                                                                      FILED
                                                                  JANUARY 26, 2017
                                                              In the Office of the Clerk of Court
                                                             WA State Court of Appeals, Division III




      COURT OF APPEALS, DIVISION III, STATE OF
                  WASHINGTON
    In re the Matter of the Personal Restraint     )       No. 32633-1-111
    of                                             )
                                                   )
                                                   )       ORDER WITHDRAWING
                                                   )       OPINION
                                                   )
    JOSE LUIS SANCHEZ, Jr.                         )



          The court on its own motion finds that the opinion filed January 24, 2017, should

    be withdrawn;

          THEREFORE, IT IS ORDERED that the opinion filed January 24, 2017, is hereby

    withdrawn and a new opinion shall be filed this day.

          FOR THE COURT:


                                                    GEORGEFRING
                                                    CHIEF JUDGE




l
l
                                                                 FILED
                                                             JANUARY 26, 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 shootings at the

apartment of Ricky Causor and Michelle Kublic. The shootings killed Causor and the

couple's 3-year-old daughter 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-III
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'll 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:


                                              5
No. 32633-1-III
Pers. Restraint of Sanchez


              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, Kub lie 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. 32633-1-111
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 ofKublic'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 Kub lie 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 of Sanchez


    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 1037. 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 ofRice, 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. 32633-1-111
Pers. Restraint of Sanchez


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 4.1( 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. 32633-1-111
Pers. Restraint of Sanchez


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 309-1 O; 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 ofSanchez


"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 Heddrick, 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 of Richardson, 100

                                              18
No. 32633-1-111
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

( 1965). 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 ofSanchez


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 of Sanchez


       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. 32633-1-111
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.

                                                     ( ,.. '""c5-N,I. •
                                                     Lawrence-Berrey, J.
                                                                          '3 ~~'( ~
                                                                                      j
    WE CONCUR:



       3 - s.
    Fearing,~\




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