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                                                                       Supreme Court Clark


  IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint
of                                                            No. 86711-9

MARIBEL GOMEZ,                                                       En Bane

               Petitioner.                                Filed May 8, 2014


      J.M. JOHNSON, J. *-It is difficult to imagine a child more vulnerable

than Rafael Arechiga-Gomez, who came into this world drug-addicted. The

State system designed to safeguard vulnerable children did not save Rafael.

His short life was punctuated by severe and continual abuse at the hands of

his own mother, Maribel Gomez. During the brief periods of time that he was

in his mother's care, Rafael endured a broken right tibia, bruises, lacerations

to his nipples, a broken left femur, an occipital skull fracture, pinched ears, an

infected scab injury to the back of his skull, burns on his left hand, burns on



*Justice James M. Johnson is serving as a justice pro tempore of the Supreme Court
pursuant to Washington Constitution article IV, section 2(a).
In re Pers. Restraint of Gomez
No. 86711-9




his tongue, at least one other skull fracture, an impact injury to his forehead,

fractures to both upper arms, and the fatal blow to his head that ended his life

at only 25 months.

          This case arises from the legal defense of Maribel Gomez against

charges of manslaughter and homicide by abuse for the death of her son. The

question is one of ineffective assistance of counsel under the Sixth

Amendment to the United States Constitution.

          Gomez has not met her burden of proving ineffective assistance of

counsel. The trial court transcripts paint a picture of a supremely fair trial at

which Gomez was represented by a highly competent attorney.              Having

received a fair trial with effective attorney assistance, the State was able to

prove all elements of homicide by abuse. We accordingly deny her personal

restraint petition.

                                      ISSUES

    I.       Did Gomez receive counsel free of conflicts of interest?

    II.      Did Gomez receive effective assistance of counsel?

                                      FACTS

          Gomez gave birth to Rafael on August 7, 2001, in the backseat of her

car.       He was taken to the hospital, where he tested positive for


                                         2
In re Pers. Restraint of Gomez
No. 86711-9




methamphetamine, cocaine, and other nonprescribed controlled substances as

a result of her drug use during pregnancy. Rafael was placed in foster care

and was later declared a dependent of the State of Washington. In the 10

months he was in foster care from August 10, 2001, through June 4, 2002,

Rafael did not sustain any significant injuries. At the time he was placed in

Gomez's custody, Rafael was an "easy" baby who could feed himself.

       In September 2002, three months after leaving foster care and returning

to his biological family, Rafael was taken to Samaritan Hospital for a fractured

right tibia. He also had numerous bruises on his abdomen and back in the

shape of a hand print. The following day, the physician's assistant who casted

Rafael's leg noticed lacerations on both of his nipples.

       In early December 2002, less than three months after his broken tibia,

Rafael was taken to Quincy Valley Medical Center for a broken left femur.

He was then transferred to Central Washington Hospital, where Gomez falsely

reported a history of a normal pregnancy and reported no prior

hospitalizations. In addition to the proximal femur fracture, he was diagnosed

with an occipital skull fracture, a pinch mark bn1ise to his ear, an infected scab

injury to the occipital bone at the back of the skull, bums on his left hand, and

 a burn on his tongue. When the x-rays were reviewed, an additional skull


                                        3
In re Pers. Restraint of Gomez
No. 86711-9




fracture was noted that was in the early stages of healing. More than one

physician had concerns of abuse, and Child Protective Services (CPS) was

contacted. One treating physician, Dr. Cook, "had no doubt that Rafael had

been physically abused." Finding of Fact (FF) 2.17. Rafael was returned to

his foster family, where he again sustained no serious injuries.

       Rafael was returned to Gomez three months later on March 21, 2003.

Gomez testified that Rafael rolled off the bed and hit his forehead about a

week before his death. She testified that she took him to CPS to show the

injury to her case worker, Murray Twelves, and his supervisor, Cecelia

DeLuna. Mr. Twelves and Ms. DeLuna both testified that Gomez never

brought Rafael in to CPS to show them his injury.

       On September 9, 2003, less than six months after being returned to

Gomez's care for the final time, the events occurred that led to Rafael's death.

Gomez testified that she was feeding soup to Rafael when he threw himself

backwards in a tantrum with a mouth full of soup. According to Gomez,

Rafael hit his head on the floor, lost consciousness, and died the next day.

Rafael was declared dead on September 10, 2003, at approximately 25 months

old. An autopsy was performed one day after his death. The autopsy indicated

blunt force injuries of the head to include


                                       4
In re Pers. Restraint of Gomez
No. 86711-9




       abrasions of the face, right ear, and scalp; subgaleal hemorrhages
       of the occipital scalp and supragaleal hemorrhage of the frontal
       scalp, acute and subacute; occipital skull fractures, acute and
       chronic, focal organizing epidural hemorrhage; acute subdural
       and subarachnoid hemorrhages; cerebral edema; and focal acute
       ischemic changes of the cerebrum. The autopsy further revealed
       bilateral retinal hemorrhages, contusions of the back and upper
       extremities, and periosteal and epiphyseal-metaphyseal injuries
       of the proximal humeri. The injuries showed variably acute to
       subacute and chronic features. The features of the skull fractures
       suggested acute/recent fractures superimposed on an area of
       previous skull injury. Dr. Ross' autopsy findings were consistent
       with non-accidental trauma. Based on the autopsy findings and
       the investigative history, Dr. Ross concluded that Rafael died as
       a result of blunt force injuries of the head. He indicated that the
       manner of death was homicide.

FF 2.33 (emphasis added).

       The autopsy revealed multiple skull fractures of varying ages, as well

as new injuries that had not been noted while Rafael was alive. These new

injuries included breaks to his upper arms. Dr. Feldman testified that this

occurred when Rafael's arms were jerked severely enough to separate the

bones at the shoulders. Although Gomez testified that Rafael exhibited self-

injurious behaviors, the foster mother, the day care provider, and the case

worker all testified that they had never observed such behavior.

       Rafael's death in Gomez's presence gave rise to dependency

proceedings in 2004 and 2006 to determine the status of the other children of



                                        5
In re Pers. Restraint of Gomez
No. 86711-9




Gomez and Jose Arechiga, Rafael's father. During the 2004 proceedings,

both Gomez and Arechiga argued that Rafael's injuries resulted from

accidents or Rafael's odd behavior. During the dependency proceedings,

Robert Moser, a local defense attorney, represented Arechiga and another

attorney represented Gomez.

       Around the time of the 2004 proceedings, the State charged Gomez

with manslaughter.         Instead of having her attorney at the dependency

proceedings defend her against the manslaughter charge, Gomez retained

Arechiga's     attorney,    Moser.    Moser's   experience   included trying

misdemeanors as a district court deputy prosecutor and practicing criminal

and tort law privately.

       When Moser began representing Gomez, he based his investigation of

her case on the facts and impressions he gathered from the 2004 proceedings.

At the proceedings he heard testimony from friends, neighbors, social

workers, and doctors who had seen Rafael while he was alive or after his death

and who had reviewed his medical records for CPS. Such testimony led him

to believe that Gomez's argument about accidents and self-injury would not

persuade a judge or jury. Moser states, however, that when he learned new

information from Gomez concerning this argument, he endeavored to


                                        6
In re Pers. Restraint of Gomez
No. 86711-9




interview new witnesses. Because Gomez speaks Spanish and, as Moser

admits, her English skills are "not very good," App. 4, at 4, 1 the two

sometimes spoke through a bilingual friend of Gomez's or a court interpreter.

       In addition to investigating lay witnesses, Moser sought out expert

witnesses to opine on the cause ofRafael's death. Moser's theory ofthe case

appears to have been that Rafael's death was·not due to his fall while eating

soup the day before his death, but rather a fall he took from a bed and onto his

head a few days prior. Moser eventually retained Dr. Janice Ophoven, a

forensic pathologist who specializes in diagnosing the cause of child injuries

and deaths, to opine on the cause of Rafael's death.

       Dr. Ophoven requested autopsy slides and radiology Images from

Moser, but Moser did not fulfill her request until around the start of trial. He

did, however, write to Dr. Ophoven to provide her with background

information, including that Rafael had suffered many injuries that were

"suspicious for child abuse." App. 18, at 2. Dr. Ophoven misunderstood

Moser's letter to mean that CPS had confirmed the history of abuse.




1
 All appendix citations are to the appendices attached to the amended opening brief of
petitioner.


                                           7
In re Pers. Restraint of Gomez
No. 86711-9




       At trial, Dr. Ophoven testified that Rafael died of aspiration pneumonia

(choking) and conceded that Rafael had been abused. Her ultimate conclusion

was that the cause of death was undetermined. The trial judge concluded that

Rafael died of blunt force trauma and that Gomez caused his death. The trial

judge also concluded that the upper arm injury, occipital skull fracture and

epidural hemorrhage, bruised/gouged ear injuries, and lacerated nipples were

all the result of assaults by Gomez. She was convicted of manslaughter and

homicide by abuse.

       On appeal, the manslaughter conviction was vacated on double

jeopardy grounds. State v. Gomez, noted at 147 Wn. App. 1003, 2008 WL

4561499. Gomez then filed a personal restraint petition, which was denied by

the Court of Appeals. In re Pers. Restraint of Gomez, noted at 164 Wn. App.

1017, 2011 WL 4839109. Petitioner then filed a motion for discretionary

review before this court, which was granted. In re Pers. Restraint of Gomez,

175 Wn.2d 1005, 284 P.3d 742 (2012).

                                 STANDARD OF REVIEW


        To prevail on a collateral attack on a judgment and sentence by way of

a personal restraint petition, a petitioner must generally first establish that a

constitutional error has occurred and it has resulted in actual and substantial


                                         8
In re Pers. Restraint of Gomez
No. 86711-9




prejudice or that a nonconstitutional error has caused a complete miscarriage

of justice. In re Pers. Restraint of Grantham, 168 Wn.2d 204, 212,227 P.3d

285 (20 10) (quoting In re Pers. Restraint ofIsadore, 151 Wn.2d 294, 298, 88

P.3d 390 (2004)).       However, "if 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). An appellate court

will review a claim of ineffective assistance of counsel de novo. State v.

Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009) (citing In re Pers.

Restraint ofFleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001)).

       In order for a petitioner to prevail on an ineffective assistance claim,

she must overcome the presumption that her counsel was effective. State v.

Thiefault, 160 Wn.2d 409, 414, 158 P.3d 580 (2007). To do this, she must

demonstrate that "(1) 'counsel's representation fell below an objective

standard of reasonableness' and (2) 'the deficient performance prejudiced the

defense."' In re Pers. Restraint of Yates, 177 Wn.2d 1, 35, 296 P.3d 872

(2013) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984)). Accordingly, to prevail on her claim, Gomez

must first prove that Moser's "acts or omissions were outside the wide range


                                       9
In re Pers. Restraint of Gomez
No. 86711-9




of professionally competent assistance." Strickland, 466 U.S. at 690. She

must then demonstrate "that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." ld. at 694.

       The United States Supreme Court has indicated that we must be highly

deferential to counsel's performance. ld. at 689. Consequently, we must

"recognize that counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment." I d. at 690.

                                   ANALYSIS

A.     Conflicts of Interest

       Gomez claims that Moser's representation of her at trial and of

Arechiga at the dependency proceedings created a conflict of interest that

violated her right to effective assistance of counsel. Defense counsel has a

duty of loyalty to the defendant, and thus the right to effective assistance of

counsel includes the right to conflict-free counsel. ld. at 692. But a conflict

of interest is not a per se violation of the right. See Holloway v. Arkansas, 435

U.S. 475, 482, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978) (stating that joint


                                       10
In re Pers. Restraint of Gomez
No. 86711-9




representation of codefendants is not a per se violation of the Sixth

Amendment). To show a violation of her right, a defendant must show that

(a) defense counsel "actively represented conflicting interests" and (b) the

"actual conflict of interest adversely affected" his performance. Cuyler v.

Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).

Possible or theoretical conflicts of interest are "insufficient to impugn a

criminal conviction." !d. If the defendant makes both showings as to the

alleged conflict of interest, then the court presumes prejudice and the

defendant proves her claim. !d. at 349-50. Accordingly, we first consider

whether Moser actively represented conflicting interests. We conclude that

he did not.

       Gomez argues that Moser actively represented conflicting interests

because he violated the Rules of Professional Conduct (RPCs) regarding

conflicts of interest. However, the RPCs do not "embody the constitutional

standard for effective assistance of counsel." State v. White, 80 Wn. App.

406, 412-13, 907 P.2d 310 (1995) (stating the rule in the direct appeal

context).     Rather, they serve as mere guides for determining what is

reasonable. See Strickland, 466 U.S. at 688-89. Taking the RPCs as a guide,

we note that the RPCs provide that a concurrent conflict of interest exists if


                                     11
In re Pers. Restraint of Gomez
No. 86711-9




"the representation of one client will be directly adverse to another client" or

"there is a significant risk that the representation of one ... client[ ] will be

materially limited by the lawyer's responsibilities to another client." RPC

1. 7(a)(l ), (2).

       Here, the record shows that at most there was a theoretical conflict of

interest between Gomez and Arechiga. At the 2004 dependency proceedings,

Gomez and Arechiga were not adverse because they both countered the

State's position that they were neglectful or abusive by arguing that they were

neither and that Rafael's injuries were caused by accident or his own behavior.

From the time the State charged Gomez with manslaughter (May 2004) to the

time the State added the charge of homicide by abuse (April 2006), Gomez

and Arechiga were not adverse because the only charge was manslaughter and

Arechiga was not present when Rafael was fatally injured. Thus, Arechiga

was not a suspect. From the time the State added the charge of homicide by

abuse (April2006) through Gomez's criminal trial (March 2007), Gomez and

Arechiga were potentially adverse because Gomez could have theoretically

argued that Arechiga was responsible for some or all of the abuse of Rafael

and thereby escaped a conviction for homicide by abuse.




                                        12
In re Pers. Restraint of Gomez
No. 86711-9




       Although Gomez and Arechiga were potentially adverse from April

2006 through March 2007, ample evidence shows they were not actually

adverse because Gomez could not have reasonably argued that Arechiga

abused Rafael. First, the trial judge found that Gomez was the sole caretaker

of Rafael when she had custody of him. Second, the trial judge found that

Arechiga treated Rafael kindly and heard no evidence that Arechiga abused

Rafael or harbored ill will toward him. In her petition, Gomez does not allege

new evidence of abuse by Arechiga. Finally, at trial Arechiga supported

Gomez's theory and testimony that Rafael's past injuries were caused by

accident or behavior.

       In sum, the record contains no evidence suggesting that Arechiga

abused Rafael and, at trial, Arechiga supported Gomez's defense. It follows

that Gomez's allegation of a conflict of interest is merely theoretical, which

is "insufficient to impugn a criminal conviction." Cuyler, 446 U.S. at 350.

Since Gomez has not shown that Moser actively represented conflicting

interests, we do not proceed to determine whether his performance was

adversely affected by conflicting interests.




                                       13
In re Pers. Restraint of Gomez
No. 86711-9




B.     Ineffective Assistance of Counsel

       To prove a claim of ineffective assistance of counsel, a defendant must

show that defense counsel's performance was (a) deficient and (b) prejudicial.

Strickland, 466 U.S. at 687. We conclude that Moser's defense was not

deficient. Accordingly, Gomez received effective assistance of counsel for

the purposes of the Sixth Amendment.

       The Sixth Amendment standard for effective assistance is "reasonably

effective assistance." Id. To prove that defense counsel's performance was

deficient, "the defendant must show that counsel's representation fell below

an objective standard of reasonableness." Jd. at 688. Gomez argues that

Moser's performance was deficient with regard to (1) experience, (2) use of

interpreters, (3) investigation of lay witnesses, (4) investigation of expert

witnesses, ( 5) preparation of Gomez for trial, and (6) preparation of Ophoven

for trial. We conclude that Moser's performance in all six categories met or

exceeded the reasonably effective assistance threshold.

        1.     Experience

       Gomez argues that Moser's experience fell below an objective standard

of reasonableness because he failed to meet the Washington Defender

Association's Standards for Public Defense Services (1989) (endorsed by


                                      14
In re Pers. Restraint of Gomez
No. 86711-9




Wash. State Bar Ass'n Bd. of Governors Jan. 1990), available at

http://www. defensenet. org/resources/publications-1 /wda-standards-for-

indigent-defense. 2 Prevailing professional standards may serve as guides for

determining what is reasonable but may not serve as a checklist for evaluating

attorney performance. 3 Strickland, 466 U.S. at 688-89.

       Standard 14 provides that to represent a defendant accused of a class A

felony, public defense counsel must meet the following: (1) Washington's

minimum requirements for practicing law as defined by the supreme court;

(2) seven hours of legal education per calendar year in a relevant area of law;

and (3) either (a) two years of service as a prosecutor, or (b) two years of

service as a public defender, or (c) appeared as trial counsel alone or with

other trial counsel and handled a significant portion of the trial in three felony

cases that have been submitted to a jury. STANDARDS FOR PUBLIC DEFENSE

SERVICES std. 14.



2
  Gomez submits two other professional standards: Washington State Bar Ass'n,
Standards for Indigent Defense Services std. 14 (2007),
http://www .nlada.net/sites/default/filcs/wa_ws bastandardsforindigdefense_ 092 02 007. pdf:
and the Washington State Supreme Court Standards for Indigent Defense std. 14.2
(2012). Because these standards were not in effect at the time of trial, we do not rely on
them to evaluate Moser's experience. See Strickland, 466 U.S. at 689.
3
  This court has previously concluded that "professional standards are evidence of what
should be done, no more." State v. A.N.J, 168 Wn.2d 91, 113, 225 P.3d 956 (2010).


                                             15
In re Pers. Restraint of Gomez
No. 86711-9




       Setting aside the fact that Moser was not a public defender .at the time

of trial, it appears he met this prevailing standard for public defenders when

he took Gomez's case in May 2004. By that time, he held a license to practice

law in Washington, had served as a district court deputy prosecutor for 20

months, and had worked in private practice on criminal and tort matters for

just under 12 months. The only evidence showing that Moser did not meet

the legal education requirement is his statement that he did not seek additional

training while representing Gomez. Gomez makes no showing that Moser did

not actually meet the education requirements or that his relevant experience

was less than two years.         In sum, Moser's experience roughly met the

prevailing professional standard in effect at the time of trial, which suggests

he had sufficient experience to defend Gomez.

       In addition to prevailing professional standards, Gomez submits the

opinions of a seasoned defense attorney and a law professor on what

experience a lawyer would need to try Gomez's case. Garth Dano, a Grant

County criminal defense lawyer, stated that Gomez's case would take 200 to

1,000 hours to execute, a standard Moser met because he put an estimated 500

hours into Gomez's case.




                                        16
In re Pers. Restraint of Gomez
No. 86711-9




       Professor John Strait of Seattle University School of Law stated that

Moser was insufficiently experienced because he had no experience with

causation issues or expert opinion on child abuse. Yet, the record suggests

that Moser had experience with causation issues from his public service and

private practice work, as well as experience with medical experts,

psychologists, social workers, and guardians ad litem. In sum, Moser appears

to have met the prevailing professional standard, met Dano' s time

requirement, and met Strait's causation requirement.        Accordingly, we

conclude that Gomez has not proved that Moser's experience was deficient.

       2.      Use of Interpreters

       Ms. Gomez claims that she was denied her constitutional right to

effective assistance of counsel because her attorney, Moser, failed to

adequately consult with her through an interpreter. To support this claim, she

relies on her own declaration as well as a declaration from Moser. Both

declarations were drafted in May 2010, approximately six years after Moser

began representing Gomez. Moser's declaration indicates that for the most

part, he cannot remember whether he was using an interpreter while

discussing specific issues with Gomez. Although they did communicate

without an interpreter on some occasions, they also used court interpreters or


                                      17
In re Pers. Restraint of Gomez
No. 86711-9




friends of Gomez's.       Moser even retained a court certified interpreter to

interpret during three interviews he held with Gomez in jail during her trial.

The burden is on Gomez to show that Moser's use of interpreters was deficient

and ultimately prejudiced her at trial. Gomez has not met this burden.

       Prior to her personal restraint petition, Gomez never informed anyone

of any ongoing problems communicating with her attorney. Despite being in

court on numerous occasions during the three years pending trial-during

which she was assisted by a court certified interpreter-she cannot point to a

single instance where she complained about an inability to meaningfully

communicate with Moser. Gomez neither raised this issue during her trial nor

on appeal.

       The trial transcript also indicates that both Moser and Judge Antosz

respected Gomez's use of interpreters, ensuring that she fully understood the

proceedings. For example, at trial, Moser communicated to the court that

Gomez had expressed a concern about one of the court interpreters.

Specifically, she felt that this interpreter may have missed a few words

because he was looking down during part of the testimony. Judge Antosz took

this very seriously and questioned Gomez to ensure she had understood all the

proceedings. The court also granted another request Gomez made to recuse a


                                        18
In re Pers. Restraint of Gomez
No. 86711-9




different court interpreter who had a potential conflict of interest. These

incidents bring to light two key points. First, both Moser and Judge Antosz

understood and respected the critical role of interpreters to Gomez's trial.

Second, Gomez was capable of speaking up when she believed problems

existed with communication.

       Even if Moser's use of interpreters was deficient, Gomez has not shown

that she was prejudiced. Her version of the facts and defenses presented in

her personal restraint petition are materially identical to those presented at

trial. Despite the alleged communication problems she attributes to Moser's

deficient representation, she has not pointed to where she would have said or

done anything differently had the alleged miscommunication been addressed.

In fact, she testified on her own behalf at trial, according the judge the

opportunity to hear firsthand her own account of Rafael's injuries and the

events leading to his death.

        Gomez relies on Chacon v. Wood, 36 F.3d 1459, 1464-65 (9th Cir.

1994), for the proposition that effective assistance of counsel requires

complete translation for non-English speaking defendants. Such reliance is

misplaced.       In Chacon, the defendant claimed that he was grossly

misinformed of the sentencing consequences of his plea when an interpreter


                                      19
In re Pers. Restraint of Gomez
No. 86711-9




mistranslated defense counsel's explanations. Id. at 1461. This led to the

defendant pleading guilty to an offense that he believed would be punishable

by 3 months in jail, but he was sentenced to up to 10 years in prison. I d. at

1460-61.

       Chacon is inapposite because, here, there are no allegations that there

was improper translation of any significant discussions between Moser and

Gomez. We find no fault with Gomez and Moser's discussions on trial rights,

the right to a jury trial, or her right not to testify. Gomez fails to meet her

burden of proof that Moser's use of interpreters was "outside the wide range

of professionally competent assistance." Strickland, 466 U.S. at 690. She

also has not shown how any alleged deficiencies prejudiced her at trial.

       3.      Investigation of Lay Witnesses

       Gomez argues that Moser's investigation fell below an objective

standard of reasonableness because he failed to find certain lay witnesses.

Defense "counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary." Id. at

691.    "The reasonableness of counsel's actions may be determined or

substantially influenced by the defendant's own statements or actions." Id.

"For example, when the facts that support a certain potential line of defense


                                       20
In re Pers. Restraint of Gomez
No. 86711-9




are generally known to counsel because of what the defendant has said, the

need for further investigation may be considerably diminished or eliminated

altogether." Id.

         Here, Moser states that he got most of his facts from the dependency

proceedings and only a few new facts from Gomez herself. After the start of

trial, Gomez suggested that Moser call her friends to testify, but Moser chose

not to do so because he had heard them testify at the dependency proceedings,

considered them mere character witnesses, and thought they could not testify

to specific facts related to Rafael's death or injuries. Moser also chose to

make a limited investigation of CPS workers because he had heard some of

them testify at the dependency proceedings and did not think any of them had

actually seen Rafael's allegedly odd behaviors. Nonetheless, when Gomez

suggested that Moser contact Graciela Alvarado, a CPS worker, Moser made

numerous attempts to interview her and even tried to subpoena her but to no

avail.

         All of these facts suggest that Moser was generally aware of the facts

and witnesses that supported Gomez's argument that Rafael's injuries resulted

from accidents or his odd behaviors. His choice not to develop this argument




                                        21
In re Pers. Restraint of Gomez
No. 86711-9




was correspondingly reasonable. Thus, we conclude that Moser made an

objectively reasonable investigation of lay witnesses.

       4.     Investigation ofExpert Witnesses

       At trial, Moser presented one expert witness for the defense, Dr. Janice

Ophoven. She testified that Rafael died from asphyxiation. Gomez claims

that Moser was ineffective for failing to consult with more expert witnesses

who could have presented a more thorough defense. The record simply does

not support this contention.

       As noted, the Strickland standard for ineffective assistance of counsel

provides a high level of deference to trial counsel's strategic decisions. "In

any ineffectiveness case, a particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances, applying a heavy

measure of deference to counsel's judgments." Id.        Given this deference,

Gomez has not proved that Moser's investigation of experts was deficient and

has not shown that she was prejudiced by such alleged deficiencies.

       Moser pursued six or seven different experts, particularly in the area of

pediatric forensic pathology and epilepsy. He was able to secure the services

of Dr. Ophoven.        He also specifically pursued Dr. May Griebel at the

University of Arkansas. His declaration states that he sent her materials, but


                                       22
In re Pers. Restraint of Gomez
No. 86711-9




she returned them, saying she was unable to complete a review. Moser had

difficulty obtaining a local expert to work on the case because many had

potential conflicts with Dr. Feldman, one of the State's experts. Even after

securing Dr. Ophoven, Moser continued to try and secure additional experts,

sending them relevant materials for review. In the end, only Dr. Ophoven was

willing or able to assist with an opinion consistent with the defense's view of

events.

       Moser contacted multiple experts and secured one to explain Rafael's

death. He was not required to search the entire country for experts, finding

multiple witnesses who could provide the most favorable opinion for the

defense. Given the great deference afforded investigative decisions under the

Strickland standard, Gomez has not met her burden of proving that Moser's

investigation of experts was deficient. Furthermore, a thorough review of the

trial transcript reveals that Dr. Ophoven provided adequate testimony that

generally supported the defense's theory of the case. For this reason, Gomez

has not shown that Moser's alleged deficiency in investigating experts

prejudiced her at trial.




                                      23
In re Pers. Restraint of Gomez
No. 86711-9




       5.     Preparation of Gomez for Trial

       Gomez argues that Moser's preparation of her for trial fell below an

objective standard of reasonableness because he did not inform her of the

nature of trial proceedings, nor did he prepare her for direct or cross-

examination. Gomez cites Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998),

for the proposition that defense counsel has a duty to prepare a defendant to

testify. In Turner, the Ninth Circuit found that defense counsel's "admission

that he spent at most forty-five minutes with [the defendant] prior to trial

demonstrates deficient performance." Id. at 457. Turner is inapposite to this

case, however, because Moser makes no such admission. To the contrary, he

states that he knows they discussed Gomez's testimony several times but does

not remember the specifics of their preparation. Thus, Turner does not show

that Moser's preparation of Gomez for trial was objectively unreasonable.

       In addition, the record shows that prior to trial Gomez experienced

court and trial-like proceedings on multiple occasions and in Moser's

presence. For instance, she spent four days in dependency proceedings in

2004 and sat in court with the aid of an interpreter on at least eight occasions

prior to trial. While this evidence does not show that Moser fulfilled his duty

to prepare Gomez for trial, it does show that Gomez was in fact informed of


                                       24
In re Pers. Restraint of Gomez
No. 86711-9




the nature of trial proceedings before going to trial. Since she does not meet

her burden of proof, we conclude that Moser's preparation of Gomez for trial

did not fall below an objective standard of reasonableness.

       6.     Preparation ofDr. Ophovenfor Trial

       Gomez finally argues that Moser's trial preparation ofDr. Ophoven fell

below an objective standard of reasonableness because he failed to provide

her with necessary medical records on time and inform her of the elements of

homicide by abuse.         Gomez's complaints about Moser's preparation of

Dr. Ophoven appear to fall into two categories: (a) Moser's general

preparation of Dr. Ophoven for trial and (b) Moser's alleged failure to prevent

Dr. Ophoven from "conceding" abuse at trial. Both are unfounded.

               a.     Moser's General Preparation of Dr. Ophoven for Trial

       Gomez claims that her trial was prejudiced because her expert,

Dr. Ophoven, believed that CPS had confirmed a history of abuse when in fact

CPS had investigated but never confirmed the allegations. This is based on

Dr. Ophoven's declaration that reads in part, "Given what I understood to be

confirmed prior physical abuse resulting in longstanding CPS involvement, I

gave the manner of death as 'undetermined.' Without the prior abuse, I would

have classified the manner of death as 'natural."' App. 58, at 4. Gomez reads


                                       25
In re Pers. Restraint of Gomez
No. 86711-9




this to mean that Dr. Ophoven would have concluded that the cause of death

was natural had she known that abuse was never officially confirmed by CPS.

       This interpretation is reaching and disregards much of the trial record

and other portions of Dr. Ophoven's declaration. For example, one paragraph

earlier, Dr. Ophoven declared that"[ d]espite the history of abuse, this was a

relatively straightforward asphyxiation case." !d. at 3. This indicates that

Dr. Ophoven recognizes the history of abuse in this case. Consequently,

Gomez's reading of her previous statement is inconsistent with the record.

Instead, the only reasonable interpretation of her statement is this: had the

records indicated no prior abuse, she could have testified that the death was

natural. However, Dr. Ophoven testified at trial that the medical records did

reflect abuse. Dr. Ophoven's report indicates that she noted abuse based on

"[t]his constellation of traumatic injuries"-not the CPS reports. App. 19, at

8. Accordingly, we have no reason to believe that Dr. Ophoven would testify

any differently today than she did in 2007. This is especially clear given that

her testimony at trial regarding abuse was based almost entirely on her review

of the medical records such as histological slides and x-rays rather than CPS

reports. This confirms that even if Moser was at fault for Dr. Ophoven's

misunderstanding about the history of abuse, Gomez cannot prove prejudice.


                                      26
In re Pers. Restraint of Gomez
No. 86711-9




       Gomez also contends that Moser's preparation of Dr. Ophoven was

deficient because he did not provide her with materials in a timely fashion.

However, a thorough review of the trial record does not support such a

conclusion.    Even if Moser's preparation of Dr. Ophoven was deficient,

Gomez cannot show prejudice. By the time of her testimony, Dr. Ophoven

had received all the necessary material, created a full report, and provided

adequate medical testimony on behalf of the defendant.

       In support of the proposition that Moser's preparation of Dr. Ophoven

was deficient, Gomez quotes Bloom v. Calderon, 132 F.3d 1267, 1278 (9th

Cir. 1997): "Where defense counsel's only expert 'requests relevant

information which is readily available, counsel inexplicably does not even

attempt to provide it, and counsel then presents the expert's flawed testimony

at trial, counsel's performance is deficient."' Am. Opening Br. ofPet'r at 67.

       Bloom is readily distinguishable from this case. In Bloom, the court

found ineffective assistance of counsel where the defense attorney did

"virtually nothing" to obtain an expert witness until a few days before trial.

Bloom, 132 F.3d at 1271. In fact, counsel failed to contact the expert or file

the court paperwork appointing him as a witness. This was discovered less

than three weeks before trial by a law student working with counsel. ld.


                                      27
In re Pers. Restraint of Gomez
No. 86711-9




Counsel then did almost nothing to prepare the witness. The expert was never

given a theory of the case or the materials he needed. In fact, there was

significant evidence readily available to trial counsel, such as previous

psychiatric reports, which was never discovered or given to the expert. Id. at

1274.    The result was a "severely damaging" psychiatric report that the

prosecution used against Bloom. Id. at 1271.

        The Ninth Circuit has since distinguished Bloom in a case much more

akin to this one. In Raley v. nst, 470 F.3d 792 (9th Cir. 2006), the court

rejected a claim of ineffective assistance of counsel as to the guilt phase of a

murder trial where defense counsel conducted a reasonable investigation and

made a reasonable, strategic decision not to present expert testimony

regarding a mental defect claim. Counsel had consulted three different mental

health experts and determined that their testimony would not be beneficial to

the defendant. The court also rejected the petitioner's claim that defense

counsel failed to provide the experts with enough information about his

childhood to support an informed expert opinion. !d. at 801.

        Here, Moser originally contacted Dr. Ophoven in June of 2005, nearly

two years before trial. Moser provided the bulk of material to Dr. Ophoven

in January 2006, over a year before trial. Although Dr. Ophoven may have


                                       28
In re Pers. Restraint of Gomez
No. 86711-9




received some materials such as histological slides inconveniently close to her

testimony, she was able to review them, write a complete report, and provide

adequate testimony on behalf of the defendant. Accordingly, Moser's alleged
                                               '
failure to provide materials in a timely fashion does not constitute ineffective

assistance.

               b.     Moser's Alleged Failure To Prevent Dr. Ophoven from
                      "Conceding" Abuse at Trial

       Gomez claims that Moser failed to discover and correct Dr. Ophoven's

misunderstanding regarding the question of abuse. This supposedly led to

Dr. Ophoven conceding that Rafael was an abused child at trial. Gomez is

unable to prove that Moser deficiently prepared Dr. Ophoven for several

reasons. Even if Moser failed to correct Dr. Ophoven's misunderstanding that

the history of abuse had been officially confirmed by CPS, it in no way

prejudiced Gomez's defense. Dr. Ophoven's passing references to abuse were

most certainly warranted given the record that she reviewed. These references

to abuse were de minimis amid her medical opinions, as well as in light of the

testimony of many other witnesses. Most importantly, Gomez errs when she

contends that Dr. Ophoven conceded an element of the crime. This assertion

is a misstatement of the law. Abuse is not an element of homicide by abuse.



                                       29
In re Pers. Restraint of Gomez
No. 86711-9




       At trial, Dr. Ophoven testified under oath that she detected a pattern of

abuse when she reviewed the records.          This testimony could not have

prejudiced Gomez given that abuse is not an element of the crime of homicide

by abuse. In explaining what she meant by "abuse," Dr. Ophoven testified

that it is "[a] child that's been hurt by their caregivers in a context of what I

would consider to be inappropriate or criminal behavior. But I can't say who.

I just said somebody has been hurting the child." 11 Verbatim Report of

Proceedings (VRP) (Mar. 5, 2007) at 2317.          She then testified that her

definition of "abuse" is broad enough to include neglect. Notably, Moser

made it abundantly clear in closing argument that the defense did not concede

the perpetration of either assault or abuse by Gomez.

       It is true that Dr. Ophoven testified that she detected a pattern of abuse

when reviewing the records in preparation for trial. She further testified that

her definition of "abuse" is broad enough to include neglect. However, she

did not testify that she noted a pattern of assaults or torture. Under the

homicide by abuse statute, the relevant element of the crime is just that: "a

pattern or practice of assault or torture."       RCW 9A.32.055(1 ).        It is

indisputable that assault is distinct from abuse under Washington law. See

RCW 26.44.020(1) (defining "abuse or neglect"); c.f RCW 9A.36.011-.041


                                       30
In re Pers. Restraint of Gomez
No. 86711-9




(defining assault in the first, second, third, and fourth degrees); RCW

9A.36.120-.140 (defining assault of a child in the first, second, and third

degrees). The trial judge, sitting as the trier of fact, carefully parsed through

the different definitions and applied the correct one. Given that, even if

Dr. Ophoven' s testimony could be attributed to some deficiency on counsel's

part, Gomez has not shown a reasonable probability that the result would be

different.

       Under RCW 9A.32.055(1), "A person is guilty of homicide by abuse

if, under circumstances manifesting an extreme indifference to human life, the

person causes the death of a child ... , and the person has previously engaged

in a pattern or practice of assault or torture of said child." (Emphasis added.)

The name of this crime-homicide by abuse-is somewhat of a misnomer, as

was noted by the trial court. See VRP (Mar. 28, 2007) at 12. In other words,

although the crime is called "homicide by abuse," abuse is not actually an

element of the crime.

       Under our law, abuse can be something very different from assault and

torture. Commendably, Judge Antosz acknowledged this distinction several

times in his verdict:




                                       31
In re Pers. Restraint of Gomez
No. 86711-9




       [I]fyou look at the definition of abuse [it] is a different concept
       [from assault]. It doesn't require an intent to harm. Abuse or
       neglect can be simply the result of not laying hands on a child.
       It can be the result of leaving a child in a dangerous position and
       causing harm. So this is a different test than just simply of was
       there ... abuse here.

!d.

       Notably, Judge Antosz explained, "[S]ome physicians testified that

they were clear acts of abuse. And, again, that's not the test. It's not abuse.

It's whether they were assaults." I d. at 29; see also id. at 40 ("So, for instance,

when the experts testify that abuse occurred, the Court has to go further than

that to determine if assault occurred. Every assault is an abuse. Not every act

of abuse is an assault."). Judge Antosz further explained his belief that "the

Court must look at each injury individually and determine whether the State

has proven beyond a reasonable doubt that the Defendant previously engaged

in a pattern or practice of assaults." I d. at 19. With this in mind, Judge Antosz

determined that the upper arm injury, occipital fracture and epidural

hemorrhage, bruised/gouged ear injuries, and lacerated nipples were all the

result of assaults by Gomez.

        These excerpts from Judge Antosz's verdict are especially crucial

because this was a bench trial-not a jury trial. The transcript provides an



                                         32
In re Pers. Restraint of Gomez
No. 86711-9




accurate accounting of what Judge Antosz considered when rendering his

decision. Because this was a bench trial, we can be certain that there was no

confusion regarding the abuse/assault distinction. We know this because

Judge Antosz made an outstanding record on the point. This further supports

the conclusion that Gomez was not prejudiced by Dr. Ophoven's concession

of abuse.

       Moser's alleged failure to prevent Dr. Ophoven from conceding abuse

at trial did not constitute ineffective assistance of counsel.        Moser's

preparation of Dr. Ophoven fell within the acceptable range of professionally

competent behavior. Moreover, based on the record at hand, it is apparent

that Dr. Ophoven's testimony regarding previous abuse did not prejudice

Gomez. This is evident because abuse is not an element ofhomicide by abuse,

and Judge Antosz made it abundantly clear that he understood and respected

this distinction.

                                 CONCLUSION

       We conclude that Moser's representation of both Arechiga and Gomez

did not constitute an actual conflict of interest. We further conclude that

Moser's performance fell within the acceptable range of reasonably effective

assistance with respect to his experience, use of interpreters, investigation of


                                      33
In re Pers. Restraint of Gomez
No. 86711-9




lay witnesses, investigation of expert witnesses, preparation of Gomez for

trial, and preparation of Dr. Ophoven for trial. We, therefore, deny Gomez's

personal restraint petition.




                                     34
In re Pers. Restraint of Gomez
No. 86711-9




WE CONCUR:




                                 35
In re Pers. Restraint of Gomez




                                      No. 86711-9

       OWENS, J. (concurring in part/dissenting in part) -      Criminal defendants in

this country have the constitutional right to effective assistance of counsel even if they

do not speak English and even if they are accused of a heinous crime. While I agree

with the majority on several points, I disagree that counsel's use of interpreters,

investigation of experts, and preparation of the expert for trial provided Maribel

Gomez with effective assistance of counsel. Counsel was deficient in this case when

he failed to use an interpreter for the majority of his conversations with his non-

English-speaking client. Additionally, counsel was deficient when he failed to locate

an expert to testify about the cause of the victim's preexisting injuries when that

testimony was essential to the defense. That failure was compounded when counsel

did not adequately prepare the expert that he did secure for trial. These deficiencies

fell below an objective standard of reasonable performance and prejudiced the

defendant in this case. Therefore, I respectfully dissent.
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part


Counsel's Use ofInterpreters Was Deficient

       The majority concludes that Gomez's attorney, Robert Moser, provided

effective assistance even though he primarily communicated with his non-English-

speaking client without using an interpreter. I disagree. Defense counsel has a duty

to consult with the defendant on her trial rights and defense strategy. Florida v.

Nixon, 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). The Ninth

Circuit has stated that when communication between defense counsel and the

defendant necessarily depends on an intermediary, defense counsel must provide "[a]n

accurate and complete translation of all attorney-client communications" for the

defendant to actually receive effective assistance. Chacon v. Wood, 36 F.3d 1459,

1464-65 (9th Cir. 1994) (emphasis added).

        Gomez primarily speaks Spanish and her English skills are poor, but as Moser

admitted in his declaration, "Usually [he and Gomez] would communicate without an

interpreter." App. 4, at 4. 1 Moser's lack of communication frustrated Gomez, as she

felt that she never had the "chance to give him a complete account of all the events."

App. 3, at 11. Occasionally Moser would use a friend as an informal interpreter, and I

agree that that is not, by itself, deficient performance. See United States v. Valdivia,

60 F.3d 594, 595 (9th Cir. 1995). But I disagree that Moser provided effective


1
 Like the majority, all citations to the appendix relate to the appendices attached to the
amended opening brief of the petitioner.

                                                   2
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part


assistance when he primarily communicated with his non-English-speaking client

without an interpreter. An attorney must be able to communicate with his or her client

at all times. That way a defendant can accurately convey the facts to the attorney,

help make strategic decisions, and actively participate in our judicial process. I fear

that the majority's holding will weaken the public's confidence in our judicial system,

especially among those who do not speak English.

Counsel's Investigation ofExpert Witnesses Was Deficient

       Additionally, Moser's investigation fell below an objective standard of

reasonableness because he failed to investigate certain expert witnesses. Moser did

not retain an independent medical expert for the dependency proceedings and admits

that he did not understand the science involved in Gomez's criminal defense until

after the start of trial. Moser states that he pursued more than five experts in pediatric

forensic pathology and epilepsy but was only able to retain Dr. Janice Ophoven-an

expert in diagnosing the manner and cause of child injuries and death. When the State

brought the additional charge of homicide by abuse, one of the two elements of which

is a pattern or practice of assault of a child, Moser informed the court that an adequate

defense of Gomez would now require an expert opinion on whether Rafael had been

abused. Yet, Moser never had Dr. Ophoven opine on whether Rafael's previous

injuries resulted from abuse, accident, or some other cause. This decision-or lack

thereof-is even more troubling in light of the fact that one expert Moser spoke with


                                                   3
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part


during his investigation had led him to believe that Rafael suffered from epilepsy.

Epilepsy would have explained some of his head injuries and perhaps the odd

behaviors that Gomez reported.

       I disagree with the majority that Moser's failure to investigate experts should

be given "great deference" as part of counsel's trial strategy. Majority at 22-23.

Moser's failures were not strategic decisions picked after weighing competing options

for providing an effective defense. Rather, Moser omitted necessary expert opinions

for Gomez's defense and did not pursue a reasonable, alternative explanation for the

child's injuries. And, as further explained below, his deficient investigation resulted

in his expert conceding abuse in a homicide by abuse case without independently

making a determination on that issue.

        In sum, the facts show that Moser knew that Gomez's defense required an

expert opinion on Rafael's injuries and yet he inexplicably failed to have his qualified

expert provide such an opinion. Accordingly, I conclude that Moser made an

objectively unreasonable investigation of expert witnesses.

Counsel's Preparation ofDr. Ophoven Was Deficient

        Moser's preparation of Dr. Ophoven for trial also fell below an objective

standard of reasonableness when he failed to provide her with necessary medical

records on time and inform her of the elements of homicide by abuse. The Ninth

Circuit has held that "when the defense's only expert requests relevant information


                                                   4
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part


which is readily available, counsel inexplicably does not even attempt to provide it,

and counsel then prese~ts the expert's flawed testimony at trial, counsel's

performance is deficient." Bloom v. Calderon, 132 F.3d 1267, 1278 (9th Cir. 1997).

Similarly, the Sixth Circuit has held that defense counsel "cannot be deemed effective

where he hires an expert consultant and then either willfully or negligently keeps

himself in the dark about what that expert is doing, and what the basis for the expert's

opinion is." Richey v. Bradshaw, 498 F.3d 344, 362-63 (6th Cir. 2007).

        As in Bloom and Richey, Moser's failure to prepare Dr. Ophoven was deficient.

Moser's only expert witness was Dr. Ophoven. In July 2005 and January 2006, she

asked Moser to send her critical autopsy slides and radiology images so she could

determine Rafael's cause of death. Moser failed to respond to Dr. Ophoven's

requests. Dr. Ophoven says she finally received the slides after the start of trial, while

Moser says he received the slides in the fall of 2006 and gave them to Dr. Ophoven

about a month before trial. In either case Moser's failure to furnish the documents is

inexplicable, as even he admits. Furthermore, while Moser retained Dr. Ophoven to

testify on Rafael's cause of death but not on his abuse, he gave her grounds to believe

that Rafael had been abused and informed her of the homicide by abuse charge

without providing her with the elements of the charge. Moser then failed to confirm

Dr. Ophoven's testimony as to abuse because at trial she conceded that Rafael had

been abused and based on that belief, she opined that the cause of death was


                                                   5
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part


undetermined. Dr. Ophoven states that had she known that abuse was a question of

fact for trial, she would have opined that the cause of death was natural instead of

undetermined. I would hold that Moser's preparation of Dr. Ophoven for trial was

deficient because he negligently kept himself in the dark as to his expert's testimony,

failed to provide his expert with requested information that was readily available, and

then presented her flawed testimony at trial.

Counsel's Deficiencies Prejudiced the Defendant

       Moser's deficient use of interpreters, investigation of expert witnesses, and

preparation of Dr. Ophoven for trial prejudiced Gomez's defense. To show prejudice,

"[t]he defendant must show that there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence

in the outcome." Stricklandv. Washington, 466 U.S. 668,694, 104 S. Ct. 2052,80 L.

Ed. 2d 674 (1984). A reviewing court considers the totality of the evidence before the

judge. !d. at 695.

        Homicide by abuse has only two essential elements: causing the death of a

child and a pattern or practice of assault or torture of said child. RCW 9A.32.055(1).

Although Moser had Dr. Ophoven opine on the cause of Rafael's death, he chose not

to have her opine on whether Rafael's injuries were the result of a pattern or practice

of assault. Thus, the defense had no expert opinion to rebut the State's expert's


                                                   6
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part


opinion that Rafael's injuries were the result of a pattern or practice of assault and,

moreover, had no expert opinion to support Gomez's and Jose Arechiga's testimony

that Rafael's injuries were accidental or the result of his odd behaviors.

       The prejudicial effect of not having Dr. Ophoven opine on Rafael's injuries

was compounded by Moser's preparation of her for trial. At trial, Dr. Ophoven

conceded that Rafael's injuries were the result of abuse because of a

miscommunication between Moser and her. Thus, not only did the defense lack an

advantageous medical opinion on Rafael's injuries, it essentially conceded one

element of homicide by abuse and undercut Gomez's and Arechiga's testimony.

Moreover, the miscommunication damaged the defense's response to the other

element of homicide by abuse because Dr. Ophoven's belief that Rafael had been

abused led her to report the cause of Rafael's death as undetermined, rather than

report the cause as natural as she now states she would have done had she been

informed. In sum, Moser's preparation of Dr. Ophoven for trial resulted in giving

away one element ofhomicide by abuse and weakening the defense's rebuttal on the

other element.

        These errors, coupled with Moser's failure to use interpreters, undermine my

confidence in the outcome of Gomez's trial. Taking all the evidence into account, I

would hold that there is a reasonable probability that Moser's deficient performance

changed the outcome of her trial. Accordingly, I would grant Gomez's personal


                                                   7
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., concurring in part/dissenting in part


restraint petition, vacate the conviction for homicide by abuse, and remand to the

superior court for any further proceedings consistent with those rulings.




                                                   8
In re Pers. Restraint of Gomez
No. 86711-9
Owens, J., Dissenting




                                 9
In re Pers. Restraint of Gomez (Maribel)




                                    No. 86711-9

       WIGGINS, J. (concurring in part with the concurrence/dissent) -I concur

in part with the concurrence/dissent. Maribel Gomez established a prima facie

showing of actual and substantial prejudice from receiving ineffective assistance

of counsel. However, because the extent of prejudice is unclear from the record,

we should remand the petition for a reference hearing. See RAP 16.11 (b); In re

Pers. Restraint of Riley, 122 Wn.2d 772, 782, 863 P.2d 554 (1993); In re Pers.

Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992). At the reference

hearing, the court should inquire into the prejudicial effect of defense attorney

Robert Moser's deficient use of interpreters and preparation of Dr. Janice

Ophoven.

       Deficient use of interpreters. The extent of the prejudice resulting from

Robert Moser's minimal use of an interpreter is unclear. According to Moser,

Gomez's English language skills "were not very good," and he usually

communicated with Gomez without an interpreter. Am. Opening Br. of Pet'r, App.

4, at 4.   There is evidence, however, that Gomez hired interpreters on at least

three occasions and that Gomez's friends would sometimes interpret. ld. at 3-4.

It is not clear from the record how well Gomez speaks and understands English

and whether using an interpreter would have actually altered the outcome of trial

(e.g., whether Gomez would have revealed information that would have resulted

in a different verdict).



                                           1
In re Pers. Restraint of Gomez (Maribel)
(Wiggins, J., concurring in part with the concurrence/dissent)


       Deficient preparation of expert witness. The prejudicial effect of Moser's

deficient preparation of Dr. Ophoven is also unclear. The court should inquire as

to what Dr. Ophoven would have testified had Moser properly prepared her.

       Therefore, I would remand the petition for a reference hearing to resolve

how the ineffective assistance of counsel affected Gomez's trial. I dissent from

the majority opinion and concur in part with the concurring/dissenting opinion.




                                            2
In re Pers. Restraint of Gomez (Maribel)
(Wiggins, J., concurring in part with the concurrence/dissent)




                                            3
