                                                            Filed
                                                      Washington State
                                                      Court of Appeals
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                       Division Two

                                             DIVISION II                                 November 15, 2016

    In re the Personal Restraint of                                   No. 47042-0-II

           JOSE GASTEAZORO-PANIAGUA,                              UNPUBLISHED OPINION

                                      Petitioner.


          BJORGEN, C.J. — Jose Gasteazoro-Paniagua seeks relief from personal restraint imposed

following his convictions for attempted first degree murder, with an associated firearm

enhancement, and for first degree unlawful possession of a firearm. He makes three primary

claims in his personal restraint petition (PRP): (1) the State suppressed favorable evidence in

violation of Brady,1 resulting in prejudice to him; (2) the State engaged in prosecutorial

misconduct by improperly vouching for its primary witness, TJ2; and (3) he received ineffective

assistance of counsel because his counsel (a) failed to investigate the underlying facts of TJ’s

charges, (b) failed to impeach TJ with his prior convictions, (c) failed to object to the State’s

vouching of TJ, (d) asked TJ questions during cross-examination that resulted in unfavorable

responses, and (e) agreed to not call TJ a liar during closing argument. For the reasons set out in

this opinion, we hold that Gasteazoro-Paniagua fails to meet his burden under the PRP standard

to show prejudicial error on these bases resulting in any relief. Accordingly, we deny his request

for a reference hearing and relief from restraint.




1
    Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
2
    We refer to the witness by his initials to protect his privacy.
No. 47042-0-II


                                             FACTS

       The facts underlying Gasteazoro-Paniagua’s convictions are set out in the following

passage from our decision of his direct appeal:

       On December 30, 2009, at approximately 10:30 PM, a man dressed in a dark-
       colored hooded sweatshirt entered the Buy Low Market in Clark County,
       Washington, and shot Jose Muro five times. Muro was stocking the Buy Low’s
       walk-in refrigerator when he was shot. He survived. The police did not recover
       the gun.

       Muro and Gasteazoro-Paniagua were best friends but had a falling out when
       Gasteazoro-Paniagua had an affair with Muro’s brother’s wife, Nicole Sanchez.
       Muro called Gasteazoro-Paniagua about an hour before he was shot in response to
       a text message from Gasteazoro-Paniagua. Although they were no longer friends,
       Gasteazoro-Paniagua asked Muro if he wanted to meet for a drink; Muro declined,
       telling Gasteazoro-Paniagua that he was at work.

       On January 7, Yakima Police Department officers arrested Gasteazoro-Paniagua in
       Yakima. Detectives Rick Buckner and Lindsay Schultz of the Clark County
       Sheriff’s Department interviewed Gasteazoro-Paniagua just after midnight at the
       Yakima Police Department. At Gasteazoro-Paniagua’s arraignment on June 10, the
       State filed a second amended information charging Gasteazoro-Paniagua with
       attempted first degree murder with a firearm enhancement and a first degree
       unlawful possession of a firearm charge.          RCW 9.41.040(1)(a); RCW
       9.94A.533(3), .825. Gasteazoro-Paniagua pleaded not guilty to all charges.

State v. Gasteazoro-Paniagua, 173 Wn. App. 751, 753-54, 294 P.3d 857 (2013).

       At trial, the State’s key witness was TJ, an individual who had shared the same cell block

with Gasteazoro-Paniagua. TJ represented that while in jail, Gasteazoro-Paniagua told him that

he had shot Muro. TJ had pending charges of one count of first degree murder and three counts

of first degree robbery—each count with a firearm enhancement. TJ entered into a plea deal

with the State in which, in exchange for significantly reduced charges and possible incarceration

time, he was required to “provide complete and truthful testimony” in Gasteazoro-Paniagua’s

trial. Br. of Resp’t, App’x G, Exh. 2. TJ was also required to testify against his co-defendants in

the case involving his pending charges.



                                                  2
No. 47042-0-II


          During the trial, TJ testified and was subject to direct examination by the State and cross-

examination by Gasteazoro-Paniagua’s defense attorney. Both sides questioned TJ in a way that

elicited his plea agreement with the State, which we review in our Analysis in greater detail.

          At the trial’s conclusion, a jury found Gasteazoro-Paniagua guilty as charged. We

affirmed Gasteazoro-Paniagua’s convictions in Gasteazoro-Paniagua, 173 Wn. App. 751 (2013).

          Attached to his PRP, Gasteazoro-Paniagua submitted a declaration from his trial counsel

alleging that (1) the State did not provide counsel any discovery related to the murder and

robbery charges against TJ; (2) he failed to conduct an independent investigation into the facts

underlying TJ’s charges; (3) if he had known the specific facts underlying TJ’s murder and

robbery charges, he would have impeached TJ with them; and (4) if he had known TJ’s prior

convictions for taking a motor vehicle without permission, second degree assault, and bail

jumping, he would have impeached TJ with them.

          Gasteazoro-Paniagua also attached to his PRP police reports reflecting the initial

investigations into TJ’s robbery and murder charges, which relate to Gasteazoro-Paniagua’s

claim of a Brady violation. The police reports reflect officer observations and victim interviews

related to a home invasion by TJ and several other intruders that occurred in Vancouver. Two of

the victims, CM and AS,3 were in the residence’s bedroom when an intruder came in aiming a

shotgun at them. Police Report at 15. A struggle ensued between CM and that intruder, which

resulted in CM being shot and killed. AS was then escorted into the living room, where several

other intruders were present.

          Also in the living room was a third victim, AK, who was awakened by an intruder

pointing a gun at him. This intruder repeatedly demanded to know where drugs or money were



3
    We refer to the victims by their initials to provide anonymity.
                                                   3
No. 47042-0-II


located. The same intruder eventually learned that a safe was in one of the bedrooms, and AK

told him the combination for it, though he said he had never been able to open it. Displeased

with this response, the same intruder stuck his handgun into AK’s mouth, enough to dislodge

AK’s dental plate. Upon learning that they were leaving, the same intruder removed his handgun

from AK’s mouth and struck his head, stating, “That’s for not knowing nothin [sic]!” Br. of

Appellant, App’x, Police Report (Dec. 14, 2009).

        Based on this additional submitted evidence and the trial record, Gasteazoro-Paniagua

raises three primary claims, addressed below, arguing that he is entitled to a reference hearing or

relief from restraint.

                                             ANALYSIS

                                      I. PRP LEGAL PRINCIPLES

        “To be entitled to collateral relief through a PRP the petitioner must prove error ‘by a

preponderance of the evidence.’” In re Pers. Restraint of Crow, 187 Wn. App. 414, 420-21, 349

P.3d 902 (2015) (quoting In re Pers. Restraint of Monschke, 160 Wn. App. 479, 490, 251 P.3d

884 (2010)). If the petitioner is able to show error, he or she then must also prove prejudice, the

degree of which depends on the type of error shown. Id. at 421.

        If a constitutional error, the petitioner must demonstrate it resulted in actual and

substantial prejudice. In re Pers. Restraint of Woods, 154 Wn.2d 400, 409, 114 P.3d 607 (2005).

“Actual and substantial prejudice, which ‘must be determined in light of the totality of

circumstances,’ exists if the error ‘so infected petitioner’s entire trial that the resulting conviction

violates due process.’” Crow, 187 Wn. App. at 421 (quoting In re Pers. Restraint of Music, 104

Wn.2d 189, 191, 704 P.2d 144 (1985)). If a nonconstitutional error, the petitioner must meet a

stricter standard and demonstrate the error resulted in a fundamental defect which inherently



                                                   4
No. 47042-0-II


resulted in a complete miscarriage of justice. In re Pers. Restraint of Schreiber, 189 Wn. App.

110, 113, 357 P.3d 668 (2015); Woods, 154 Wn.2d at 409. We deny the PRP if the petitioner

fails to make a prima facie showing of either actual and substantial prejudice or a fundamental

defect. Schreiber, 189 Wn. App. at 113.

       If the petitioner makes a prima facie showing of prejudicial error, we then examine the

State’s response, which must “‘answer the allegations of the petition and identify all material

disputed questions of fact.’” Monschke, 160 Wn. App. at 489 (quoting In re Pers. Restraint of

Rice, 118 Wn.2d 876, 828 P.2d 1086 (1992). To identify disputed questions of fact, the State

must meet the petitioner’s evidence with its own competent evidence. Id. We will remand the

case to the lower court to hold a reference hearing to resolve any factual questions if evidence

establishes the existence of material disputed issues of fact. Id. However, if after taking the

State’s argument and evidence into consideration, we find the petitioner nonetheless proves

prejudicial error, we will grant the PRP without remanding for a further hearing. Id.

                                       II. BRADY EVIDENCE4

       Gasteazoro-Paniagua argues that the State failed to disclose the underlying facts of the

pending criminal charges against TJ in violation of Brady. Assuming, without deciding, that this

evidence was both favorable to him and was suppressed by the State, we hold that Gasteazoro-

Paniagua fails to demonstrate the requisite prejudice under Brady to grant him relief.

       In Brady, 373 U.S. at 87, the United States Supreme Court held that

       suppression by the prosecution of evidence favorable to an accused upon request
       violates due process where the evidence is material either to guilt or to punishment,
       irrespective of the good faith or bad faith of the prosecution.



4
  Gasteazoro-Paniagua withdrew the portion of his argument in which he contended that the State
failed to disclose TJ’s prior convictions. We accept his withdrawal and therefore do not address
this specific argument.
                                                 5
No. 47042-0-II


A Brady violation can be established if the petitioner demonstrates that (1) the evidence at issue

is favorable to him because it is exculpatory or impeaching; (2) the State willfully or

inadvertently suppressed that evidence; and (3) the result of suppressing the favorable evidence

caused prejudice. In re Pers. Restraint of Stenson, 174 Wn.2d 474, 486-87, 276 P.3d 286 (2012).

In order to show prejudice, the petitioner must show that “‘there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have been

different.’” Id. at 487 (quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1553, 131 L.

Ed. 2d 490 (1995)). A “‘reasonable probability’ of a different result is . . . shown when the

government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Id.

(quoting Kyles, 514 U.S. at 434). The petitioner must show “that the favorable evidence could

reasonably be taken to put the whole case in a different light.” Id.

       The police reports attached to Gasteazoro-Paniagua’s PRP give us a small window into

TJ’s and his co-defendants’ roles in the murder and robbery with which TJ was charged. The

disclosure of this evidence, though, would not have created a reasonable probability of a

different result at Gasteazoro-Paniagua’s trial. TJ’s charges themselves were disclosed to the

defense. The underlying details of his criminal charges would not further impeach his

credibility; the motivation behind TJ’s deal with the State came from the murder and robbery

charges he was facing and what benefit he would receive from the State in exchange for his

testimony. Contrary to Gasteazoro-Paniagaua’s contention, even if TJ played a larger role than

the other intruders, that would add nothing to impeach his credibility.

       Gasteazoro-Paniagua cites to Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d

347 (1974) and Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014), for the proposition that the

suppression of underlying details related to TJ’s robbery and murder charges resulted in



                                                 6
No. 47042-0-II


prejudice to his trial. However, in those cases the defense was prevented from bringing out the

key witness’s probation status or pending convictions, not the underlying facts that led to those

matters. Davis, 415 U.S. at 313-14, 317-18; Amado, 758 F.3d at 1139. Certainly, if TJ’s charges

themselves had not even been disclosed, Gasteazoro-Paniagua would be correct that his case is

similar to Davis and Amado. However, there is no dispute that this evidence was given to

Gasteazoro-Paniagua, and that he had in his control the key evidence to successfully impeach

TJ’s testimony. Thus, the admission of the underlying facts of his charges would not have

created a reasonable probability of a different outcome at Gasteazoro-Paniagua’s trial. Stenson,

174 Wn.2d at 487.

       Accordingly, his Brady claim fails.

                                III. PROSECUTORIAL MISCONDUCT

       Gasteazoro-Paniagua next contends that the State engaged in prosecutorial misconduct

when it improperly vouched for TJ during direct and redirect examination by eliciting his plea

agreement to testify truthfully. We disagree.

       To establish prosecutorial misconduct, the petitioner must prove that the prosecuting

attorney’s remarks were both improper and prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341

P.3d 268 (2015). Because Gasteazoro-Paniagua did not object, he is deemed to have waived any

error, unless the prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction

could not have cured the resulting prejudice. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d

653 (2012). In State v. Ish, 170 Wn.2d 189, 194, 199, 206, 241 P.3d 389 (2010) (plurality

opinion), five justices held that the State’s two questions during direct examination, which

elicited from the witness that he had an agreement with the State to testify truthfully, constituted




                                                 7
No. 47042-0-II


improper vouching. However, eight justices implicitly agreed that any effect from the witnesses’

two answers did not prejudice Ish. See id. at 200-01, 206.

       Gasteazoro-Paniagua specifically challenges two parts of TJ’s testimony as improper

vouching. The first instance occurred in TJ’s direct testimony:

               [Prosecutor]:   Okay. What other matters are you assisting the State on?
               [TJ]:           My case.
               [Prosecutor]:   Your case?
               [TJ]:           Yes.
               [Prosecutor]:   In . . . in relation to what?
               [TJ]:           I have, I believe, five or six other co-defendants.
               [Prosecutor]:   Okay. And your agreement is to do what?
               [TJ]:           To tell the truth there as well.
               [Prosecutor]:   Against your co-defendants?
               [TJ]:           Yes.

Report of Proceedings (RP) at 1447.

       Here, the State asked what TJ’s agreement required him to do in the case against him and

his co-defendants, not the present case involving Gasteazoro-Paniagua. TJ replied that it was “to

tell the truth there as well.” RP at 1447. Assuming without deciding that the prosecutor’s

questions were improper, any impropriety could easily have been cured by an objection and a

curative instruction. Therefore, under Emery, 174 Wn.2d at 760-61, the defendant has waived

this vouching challenge.

       Gasteazoro-Paniagua’s other claim of vouching occurred during the State’s redirect

examination of TJ:

               [Prosecutor]: Now, your agreement to assist the State in this case as well
       as the other cases, what is your understanding of it . . . [what] is your obligation?
               [TJ]:          To tell the truth and testify on everyone that I’m supposed
       to.
       ....
               [Prosecutor]: What are you supposed to do?
               [TJ]:          Tell the truth.
               [Prosecutor]: And are you doing that today?
               [TJ]:          Absolutely.

                                                8
No. 47042-0-II



RP at 1472-73.

       In the cross-examination that occurred before this testimony, Gasteazoro-Paniagua’s trial

counsel attacked TJ’s veracity, bringing out whether his deal with the State actually ensured that

he was telling the truth about Gasteazoro-Paniagua’s alleged admission. Eight justices in Ish,

170 Wn.2d at 200-01, 203-06, implicitly agreed that when the defense attacks a witness’s

credibility, the State can rehabilitate that witness through the truth telling provision of a plea

deal. Thus, the State’s questions on redirect cannot be considered as improper vouching, but

rather as an appropriate means to repair its witness’s credibility after an attack.

       Accordingly, Gasteazoro-Paniagua’s claims of prosecutorial misconduct fail.

                             IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       Gasteazoro-Paniagua alleges five different claims of ineffective assistance of counsel,

arguing it was deficient and prejudicial for his trial counsel (1) to not investigate the underlying

facts of TJ’s pending charges; (2) to not impeach TJ with his prior convictions; (3) to not object

to the prosecutor’s vouching; (4) to ask TJ questions during cross-examination that received

unfavorable responses; and (5) to agree not to call TJ a “liar” during closing argument. For the

reasons discussed below, we disagree with Gasteazoro-Paniagua and hold that he did not receive

ineffective assistance of counsel.

1.     Legal Principles

       We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective assistance claim, the

petitioner must show that (1) defense counsel’s representation was deficient and (2) the deficient

representation prejudiced him. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert.

denied, 135 S. Ct. 153 (2014). If a petitioner fails to establish either prong, we need not inquire

                                                   9
No. 47042-0-II


further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). Representation is

deficient “if it falls ‘below an objective standard of reasonableness.’” Grier, 171 Wn.2d at 33

(quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).

Prejudice exists if there is a reasonable probability that except for counsel’s errors, the result of

the proceeding would have differed. Id. at 34.

2.     Failure to Investigate Underlying Facts of TJ’s Charges

       Gasteazoro-Paniagua argues that his counsel was ineffective because he failed to

investigate the underlying facts of TJ’s charges, depriving him of an opportunity to further

impeach TJ. He cites Grant v. Lockett, 709 F.3d 224, 234 (3d Cir. 2013), which held that, in the

context of counsel’s duty to conduct a reasonable investigation, “[a] key prosecution witness’s

prior criminal history and resultant parole status clearly constitute important impeachment

evidence.” Br. of Appellant at 10-11. Here, however, defense counsel discovered TJ’s pending

murder and robbery charges and impeached him during cross-examination with those charges.

Unlike Grant, 709 F.3d at 234, where defense counsel completely failed to investigate the key

witness’s criminal charges or parole status, trial counsel completed a more thorough inquiry.

Although counsel may not have obtained the documents related to TJ’s underlying charges, such

as the police reports, he was not required to complete an exhaustive investigation into those

charges when he had the key impeachment evidence.

       Accordingly, this claim fails.

3.     Failure to Impeach TJ with Prior Convictions

       Gasteazoro-Paniagua argues that he received ineffective assistance of counsel because

counsel did not attempt to impeach TJ with his prior convictions. We disagree.




                                                  10
No. 47042-0-II


       TJ had the following pertinent prior convictions: taking a motor vehicle without

permission, bail jumping, and second degree assault.5 As to the taking a motor vehicle without

permission conviction, trial counsel did attempt to admit this conviction to impeach TJ, but the

trial court ruled that the conviction inadmissible because it was a juvenile offense over 10 years

old.

       As to counsel’s failure to impeach TJ on the bail jumping and second degree assault

convictions, we assume, without deciding, that counsel was deficient for failing to bring up these

convictions. We conclude, however, that no prejudice resulted from their absence for two

reasons.

       First, the jury already knew TJ’s primary motivation for testifying: his agreement with

the State. The probative value of a prior conviction is lessened if other evidence is available to

test the witness’s credibility. See State v. Alexis, 95 Wn.2d 15, 20, 621 P.2d 1269 (1980). The

jury knew that TJ was currently charged with first degree murder and three counts of first degree

robbery, along with firearm enhancements. The jury knew that his prison time would be reduced

from a range of 610 to 733 months to 126 months under the agreement with the State. Since TJ’s

current charges and his agreement with the State were admitted at trial, the two prior convictions

would have added little to further impeach TJ’s credibility.

       Second, the characteristics of the second degree assault and bail jumping convictions do

not lend themselves to damaging TJ’s credibility in any material way. Generally, the more

remote in time a prior conviction is, the less impact it has on a witness’s credibility. See State v.




5
  TJ also has convictions for third degree driving while license suspended and first degree
negligent driving, but Gasteazoro-Paniagua does not allege that the failure to impeach TJ on
these convictions resulted in any prejudice to his trial. Thus, we do not address them.


                                                 11
No. 47042-0-II


Saunders, 91 Wn. App. 575, 579, 958 P.2d 364 (1998). TJ’s second degree assault and bail

jumping convictions were fairly aged, both around eight years old. These prior convictions

would not direct a large degree of light on his ability to tell the truth eight years later.

          Further, the probative value of assaultive crimes on veracity is “slight.” State v. Moore,

33 Wn. App. 55, 58, 651 P.2d 765 (1982). Thus, even if TJ’s second degree assault conviction

had more recently occurred, assaultive crimes already begin with a presumptively low value in

impeaching a witness’s veracity. As to the misdemeanor bail jumping conviction, it could have

only been potentially admitted as a crime of dishonesty. ER 609(a)(2). The jury heard that TJ

was charged with multiple robbery charges, which are crimes of dishonesty. State v. Rivers, 129

Wn.2d 697, 705, 921 P.2d 495 (1996). Thus, like the assault conviction, the addition of the prior

misdemeanor bail jumping would have added little to the evidence already impeaching TJ’s

truthfulness.

          For the above reasons, Gasteazoro-Paniagua’s claim of ineffective assistance of counsel

based on a failure to impeach TJ with his prior convictions fails.

4.        Failure to Object to Vouching

          Gasteazoro-Paniagua argues that his trial counsel was ineffective because he did not

object to the State’s alleged two instances of vouching of TJ, noted above in Section III, during

his direct and redirect examination. We disagree.

          To prove that failure to object rendered counsel ineffective, the petitioner must show that

(1) not objecting fell below prevailing professional norms, (2) the proposed objection would

likely have been sustained, and (3) the result of the trial would have been different if the

evidence had not been admitted. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1

(2004).



                                                   12
No. 47042-0-II


        The first claimed instance of vouching centered on the following question about a

different case, and TJ’s answer to it:

                [Prosecutor]: Okay. And your agreement is to do what?
                [TJ]:         To tell the truth there as well.

RP at 1447. In Section III above, we hold above that even if we assume without deciding that

the prosecutor’s questions were improper, any resulting prejudice could have been cured by an

instruction. Thus, the ineffective assistance of counsel issue reduces to whether the result of the

trial would likely have differed had defense counsel obtained a curative instruction for this

assumed improper vouching.

        We conclude the result would not likely have differed. Even if the State’s questions had

been objectionable as vouching, defense counsel impeached TJ’s credibility on cross-

examination by bringing out the incentive from his plea deal to say Gasteazoro-Paniagua

confessed. Counsel also impeached TJ’s credibility by emphasizing that TJ remembered all the

specifics of his conversation with Gasteazoro-Paniagua, but could not remember what he told his

wife about their conversations. In the face of these assaults on TJ’s credibility, the prosecutor’s

question about a different case and TJ’s “tell the truth there as well” answer would have done

little to bolster his credibility in the present case. Thus, even if the failure to object was

deficient, the evidence that would have been stricken through a successful objection likely had

no effect on the result of the trial. Under Davis, 152 Wn.2d at 714, it does not constitute

ineffective assistance of counsel.

        The failure to object to the second claimed instance of vouching, the State's elicitation of

TJ's obligation to tell the truth, may be more briefly addressed. In Section III we held that the

alleged vouching was not improper under Ish. Thus, any objection to it would likely not have

been sustained, and therefore no change in the witness’s testimony or the outcome of trial would

                                                  13
No. 47042-0-II


have occurred. Accordingly, the failure to object did not constitute ineffective assistance of

counsel.

5.     Questions During Cross-Examination of TJ

       Gasteazoro-Paniagua argues that his counsel was ineffective because during cross-

examination he asked questions in two instances that prompted TJ to give an unfavorable

response. The first exchange is as follows:

               [Defense Counsel]: So you made a conscious effort after talking to
       [Gasteazoro-Paniagua] a little bit to try to dig information out of him that would be
       incriminating; is that correct?
               [TJ]:                   Yes.
               [Defense Counsel]: And you did that for the sole purpose of benefitting
       from it and dealing it with law enforcement; correct?
               [TJ]:                   No.
               [Defense Counsel]: What other purpose did you do it for?
               [TJ]:                   Like I said, after talking to him and getting the gist
       that he was the one who did it, I really didn’t feel comfortable, you know, going
       away for even a day and having the potential of having him around my kids, because
       they were living with my brother at the time.
               [Defense Counsel]: So the reason you decided to do it was so that you
       could help put him behind bars?
               [TJ]:                   No. To keep my family safe.

RP at 1450 (emphasis added).

       The law presumes effective representation, and it is Gasteazoro-Paniagua’s burden to

show no legitimate trial strategy. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251

(1995). He has failed to argue the absence of a legitimate trial strategy6 and thus has not met his

burden to show ineffective assistance on this ground.

       Gasteazoro-Paniagua also challenges the following line of questioning during his

counsel’s cross-examination of TJ:




6
 Instead, Gasteazoro-Paniagua’s briefing focuses on the prejudice derived from the defense
counsel asking this open ended question.
                                                14
No. 47042-0-II


                [Defense Counsel]: And part of the reason you’re testifying against your
        friend over here, Mr. Gasteazoro, is because you’re gonna get a benefit from it;
        correct?
                [TJ]:                Yes.
                [Defense Counsel]: But the other part is ‘cause you don’t want him out
        on the street –
                [TJ]:                Yes.
                [Defense Counsel]:   -- because you’re afraid of him.
                [TJ]:                Because I’m worried about my kids and my family.

RP at 1468. Indeed, trial counsel here highlights TJ’s other alleged motive to testify, which was

to protect his family from Gasteazoro-Paniagua. However, counsel immediately followed up this

exchange with an emphasis on how the State’s deal gave TJ only eight years in prison in lieu of

the possibility of sixty years:

                [Defense Counsel]: And your agreement is you get 126 months.
                [TJ]: Yes.
                [Defense Counsel]: So do you have any idea how many years that would
        be if you get good time with that?
                [TJ]: I think like eight years, ten months.
                [Defense Counsel]: Haven’t figured it out (laughing)? Eight years, ten
        months?
                [TJ]: I think that’s what it is.

RP at 1468. It was a legitimate trial tactic for counsel to bring up both of TJ’s motives, but

emphasize that his incentive for the reduction of his charges greatly outweighed his alleged

belief that Gasteazoro-Paniagua was a dangerous individual.

        Accordingly, defense counsel's questions during cross-examination do not constitute

deficient performance.

6.      Agreement to Not Call TJ a “Liar”

        Gasteazoro-Paniagua finally contends that his counsel's agreement not to call TJ a “liar”

during closing argument constituted ineffective assistance of counsel. Br. of Appellant at 7, 15-

16. However, it was a legitimate trial strategy for counsel to show the jury that TJ was a liar

through his motivation related to his plea deal with the State, rather than just tell the jury he was

                                                 15
No. 47042-0-II


a liar. Counsel’s choice to allow the jury to surmise for itself TJ’s motivation in testifying

against Gasteazoro-Paniagua does not constitute ineffective assistance of counsel.

                                          CONCLUSION

        For the reasons stated above, we hold that Gasteazoro-Paniagua fails to meet his burden

under the PRP standard to show any prejudicial error. We thus deny his request for a reference

hearing and relief from restraint.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      BJORGEN, C.J.
 We concur:



 WORSWICK, J.




 LEE, J.




                                                 16
