FILED JANUARY 24, 2017 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
In re the Matter of the Personal Restraint ) No. 32633-1-111 of ) ) ) PUBLISHED OPINION ) JOSE LUIS SANCHEZ, JR. )
LAWRENCE-BERREY, J. - Jose Luis Sanchez, Jr., seeks relief from personal
restraint imposed for his 2008 Yakima County convictions of two counts of aggravated
first degree murder and other felony crimes. The convictions stem from his participation
in a February 20, 2005 home invasion robbery and execution-style shooting at the
apartment of Ricky Causor and Michelle Kublic that left Causor and the couple's 3-year-
old daughter dead and wounded Kublic and their 18-month-old daughter. At trial, Kublic
positively identified Sanchez as the shooter, as did Sanchez's codefendant Mario Mendez
who previously pleaded guilty and testified for the State. Sanchez filed a direct appeal
and this court affirmed the judgment and sentence. State v. Sanchez, 171 Wn. App. 518,
288 P.3d 351 (2012), review denied, 177 Wn.2d 1024 (2013). No. 32633-1-111 Pers. Restraint of Sanchez
In this timely filed personal restraint petition (PRP), Sanchez contends he is
entitled to a new trial on grounds that ( 1) he was denied his right to counsel under the
Sixth Amendment to the United States Constitution during a critical stage when he was
arraigned without counsel, and (2) in the alternative, his counsel provided ineffective
assistance by failing to appear and object to his being filmed by media at his arraignment
proceeding. We disagree with his contentions and dismiss his PRP.
FACTS
Police arrested Sanchez on February 23, 2005, after acting on anonymous
telephone tips that he was responsible for the Causor murders. The next day, he appeared
for a single court hearing on two matters: (1) arraignment on an outstanding 2004 matter
charging him with certain felonies, and (2) a preliminary appearance in the current
murder case. The prosecutor was present but no attorney appeared for Sanchez. First
addressing the 2004 matter, the court advised Sanchez of his rights, which he
acknowledged he understood before requesting that the court appoint counsel. The
prosecutor interjected that an attorney had already been appointed on the 2004 matter, but
that Yakima County public defender/director of assigned counsel, Daniel Fessler, was
requesting that the court appoint him on both matters. The court did so. The court then
explained to Sanchez that he was being held under investigation on suspicion for first
2 No. 32633-1-111 Pers. Restraint of Sanchez-
degree murder, attempted first degree murder, first degree robbery, and felon in
possession of a firearm. Based on a police probable cause declaration showing that
acquaintances of Sanchez had implicated him in the robbery and murders, the court found
probable cause to believe Sanchez committed one or more crimes. The probable cause
declaration also stated that "victim Michelle Kublic was shown a photo montage, which
included 'Gato's' photo, whose name is Mario Mendez. She positively identified him as
one of the males who entered her house and shot them." Pers. Restraint Pet., App. C,
Deel. of Probable Cause at 6. The court set Sanchez's bail at $5 million and scheduled
his arraignment for February 28.
On February 28, 2005, the State formally charged Sanchez and Mendez (who still
remained at large) with seven crimes including two counts of aggravated first degree
murder, which carried a possible death penalty. That day, Sanchez and an unknown
number of other defendants appeared in superior court for a group arraignment hearing.
The court explained their rights and noted that each "has a lawyer appointed to represent
you or you might have hired a private attorney." Pers. Restraint Pet., App. B, Report of
Proceedings (RP) (Feb. 28, 2005) at 2-3. The court then explained the process for the
arraignment hearing:
3 No. 32633-1-III Pers. Restraint of Sanchez
[W]hen your name is called we' 11 ask you to step up to the counter in front of this microphone. The prosecutor will hand you a piece of paper called an information. That lists the charges. She will read that to you if you want her to read it out loud. You don't have to have it read out loud. After that, I'm going to ask you a couple of questions. I'm going to ask you if you understand the charges and if you have any questions about the rights I have just explained. If you don't have questions, I am going to hand you an order. On the order there is the next two dates that you need to be in court. One is for an omnibus hearing. The next is for your trial.
Many of you have not had a chance to talk to your lawyer yet, if it's appointed counsel. You're [sic] lawyer is going to get a packet of information from the prosecutor's office in the next couple of days. They will schedule a time to come and meet with you. At the end of all this I'm going to hand you that order and ask you to sign the order at the bottom of the page. By signing the order you're not. admitting that you have done anything wrong. It lets us know that you have gotten a copy of the paperwork today.
Pers. Restraint Pet., App. B, RP (Feb. 28, 2005) at 3-4.
The court then called Sanchez's case. The court's prior explanation of rights to the
defendants included the right to counsel, but did not specify any right to have counsel
present during the current hearing. No attorney appeared for Sanchez. The prosecutor
recited the seven charges and gave Sanchez a copy of the information. Sanchez
acknowledged to the court that he understood the charges, and he declined a full reading
of the information. He said he had no questions about the rights previously explained to
4 No. 32633-1-III Pers. Restraint of Sanchez
him. The court entered an order setting dates for the omnibus hearing and trial. Sanchez
signed the order and received a copy.
No one broached the subject of entering a plea during the arraignment. The court
apparently entered summary not guilty pleas for Sanchez. No concerns regarding the
arraignment procedure were ever voiced during the remainder of the pretrial and trial
proceedings.
The case was high profile in the community and had already generated
considerable media coverage. In his declaration filed with this petition, Sanchez states he
appeared at the arraignment without counsel and in jail clothes and shackles. He states
"there were lots of news media people and cameras," and he "observed people
photographing my face and filming the proceedings when I was in court that day." Pers.
Restraint Pet., App. D at 2. He states he did not want to be filmed but did not know there
was any way to prevent this from happening. The report of proceedings for the
arraignment hearing is silent as to the presence of media.
Meanwhile, Michelle Kublic had remained hospitalized for multiple gunshot
wounds until she was released to her father's home on February 26. The following facts
quoted from the direct appeal opinion detail Kublic's various initial descriptions of the
perpetrators while in the hospital and shortly after her hospital release:
I No. 32633-1-III Pers. Restraint ofSanchez
Officer David Cortez of the Yakima Police Department attempted to interview Kub lie in the hospital intensive care unit the ... morning [after the shooting]. She was medicated, was in obvious pain, appeared tired, and was slow to give answers. She told him the attackers were two Mexican men whom she believed arrived in an older, full-size, light-blue pickup truck that she noticed when walking out to her car the prior evening. Although Kublic would later describe the two gunmen and their roles differently, Officer Cortez's notes indicate that she told him the first had a wide nose and a lighter complexion and bigger build than the second, and that he wore a mask. She said the second gunman did not wear a mask; had a "sucked in" face; was thinner than the first; was small (she estimated about 5 feet 4 inches or 5 feet 5 inches tall); and was dingy looking with uncombed, matted hair .... She said the second had forced her from her vehicle and made her walk back to her apartment with a semiautomatic pistol to her head. He was the one who later shot Causor. She said Causor had taken the first gunman to another part of the apartment to give him what he wanted while she and the children stayed with the second. The next morning, February 22, Detective David Kellett, the lead investigator for the department, visited Kublic in the hospital, hoping with her assistance to create composite images of the gunmen. Kub lie looked sleepy and under the influence of medication, but was able to participate for about 45 minutes until pain and discomfort made her too tired to continue. In providing descriptions to the detective, Kublic initially did not differentiate between the two gunmen except to state that one wore a mask and one did not. She told the detective she did not get as good a look at the one with the mask but remembered well the face of the person who wore no mask. Detective Kellett then enlisted her assistance in preparing a computer-generated composite of the gunman she remembered best. Kublic described him as thin and gaunt, with long and unkempt straight hair, a thin or short mustache, and a dark Hispanic complexion. Detective Kellett never asked her whether he, or the other, was the shooter. When she reached a point at which she was in too much pain to continue, she told him that the depiction was good so far but that the cheeks needed to be more hollow, the chin different, and the hair longer.
6 No. 32633-1-III Pers. Restraint of Sanchez
On the night of February 22, Officer Cortez returned to the hospital and showed Kublic a photomontage. Before allowing Kublic to view this and later photo arrays, he admonished her that she was not required or expected to choose anyone but just to pick the person who did the crime, and that the purpose of the review is not only to arrest offenders but to clear the innocent. The photo array presented by Cortez happened to include Jose Luis Sanchez Jr., but only as a filler photo because he was not yet a suspect. Kublic did not identify him or anyone else from the array.
Detective Kellett returned to the hospital again late on the night of February 23 to present Kublic with a binder including a 20-page serial array of individual photographs. Among them were photographs of Junior Sanchez, Mario Mendez, and Manuel Sanchez. The detective did not tell her that Junior Sanchez had been arrested. Kublic appeared more alert. Detective Kellett positioned himself beside her and turned the pages, pausing about three seconds with each page. Upon seeing Mendez's photo, Kublic gasped and said, "[T]hat looks like him." She did not react in any way upon seeing the photographs of Junior Sanchez or Manuel Sanchez. After reviewing all of the photographs, Kublic took the book from the detective's hands, turned back to the photo of Mendez and expressed assurance that he was "the one without the mask."
On March 2, several days after Kublic was released from the hospital, she met with Detective Kellett to provide a tape-recorded statement. By that time, Junior's booking photo had appeared in the newspaper and on local television news. In the course of Kublic's recorded statement, she stated that she now thought the suspect she had earlier described as having very short hair might have been the one with the automatic gun. She also stated that she had thought he had hair, "but after I saw him on the news, he's the one with the shaved head, the one that they have." Detective Kellett's understanding was that Kublic had been sure on February 23 that Mendez was the one without the mask, but on March 2 was now sure that "the one that they have" (Junior) was the one without the mask.
Sanchez, 171 Wn. App. at 528-32 (citation omitted).
7 No. 32633-1-III Pers. Restraint of Sanchez
In August 2007, Sanchez moved to suppress Kublic's eyewitness identification of
him as induced by impermissibly suggestive police procedures likely to lead to
misidentification. He argued that her identification was too unreliable to be submitted to
the jury.
At the suppression hearing, the officers testified to the above facts. Kublic
testified that during her entire time in the hospital, she needed pain medication and
wanted to sleep. She said her initial confusion about whether the shooter had been the
man with or without the mask passed as she recovered from the trauma of the shooting
and that it became clear in her own mind (without input from police or anyone else) that
the shooter was the man with the shorter hair. She had seen him clearly just before he
pulled the trigger and was 100 percent sure it was Sanchez. Kub lie also testified that
sometime after her hospital release, she saw a newspaper photo clipping of Sanchez near
the cash register in a convenience store. On April 12, 2005, she attended a court hearing
in which she viewed Sanchez in the courtroom in jail clothes and handcuffs. When asked
about telling Detective Kellett in the March 2 interview that she saw Sanchez on the
news, she answered that she could not remember. She did not recall previously seeing
him on television or in the newspaper.
8 No. 32633-1-III Pers. Restraint of Sanchez
Dr. Robert Shomer, the defense eyewitness identification expert, testified at the
hearing and opined that the combination of Kub lie viewing Sanchez in a 6-pack photo
array on February 22, then in the 20-photo serial array, then in a newspaper clipping, and
also in the news media, created a source confusion that led her to mistakenly believe
someone pictured in the montages was familiar from the crime scene. He opined this
irrevocably tainted Kublic's memory of the primary suspect and irreparably undermined
the validity of her identification such that it lacked independent reliability and rendered
any in-court identification unreliable.
The trial court denied the suppression motion on the basis the police employed no
impermissibly suggestive identification procedures. It further noted that Kublic 's in-court
identification would appropriately be tested on cross-examination and its reliability would
be a matter for the jury to decide. The court did comment that by the time of Kublic's
March 2 interview with Detective Kellett, she must have either seen an account of the
Sanchez arrest on the news or been told about it by someone in her family or elsewhere.
This court upheld the trial court's ruling on direct appeal. See Sanchez, 171 Wn. App. at
581-83.
At trial, Michelle Kublic testified to the details of the shooting incident and her
certain identification of Sanchez as the shooter. She left her apartment to run an errand
9 No. 32633-1-III Pers. Restraint ofSanchez
on the night of February 20, 2005. While backing her vehicle from its parking spot, she
was confronted by a Hispanic man with a gun, who appeared in front of the vehicle,
illuminated by her headlights. A second Hispanic man opened the driver's door, grabbed
her by the hair, and pulled her from her vehicle. The second man held a gun to her head
and walked her back to the apartment where she and Ricky Causor, a drug dealer, lived
with their two daughters. Causor opened the door and the man holding Kublic hostage
pointed his gun at Causor. Kublic noticed the gun was square-shaped with its
ammunition clip inserted from the bottom. Causor let the gunman enter. Once inside, the
gunman forced Kublic to kneel on the floor with her daughters.
The man Kublic had first seen in her headlights (Mendez) soon entered the
apartment, now wearing a mask. He carried a revolver-style handgun and guarded her in
the living room while the unmasked intruder took Causor into the kitchen to retrieve
marijuana and approximately $900 in currency. The unmasked intruder escorted Causor
back to the living room. Causor then knelt down facing Kublic, with their daughters on
the floor between them. Kublic testified that at that point, she saw that the unmasked
intruder had a really mad look on his face. He walked directly behind Causor and fired
five shots from his .45 caliber handgun at the heads of Causor and Kub lie. Kub lie said it
was at that moment she saw the shooter the best. She identified him in court as the
10 No. 32633-1-III Pers. Restraint of Sanchez
defendant, Jose Luis Sanchez, Jr. She testified she was 100 percent certain it was him.
She testified she saw his face "clear as day, mad and pointing the gun." RP (Nov. 15,
2007) at 103 7. She said he never wore a mask and that he shot with the same square-
shaped gun he had earlier pointed at Causor in the apartment doorway. She said she had
not gotten any information about the suspects from other individuals or news media
sources.
As contemplated in the court's ruling denying suppression of Kublic's eyewitness
identification, the defense extensively cross-examined her about the differences in her
descriptions of the assailants at various times, including while she was in the hospital.
She maintained that despite any variations of what she told detectives, her first good look
at either assailant was the person in front of her vehicle who was then not wearing a mask
but later wore one. But in the end, she got the best look at the person who never wore a
mask, and it was that person (Sanchez) who shot her family. She further said she did not
recall seeing Sanchez in the news.
Sanchez presented defenses of alibi (that he was at a girlfriend's apartment at the
time of the killings) and misidentification, including Dr. Shomer's expert testimony
relating the same source confusion theory as he did at the suppression hearing. The jury
accepted the State's witnesses' testimonies that Sanchez was the shooter, rejected
11 No. 32633-1-III Pers. Restraint of Sanchez
Sanchez's theories of alibi and misidentification, and found him guilty as charged.
Additional facts pertaining to the shooting incident are otherwise well known to
the parties and will be repeated only as necessary to resolve Sanchez's claims in this PRP.
GROUND ONE-ARRAIGNMENT WITHOUT COUNSEL PRESENT
Generally, to obtain relief in a personal restraint petition the petitioner must show
either a constitutional error resulted in actual and substantial prejudice, or a
nonconstitutional error caused a fundamental defect resulting in a complete miscarriage
of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). The
supporting evidence must be based on "more than speculation, conjecture, or inadmissible
hearsay," and failure to meet this burden calls for dismissal of the petition. In re Pers.
Restraint of Rice, 118 Wn.2d 876, 886, 828 P .2d 1086 (1992).
Sanchez's primary claim seeks to avoid Cook's requirement that actual and
substantial prejudice be shown. He claims his arraignment was a critical stage in the
proceedings such that his counsel's absence constitutes structural error requiring
automatic reversal of his convictions without considering prejudice. Sanchez relies
primarily on Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961)
where the United States Supreme Court held that denial of counsel at arraignment-a
critical stage under Alabama law-was reversible error without a showing of prejudice.
12 No. 32633-1-III Pers. Restraint ofSanchez
Alternatively, if there was no structural error, Sanchez claims he was nevertheless
prejudiced under the Cook standard by his attorney's absence at his arraignment.
A. Claimed Structural Error
"An accused's right to be represented by counsel is a fundamental component of
our criminal justice system." United States v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039,
80 L. Ed. 2d 657 (1984). Under both the United States and Washington Constitutions, a
defendant is entitled to the assistance of counsel at all critical stages of criminal
proceedings. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; Missouri v. Frye,_
U.S._, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379 (2012); United States v. Wade, 388 U.S.
218,224, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); State v. Reddrick, 166 Wn.2d 898,
909-10, 215 P.3d 201 (2009); State v. Stewart, 113 Wn.2d 462,468, 780 P.2d 844 (1989).
The United States Supreme Court long ago stated that the period from arraignment to
trial is "perhaps the most critical period of the proceedings" during which the accused
"requires the guiding hand of counsel." Powell v. Alabama, 287 U.S. 45, 57, 69, 53 S. Ct.
55, 77 L. Ed. 158 (1932).
Washington court rules confer on a defendant an early right to counsel.
CrR 3 .1 (b )(1) (right to counsel accrues as soon as feasible after defendant is taken into
custody, appears before committing magistrate, or is formally charged, whichever occurs
13 No. 32633-1-III Pers. Restraint ofSanchez
earliest). When an accused appears without counsel at arraignment, the court is required
to inform the defendant of the right to counsel before the defendant may be arraigned.
CrR 4.l(c). A defendant may proceed forward with the arraignment by waiving the right
to counsel, but the waiver must be supported by appropriate findings entered into the
record. CrR 4.l(d).
The Washington Supreme Court has recognized that "[a] complete denial of
counsel at a critical stage of the proceedings is presumptively prejudicial and calls for
automatic reversal." Reddrick, 166 Wn.2d at 910 (citing Cronic, 466 U.S. at 658-59, 659
n.25; Bell v. Cone, 535 U.S. 685,696 n.3, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002)
(denial of counsel at critical stage is structural error and grounds for reversal without a
demonstration of prejudice)). "A critical stage is one 'in which a defendant's rights may
be lost, defenses waived, privileges claimed or waived, or in which the outcome of the
case is otherwise substantially affected.'" Id. (quoting State v. Agtuca, 12 Wn. App. 402,
404, 529 P.2d 1159 (1974)).
An error is considered "structural" when it "affect[ s] the framework within which
the trial proceeds, rather than simply an error in the trial process itself." Arizona v.
Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). When there is
structural error "' a criminal trial cannot reliably serve its function as a vehicle for
14 No. 32633-1-III Pers. Restraint ofSanchez
determination of guilt or innocence, and no criminal punishment may be regarded as
fundamentally fair."' Id. (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101,
92 L. Ed. 2d 460 (1986)). For this reason, structural errors are not subject to harmless
error analysis. Id. at 309-10; see In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 608,
316 P.3d 1007 (2014) (McCloud, J., concurring).
But United States Supreme Court jurisprudence establishes that constitutional
harmless error analysis applies to the denial of the Sixth Amendment right to counsel at
all stages of criminal proceedings, except for those where "the deprivation of the right to
counsel affected-and contaminated-the entire criminal proceeding." Satterwhite v.
Texas, 486 U.S. 249,257, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988). In Satterwhite, the
court held that conducting psychiatric examinations in violation of the Sixth Amendment
did not "pervade the entire proceeding" and was subject to harmless error analysis. Id. at
256. Likewise, in Fulminante, the admission of a confession obtained in violation of the
Sixth Amendment was subject to harmless error analysis. Fulminante, 499 U.S. at 310-
11.
The United States Supreme Court has repeatedly referenced the arraignment case,
Hamilton, 368 U.S. 52, and the preliminary appearance case, White v. Maryland, 373 U.S.
59, 83 S. Ct. 1050, 10 L. Ed. 2d 193 (1963) as examples of deprivation of counsel that
15 No. 32633-1-III Pers. Restraint of Sanchez
"by their very nature cast so much doubt on the fairness of the trial process that, as a
matter of law, they can never be considered harmless." Satterwhite, 486 U.S. at 256; see
also Wade, 388 U.S. at 225 (observing Hamilton as an example of Powell's "guiding
hand of counsel" principle because it involved the "type of arraignment" where certain
rights might be sacrificed or irretrievably lost if not asserted); see also Bell, 535 U.S. at
695-96 (observing Hamilton and White as examples of a trial being presumptively unfair
due to denial of presence of counsel at a critical stage, "such as arraignment, that held
significant consequences for the accused").
In Hamilton, the United States Supreme Court determined that an arraignment in a
capital case under Alabama law was a critical stage because it was the point in the
proceedings at which a defendant must (by statute) assert the defense of insanity or the
defense was deemed waived, only recoverable on discretion of a trial judge whose
decision was not revisable on appeal. Hamilton, 368 U.S. at 53. In addition, Alabama
law required pleas in abatement, motions to quash based on systematic exclusion of one
race from grand juries, or claims that the grand jury was otherwise improperly drawn to
be made at the time of arraignment. Id. at 53-54. The Court concluded that "[w]hatever
may be the function and importance of arraignment in other jurisdictions ... in Alabama
it is a critical stage in a criminal proceeding. What happens there may affect the whole
16 No. 32633-1-III Pers. Restraint of Sanchez
trial. Available defenses may be ... irretrievably lost, if not then and there asserted." Id.
at 54. The Court thus held that denial of counsel to Hamilton at arraignment was
reversible error without considering prejudice. Id. at 54-55.
Similarly, in White the defendant appeared without counsel at a preliminary
hearing and entered a guilty plea. White, 373 U.S. at 59. Although White later withdrew
the plea, it was used against him at trial. Id. at 60. Referencing Hamilton, the Supreme
Court determined that the preliminary hearing was "as 'critical' a stage as arraignment
under Alabama law" because White entered a plea that was taken by the magistrate at a
time when he had no counsel. White, 373 U.S. at 60. In finding Hamilton controlling and
reversing the judgment without considering prejudice, the court reasoned that "' [o]nly the
presence of counsel could have enabled this accused to know all the defenses available to
him and to plead intelligently."' White, 373 U.S. at 60 (quoting Hamilton, 368 U.S. at
55). 1
1 For other examples of cases of presumed prejudice when counsel was absent or prevented from assisting the defendant at a critical stage, see e.g., Penson v. Ohio, 488 U.S. 75, 88-89, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (complete denial of counsel on appeal); Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978) (conflict of interest in representation throughout entire proceeding); Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) (denial of access to counsel during overnight recess); Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 ( 1964) (accused confronted by prosecuting authorities who obtained incriminating statements by ruse and in the absence of defense counsel); Gideon v.
17 No. 32633-1-III Pers. Restraint of Sanchez
As illustrated by the above-cited United States Supreme Court cases, the
characterization of Sanchez's hearing as an arraignment is not determinative of whether
the hearing was a critical stage so that defense counsel's absence was presumptively
prejudicial. Rather, we must examine the nature of Sanchez's arraignment before we can
determine whether it was a critical stage. Only if the nature of his arraignment was such
that he stood to lose important rights that might affect the outcome of his case should it be
considered a critical stage. See Reddrick, 166 Wn.2d at 910.
Unlike in Hamilton, Sanchez stood no risk of waiving any rights or foregoing any
defenses at his arraignment. Nor did he make admissions of guilt like the defendant in
White. He did not forfeit any right to plead guilty or to plead not guilty by reason of
insanity. Had he wished to raise an insanity defense, he could have done so "at the time
of arraignment or within ten days thereafter or at such later time as the court may for good
cause permit." RCW 10.77.030(1). Sanchez never sought to assert an insanity defense or
otherwise change his not guilty pleas, even though the information was twice amended
prior to trial. Nor does Sanchez assert in his declaration filed with this petition that he
ever desired to plead guilty. Instead, throughout the proceedings, he maintained his
Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) (total deprivation of counsel throughout entire proceeding); see also In re Pers. Restraint ofRichardson, 100
18 No. 32633-1-III Pers. Restraint of Sanchez
defenses of general denial, alibi, and misidentification. Pleading guilty to some charges
at arraignment would have been antithetical to Sanchez's defenses to aggravated murder.
The Washington Supreme Court has observed that "[t]he arraignment procedure
essentially consists of ascertaining the defendant's name, advising the defendant of
certain rights including the right to counsel, and informing the defendant of the charges
that have been filed." State v. Frazier, 99 Wn.2d 180, 184,661 P.2d 126 (1983) (citing
former CrR 4. l(b)-(e)). In substance, this is all that comprised the limited scope of
Sanchez's arraignment proceeding.
Thus, unlike in Hamilton, Sanchez makes no showing that any right or defense he
possessed prearraignment was forfeited or went unpreserved by his attorney's absence at
arraignment. We conclude that any Sixth Amendment or rule-based deprivation/absence
of counsel at Sanchez's arraignment did not contaminate the entire trial proceeding so as
to bring this case within the purview of Hamilton, White, or other previously noted cases
of presumed prejudice.
Consistent with this conclusion is State v. Jackson, 66 Wn.2d 24, 400 P.2d 774
(19?5). The Jackson court held, the "name of the stage of the criminal proceeding is not
controlling" and "[t]he court must look at substance and not merely at form" to ascertain
Wn.2d 669, 679, 675 P.2d 209 (1983) (no independent showing of prejudice required
19 No. 32633-1-III Pers. Restraint of Sanchez
the possibility of prejudice to the defendant in the defense of his case. Id. at 28; see also
State v. Louie, 68 Wn.2d 304, 308-09, 413 P.2d 7 (1966). As discussed, Sanchez's
arraignment proceeding lacked the type of substance so as to confer on it "critical stage"
status.
We conclude any infringement on Sanchez's right to counsel at arraignment does
not give rise to presumed prejudice or structural error. We thus review his petition under
the Cook standard requiring him to show actual and substantial prejudice. See In re Pers.
Restraint of Brockie, 178 Wn.2d 532, 539, 309 P.3d 498 (2013) (if a constitutional error
is subject to harmless error analysis on direct appeal, the same error alleged in a PRP
must be shown to have caused actual and substantial prejudice in order for the petitioner
to obtain relief) (citing In re Pers. Restraint of Hagler, 97 Wn.2d 818, 825-26, 650 P .2d
1103 (1982)).
B. Claimed Prejudice
Sanchez argues he suffered actual and substantial prejudice as a result of his
counsel's absence at his arraignment, where counsel could have objected to media filming
or photographing his face. We disagree.
when error was deprivation of conflict-free counsel).
20 No. 32633-1-III Pers. Restraint ofSanchez
Sanchez cross-examined Kublic at trial with respect to variations in her
descriptions of the intruders and her alleged media exposure. Sanchez also presented his
"source confusion" misidentification theory to the jury through Dr. Shomer's expert
testimony. The jury credited Kub lie' s testimony that she was 100 percent certain Sanchez
was the shooter because she saw his face clear as day when he fired the gunshots and
rejected the defense alibi and misidentification arguments. We do not review the jury's
determinations as to weight of the evidence and witness credibility. State v. Walton, 64
Wn. App. 410, 415-16, 824 P.2d 533 (1992). Nothing about Fessler's absence at
Sanchez's arraignment affected his ability to argue his misidentification defense at trial.
Moreover, Sanchez has never established what media footage or photographs were
produced from the arraignment. Sanchez identifies none in the clerk's papers from the
appeal and produces none as additional evidence in this petition. Moreover, the question
of whether Kub lie even saw Sanchez's face in the media is mere speculation. The jury
has already credited Kublic's testimony that her identification of him as the shooter did
not come from any media but from her own independent observation of his face when he
fired the shots.
Finally, Kublic' s identification of Sanchez was not the only evidence the State
produced linking Sanchez to the crimes. For his part in the Causor home invasion,
21 No. 32633-1-III Pers. Restraint of Sanchez
Mendez pleaded guilty to two counts of first degree murder and other crimes in exchange
for a 30-year sentence and truthful testimony at Sanchez's trial. The jury was told of this
agreement. Mendez testified as to the details of his and Sanchez's planning and
commission of the home invasion robbery. Mendez testified Sanchez shot the victims,
and they both fled in Sanchez's truck with Causor's marijuana and money. Consistent
with Kublic's trial testimony, Mendez said Sanchez was not wearing a mask when
Sanchez shot the victims. Mendez also testified that Sanchez told him prior to the
incident that he (Sanchez) would not wear a mask. In addition to Mendez's testimony,
police executed a search warrant at Sanchez's residence and recovered a .45 handgun.
Ballistics tests confirmed that this handgun was the murder weapon.
Given Kublic's testimony and the strength of the State's other evidence-
Mendez's testimony accepted by the jury, and the presence of the murder weapon at
Sanchez's residence-Sanchez fails to show he was actually and substantially prejudiced
by Fessler's absence at his arraignment. Sanchez fails his burden under Cook in his
ground one claim.
22 No. 32633-1-III Pers. Restraint of Sanchez
GROUND TWO-INEFFECTIVE ASSISTANCE OF COUNSEL
In the alternative, Sanchez claims he was denied effective assistance of counsel
when Fessler failed to appear and object to his being filmed/photographed by media at his
arraignment.
To establish ineffective assistance of counsel, Sanchez must show that his
attorney's performance was deficient, i.e., that the representation "fell below an objective
standard of reasonableness" based on consideration of all the circumstances, and that he
was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d
1251 (1995). Prejudice occurs when but for counsel's deficient performance, it is
reasonably likely that the trial outcome would have been different. McFarland, 127
Wn.2d at 335. "[I]f a personal restraint petitioner makes a successful ineffective
assistance of counsel claim, he has necessarily met his burden to show actual and
substantial prejudice." In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280 P.3d
1102 (2012). We need not address both prongs of the ineffective assistance test if the
defendant's showing on one prong is insufficient. Strickland, 466 U.S. at 697; State v.
Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
23 No. 32633-1-III Pers. Restraint of Sanchez
As discussed above, Sanchez is unable to show he was actually and substantially
prejudiced by Fessler's absence at his arraignment. He therefore fails to meet
Strickland's prejudice prong and fails his burden in his ground two claim.
In conclusion, Sanchez makes no claim entitling him to relief. We, therefore, deny
and dismiss his PRP.
WE CONCUR:
A - s. Fearing,~\