IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84609-4-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION RIGOBERTO GALVAN,
Appellant.
SMITH, C.J. — Rigoberto Galvan broke into his ex-girlfriend Stephanie
Cresswell-Brenner’s apartment and waited for her to return home. When she did
not answer his texts and calls, Galvan crawled through a bathroom window and
onto the balcony of the unit next door where he knew Cresswell-Brenner was
visiting with a neighbor. He entered through the balcony doors, announced that
Cresswell-Brenner was going to die, and proceeded to shoot her 15 times at
close range. Galvan was later charged with and convicted of aggravated murder
in the first degree, with a domestic violence and deadly weapon enhancement,
and burglary in the first degree with a deadly weapon enhancement.
On appeal, Galvan contends that his right to a unanimous jury verdict was
violated because the State submitted evidence that two robberies occurred, but
did not require the jury to agree on which act supports its conviction. He also
asserts that he is a youthful offender and that the trial court violated our state
constitution’s prohibition against cruel punishment by imposing a sentence of life No. 84609-4-I/2
without the possibility of parole. To this point, he maintains that the trial court
violated the appearance of fairness doctrine by remarking that his sentence was
appropriate. Finally, Galvan requests that this case be remanded for the trial
court to waive restitution interest and strike several legal financial obligations
from the judgment and sentence.
We find no violation of Galvan’s right to a unanimous jury, nor to the
prohibition of cruel punishment, nor to the appearance of fairness doctrine.
However, we agree that remand is appropriate for the trial court to strike certain
fees from the judgment and sentence and to consider waiving restitution interest.
FACTS
While attending Western Washington University, Rigoberto Galvan and
Stephanie Cresswell-Brenner dated and lived together from July 2018 until May
2019. However, in early 2019, their relationship began to deteriorate. Galvan
had cheated on Cresswell-Brenner several times and the two were fighting more
frequently. Galvan also closely monitored Cresswell-Brenner’s social media
presence and forbade her from following male friends during the relationship.
Cresswell-Brenner’s roommates testified that Galvan was “mean,”
“condescending,” and “controlling.” One roommate, Kaylie Gerald, recalled a
verbal fight that ended with a “loud thud.” Gerald noted that Cresswell-Brenner
was “doing everything” for Galvan, including his laundry and cooking, but that
Galvan “wasn’t talking to her” and “he wasn’t being kind to her.”
In spring of 2019, Cresswell-Brenner ended the relationship. Galvan
moved out shortly afterwards, in May 2019. After the breakup, Galvan continued
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to show up at Cresswell-Brenner’s house unannounced and uninvited.1 Despite
these unwelcome appearances, Cresswell-Brenner’s roommates and friends
noticed that she was happier and more social.
On August 11, 2019, Galvan asked his friend, Taylor Cameron, for a ride
to Bellingham so he could break things off with Cresswell-Brenner. When they
arrived at Cresswell-Brenner’s house, Galvan told Cameron to wait in the car.
When he emerged 45 minutes later, Galvan’s demeanor was different. While
Galvan had been emotionally distraught and crying before, he now appeared
anxious and closed off. Galvan later relayed that he had asked Cresswell-
Brenner for a second chance and that she said no. Galvan also asked
Cresswell-Brenner to not date anyone else for a while.
The next day, Cameron reached out to Galvan and asked him to meet for
lunch. Over lunch, Galvan repeatedly asked Cameron, “Would you be mad at
me?” but did not explain further.
Around the same time, Galvan noticed that Cresswell-Brenner had
unfollowed him on social media. He also noticed that she had started to follow
her next door neighbor, Aiden Kuhne, on social media and became jealous.
On August 13, 2019, Galvan had dinner with his parents and told them
that he and Stephanie were no longer dating. After dinner, he worked his shift as
a volunteer firefighter. His coworker testified that he did not notice anything
1 Kaylie Gerald testified that Galvan would “walk in the house, not knock, ever, very entitled in that way, just walk in.”
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unusual about Galvan’s demeanor and that Galvan had no difficulties performing
his duties.
Later that evening, however, Galvan drove to Cresswell-Brenner’s house,
armed with a gun tucked into his waistband. He parked his car in a nearby
alleyway to avoid being seen. When he arrived, Galvan stood outside, listening
to Cresswell-Brenner and Kuhne talking in Kuhne’s unit next door. Galvan then
proceeded to enter Cresswell-Brenner’s unit unannounced, using a hidden spare
key that Cresswell-Brenner and her roommates kept outside to unlock the front
door. Galvan went upstairs to Cresswell-Brenner’s room and continued to listen
to Cresswell-Brenner and Kuhne talking next door. As he waited and listened,
Galvan repeatedly called and texted Cresswell-Brenner in an attempt to get her
to come back to her unit. After looking through the bathroom window and seeing
Cresswell-Brenner and Kuhne sitting on the couch, Galvan texted Cresswell-
Brenner that he was in her room. Cresswell-Brenner texted back that he needed
to leave or she would call the police.
Shortly thereafter, Galvan crawled through Cresswell-Brenner’s bathroom
window and onto the balcony of Kuhne’s adjoining apartment. He entered
Kuhne’s apartment, drew his gun, and told Kuhne: “Aiden, run away. Call 911,
she is going to die.” Kuhne fled and immediately called the police. As he ran, he
heard between 12 to 15 gunshots, punctuated by Cresswell-Brenner screaming.
Kuhne later recalled that Galvan was “scarily calm” while Cresswell-Brenner
screamed and cried.
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Galvan fired 15 rounds from his gun, emptying the magazine. Ten bullets
hit Cresswell-Brenner, killing her. After he shot Cresswell-Brenner, Galvan left
Kuhne’s unit and crawled back through Cresswell-Brenner’s bathroom window
and into her room. He deposited the empty gun on her bed and left. Once
outside, Galvan called 911. Galvan told the 911 operator: “Hey, I’m at 939 20th
Street, you need to send out here as many cops as you can. I just killed my
girlfriend.” When the operator told Galvan that help was on the way, Galvan
replied: “She’s dead, so there is no help. You don’t need to send medics, trust
me.” Galvan then asked the operator, “Have you ever been jealous?” Galvan’s
911 call was placed approximately one minute after Kuhne’s.
Kuhne’s roommate, Ian Stewart, was downstairs at the time. He heard
arguing upstairs, followed by a male voice saying “run and I shoot” and then a
female screaming. Cassidy Schlicke-Perez, one of Cresswell-Brenner’s
roommates, was home asleep when she heard gunshots. Shortly after the
gunshots, she heard someone enter the unit and then heard a male voice start
talking.
Police arrived on the scene to find Galvan walking in the middle of the
street with his hands in the air. Galvan told the responding officers, “I’m the one
you’re looking for. I shot my girlfriend.”
When officers reached Kuhne’s unit, they immediately began
administering aid to Cresswell-Brenner. Paramedics arrived shortly after and
pronounced Cresswell-Brenner dead on the scene. Officers later described
Galvan’s demeanor as a “completely blank affect” and “unemotional.” Despite
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being trained to provide medical aid, Galvan later relayed that he did not make
any attempt to provide Cresswell-Brenner aid.
The State charged Galvan with aggravated murder in the first degree, with
a domestic violence and deadly weapon enhancement, and burglary in the first
degree with a deadly weapon enhancement. The jury convicted Galvan as
charged. Galvan appeals.
ANALYSIS
Jury Unanimity
Galvan contends that the lack of a unanimity instruction as to the burglary
charge combined with the State’s failure to make an election as to which unlawful
entry it was relying on for the charge violated his constitutional right to a
unanimous jury verdict. We disagree. Because Galvan’s actions constituted a
continuing course of conduct, no unanimity instruction was necessary.
Before reaching the issue of jury unanimity, we must first address two
threshold issues raised by the State. First, whether Galvan may raise jury
unanimity for the first time on appeal, and second, even if he can, whether the
invited error doctrine precludes him from doing so. We conclude that neither
precludes Galvan from arguing jury unanimity on appeal.
1. Raised for the First Time on Appeal
The State contends that Galvan may not argue jury unanimity on appeal
because he did not object to the absence of a unanimity instruction before the
trial court. Because jury unanimity is a constitutional issue, we disagree.
6 No. 84609-4-I/7
Under RAP 2.5(a), an “appellate court may refuse to review any claim of
error which was not raised in the trial court.” However, “a party may raise . . .
manifest error affecting a constitutional right” for the first time on appeal. RAP
2.5(a)(3). Issues concerning jury unanimity are constitutional in nature and may
be raised for the first time on appeal under the manifest constitutional error
standard. State v. Aguilar, 27 Wn. App. 2d 905, 918, 534 P.3d 360 (2023).
Here, the lack of a unanimity instruction is an issue of manifest
constitutional error that Galvan may raise for the first time on appeal.
2. Invited Error Doctrine
The State also argues that, under the invited error doctrine, Galvan may
not address jury unanimity on appeal because he invited the jury to find him
guilty of burglary in the first degree. We are unconvinced.
The invited error doctrine precludes a party from seeking appellate review
of an error they helped create, even when the alleged error involves
constitutional rights. State v. Mercado, 181 Wn. App. 624, 629-30, 326 P.3d 154
(2014). To determine whether the invited error doctrine applies, we consider
whether the party affirmatively assented to the error, materially contributed to it,
or benefitted from it. Mercado, 181 Wn. App. at 630. “To be invited, the error
must be the result of an affirmative, knowing, and voluntary act.” Mercado, 181
Wn. App. at 630. An appellant “must materially contribute to the error challenged
on appeal by engaging in some type of affirmative action through which he
knowingly and voluntarily sets up the error.” Mercado, 181 Wn. App. at 630. A
lack of objection to jury instructions does not constitute invited error. State v.
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Richardson, 12 Wn. App. 2d 657, 666, 459 P.3d 330 (2020); cf., State v. Studd,
137 Wn.2d 533, 546, 973 P.2d 1049 (1999) (invited error precludes defendant
from challenging their own erroneous jury instruction on appeal).
Here, neither party requested a unanimity instruction or objected to the
instructions given. Both the State and Galvan specifically declined to add further
detail to the instructions on the burglary charge, despite the court’s concern
regarding the definition of burglary and despite the parties’ disagreement about
whether Galvan committed two burglaries or whether his actions constituted a
continuing course of criminal conduct.
Still, the State contends that certain statements by Galvan’s counsel
during closing constituted invited error. During closing, Galvan’s counsel told the
jury that Galvan was not contesting the burglary charge: And then you have Count II, which is Burglary in the First Degree. It’s not in question folks, we’re not contesting Count II either.
These remarks, without more, do not constitute invited error. Galvan did
not affirmatively propose an erroneous jury instruction or relieve the jury of its
requirement to reach unanimity. In fact, during closing, Galvan told the jury: So you’ve heard and you know that you have to be unanimous in your verdict. You can’t have a verdict with half of you saying not guilty on Count I and half saying guilty on Count I. At least you can’t have a verdict on that count, so you all have to be unanimous.
Galvan’s request that the jury find him guilty of burglary is more
appropriately characterized as a tactical decision on counsel’s part given the
evidence presented at trial. It was not invited error.
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3. Specific Act and Continuing Course of Criminal Conduct
Galvan contends that because the State identified multiple acts, any one
of which could serve as the basis for the burglary charge, the State needed to
elect a single act. Alternatively, Galvan contends that the court needed to give a
Petrich2 instruction. The State asserts that the prosecutor did make such an
election during closing. We agree that the State failed to make an election.
However, such an election was unnecessary because Galvan’s actions
constituted a continuing course of conduct.
Criminal defendants have a right to a unanimous jury verdict. W ASH.
CONST. art. I, § 21; State v. Ortega-Martinez, 124 Wn.2d 702, 707, 881 P.2d 231
(1994). When the State presents evidence of multiple acts that could serve as
the basis for the crime charged, it must either tell the jury which act to rely on in
its deliberations, or the court must instruct the jury that it has to unanimously
agree on which act supports the conviction. State v. Kitchen, 110 Wn.2d 403,
409-11, 756 P.2d 105 (1988). The former is known as an “election,” and the
latter is known as giving a “Petrich” instruction, after the case in which the
instruction originated. Kitchen, 110 Wn.2d at 411 (“election”); State v. Carson,
184 Wn.2d 207, 228-29, 357 P.3d 1064 (2015) (“Petrich instruction”). An
election must “ ‘clearly identif[y]’ ” which act the charge in question is based
upon. Carson, 184 Wn.2d at 227 (quoting State v. Thompson, 169 Wn. App.
436, 474-75, 290 P.3d 996 (2012)).
2 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984).
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Whether a unanimity instruction is required is a question of law that we
review de novo. Aguilar, 27 Wn. App. 2d at 924. Failure to either make an
election or give a Petrich instruction may be constitutional error because of “the
possibility that some jurors may have relied on one act or incident and some
another, resulting in a lack of unanimity on all of the elements necessary for a
valid conviction.” Kitchen, 110 Wn.2d at 411.
The State contends that it elected a single unlawful entry to serve as the
basis for the burglary charge during closing. We disagree.
During closing argument, the State told the jury: And by the way, he committed two burglaries; he entered unlawfully with a firearm into Stephanie’s home, then he entered Aiden’s home unlawfully with a firearm. Those are both burglary one. And the burglary one was absolutely committed, and by the way this is Verdict Form B, it was absolutely committed before the murder because he entered unlawfully with the intent to commit a crime therein and he was armed with a firearm. That happened before because we know he had a firearm and we know he entered unlawfully. He announced what he was going to do before he committed the fatal act. That’s, his announcement are his thoughts. That is an expression of his thoughts. That is the premeditation, that is the premeditated design to kill.
It is unclear from these statements whether the State is relying on the first
or second unlawful entry as the basis of the burglary charge. What is clear,
however, is that there were two unlawful entries, either one of which could have
served as the basis for the charge of burglary in the first degree. The record
demonstrates that the State failed to make an election.
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However, despite the State’s failure to elect a single act, no Petrich
instruction or election was necessary because Galvan’s actions constituted a
continuing course of conduct.
An election or Petrich instruction is not required where the evidence
indicates a “ ‘continuing course of conduct.’ ” State v. Handran, 113 Wn.2d 11,
17, 775 P.2d 452 (1989) (quoting Petrich, 101 Wn.2d at 571). A continuing
course of conduct is “an ongoing enterprise with a single objective.” State v.
Love, 80 Wn. App. 357, 361, 908 P.2d 395 (1996). “Common sense is the
guiding light of this analysis.” Aguilar, 27 Wn. App. 2d at 925. To determine
whether a defendant’s actions constituted a continuing course of conduct, we
“evaluate the facts in a commonsense manner considering (1) the time
separating the criminal acts and (2) whether the criminal acts involved the same
parties, location, and ultimate purpose.” State v. Brown, 159 Wn. App. 1, 14, 248
P.3d 518 (2010). “[E]vidence that the charged conduct occurred at different
times and places tends to show that several distinct acts occurred,” while
“evidence that a defendant engage[d] in a series of actions intended to secure
the same objective supports the characterization of those actions as a continuing
course of conduct.” State v. Fiallo-Lopez, 78 Wn. App. 717, 724, 899 P.2d 1294
(1995).
The evidence here supports that Galvan’s actions are properly
characterized as a continuing course of criminal conduct. The day before the
murder, Galvan hinted to a friend that he was planning something nefarious.
Galvan asked the friend multiple times, “Would you be mad at me?” but did not
11 No. 84609-4-I/12
finish his thought. Around the same time, Galvan became upset when he
learned that Cresswell-Brenner had unfollowed him on social media and that she
had started following her neighbor, Aiden Kuhne.
The night of the murder, Galvan confessed to his parents that his
relationship with Stephanie was over. After working his shift as a volunteer
firefighter, Galvan loaded his gun with hollow point bullets and drove to
Cresswell-Brenner’s house. Rather than holstering his gun, as he typically did,
Galvan hid the gun in the waistband of his pants. And instead of parking where
he typically would, Galvan parked in an alleyway so that his car would not be
seen. Galvan then entered Cresswell-Brenner’s house and waited in her room.
While in Cresswell-Brenner’s room, Galvan texted and called her repeatedly.
Galvan later explained that he was “trying to get [Cresswell-Brenner] to come
over so [they] don’t have to put on this whole show in front of somebody else.”
Eventually, Galvan texted Cresswell-Brenner that he was in her room.
Cresswell-Brenner told him to leave. Shortly thereafter, Galvan crawled through
the bathroom window and onto the balcony of the unit next door, where
Cresswell-Brenner and Kuhne were inside talking. When he entered the unit, he
instructed Kuhne to run away and informed him that Cresswell-Brenner was
“going to die.”
These facts are consistent with a continuing course of conduct. Galvan
engaged in a series of actions intended to secure the singular objective of killing
Cresswell-Brenner. Although the crimes charged involved two distinct
locations—Cresswell-Brenner and Kuhne’s units—the series of events indicates
12 No. 84609-4-I/13
that Galvan’s actions were committed with an ultimate purpose in mind. Even
while he was waiting in Cresswell-Brenner’s unit, Galvan continued to contact her
to try to draw her out of the neighboring unit.
Galvan contends that this is a multiple acts case rather than a continuous
course of conduct case. In support of this assertion, he relies on State v. Irby,
187 Wn. App. 183, 347 P.3d 1103 (2015) and Aguilar, 27 Wn. App. 2d 905.
Neither case is persuasive here.
In Irby, the defendant appealed the State’s failure to make an election as
to which of the defendant’s two acts of allegedly unlawful entry constituted the
charged burglary. 187 Wn. App. at 197-98. This court concluded that this failure
was reversible error because a juror could have entertained a reasonable doubt
that the defendant burglarized the first location. Irby, 187 Wn. App. at 199. But
neither party in Irby argued that the defendant’s actions were a continuing course
of conduct and this issue was not discussed on appeal. Therefore, Irby is
unhelpful here.
The next case, Aguilar, is also distinguishable. In Aguilar, this court
concluded that the facts were more consistent with multiple acts rather than a
continuing course of conduct. 27 Wn. App. 2d at 927. The timeline of events
was unclear and the testimony indicated that there were intervening events
between the charged criminal acts. Aguilar, 27 Wn. App. 2d at 927.
Significantly, the defendant’s state of mind and behavior did not demonstrate the
existence of an ongoing enterprise with a single objective—Aguilar “acted
erratically under the influence of intoxicants, his focus shifting rapidly from one
13 No. 84609-4-I/14
thing to another.” Aguilar, 27 Wn. App. 2d at 927. Unlike the defendant in
Aguilar, Galvan was not under the influence and did not act erratically when he
committed the crimes in question. Rather, the timeline of events and Galvan’s
actions before and afterwards demonstrate that he thoughtfully planned the
burglary and murder.
Galvan’s assertion that he engaged in acts with different objectives is
similarly unconvincing. In support of this assertion, Galvan claims that there was
evidence that he entered Cresswell-Brenner’s unit with the objective of
confronting her and talking with her about the state of their relationship. He also
maintains that he was experiencing a great deal of psychological turmoil and felt
caught in “a loop of indecision.” But these claims are belied by evidence showing
that Galvan carefully planned his actions that evening: he took care to park his
car where it would not be seen, to hide his gun in his waistband, to load his gun
with hollow point bullets, to leave the empty gun on Cresswell-Brenner’s bed, and
to call the police and tell them where he would be, walking with his arms raised
and not resisting arrest. We conclude that Galvan’s actions here constituted a
Sentencing
Galvan contends that the trial court violated our state constitution’s
prohibition against cruel punishment by imposing a sentence of life without the
possibility of parole. He maintains that the court failed to properly consider his
youthfulness at sentencing and that the court erred by requiring him to prove
youthfulness as a mitigating factor by a preponderance of the evidence.
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We disagree. Galvan was an adult when he committed the crimes in
question and the court did not possess the discretion to consider youthfulness as
a mitigating factor. Therefore, the court erred by considering youthfulness and
by requiring Galvan to prove youthfulness as a mitigating factor by a
preponderance of the evidence.
We review questions of constitutional law de novo. State v. Ramos, 187
Wn.2d 420, 433, 387 P.3d 650 (2017). And we review a sentencing court’s
decision for an abuse of discretion, reversing “only if we find ‘a clear abuse of
discretion or misapplication of the law.’ ” State v. Delbosque, 195 Wn.2d 106,
116, 456 P.3d 806 (2020) (internal quotation marks omitted) (quoting State v.
Blair, 191 Wn.2d 155, 159, 421 P.3d 937 (2018)). A trial court abuses its
discretion if its decision “is manifestly unreasonable or based upon untenable
grounds.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). However,
sentencing errors generally do not require remand if the reviewing court is
satisfied that the trial court would have imposed the same sentence based on
proper factors. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003).
In sentencing juvenile and youthful offenders, trial courts have discretion
to depart from the standard range under the Sentencing Reform Act of 1981
(SRA), ch. 9.94A RCW, when a defendant’s youthfulness impairs their capacity
to appreciate the wrongfulness of their conduct, or to conform their conduct to the
requirements of the law. State v. O’Dell, 183 Wn.2d 680, 696, 698-99, 358 P.3d
359 (2015). The sentencing court must exercise its discretion to decide when a
defendant’s youthfulness has such an effect. O’Dell, 183 Wn.2d at 699. The
15 No. 84609-4-I/16
SRA places the burden of proving that substantial and compelling reasons justify
the imposition of an exceptional sentence on the defendant. RCW 9.94A.535.
“However, once a sentencing court has considered youth and determined that it
is a mitigating factor, the exceptional sentencing requirements imposed by the
SRA are simply no longer applicable.” State v. Rogers, 17 Wn. App. 2d 466,
476, 87 P.3d 177 (2021).
However, the SRA is not the only means by which a sentencing court may
exercise discretion to properly account for a defendant’s youthfulness. The
prohibition on cruel and unusual punishment contained in the Eighth Amendment
to the United States Constitution and article I, section 14 of the Washington
Constitution provides additional protections for juveniles and youthful offenders at
sentencing. In re Pers. Restraint of Monschke, 197 Wn.2d 305, 311 n.6, 482
P.3d 276 (2021) (plurality opinion). For example, it is constitutionally
impermissible to impose mandatory life sentences without the possibility of
parole on juveniles under the age of 18. Miller v. Alabama, 567 U.S. 460, 472-
73, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
Likewise, for defendants younger than 18, “[t]rial courts must consider
mitigating qualities of youth at sentencing,” such as “ ‘immaturity, impetuosity,
and failure to appreciate risks and consequences[,]’ . . . along with any other
factors suggesting that the child might be successfully rehabilitated.” State v.
Houston-Sconiers, 188 Wn.2d 1, 21, 23, 391 P.3d 409 (2017) (quoting Miller, 567
U.S. at 477). Trial courts must also have “full discretion to depart from the
sentencing guidelines and any otherwise mandatory sentence enhancements.”
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Houston-Sconiers, 188 Wn.2d at 34. More recently, our Supreme Court
extended the discretion of sentencing courts to permit consideration of the
mitigating qualities of youth for defendants who were 19- and 20-years-old at the
time of their offenses. Monschke, 197 Wn.2d at 311.
Under either the SRA or the federal and state constitutions, a trial court
engages in a two-part test during sentencing. First, the court must determine
whether the defendant is a juvenile or youthful offender. See Houston-Sconiers,
188 Wn.2d at 21-23; Monschke, 197 Wn.2d at 311. If the defendant is not a
juvenile or a youthful offender, the court is bound by the discretion provided for in
the SRA or in the applicable sentencing statute. If the defendant is a juvenile or
a youthful offender, the court must then determine whether the defendant’s
youthfulness impaired their capacity to appreciate the wrongfulness of their
conduct, or to conform their conduct to the requirements of the law. O’Dell, 183
Wn.2d at 696, 698-99.
Because Galvan was 22 years old at the time he committed his crimes, he
is not a youthful offender and the trial court could not consider youthfulness as a
mitigating factor at sentencing.
In Monschke, our Supreme Court held that sentencing courts must
exercise the same discretion in sentencing 18-, 19-, and 20-year-olds as when
sentencing juvenile offenders. 197 Wn.2d at 329.3 But in the years following
Monschke, Washington courts have repeatedly declined to extend its holding to
3Although the lead opinion in Monschke notes that youthful offenders can be between 17- and 25-years-old, the majority’s holding only extends to 18-, 19-, and 20-year-old defendants. 197 Wn.2d at 329.
17 No. 84609-4-I/18
other factual scenarios. See, e.g., State v. Meza, 22 Wn. App. 2d 514, 545, 512
P.3d 608 (holding that Monschke did not categorically extend leniency based on
mitigating factors of youth to 21-year-old defendant), review denied, 200 Wn.2d
1021, 520 P.3d 978 (2022); State v. Zwede, 21 Wn. App. 2d 843, 862-63, 508
P.3d 1042 (declining to address constitutionality of indeterminate sentence for
youthful offender), review denied, 200 Wn.2d 1006 (2022); State v. Kruger, 28
Wn. App. 2d 549, 556, 540 P.3d 126 (2023) (declining to reach whether
prohibition on de facto life sentences applies to 20-year-old defendant), review
denied, No. 102732-0 (Wash. May 8, 2024).
Here, Galvan was charged with aggravated murder in the first degree
under RCW 10.95.030(1). Sentencing for aggravated murder in the first degree
is not provided for within the SRA and neither the provisions of the SRA nor the
provisions of any other statute authorize a sentencing court to exercise discretion
when sentencing a defendant convicted of aggravated murder in the first degree.
See RCW 10.95.030 (“. . . any person convicted of the crime of aggravated first
degree murder shall be sentenced to life imprisonment without possibility of
release or parole.”) (emphasis added); ch. 9.94A RCW. Because Galvan is not a
youthful offender under Monschke, the trial court could not exercise discretion
during sentencing. Therefore, the court was required, under RCW 10.95.030, to
sentence Galvan to life without the possibility of parole.
We decline to extend the holding in Monschke to Galvan, who was 22
years old when he committed the offenses at issue. We also conclude that the
court erred by considering youthfulness as a mitigating factor because the court
18 No. 84609-4-I/19
did not possess the discretion to impose a sentence other than life without the
possibility of parole.
Appearance of Fairness
Galvan next asserts that the trial court violated the appearance of fairness
doctrine because it determined that Galvan’s sentence was appropriate. We
disagree.
Under the appearance of fairness doctrine, judges should disqualify
themselves “in a proceeding in which their impartiality might reasonably be
questioned.” Sherman v. State, 128 Wn.2d 164, 188, 905 P.2d 355 (1995). “The
party asserting a violation of the appearance of fairness must show a judge’s
actual or potential bias.” State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d 703
(2017). “The test for determining whether the judge’s impartiality might
reasonably be questioned is an objective test that assumes a reasonable
observer knows and understands all the relevant facts.” Solis-Diaz, 187 Wn.2d
at 540.
Here, Galvan points to no statements or actions by the trial court judge
that suggest actual or potential bias. Instead, he generally asserts that the judge
“obviously expressed an opinion as to the merits of the original sentence
imposed and has already judged it to be appropriate.” That the judge believed
Galvan’s sentence to be appropriate does not indicate bias. We conclude that
reassignment to a new judge on remand is not warranted.
19 No. 84609-4-I/20
Legal Financial Obligations
Galvan argues that the DNA collection fee, victim penalty assessment
(VPA), crime lab fee, and domestic violence assessment should be stricken from
the judgment and sentence. The State does not contest remand to strike the
majority of the fees imposed. We remand for Galvan to move the court to strike
these fees.
While Galvan’s appeal was pending, the legislature amended
RCW 7.68.035 to prohibit the imposition of a victim penalty assessment if the
court finds that the defendant is indigent at the time of sentencing. See LAWS OF
2023, ch. 449, § 1. The legislature also eliminated the DNA collection fee from
RCW 43.43.7541. Under newly amended RCW 43.43.7541, the court must
waive any DNA collection fee imposed prior to July 1, 2023 upon a motion by a
defendant. Although these amendments did not take effect until after Galvan
was sentenced, recent amendments to statutes governing legal financial
obligations apply retroactively to matters pending on direct appeal. See State v.
Ellis, 27 Wn. App. 2d 1, 16, 530 P.3d 1048 (2023).
Here, the State concedes that the DNA collection fee, VPA, and crime lab
fee should be stricken but does not address the domestic violence assessment.
We therefore remand for Galvan to move the trial court to strike the agreed upon
fees. And because the domestic violence assessment is not mandatory, Galvan
may move the trial court to reconsider that fee on remand as well.
20 No. 84609-4-I/21
Restitution Interest
Galvan asserts that remand is necessary for the trial court to consider
whether to strike restitution interest from the judgment and sentence. We agree.
In 2022, the legislature amended RCW 10.82.090, effective January 1,
2023. See LAWS OF 2022, ch. 260, § 12. The newly amended statute permits
trial courts to “elect not to impose interest on any restitution the court orders.”
RCW 10.82.090(2). The court must also consider whether a defendant is
indigent before determining whether to impose interest on restitution. RCW
10.82.090(2).
Because this amendment took effect while Galvan’s direct appeal was
pending, it applies to him. Ellis, 27 Wn. App. 2d at 16. Although the State
contends that no case has ever addressed whether restitution interest may be
waived on the basis of indigency, this argument ignores this court’s recent
opinion in Ellis, which directly addressed this issue.
We affirm and remand for the court to consider whether to impose
restitution interest. On remand, Galvan may also move the court to reconsider
the previously imposed legal financial obligations.
WE CONCUR: