IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85852-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
WILMER A. HERNANDEZ- HERNANDEZ,
Appellant.
FELDMAN, J. — Wilmer A. Hernandez-Hernandez appeals his conviction for
child molestation in the second degree and challenges three of the community
custody conditions imposed by the trial court. We agree with Hernandez-
Hernandez that the trial court failed to properly instruct the jury on the child
molestation count as required by State v. Petrich. 1 Because the State does not
argue otherwise, nor does it argue the error was harmless, we reverse the
conviction and remand for a new trial on that count but otherwise affirm.
I
Hernandez-Hernandez was charged with rape of a child in the second
degree (count 1), child molestation in the second degree (count 2), rape of a child
1 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen,
110 Wn.2d 403, 406 n. 1, 756 P.2d 105 (1988), abrogated in part on other grounds by In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014). No. 85852-1-I
in the third degree (counts 3-4), and incest in the first degree (counts 5 and 6)
arising out of alleged sexual contact with E.H. starting when she was
approximately seven years old and continuing until she was seventeen years old.
At trial, the State presented evidence of multiple acts pertaining to the child
molestation count at issue in this appeal, any of which jurors may have
independently relied upon to find Hernandez-Hernandez guilty. E.H. testified
Hernandez-Hernandez first penetrated her vagina with his finger when her family
lived in Everett while she was 11 years old (“a little bit after [she] started sixth
grade”). E.H. further testified Hernandez-Hernandez touched, rubbed, and
penetrated her vagina with his penis when she was 12 or 13 years old. Lori Moore
(a forensic nurse examiner) testified that E.H. described these events to her during
an exam in 2014. E.H. also testified Hernandez-Hernandez performed oral sex on
her at the Everett house, and Moore testified that E.H. reported this conduct to her
when she was 13 years old. Despite this evidence of multiple instances of child
molestation, no Petrich instruction was given as to the child molestation count and
the State did not make a Petrich election in closing argument. 2
The jury found Hernandez-Hernandez guilty of child molestation in the
second degree (count 2) and both counts of incest in the first degree (counts 5 and
6). He was acquitted of the other charges. At sentencing, the trial court ordered
2 We discuss Petrich instructions in section II below. While there is also evidence of other alleged sexual contact, this opinion does not detail that conduct because (a) the evidence discussed in the text above is sufficient to show that this case falls under the “multiple acts” line of cases and (b) the testimony does not consistently assign specific dates to many of the alleged acts so it is unclear whether they fall within the relevant charging period for the child molestation count. We express no opinion as to whether such additional acts are relevant and admissible to prove child molestation on remand.
-2- No. 85852-1-I
community custody with conditions to (1) “stay out of areas where children’s
activities regularly occur or are occurring,” including “church services” and
“restaurants,” (2) obtain prior approval for “sexual contact in a relationship,” and
(3) “not remain overnight in a residence where minor children live or are spending
the night.” This timely appeal followed.
II
Hernandez-Hernandez argues the trial court erred in failing to give a Petrich
instruction regarding count 2 (the child molestation count) and, therefore, he is
entitled to reversal and a new trial on that count. We agree.
Under both the United States and Washington Constitutions, a defendant
may not be convicted unless a unanimous jury concludes that the criminal act
charged in the information has been committed. Ramos v. Louisiana, 590 U.S. 83,
92, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020); Petrich, 101 Wn. 2d at 569. When
the State charges a count of criminal conduct and presents evidence of more than
one criminal act for that charge, there is a danger that a conviction may not be
based on a unanimous jury finding that the defendant committed any given single
criminal act. State v. Kitchen, 110 Wn. 2d 403, 411, 756 P.2d 105 (1988). In such
cases, the jurors must be instructed that they be unanimous in deciding that the
same underlying criminal act has been proved beyond a reasonable doubt (often
referred to as a Petrich instruction) unless the State elects a single act on which it
will rely for conviction. Petrich, 101 Wn. 2d at 572.
Although Hernandez-Hernandez did not object to the trial court’s failure to
provide a Petrich instruction regarding count 2 when the State initially proposed its
-3- No. 85852-1-I
instructions or when the State failed in its closing argument to elect a single act on
which it would rely for conviction, Hernandez-Hernandez argues, and the State
does not dispute, that “the right to a unanimous verdict is a fundamental
constitutional right and may, therefore, be raised for the first time on appeal.” State
v. Holland, 77 Wn. App. 420, 424, 891 P.2d 49 (1995). Nor does the State dispute,
as Hernandez-Hernandez principally argues, that the trial court prejudicially erred
in failing to give a Petrich instruction as to count 2. See State v. Camarillo, 115
Wn.2d 60, 64, 794 P.2d 850 (1990) (“When [a Petrich] error occurs during a trial
the jury verdict will be affirmed only if that error was harmless beyond a reasonable
doubt.”) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967); Kitchen, 110 Wn. 2d at 409).
Rather than contest these issues, the State argues defense counsel invited
error by “affirmatively assent[ing]” to the State’s instructions and therefore cannot
challenge the instructions on appeal. The State notes that after defense counsel
received the State’s jury instruction packet, which included a Petrich instruction for
counts 3-6 but not counts 1 or 2, defense counsel stated, “I don’t have any
exceptions or objections to the proposed packet . . . I’m just checking 4.25, which
I think is the Petrich. Yes, I think that that covers it.” According to the State, this
“affirmative assent” satisfies the invited error doctrine.
The State’s argument is not persuasive. “The basic premise of the invited
error doctrine is that a party who sets up an error at trial cannot claim that very
action as error on appeal and receive a new trial.” State v. Momah, 167 Wn.2d
140, 153, 217 P.3d 321
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85852-1-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
WILMER A. HERNANDEZ- HERNANDEZ,
Appellant.
FELDMAN, J. — Wilmer A. Hernandez-Hernandez appeals his conviction for
child molestation in the second degree and challenges three of the community
custody conditions imposed by the trial court. We agree with Hernandez-
Hernandez that the trial court failed to properly instruct the jury on the child
molestation count as required by State v. Petrich. 1 Because the State does not
argue otherwise, nor does it argue the error was harmless, we reverse the
conviction and remand for a new trial on that count but otherwise affirm.
I
Hernandez-Hernandez was charged with rape of a child in the second
degree (count 1), child molestation in the second degree (count 2), rape of a child
1 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled in part on other grounds by State v. Kitchen,
110 Wn.2d 403, 406 n. 1, 756 P.2d 105 (1988), abrogated in part on other grounds by In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014). No. 85852-1-I
in the third degree (counts 3-4), and incest in the first degree (counts 5 and 6)
arising out of alleged sexual contact with E.H. starting when she was
approximately seven years old and continuing until she was seventeen years old.
At trial, the State presented evidence of multiple acts pertaining to the child
molestation count at issue in this appeal, any of which jurors may have
independently relied upon to find Hernandez-Hernandez guilty. E.H. testified
Hernandez-Hernandez first penetrated her vagina with his finger when her family
lived in Everett while she was 11 years old (“a little bit after [she] started sixth
grade”). E.H. further testified Hernandez-Hernandez touched, rubbed, and
penetrated her vagina with his penis when she was 12 or 13 years old. Lori Moore
(a forensic nurse examiner) testified that E.H. described these events to her during
an exam in 2014. E.H. also testified Hernandez-Hernandez performed oral sex on
her at the Everett house, and Moore testified that E.H. reported this conduct to her
when she was 13 years old. Despite this evidence of multiple instances of child
molestation, no Petrich instruction was given as to the child molestation count and
the State did not make a Petrich election in closing argument. 2
The jury found Hernandez-Hernandez guilty of child molestation in the
second degree (count 2) and both counts of incest in the first degree (counts 5 and
6). He was acquitted of the other charges. At sentencing, the trial court ordered
2 We discuss Petrich instructions in section II below. While there is also evidence of other alleged sexual contact, this opinion does not detail that conduct because (a) the evidence discussed in the text above is sufficient to show that this case falls under the “multiple acts” line of cases and (b) the testimony does not consistently assign specific dates to many of the alleged acts so it is unclear whether they fall within the relevant charging period for the child molestation count. We express no opinion as to whether such additional acts are relevant and admissible to prove child molestation on remand.
-2- No. 85852-1-I
community custody with conditions to (1) “stay out of areas where children’s
activities regularly occur or are occurring,” including “church services” and
“restaurants,” (2) obtain prior approval for “sexual contact in a relationship,” and
(3) “not remain overnight in a residence where minor children live or are spending
the night.” This timely appeal followed.
II
Hernandez-Hernandez argues the trial court erred in failing to give a Petrich
instruction regarding count 2 (the child molestation count) and, therefore, he is
entitled to reversal and a new trial on that count. We agree.
Under both the United States and Washington Constitutions, a defendant
may not be convicted unless a unanimous jury concludes that the criminal act
charged in the information has been committed. Ramos v. Louisiana, 590 U.S. 83,
92, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020); Petrich, 101 Wn. 2d at 569. When
the State charges a count of criminal conduct and presents evidence of more than
one criminal act for that charge, there is a danger that a conviction may not be
based on a unanimous jury finding that the defendant committed any given single
criminal act. State v. Kitchen, 110 Wn. 2d 403, 411, 756 P.2d 105 (1988). In such
cases, the jurors must be instructed that they be unanimous in deciding that the
same underlying criminal act has been proved beyond a reasonable doubt (often
referred to as a Petrich instruction) unless the State elects a single act on which it
will rely for conviction. Petrich, 101 Wn. 2d at 572.
Although Hernandez-Hernandez did not object to the trial court’s failure to
provide a Petrich instruction regarding count 2 when the State initially proposed its
-3- No. 85852-1-I
instructions or when the State failed in its closing argument to elect a single act on
which it would rely for conviction, Hernandez-Hernandez argues, and the State
does not dispute, that “the right to a unanimous verdict is a fundamental
constitutional right and may, therefore, be raised for the first time on appeal.” State
v. Holland, 77 Wn. App. 420, 424, 891 P.2d 49 (1995). Nor does the State dispute,
as Hernandez-Hernandez principally argues, that the trial court prejudicially erred
in failing to give a Petrich instruction as to count 2. See State v. Camarillo, 115
Wn.2d 60, 64, 794 P.2d 850 (1990) (“When [a Petrich] error occurs during a trial
the jury verdict will be affirmed only if that error was harmless beyond a reasonable
doubt.”) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967); Kitchen, 110 Wn. 2d at 409).
Rather than contest these issues, the State argues defense counsel invited
error by “affirmatively assent[ing]” to the State’s instructions and therefore cannot
challenge the instructions on appeal. The State notes that after defense counsel
received the State’s jury instruction packet, which included a Petrich instruction for
counts 3-6 but not counts 1 or 2, defense counsel stated, “I don’t have any
exceptions or objections to the proposed packet . . . I’m just checking 4.25, which
I think is the Petrich. Yes, I think that that covers it.” According to the State, this
“affirmative assent” satisfies the invited error doctrine.
The State’s argument is not persuasive. “The basic premise of the invited
error doctrine is that a party who sets up an error at trial cannot claim that very
action as error on appeal and receive a new trial.” State v. Momah, 167 Wn.2d
140, 153, 217 P.3d 321 (2009). In determining whether the invited error doctrine
-4- No. 85852-1-I
applies, courts consider “whether the defendant affirmatively assented to the error,
materially contributed to it, or benefited from it.” In re Coggin, 182 Wn.2d 115, 119,
340 P.3d 810 (2014) (plurality opinion). Thus, invited error may be established
where that defendant “affirmatively opposed the trial court’s giving the jury
a Petrich unanimity instruction,” State v. Carson, 179 Wn. App 961, 975, 320 P.3d
185 (2014), or “proposed the erroneous instruction.” City of Seattle v. Patu, 147
Wn. 2d 717, 720, 58 P.3d 273 (2002).
Here, however, Hernandez-Hernandez did not oppose a Petrich instruction
for count 2. And it was the State, not Hernandez-Hernandez, that proposed the
jury instructions used at trial. Instead, defense counsel’s conduct in this case is
analogous to Coggin, where the plurality opinion rejected the argument that Coggin
invited error “by merely assenting to the State's juror questionnaire.” 182 Wn.2d
at 119. Although defense counsel here noted “I don’t have any exceptions or
objections to the proposed packet” and “I think that that covers it,” mere
acquiescence to the State’s proposed instructions, without more, is not tantamount
to “setting up” the error such that any challenge to the error is barred under the
invited error doctrine. The State’s invited error argument thus fails.
In sum, we reverse the conviction on count 2 and remand for a new trial on
that count.
III
Hernandez-Hernandez challenges three community custody conditions
imposed at sentencing. Because these conditions are independently premised on
the incest convictions, which Hernandez-Hernandez does not challenge on
-5- No. 85852-1-I
appeal, we address his arguments regarding these three conditions
notwithstanding our decision regarding the child molestation count above.
A
Hernandez-Hernandez challenges the following community custody
condition imposed at sentencing:
Stay out of areas where children’s activities regularly occur or are occurring. This includes but is not limited to: parks used for youth activities, schools, daycare facilities, playgrounds, wading pools, swimming pools being used for youth activities, play areas (indoor or outdoor), sports fields being used for youth sports, arcades, church services, restaurants, and any specific location identified in advance by [the Department of Corrections] or [community corrections officer].
Hernandez-Hernandez claims this condition is unconstitutionally vague. 3 His
argument is unpersuasive.
A community custody condition is unconstitutionally vague under due
process principles of the Fourteenth Amendment to the United States Constitution
and article I, section 3, of the Washington Constitution “‘if (1) it does not sufficiently
define the proscribed conduct so an ordinary person can understand the
prohibition or (2) it does not provide sufficiently ascertainable standards to protect
against arbitrary enforcement.’” State v. Wallmuller, 194 Wn. 2d 234, 238-39, 449
3 Hernandez-Hernandez also asserts the condition is flawed because it “touches on constitutionally
protected religious activity.” A community custody condition that burdens the free exercise of religion “must withstand strict scrutiny.” State v. Balzer, 91 Wn. App. 44, 53, 954 P.2d 931 (1998). “Under this standard, the complaining party must first prove the government action has a coercive effect on his or her practice of religion.” Balzer, 91 Wn. App. at 53. Hernandez-Hernandez does not argue or point to any evidence that the condition has a coercive effect on his practice of religion. Because of the limited briefing and undeveloped record, we decline to address the question of whether this condition unconstitutionally burdens Hernandez-Hernandez’s freedom of religion. See Bittner v. Symetra Nat’l Life Ins. Co., 32 Wn. App. 2d 647, 672, 558 P.3d 177 (2024) (“we decline to address whether the trial court erroneously dismissed Bittner’s disparate treatment claim because Bittner fails to sufficiently brief that issue as required by RAP 10.3(a)(6)”).
-6- No. 85852-1-I
P.3d 619 (2019) (quoting State v. Padilla, 190 Wn. 2d 672, 677, 416 P.3d 712
(2018)). “A trial court necessarily abuses its discretion if it imposes an
unconstitutional community custody condition, and we review constitutional
questions de novo.” Id. at 238.
Wallmuller is instructive on this point. There, our Supreme Court
determined a community custody condition similar to the one imposed on
Hernandez-Hernandez was not unconstitutionally vague. That condition provided,
“The defendant shall not loiter in nor frequent places where children congregate
such as parks, video arcades, campgrounds, and shopping malls.” Id. at 237. The
court reasoned that “commonsense” restrictions, including those that use
nonexclusive lists to elucidate general phrases like “where children congregate,”
provide fair notice of prohibited conduct. Id. at 242-43. Much like the condition in
Wallmuller, the condition here uses a nonexclusive list to illustrate the general
phrase “areas where children’s activities regularly occur or are occurring.” That
phrase is no less precise than “places where children congregate” as addressed
in Wallmuller. The language here sufficiently defines the proscribed conduct so
an ordinary person can understand the prohibition.
Hernandez-Hernandez asserts that the “illustrative list” is “confusing”
because it includes some “child-specific” locations like schools and some “not
child-specific” locations like parks and only some of the “not child-specific”
locations are expressly modified by the language “used for youth activities.” But
the first sentence modifies the entire illustrative list and eliminates any ambiguity;
the locations are limited to “areas where children’s activities regularly occur or are
-7- No. 85852-1-I
occurring.” Furthermore, the condition the Supreme Court upheld in Wallmuller
also included areas not exclusively used for children’s activities, such as shopping
malls. 194 Wn.2d at 237. Like the condition at issue in Wallmuller, the condition
here is not unconstitutionally vague.
B
The trial court also imposed a condition that “sexual contact in a relationship
is prohibited until the treatment provider/Community Corrections Officer approves
of such.” Hernandez-Hernandez argues this condition is not crime-related and
should therefore be stricken or modified. Washington case law does not support
his argument.
RCW 9.94A.703(3)(f) gives trial courts discretion to order “crime-related”
conditions in addition to statutory community custody provisions. When a condition
prohibiting sexual contact in a relationship without prior approval is imposed on a
sex offender, together with the requirement for a sexual deviancy evaluation, the
condition is considered “crime-related.” In re Pers. Restraint of Sickels, 14 Wn.
App. 2d 51, 62-63, 469 P.3d 322 (2020) (explaining, “[r]easonably read, [the
condition] requires that he not have sexual contact until his treatment provider is
satisfied that sexual contact does not put others at risk. It is not a total ban on
protected activity and can be challenged as applied in the event the treatment
provider’s approval is exercised unreasonably” (internal quotation marks omitted)).
The imposition of crime-related prohibitions is reviewed under an abuse of
discretion standard. State v. Ancira, 107 Wn. App. 650, 653, 27 P.3d 1246 (2001).
-8- No. 85852-1-I
Like the defendant in Sickels, Hernandez-Hernandez was ordered to
undergo an evaluation for treatment for sexual deviancy. The challenged portion
of the community custody provision is consistent with the condition in Sickels which
provided “sexual contact in a relationship is prohibited until the treatment provider
approves of such.” 14 Wn. App. 2d at 60. Since the condition to obtain prior
approval for sexual contact in a relationship is imposed together with the
requirement of sexual deviancy evaluation and treatment, it is crime-related.
Because Washington law allows community custody conditions to be imposed
where they are crime-related, the trial court did not abuse its discretion in imposing
this condition.
C
Lastly, the trial court imposed a condition that Hernandez-Hernandez not
“remain overnight in a residence where minor children live or are spending the
night.” Hernandez-Hernandez argues the court’s failure to exclude Hernandez-
Hernandez’s children and grandchildren from this condition was an oversight. His
argument is unconvincing.
Although “[a] parent has a constitutionally protected fundamental right to
raise children without State interference . . . a sentencing court may impose
limitations on this right when reasonably necessary to further the State’s
compelling interest in protecting children.” State v. Berg, 147 Wn. App. 923, 942,
198 P.3d 529 (2008). Here, the trial court expressly considered and decided at
the sentencing hearing whether to exclude Hernandez-Hernandez’s children and
grandchildren from an unchallenged prohibition on unsupervised contact with
-9- No. 85852-1-I
minors, stating “[w]ith regards to No. 14 . . . I am going to allow for . . . his children
. . . to be able to be with him.” 4 Condition 14 thus includes the handwritten
notation, “this shall not apply to his own children or grandchildren.” Then,
immediately after addressing this issue with regard to condition 14, the trial court
stated it was imposing the condition at issue here (condition 18), which did not
include the same exclusion. The record is thus clear the trial court considered
Hernandez-Hernandez’s parenting rights with regard to the proposed community
custody provisions allowing for unsupervised contact with his own children (in
condition 14) and deliberately decided to impose the remaining conditions,
including the one challenged here, without the exclusion for his own children.
Such a conclusion appropriately reflects both the consideration of
Hernandez-Hernandez’s parental rights and the trial court’s assessment of a risk
of incest during overnight stays. See State v. Letourneau, 100 Wn. App. 424, 442,
997 P.2d 436 (2000) (“There must be an affirmative showing that the offender . . .
poses the danger of sexual molestation of his or her own biological children to
justify such State intervention.”). Hernandez-Hernandez was living in his family
home with his wife, her two children from a previous relationship (A.H. and E.H.),
and their own minor daughters when the incest for which he was convicted
occurred. By allowing Hernandez-Hernandez to remain overnight in a residence
where his other daughters lived, the court reasonably feared that it would be
putting them in the same situation that E.H. was in when Hernandez-Hernandez
4 Condition 14 states, “Do not initiate or prolong contact with minor children without the presence
of an adult who is knowledgeable of the offense and has been approved by the supervising Community Corrections Officer.” The trial court also added, “This shall not apply to his own children or grandchildren.”
- 10 - No. 85852-1-I
sexually abused her. Thus, the trial court’s order restricting Hernandez-Hernandez
from remaining overnight where minor children live, inclusive of his own children,
was reasonably necessary to further the State’s compelling interest in protecting
other similarly-situated children in the home. There was no abuse of discretion.
Reversed in part, affirmed in part.
WE CONCUR:
- 11 -