FILED SEPTEMBER 18, 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 35053-3-III Respondent, ) ) v. ) ) DIEGO CONTRERAS-AVILES, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, J. — Diego Contreras-Aviles appeals his conviction for second degree assault, assigning error to the denial of his motion for mistrial and to a provision of his judgment and sentence forfeiting the knife he used in the assault. The trial court did not abuse its discretion in ruling that a prospective juror’s question about Mr. Contreras- Aviles’s immigration status did not require declaring a mistrial. Any error in ordering forfeiture, not having been raised at sentencing, was not preserved. We affirm. FACTS AND PROCEDURAL BACKGROUND In the summer of 2016, a Pasco police officer was dispatched to Mr. Contreras- Aviles’s house, where he lived with two roommates. An argument among the roommates No. 35053-3-III State v. Contreras-Aviles had led to a fight during which Mr. Contreras-Aviles had raised a large knife1 over his head and advanced toward a roommate. Mr. Contreras-Aviles was arrested and charged with second degree assault with the special allegation that the crime was committed against a household member. Mr. Contreras-Aviles is Spanish speaking, and an interpreter was present for the trial, including during voir dire. The last question raised by his lawyer during voir dire addressed the fact that Mr. Contreras-Aviles and most of the nonpolice witnesses in the case would be using an interpreter. Defense counsel asked, “Does anyone have any problem with someone who can’t speak English, you know, either as a defendant or a witness? Does anyone have any strong feelings about someone who needs to rely on an interpreter to access their constitutional rights?” Report of Proceedings (RP) (Jury Selection)2 at 33. None of the prospective jurors answered yes. As the parties prepared to exercise their peremptory challenges, the trial court told the jurors about the procedure in what was expected to be a short trial. Before the peremptory challenges were exercised, prospective juror 4 raised a question and the following exchange occurred: 1 Mr. Contreras-Aviles’s brief refers to it as an onion knife and the State’s brief refers to it as a machete. It was described at trial as having “about a foot and a half” long blade. Report of Proceedings (RP) (Jury Trial) at 38. 2 Like the parties, we refer to two nonconsecutively numbered transcripts of proceedings as they are captioned: “Jury Selection” and “Jury Trial.” 2 No. 35053-3-III State v. Contreras-Aviles THE COURT: . . . We need one quick piece of paper before we do our next step. Sir? Juror number 4? JUROR 4: Yes, your Honor. I would like to know if the defendant is in this country illegally? THE COURT: That is not a question that it is permissible to ask, sir. RP (Jury Selection) at 34. Neither lawyer stated anything in ...
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