Filed Washington State Court of Appeals Division Two December 28, 2017 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 48454-4-II Respondent, UNPUBLISHED OPINION v. LEONEL ROMERO-OCHOA, Appellant. BJORGEN, C.J. — Leonel Romero-Ochoa appeals from his convictions of two counts of first degree rape and one count each of first degree burglary, unlawful imprisonment, and second degree assault. He asserts that the trial court’s ruling excluding evidence of the victim’s pending U-visa application1 violated his right to present a defense and his right to confront witnesses. Ochoa also appeals from his sentence, asserting that the trial court erred by failing to treat his first degree rape and second degree assault convictions as the same criminal conduct when calculating his offender score. We hold that the trial court’s ruling excluding evidence of the victim’s pending U-visa application violated Ochoa’s Sixth Amendment rights to present a defense and confront witnesses. We also hold that these violations were harmless beyond a reasonable doubt only as they related to his unlawful imprisonment conviction. Therefore, we affirm Ochoa’s unlawful 1 A U-visa permits victims of certain crimes to lawfully reside in the United States for four years, which may be extended upon certification that the victim’s continued presence is required to assist in the investigation or prosecution of criminal activity. See 8 U.S.C. §§ 1101(a)(15)(U)(iii), 1184(p)(6). No. 48454-4-II imprisonment conviction and reverse and remand for a new trial on his remaining convictions. With this, we need not examine his claim of sentencing error. FACTS In July 2014, Victoria Isidor Cordero lived with her five-year-old daughter in a mobile home park in Lakewood. Ochoa’s brother also lived at the same Lakewood mobile home park; Ochoa previously lived there. On July 3, Isidor came home from work and went to sleep at around 11:40 p.m. The window in Isidor’s bedroom did not have a functioning latch. According to Isidor, she awoke to a noise at around 3 a.m. and saw a man she did not recognize standing next to her bed. Isidor later identified the man as Ochoa. Ochoa told Isidor, “Just be quiet. Don’t say anything.” Report of Proceedings (RP) (Oct. 20, 2015) at 9. Isidor ran out of her bedroom and attempted to open her front door, but Ochoa grabbed and choked her before she could escape. Ochoa forced Isidor onto a couch, removed her clothing, and vaginally raped her. During this time, Isidor screamed for help while Ochoa told her to be quiet, repeatedly slapped her in the face, and covered her mouth. Isidor stated that she could smell alcohol on the Ochoa’s breath and thought that she might be able to escape by offering him a beer. Ochoa accepted Isidor’s offer and led her to the refrigerator while grabbing on to her hair. When Ochoa released Isidor to take the beer from her, Isidor ran out of her home and screamed for help. Ochoa grabbed Isidor by her hair, hit her twice in the face, dragged ...
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