Of Hernan Banas Divinagracia

• Court: Court of Appeals of Washington
• Decided: August 1, 2022
• Docket: 82855-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

In the Matter of the Personal Restraint ) No. 82855-0-I of ) ) HERNAN BANAS DIVINAGRACIA, ) UNPUBLISHED OPINION ) Petitioner. )

BOWMAN, J. — Hernan Banas Divinagracia seeks relief through this

personal restraint petition (PRP) from his conviction of one count of first degree

child molestation. He contends his trial attorney provided ineffective assistance

of counsel. We disagree and deny the petition.

FACTS

E.M. grew up in Western Washington with her younger brother and her

parents, Michelle and Michael.1 E.M. and her brother spent a lot of time with

their great-uncle Divinagracia, his wife Norma,2 and their children. Divinagracia

played a patriarchal role, and many in the extended family revered him.

When E.M. was around 10 or 11 years old, she began resisting her visits

with Divinagracia. Later, in her high school years, she began to suffer

academically and socially. While discussing these concerns with her mother in

April 2017, E.M. broke down and revealed that Divinagracia sexually assaulted

1 For E.M.’s privacy, we refer to her parents by only their first names and intend no

disrespect by doing so. 2 We refer to the Divinagracia family members by their first names for clarity and for

privacy and intend no disrespect by doing so.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82855-0-I/2

her as a child. E.M. said she did not “understand fully what was going on at the

time,” but she specifically recalled two instances before the age of 10 where

Divinagracia touched her inappropriately. The first time it happened, E.M. was

asleep on a rollout floor mat next to Divinagracia and Norma’s bed. During the

night, Divinagracia got “down onto the floor with [E.M.]” and touched her under

her clothing. On the other occasion, E.M. and her brother were playing in an

outdoor “kiddy pool” in Divinagracia’s backyard. Divinagracia was sitting on the

deck, watching the kids play, when he called E.M. away from the pool and told

her to sit on his lap. When she did, he put an outdoor pillow over her legs,

reached inside her swimsuit, and touched her.

Michelle and Michael decided to confront Divinagracia about E.M.’s

allegations before contacting the police. But first, Michael reached out to

Divinagracia’s daughter Dinah and repeated E.M.’s accusations. Dinah agreed

to meet with Michael, Michelle, and her parents. Michael asked Dinah not to say

anything to her father beforehand and she agreed, but just before the meeting,

Dinah e-mailed Divinagracia warning him that E.M. said he “sexually molested”

her and that Michael and Michelle were on their way over to confront him.

On May 17, 2017, Michael, Michelle, Dinah, Divinagracia, and Norma met

at the kitchen table in Divinagracia’s house. Michael and Michelle explained

E.M.’s academic and emotional troubles and her revelations about the sexual

abuse. Norma began to cry. According to Michelle and Michael, Divinagracia

immediately became “defensive” and suggested “wrestling” or “horsing around”

2 No. 82855-0-I/3

was not wrong.3 Michelle and Michael were shocked and believed this behavior

suggested guilt, so they continued to press the issue. Dinah also pressed

Divinagracia for “the truth” and told her family for the first time that she was a

survivor of sexual abuse as a child.4 Norma and Dinah then began to cry

“uncontrollably.” Norma became so “overwhelmed” that she and Dinah left the

room.

Michael then “pretended” to receive a phone call but instead turned on his

cell phone and recorded the rest of the conversation. As the questioning

intensified, Divinagracia “finally” said, “I did it.” Michael believed the recording

was Divinagracia’s confession that he molested E.M. Michelle did not know

about the recording until after the meeting.

After Divinagracia’s admission, Michelle and Michael decided to leave.

On their way out, Michael took Dinah into the garage and played her the

recording. Dinah asked Michael to delete the recording. Michael agreed,

“thinking that [he] didn’t need it.” Michael believed Divinagracia had “integrity”

and “would come forward,” plus he knew Dinah “heard the recording.” But

Divinagracia did not come forward and Dinah later claimed the recording did not

contain any admission or confession by her father.

Meanwhile, E.M.’s high school counselor, a mandatory reporter, informed

law enforcement of E.M.’s allegations. The police contacted Michelle and

Michael, who gave statements about E.M.’s claims and their confrontation with

3 According to Dinah, these comments came up in response to her e-mail and

Divinagracia was just trying to understand what “sexual molestation” meant, seeking to clarify that wrestling and horsing around “didn’t count.” 4 The abuse was not by a family member.

3 No. 82855-0-I/4

Divinagracia. Neither mentioned that Michael recorded part of the May 17, 2017

conversation. Police later learned about the recording and interviewed Michelle

and Michael again.

E.M. submitted to a child forensic interview in June 2017. Among other

things, E.M. told the interviewer that Norma had been on the bed when

Divinagracia assaulted her on the bedroom floor. She said Norma did not wake

up because she sleeps with earplugs. In October 2017, Divinagracia retained an

attorney to represent him.

In August 2018, the State charged Divinagracia with one count of first

degree child molestation for the “bedroom incident.” In April 2019, the State

amended the information to add a second count of first degree child molestation

for the “pool incident.”

On April 4, 2019, defense counsel moved to suppress any evidence about

the May 17, 2017 conversation between Divinagracia and E.M.’s parents that

Michael “surreptitiously recorded.” He argued Michael violated Washington’s

privacy act (WPA), chapter 9.73 RCW, by recording Divinagracia without his

consent. The State responded and argued that the WPA did not apply to the

recording because the conversation took place in an open area and involved

several people. Alternatively, it contended that since Michelle did not participate

in the recording and did not listen to it, the court should not prevent her from

testifying about the conversation.

On April 11, 2019, the court heard argument on Divinagracia’s motion to

suppress. It ruled that Michael recorded the conversation in violation of the WPA

4 No. 82855-0-I/5

and could not testify at trial about the May 17, 2017 conversation. But the trial

court found that Michelle “did not act in concert, nor complicit, with [Michael] in

the recording of the conversation” and that her memory was untainted because

she never heard the recording, so it ruled that Michelle could testify about the

conversation. Around this time, Divinagracia’s counsel hired another attorney to

act as cocounsel. The defense did not ask the court to reconsider its ruling or

move the court for any further relief as to the May 17, 2017 recording.

Trial began in November 2019. The State presented testimony from

police detectives, E.M., her brother, Michael, and Michelle. E.M. recounted the

incidents of abuse. Michelle testified about the family meeting on May 17, 2017.

She said that after Dinah and Norma left the room, she and Michael continued to

question Divinagracia, and he “finally looked up at me and he just kind of put his

hands up in the air and said, I did it.”

Both Dinah and Norma testified for the defense as well as Divinagracia’s

close friend. Divinagracia did not testify. Dinah and Norma also testified about

the family meeting but said that Divinagracia denied the allegations. The

defense elicited testimony from the witnesses that Divinagracia treated E.M.

equally with her brother and that no one had reason to believe he acted

inappropriately toward E.M. before her allegations surfaced.

The jury convicted Divinagracia of first degree child molestation as

charged in count 2 for the pool incident but could not reach a verdict on the

5 No. 82855-0-I/6

bedroom incident as charged in count 1.5 On January 17, 2020, the trial court

sentenced Divinagracia to an indeterminate sentence of 54 months to life.

Divinagracia seeks relief from his restraint via this PRP. In support, he

submitted declarations from both trial counsel, Norma, Dinah, and Dinah’s

brother. In its response, the State submitted a declaration from the prosecutor

who litigated the case below.

ANALYSIS

Divinagracia claims he “received deficient legal representation during

pretrial proceedings and at trial, in violation of the Sixth Amendment Right to

effective assistance of counsel.” U.S. CONST. amend. VI. According to

Divinagracia, “but for the deficiencies of trial counsel, [he] would not have been

convicted of the underlying offense.” In the alternative, Divinagracia asserts we

should order a reference hearing. We disagree.

Relief through a PRP is extraordinary. In re Pers. Restraint of Coats, 173

Wn.2d 123, 132, 267 P.3d 324 (2011). A petitioner may seek relief through a

PRP when he is under unlawful restraint. RAP 16.4(a); In re Pers. Restraint of

Cashaw, 123 Wn.2d 138, 149, 866 P.2d 8 (1994). The petitioner may raise

either constitutional or nonconstitutional error. In re Pers. Restraint of Davis, 152

Wn.2d 647, 671, 101 P.3d 1 (2004). To obtain relief on a constitutional error

such as Divinagracia asserts here, the petitioner must prove by a preponderance

of the evidence that the error actually and substantially prejudiced him. Id. at

671-72. The petitioner “must state with particularity facts which, if proven, would

5 The State later moved to dismiss count 1 without prejudice, which the court granted on

December 10, 2019.

6 No. 82855-0-I/7

entitle him to relief” and may not rely on bald assertions or conclusory

allegations. In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086

(1992).

The Sixth Amendment and article I, section 22 of the Washington

Constitution guarantee effective assistance of counsel. State v. Grier, 171

Wn.2d 17, 32, 246 P.3d 1260 (2011) (citing Strickland v. Washington, 466 U.S.

668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). An ineffective

assistance of counsel claim presents mixed questions of law and fact that we

review de novo. State v. K.A.B., 14 Wn. App. 2d 677, 707, 475 P.3d 216 (2020)

(citing State v. Linville, 191 Wn.2d 513, 518, 423 P.3d 842 (2018)). A defendant

alleging ineffective assistance must overcome a strong presumption that

counsel’s performance was reasonable. State v. Kyllo, 166 Wn.2d 856, 862, 215

P.3d 177 (2009). To establish ineffective assistance of counsel, Divinagracia

must show (1) defense counsel’s conduct was deficient and (2) the deficient

performance resulted in prejudice. Grier, 171 Wn.2d at 32-33. An attorney’s

performance is deficient if it falls below an objective standard of reasonableness.

Strickland, 466 U.S. at 687-88.

Counsel has a duty to conduct a reasonable investigation under prevailing

professional norms. In re Pers. Restraint of Elmore, 162 Wn.2d 236, 252, 172

P.3d 335 (2007) (citing Strickland, 466 U.S. at 691). We assess any particular

decision not to investigate for reasonableness, “giving great deference to

counsel’s judgments.” Id.; State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233

(2015). If we can characterize counsel’s actions as legitimate trial strategy or

7 No. 82855-0-I/8

tactics, performance is not deficient. Kyllo, 166 Wn.2d at 863. But an attorney

performs deficiently when “there is no conceivable legitimate tactic explaining

counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d

80 (2004). The relevant question is not whether counsel’s choices were

strategic, but whether they were reasonable. Grier, 171 Wn.2d at 34.

To determine whether any deficient performance resulted in prejudice, we

apply the same standard in a PRP as we do on appeal. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012) (“[I]f a personal restraint

petitioner makes a successful ineffective assistance of counsel claim, he has

necessarily met his burden to show actual and substantial prejudice.”). So

Divinagracia must show there is a reasonable probability that but for his

counsel’s deficient performance, the result of the trial would have probably been

different. Strickland, 466 U.S. at 694.

Pretrial Litigation

Divinagracia contends trial counsel performed deficiently by failing to

“consider” adequately the consequences of moving to suppress testimony about

the May 2017 conversation recorded by Michael. He further asserts trial counsel

failed to “identify or present evidence [at the suppression hearing] that would

have demonstrated that Michelle had been involved in the planning of the

confrontation and the illegal recording.” According to Divinagracia, an adequate

pretrial investigation would have unearthed evidence before the suppression

motion that Michelle participated in the plan to record him. We are unpersuaded.

8 No. 82855-0-I/9

1) Suppression Motion

Divinagracia’s trial attorney moved to suppress “testimony about the

conversation recorded by Michael” in April 2019, about a year and a half into his

representation of Divinagracia. Trial counsel now asserts:

Upon filing that motion, I had not considered the possibility that Michelle . . . might be permitted to testify regarding the contents of the May 17, 2017 meeting with Hernan Divinagracia even if the Court ruled that the secret recording and the testimony of Michael . . . would be suppressed.

While counsel may not have considered the possibility of Michelle

testifying about the meeting when he filed the motion to suppress, it soon

became a central issue in the pretrial litigation when the State raised the issue in

its response brief.6 And rather than withdraw his motion, defense counsel chose

to address the issue in his reply by focusing on Michelle’s involvement in

engineering the confrontation itself. He argued that “Michelle did know there was

a recording” and that Michael and Michelle “continued to work as a team during

the recording,” so Michelle “should also be barred” from testifying. During the

suppression hearing, defense counsel distinguished the case law cited by the

State that suggested only witnesses complicit in the recording itself should be

restricted from testifying.

Proceeding in this way fell within the legitimate tactical choices open to the

defense, to which we defer. While the strategy proved unsuccessful, we cannot

say defense counsel acted deficiently by pursuing it.

2) Investigation

6 Divinagracia acknowledges this in his reply brief on review.

9 No. 82855-0-I/10

The record shows that trial counsel reviewed Michael and Michelle’s

statements to the police, interviewed Michelle, and was in frequent contact with

Dinah before the suppression hearing. Based on the information gleaned from

his investigation, counsel told the court at the suppression hearing that “the facts

we have give us no basis to dispute what [the State is] now saying, that Michelle

found out [about the recording] right after[ ] [the meeting].”

Dinah now says that Michael told her he planned to record his

confrontation of Divinagracia and that Michelle was present during that

discussion. But Dinah offers no information about why she did not convey this

fact to trial counsel. Dinah implies but does not declare that counsel did not ask

her about the confrontation. Yet she acknowledges that she discussed the case

with trial counsel and declares that she is “certain that I told [defense counsel]

about the confrontation at my parents’ home on May 17, 2017 and of the fact that

Michael . . . had made a recording of that event.” That she failed in her

discussions of the case with trial counsel to reveal that Michelle knew Michael

planned to record her father does not render counsel’s investigation deficient.

Trial

Divinagracia claims defense counsel performed deficiently at trial in three

respects. (1) Counsel did not present testimony from Dinah about the recording

to rebut Michelle’s trial testimony, (2) he did not offer evidence that Divinagracia

denied the allegations when confronted, and (3) he failed to cross-examine E.M.

about her claim that Norma wore earplugs at night. Divinagracia contends these

10 No. 82855-0-I/11

errors allowed Michelle’s confession testimony to go unrebutted and E.M.’s

allegations unimpeached. We disagree.

1) Recording Evidence

Divinagracia argues “defense counsel should have presented evidence

surrounding the illegal recording as it demonstrated that both Michael and

Michelle were deceitful and that it would cast doubt about their other claims to

the jury.”7 But defense counsel made a reasonable tactical decision to avoid the

topic of the recording at trial because the jury could have viewed it either

favorably or unfavorably to the defense. For example, Divinagracia suggests the

jury would have seen Michael as a liar because it “defies logic and reason” to

believe that Michael deleted the recording if it in fact contained a confession. But

the same holds true for Dinah and her request that Michael delete the recording if

it in fact proved her claim that Divinagracia did not confess. Also, Michael’s

nondisclosure of the recording in his initial statement had little value given his

subsequent cooperation with police and his explanation for deleting it.

Rather than wade into the evidentiary quagmire surrounding the recording,

defense counsel reasonably elected to combat Michelle’s account of

Divinagracia’s confession with direct testimony from Dinah and Norma—two

other witnesses with firsthand knowledge of the conversation. Such tactical

choices do not amount to deficient performance.

7 In his trial memorandum, trial counsel asked the court to “exclude any mention that the

[May 17, 2017] conversation was recorded.”

11 No. 82855-0-I/12

2) Divinagracia’s Denial

Divinagracia also claims defense counsel performed deficiently because

he did not seek to admit the denials Divinagracia made during the May 2017

meeting as “excited utterances” under ER 803(a)(2). He relies on the statements

in Dinah and Norma’s declarations in support of his PRP that Divinagracia

appeared “stunned” and “in shock” during the confrontation, thereby “still under

the influence of the events,” making his denials exceptions to the hearsay rule.

ER 802, 803(a)(2). But nothing in the record shows defense counsel knew of

these descriptions at the time of trial. Indeed, at trial, Norma testified that

Divinagracia appeared calm and “kind of sad” when confronted by Michael and

Michelle. Dinah also testified that before she and Norma left the room, “[m]y

mom was crying uncontrollably, as was I, and my dad seemed to be sad.” The

only testimony at trial that Divinagracia appeared “shock[ed]” and “upset” was

when he learned that Dinah was a survivor of child molestation.

In any event, defense counsel did elicit evidence of Divinagracia’s denial

through Dinah and Norma’s testimony. Dinah testified that Divinagracia denied

the sexual abuse allegations during the family meeting. Specifically, she

testified, “[Michael] asked, did you do this? Did you — did you sexually molest

[E.M.]? And my dad said, no. He said, no.” According to Dinah, Divinagracia

consistently denied any wrongdoing even though Michael and Michelle acted in

an intimidating way, standing over him and yelling profanities. Dinah said that

when she and Norma then asked him directly “did you do this,” Divinagracia

12 No. 82855-0-I/13

responded that the allegations were not true. Norma also confirmed this in her

testimony. Divinagracia does not show deficient performance on this ground.

3) Impeachment Evidence

Divinagracia claims trial counsel performed deficiently by not introducing

exculpatory evidence during E.M.’s cross-examination. Specifically, counsel

failed to elicit from E.M. that she told investigators that Norma did not wake up

during the bedroom incident because she sleeps with earplugs. Divinagracia

argues this would have exposed E.M. as a liar because Norma testified that she

never wore earplugs to bed. But defense counsel elicited the same evidence

from a police detective who testified that E.M. “explained why Norma . . . had not

awakened when she was molested in the bedroom . . . . She explained that

Norma . . . was wearing ear[ ]plugs.” The detective also confirmed that police did

not find any earplugs when they searched Divinagracia’s home. As much as

counsel’s failure to cross-examine E.M. on the topic amounts to deficient

performance, this evidence cured any harm and allowed the defense to argue

E.M.’s credibility to the jury.8

Reference Hearing

Divinagracia invites us to remand his case for a reference hearing. But

“only after ‘the parties’ materials establish the existence of material disputed

issues of fact’ will we direct the trial court ‘to hold a reference hearing in order to

resolve the factual questions.’ ” In re Pers. Restraint of Monschke, 160 Wn. App.

479, 489, 251 P.3d 884 (2010) (quoting Rice, 118 Wn.2d at 886-87). Because

8 Indeed, the jury acquitted Divinagracia of the bedroom incident.

13 No. 82855-0-I/14

we determine Divinagracia presented no material disputes of fact, we decline his

invitation.

We reject Divinagracia’s contention that trial counsel performed deficiently

and deny his PRP.9

WE CONCUR:

9 Divinagracia also argues that we should review his claims of ineffective assistance of

counsel as a whole and not in a piecemeal, “balkanized” fashion. But Divinagracia fails to show any deficient conduct. As a result, his claims fail individually and as a whole.