Filed Washington State Court of Appeals Division Two
August 15, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Personal Restraint of: No. 55486-1-II
ISAIAS G. RAMOS-RAMIREZ,
Petitioner. UNPUBLISHED OPINION
CRUSER, A.C.J. – Isaias G. Ramos-Ramirez seeks relief from personal restraint following
his jury trial convictions for first degree child molestation, indecent liberties, and second degree
incest. In this timely personal restraint petition (PRP),1 he argues that he was denied effective
assistance of counsel on several grounds, that a key witness’ testimony was false, and that
cumulative error deprived him of a fair trial. Because Ramos-Ramirez fails to adequately support
his claims or they fail on the merits, we deny this petition.
FACTS
I. BACKGROUND
At approximately 7:13 to 7:15 PM on March 10, 2017, Officer Hector Diaz was patrolling
a transit center when he observed Ramos-Ramirez “kissing” and “heavily making out with” “a
small child” outside of a nearby Safeway store. Verbatim Report of Proceedings (VRP) at 71-72.
1 Ramos-Ramirez’s direct appeal mandated on February 25, 2020. Mandate, State v. Ramos- Ramirez, No. 50911-3-II (Wash. Ct. App. Feb. 25, 2020). He filed this PRP on February 22, 2021, less than a year after the mandate. Accordingly, this PRP is timely. RCW 10.73.090(1), (3)(b). No. 55486-1-II
The child was later determined to be Ramos-Ramirez’s son, who was less than eight years old at
the time of the incident.
Diaz pulled up behind Ramos-Ramirez and watched as Ramos-Ramirez held his son
between his legs and forced the child’s face towards his face. Diaz observed Ramos-Ramirez place
his tongue in the child’s mouth and move it back and forth, lick the child’s neck, caress the child’s
buttocks, and thrust his body against the child. Unable to get Ramos-Ramirez’s attention, Diaz
drove around until he was in front of Ramos-Ramirez.
Upon contacting Ramos-Ramirez, Diaz observed a vodka bottle and could smell the “odor
of intoxicants . . . coming off” of Ramos-Ramirez. Id. at 81. Ramos-Ramirez appeared to be
intoxicated to the point he was “difficult to understand.” Id. at 124. Diaz also observed that Ramos-
Ramirez’s pants zipper was down. But Diaz did not notice whether Ramos-Ramirez had an
erection.
Diaz separated the child from Ramos-Ramirez and observed that the entire side of the
child’s face was wet with saliva. After other officers arrived, Diaz took the child to his mother.
In his incident report and probable cause report, Diaz described the above facts. And in his
incident report, Diaz also stated that he later transported Ramos-Ramirez to the hospital to be
medically cleared for booking. While at the hospital, Ramos-Ramirez spit at staff, was
uncooperative, and threatened to beat up a doctor.
Two individuals who worked at the transit center, John Magerstaedt and Steven
Weisenbach, had observed Ramos-Ramirez’s interactions with his son. Magerstaedt and
Weisenbach both provided witness statements in which they stated that they had observed Ramos-
Ramirez and another person who appeared to be a small woman “making out quite heavily” and
2 No. 55486-1-II
“kissing and hugging.” PRP App. at C11, C12. They did not realize until later that the small person
was a child. In his statement, Weisenbach stated that when he first noticed that the police had
arrived on the scene, he believed that the officer he saw was “Officer Olsen.” Id. at C11.
Shortly after the incident, the child was interviewed by forensic interviewer Sue Villa. In
her report, Villa stated that during the interview she spoke to the child with the assistance of an
interpreter and that “[i]t was unusually difficult to get [the child] to use words to communicate,
and when he did he primarily communicated in one word responses.” Id. at E1. Villa further
reported that the child acknowledged that he remembered the police talking to him and his father
at the Safeway, but he “denied memory of anything happening with his [father].” Id. at E2. The
child also “said his [father] was good.” Id. And he “said the entire family sleeps together at night
in the same bed,” but he “denied any bad experiences occurring in the family home.” Id.
II. CHARGES, OMNIBUS ORDER, AND TRIAL
The State initially charged Ramos-Ramirez with first degree child molestation. In the
State’s omnibus application, the State included the following paragraph:
The defendant is put on notice that the following additional charges will be filed prior to trial if this matter is not resolved by plea on or before the pre-trial date: Incest 2, Indecent Liberties, Sexual Motivation Enhancement.
Id. at F5.
In the trial court’s subsequent omnibus order, Ramos-Ramirez acknowledged that he had
reviewed this paragraph. Ultimately, the State charged Ramos-Ramirez with first degree child
molestation, indecent liberties, and second degree incest.
In a supplemental omnibus application, the State disclosed that it intended to present
testimony from Halimah Gradney, a woman who had also witnessed Ramos-Ramirez’s
3 No. 55486-1-II
interactions with his son and had requested that a Safeway store manager call the police. Before
trial started, defense counsel had informed the trial court that Villa was a potential witness.
The case proceeded to a jury trial. Diaz, Magerstaedt, Weisenbach, and Gradney testified
consistently with their reports, their statements, and the proposed testimony described above. In
addition, Diaz testified that he did not call for backup until after he had separated Ramos-Ramirez
and his son. And Weisenbach testified that he now recognized that the officer he first saw at the
scene of the incident was Diaz.
Ramos-Ramirez’s son testified at trial. The child testified that he did not know old he was,
when his birthday was, what grade of school he was in, how many years he had been going to
school, or his mother’s name. Apart from asking the child these general questions, the only other
question the State asked him was if his father was present in the courtroom. The child identified
Ramos-Ramirez as his father. Defense counsel did not cross examine the child.
Defense counsel did not call any witnesses.
In closing argument, defense counsel argued that although Ramos-Ramirez may have
touched his son in an offensive manner, he did not touch his son in a sexual manner. Counsel
argued that although offensive touching might be an assault, Ramos-Ramirez was not charged with
assault and, therefore, the jury should acquit him because all three charges required proof of sexual
contact and the State had failed to prove that any sexual contact occurred.
The jury convicted Ramos-Ramirez of first degree child molestation, indecent liberties,
and second degree incest.
4 No. 55486-1-II
III. APPEAL AND PRP
Ramos-Ramirez appealed his convictions and his sentence. State v. Ramos-Ramirez, No.
50911-3-II, slip op. at 1 (Wash. Ct. App. Dec. 18, 2018) (unpublished),
https://www.courts.wa.gov/opinions/pdf/D2%2050911-3-II%20Unpublished%20Opinion.pdf. In
his appeal, he argued “that defense counsel was ineffective for failing to request a voluntary
intoxication jury instruction.” Id. at 7. We rejected this argument, holding that in light of the
defense’s trial theory, Ramos-Ramirez had “failed to show that there was no strategic reason to
not request the intoxication instruction.” Id. at 9.
Ramos-Ramirez then filed this PRP. After the State filed a response and Ramos-Ramirez
filed a reply, we appointed counsel and counsel filed additional briefing.
ANALYSIS
I. PRP PRINCIPLES
We have three options when reviewing a personal restraint petition. We may: “(1) dismiss
the petition, (2) transfer the petition to a superior court for a full determination on the merits or a
reference hearing, or (3) grant the petition.” In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296
P.3d 872 (2013). To prevail in a PRP, a petitioner must establish (1) a constitutional error that
resulted in actual and substantial prejudice or (2) a fundamental defect of a nonconstitutional nature
that inherently resulted in a complete miscarriage of justice. In re Pers. Restraint of Meredith, 191
Wn.2d 300, 306, 422 P.3d 458 (2018). A reference hearing “is appropriate where the petitioner
makes the required prima facie showing[,] ‘but the merits of the contentions cannot be determined
solely on the record.’ ” Yates, 177 Wn.2d at 18 (quoting In re Pers. Restraint of Hews, 99 Wn.2d
80, 88, 660 P.2d 263 (1983)).
5 No. 55486-1-II
The petitioner must show that he has competent, admissible evidence to establish facts that
would entitle him to relief. Id. Bald assertions and conclusory allegations are insufficient. Id. And
the factual allegations must be based on more than speculation and conjecture. Id.
A declaration from the petitioner can support a PRP if the declaration is based on personal
knowledge. See In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 481, 965 P.2d 593 (1998); In re
Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). And if the evidence supporting
a claim is based on knowledge in the possession of others, the petitioner must present their
affidavits with admissible statements or other corroborative evidence. Rice, 118 Wn.2d at 886.
II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Ramos-Ramirez argues that he was denied effective assistance of counsel when defense
counsel failed (1) to advise him of his right to testify and refused to allow him to testify when he
asked to do so, (2) to investigate a voluntary intoxication defense or a diminished capacity defense,
(3) to investigate and review potential impeachment evidence and to impeach Diaz’s trial
testimony, (4) to investigate and present exculpatory evidence from Villa and Ramos-Ramirez’s
son, and (5) to inform him of a plea offer.
A. LEGAL PRINCIPLES
To establish ineffective assistance of counsel, Ramos-Ramirez must demonstrate that (1)
defense counsel’s performance was deficient and (2) this deficient performance was prejudicial.
In re Pers. Restraint of Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012). If the petitioner fails
to satisfy one prong of this two-part test, we need not consider the other prong. Id. at 847.
“Prejudice exists if there is a reasonable probability that ‘but for counsel’s deficient
performance, the outcome of the proceedings would have been different.’ ” State v. Estes, 188
6 No. 55486-1-II
Wn.2d 450, 458, 395 P.3d 1045 (2017) (quoting State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177
(2009)). A reasonable probability is one that is sufficient to undermine confidence in the trial’s
outcome, and it is a lower standard than a preponderance standard. Id. In the PRP context, a
petitioner who successfully demonstrates prejudice in an ineffective assistance of counsel claim
has necessarily shown actual and substantial prejudice sufficient to obtain collateral relief. Crace,
174 Wn.2d at 846-47.
B. RIGHT TO TESTIFY
Ramos-Ramirez first argues that he was denied effective assistance of counsel because
defense counsel never advised him of his right to testify and refused to allow him to testify when
he requested to do so. Ramos-Ramirez states in his unsworn petition and unsworn reply that
defense counsel did not advise him of his right to testify, that he advised counsel that he wanted to
testify, and that counsel told him that he did not need to testify and therefore would not testify.
But Ramos-Ramirez does not adequately support this claim because he provides no
affidavit or declaration establishing these facts and he did not sign his PRP or reply under penalty
of perjury.2 Pirtle, 136 Wn.2d at 481; Rice, 118 Wn.2d at 886. Because Ramos-Ramirez does not
adequately support this claim, it fails.
C. VOLUNTARY INTOXICATION AND DIMINISHED CAPACITY DEFENSES
Ramos-Ramirez next claims that he was denied effective assistance of counsel because
defense counsel failed to investigate a voluntary intoxication defense and failed to investigate a
diminished capacity defense. Ramos-Ramirez alleges that counsel failed to interview medical
2 We note that appointed counsel did not correct this deficit and solely relies on Ramos-Ramirez’s statements in his pro se petition and reply to support the claims in counsel’s brief and reply.
7 No. 55486-1-II
personnel and review medical records that were potentially relevant to his level of intoxication or
diminished capacity at the time of his arrest.
Ramos-Ramirez provides no support for his claim that counsel failed to interview witnesses
or conduct any investigation regarding an intoxication or diminished capacity defense. 3 The nature
and scope of defense counsel’s investigation was within counsel’s knowledge, and Ramos-
Ramirez has not provided us with a declaration from counsel. Rice, 118 Wn.2d at 886. Because
Ramos-Ramirez does not adequately support this claim, it fails.4
D. IMPEACHMENT EVIDENCE
Ramos-Ramirez next contends that he was denied effective assistance of counsel when
defense counsel failed to review and investigate available discovery evidence that would have
enabled defense counsel to impeach Diaz’s reports and testimony and failed to impeach Diaz with
existing evidence that was inconsistent with his reports and testimony. He contends that reports
documenting the calls to the dispatcher, Gradney’s proposed testimony, Weisenbach’s witness
3 At best, Ramos-Ramirez presents an unsigned declaration and supporting documents that may demonstrate that defense counsel failed to provide him with his entire file when he requested his file in order to prepare this petition. But it is mere conjecture that the absence of any mention of an investigation in the disclosed file is evidence that counsel did not conduct a reasonable investigation. It does not demonstrate that Ramos-Ramirez has competent admissible evidence of that fact. Rice, 118 Wn.2d at 886. 4 The State argues that we should not address this claim because it was raised and addressed on the merits in Ramos-Ramirez’s appeal. In his direct appeal Ramos-Ramirez argued that defense counsel was deficient for failing to request a voluntary intoxication instruction. Ramos-Ramirez, No. 50911-3-II, slip op. at 7. Ramos-Ramirez’s current claim that defense counsel failed to investigate an intoxication or a diminished capacity defense, is not the same issue raised and rejected in the appeal.
8 No. 55486-1-II
statement, and the security video from the transit center would have revealed that Diaz’s timeline
was falsified and, therefore, demonstrated that Diaz could not have observed the alleged offenses.5
As to whether counsel reviewed and investigated any possible discrepancies, that matter is
within counsel’s knowledge, and Ramos-Ramirez fails to provide an affidavit from counsel
supporting these assertions.6 Id. Accordingly, Ramos-Ramirez fails to adequately support his claim
that counsel failed to investigate.
As to whether Ramos-Ramirez was denied effective assistance of counsel when defense
counsel failed to attempt to impeach Diaz’s trial testimony based on any inconsistencies disclosed
in the call reports, Gradney’s proposed or actual testimony, Weisenbach’s witness statement or
testimony, or the security video, this claim fails because there were no significant inconsistencies.
Ramos-Ramirez asserts that a Shelton Police Department incident report and a Mason
County Emergency Communications Call Detail Report show that Diaz’s claim that he was on
patrol and not responding to the 911 call when he arrived at the scene at approximately 7:14 or
7:15 PM was false because they prove that he responded to the 911 call at 7:31 or 7:32 PM. But
Ramos-Ramirez misconstrues these reports.
5 Ramos-Ramirez also asserts that a review of the 911 call recording would provide additional impeachment evidence, but he does not specify how the 911 call was inconsistent with Diaz’s reports or testimony. Accordingly, we need not consider the 911 call recording. In his pro se reply, Ramos-Ramirez moves for an order requiring the State to provide us with copy of the 911 call recording. Because Ramos-Ramirez does not identify the specific evidence in the recording that would be relevant to his arguments, this motion is denied. 6 Again, at best, Ramos-Ramirez presents an unsigned declaration and supporting documents that may demonstrate that defense counsel failed to provide him with his entire file when he requested his file in order to prepare this petition. But it is mere conjecture that the absence of any mention of an investigation in the disclosed file is evidence that counsel did not conduct a reasonable investigation. It does not demonstrate that Ramos-Ramirez has competent admissible evidence of that fact. Rice, 118 Wn.2d at 886.
9 No. 55486-1-II
These reports establish that Diaz reported the incident at 7:31 or 7:32 PM; they do not state
that Diaz was responding to a 911 call at that time.7 This timing is consistent with Diaz’s reports
and his testimony that he happened upon Ramos-Ramirez and the child at approximately 7:15 PM
while he was on patrol, that he watched them for a period of time, that he then drove around and
contacted them, and that he did not call for backup until after he had physically separated Ramos-
Ramirez and the child.
Similarly, Gradney’s proposed and actual testimony was not inconsistent with Diaz’s
reports or testimony. In the State’s supplemental omnibus application, the State asserted that
Gradney would testify that she had walked past Ramos-Ramirez and the child and had observed
Ramos-Ramirez holding the child and trying to “[F]rench kiss” the child as the child tried to pull
away. PRP App. at C9. After seeing this, she went into the Safeway store and requested that the
manager call the police. When she and the store manager came out of the store, the police were
already there. But nothing in the omnibus application specifies when this occurred or when any
911 call was placed. The mere fact the police were at the scene by the time Gradney left the store
after requesting assistance is not inconsistent with Diaz independently encountering Ramos-
Ramirez and the child before the 911 call was placed.
Additionally, Gradney’s trial testimony was consistent with the summary of her proposed
testimony. And she did not testify about the exact time she requested that the manager call for
help; she testified only that she had observed Ramos-Ramirez sometime between 7:00 and 8:00
7 The security video also shows that the first patrol car arrived on the scene at approximately 7:13 PM, a second patrol car arrived about 7:19 PM, and two additional patrol cars arrived 7:32 PM. The arrival of the last two patrol cars is consistent with Diaz reporting the incident at 7:31 PM.
10 No. 55486-1-II
PM. Thus, neither Gradney’s proposed testimony nor her actual testimony were inconsistent with
Diaz’s report or testimony.
Ramos-Ramirez also asserts that Weisenbach’s witness statement demonstrated that he saw
“Officer Olsen” rather than Diaz arrive at the scene and that this was inconsistent with Diaz’s
report and testimony in which Diaz claimed to be the first officer at the scene. PRP App. at C11.
In his witness statement, Weisenbach did state that he saw “Officer Olsen” arrive at the scene. Id.
But at trial Weisenbach stated that he now recognized that officer as Diaz. Thus, Weisenbach’s
testimony was consistent with Diaz’s report and testimony.
We have also reviewed the security video and find no inconsistencies with Diaz’s reports
and testimony.
Because the call reports, Gradney’s proposed and actual testimony, Weisenbach’s
testimony, and the security video were not inconsistent with Diaz’s reports or testimony, defense
counsel had no ground upon which to impeach Diaz at trial. Accordingly, Ramos-Ramirez does
not establish that he was denied effective assistance of counsel on this ground.
E. EXCULPATORY EVIDENCE
Ramos-Ramirez next argues that he was denied effective assistance of counsel when
defense counsel failed to interview Villa or the child and failed to cross examine the child about
the incident or call Villa as a witness.
As to Ramos-Ramirez’s claim that defense counsel failed to interview Villa or the child,
Ramos-Ramirez again fails to provide adequate support for that claim because whether counsel
interviewed these witnesses is within counsel’s knowledge and Ramos-Ramirez does not provide
11 No. 55486-1-II
an affidavit from defense counsel to support this claim.8 Rice, 118 Wn.2d at 886. Because Ramos-
Ramirez fails to adequately support this claim, it fails.
As to Ramos-Ramirez’s claim that counsel should have cross-examined the child about the
incident, that claim fails. The scope of cross examination is limited to the subject matter of the
direct examination, and the State did not question the child about the incident. ER 611(b). Thus,
defense counsel could not have elicited testimony about the incident on cross examination and any
failure to do so does not establish ineffective assistance.
Ramos-Ramirez also fails to show that any potential error in deciding not to call Villa as a
witness was prejudicial. Even if Villa had testified that the child “denied memory of anything
happening with his” father outside the Safeway and that the child denied any bad experiences
occurring in the family home, given the eyewitness observations there is no reasonable probability
that the outcome of the proceedings would have been different had the jury heard this testimony.
PRP App. at E2. Accordingly, this claim fails.
Ramos-Ramirez also argues that he was denied effective assistance of appellate counsel
because appellate counsel failed to raise this claim on direct appeal. “To prevail on a claim of
ineffective assistance of appellate counsel, [petitioner] must demonstrate the merit of any legal
issue appellate counsel . . . failed to raise and also show [ ]he was prejudiced.” In re Pers. Restraint
8 Once again, at best, Ramos-Ramirez presents a declaration and supporting documents that may demonstrate that defense counsel failed to provide him with his entire file when he requested his file in order to prepare this petition. But it is mere conjecture that the absence of any mention of any interviews with Villa or the child in the disclosed file is evidence that counsel did not conduct a reasonable investigation. It does not demonstrate that Ramos-Ramirez has competent admissible evidence of that fact. Rice, 118 Wn.2d at 886.
12 No. 55486-1-II
of Netherton, 177 Wn.2d 798, 801, 306 P.3d 918 (2013). Because Ramos-Ramirez fails to
demonstrate the merit of this claim, his ineffective assistance of appellate counsel claim also fails.
F. PLEA OFFER
Ramos-Ramirez further argues that he was denied effective assistance of counsel when
defense counsel failed to inform him of a plea offer from the State. He contends that the State’s
omnibus application reveals that an offer existed, and he asserts that counsel never communicated
this offer to him.
The State’s omnibus application contained the following paragraph:
The defendant is put on notice that the following additional charges will be filed prior to trial if this matter is not resolved by plea on or before the pre-trial date: Incest 2, Indecent Liberties, Sexual Motivation Enhancement.
PRP App. at F5. Although this paragraph advised Ramos-Ramirez of the consequences of not
resolving the case by a plea, it does not state that the State ever conveyed a plea offer. Without
additional evidence that the State actually conveyed a plea offer, such as a declaration from counsel
or the prosecuting attorney, this claim is not adequately supported.
Furthermore, even if the State’s omnibus application was sufficient to establish that there
was a plea offer, Ramos-Ramirez does not adequately support his claim that no offer was ever
conveyed to him. He relies solely on his statements in his unsworn PRP. Because he provides no
affidavit or declaration establishing these facts and he did not sign his PRP under penalty of perjury
this claim fails.9 Pirtle, 136 Wn.2d at 481; Rice, 118 Wn.2d at 886.
9 We note that Ramos-Ramirez’s appointed counsel did not correct this deficit and relies solely on Ramos-Ramirez’s unsworn statements in his pro se petition to support this claim.
13 No. 55486-1-II
III. FALSE TESTIMONY
Ramos-Ramirez next contends that he was denied due process and his right to a fair trial
because Diaz’s testimony was false and the State knowingly presented this false testimony.
Ramos-Ramirez argues, as he did in his similar ineffective assistance of counsel claim, that the
call reports, Gradney’s proposed and actual testimony, Weisenbach’s witness statement, and the
security video demonstrate that Diaz’s testimony about when he initially observed Ramos-Ramirez
and the child, and therefore his allegations against Ramos-Ramirez, could not be true. But, as
discussed above, Ramos-Ramirez fails to establish any inconsistencies between this evidence and
Diaz’s testimony. Accordingly, this claim fails.
IV. CUMULATIVE ERROR
Finally, Ramos-Ramirez argues that cumulative error denied him a fair trial. “Under the
cumulative error doctrine, a defendant may be entitled to a new trial when cumulative errors
produce a trial that is fundamentally unfair.” State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653
(2012). Because we hold that all of Ramos-Ramirez’s claims are either inadequately supported or
fail on the merits, Ramos-Ramirez does not demonstrate cumulative error and this claim fails.
CONCLUSION
Because Ramos-Ramirez fails to adequately support his claims or they fail on the merits,
we deny this petition.
14 No. 55486-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, A.C.J. We concur:
MAXA, J.
VELJACIC, J.