# l l FILED JANUARY 26, 2017 In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division III


# COURT OF APPEALS, DIVISION

# III, STATE OF WASHINGTON In re the Matter ofthe Personal Restraint ) No. 32633-1-111 of ) ) ) ORDERWITHDRAWING ) OPINION ) JOSE LUIS SANCHEZ, Jr. )

The court on its own motion finds thatthe opinion filed January 24, 2017, should be withdrawn; THEREFORE, IT IS ORDERED thatthe opinion filed January 24, 2017, is hereby withdrawn and a new opinion shall be filed this day. FOR THE COURT: 

## GEORGEFRING CHIEF JUDGE

### FILED JANUARY 26, 2017 In the Office ofthe ClerkofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inre the Matter ofthePersonal Restraint of

JOSE LUIS SANCHEZ, JR. ) ) ) ) ) ) No. 32633-1-111
PUBLISHED OPINION
LAWRENCE-BERREY, J.

- JoseLuis Sanchez, Jr., seeks relieffrom personal restraint imposed for his 2008 Yakima County convictions oftwo counts ofaggravated first degree murder and other felony crimes. The convictions stem from his participation in a February 20, 2005 home invasionrobbery and execution-style shootings at the apartment ofRicky Causor and Michelle Kublic. The shootings killed Causor and the couple's 3-year-old daughter and woundedKublic andtheir 18-month-old daughter. At trial, Kublic positively identified Sanchez as the shooter, as did Sanchez's codefendant MarioMendezwhopreviously pleaded guilty andtestified for the State. Sanchez filed a direct appeal andthis court affirmedthejudgmentand sentence. 

### State v. 

### Sanchez, 171 Wn. App. 518,288P.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 whenhe was arraigned without counsel, and (2) in the alternative, his counsel provided ineffective assistance by failing to appear and objectto 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) apreliminary appearance in the current murder case. The prosecutor was presentbutno attorney appeared for Sanchez. First addressing the 2004 matter, the court advised Sanchez ofhis rights, whichhe 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 Countypublic defender/director ofassigned 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

2No. 32633-1-111 Pers. Restraint of Sanchez degree murder, attempted first degree murder, first degree robbery, and felon in possession ofa firearm. Based on a police probable cause declaration showingthat acquaintances ofSanchezhad implicated him inthe robbery and murders, the court found probable cause to believe Sanchez committed one or more crimes. The probable cause declaration also stated that "victimMichelle Kublic was shown a photo montage, which included 'Gato's' photo, whose name is Mario Mendez. Shepositively identifiedhim as
one ofthe males who entered herhouse and shotthem." Pers. Restraint Pet., App. C, Deel. ofProbable 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 andMendez (who still remained at large) with seven crimes including two counts ofaggravated first degree murder, which carried a possible death penalty. That day, Sanchez and an unknown number ofother defendants appeared in superior court for a group arraignmenthearing. The court explained their rights and notedthat each "has a lawyer appointed to represent you oryou might have hired a private attorney." Pers. Restraint Pet., App. B, Report of Proceedings (RP) (Feb. 28, 2005) at 2-3. The courtthen explained the process for the arraignment hearing:

3No. 32633-1-III Pers. Restraint of Sanchez [W]henyour name is called we'll ask you to step up to the counter in front ofthis microphone. The prosecutor will handyou a piece ofpaper called an information. That lists the charges. She will read that to you ifyou want her to read it out loud. You don'thave to have it read out loud. Afterthat, I'm going to askyou a couple ofquestions. I'mgoing to askyou ifyou understand the charges and ifyouhave any questions about the rights I havejustexplained. Ifyou don'thave questions, I am going to handyou an order. On the order there is the next two dates that you needto be in court. One is for an omnibus hearing. The next is for your trial. Many ofyou have nothad a chance to talk to your lawyer yet, ifit's appointed counsel. You're [sic] lawyer is going to get a packet of information from the prosecutor's office in the next couple ofdays. They will schedule a time to come and meetwithyou. Atthe end ofall this I'm going to handyouthat order and askyou to sign the order at the bottom ofthe page. By signing the orderyou're not admitting that you have done anything wrong. 

### It lets us know thatyou have gotten a copy ofthe paperworktoday. Pers. Restraint Pet., App. B, RP (Feb. 28, 2005) at 3-4. The court then called Sanchez's case. The court'sprior explanation ofrights to the defendants includedthe 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 ofthe information. Sanchez acknowledged to the courtthathe understood the charges, andhe declined a full reading ofthe information. He said he had no questions about the rights previously explained to

4No. 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 ofentering aplea 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 ofthe 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 injail clothes and shackles. He states "there were lots ofnews mediapeople and cameras," and he "observedpeople 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 preventthis from happening. The report ofproceedings for the arraignment hearing is silent as to the presence ofmedia. 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 ofthe perpetrators while in the hospital and shortly after herhospital release:


### 5No. 32633-1-III Pers. Restraint of Sanchez
OfficerDavid Cortez ofthe Yakima Police Department attemptedto interview Kublie in the hospital intensive care unitthe
... morning [after the shooting]. She was medicated, was in obvious pain, appearedtired, and was slow to give answers. She told himthe attackers were two Mexican menwhom she believed arrived in an older, full-size, light-blue pickup truck that she noticed whenwalking outto her carthe prior evening. Although Kublic would later describe the two gunmen andtheirroles differently, Officer Cortez's notes indicate that she told himthe first had a wide nose and a lighter complexion and biggerbuildthan the second, and that he wore a mask. She saidthe second gunman did notwear a mask; had a "sucked in" face; was thinnerthan the first; was small (she estimated about 5 feet 4 inches or 5 feet 5 inches tall); and was dingy looking with uncombed, mattedhair
.... She saidthe second had forced her from her vehicle and made her walkbackto her apartment with a semiautomatic pistol to herhead. He was the one who later shot Causor. She said Causor hadtaken the first gunmanto anotherpart ofthe apartmentto give him what he wanted while she and the children stayed with the second. The next morning, February 22, Detective DavidKellett, the lead investigator for the department, visited Kublic in the hospital, hopingwith her assistance to create composite images ofthe gunmen. Kublie looked sleepy and underthe influence ofmedication, butwas able to participate for about 45 minutes until pain and discomfort made hertoo tired to continue. In providing descriptions to the detective, Kublic initially did not differentiate betweenthe two gunmen exceptto 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 withthe maskbutremembered well the face ofthe personwho wore no mask. Detective Kellett then enlisted her assistance inpreparing a computer-generated composite ofthe gunman she rememberedbest. Kublic described him as thin and gaunt, with long andunkempt straighthair, a thin or short mustache, and a dark Hispanic complexion. Detective Kellett never asked her whetherhe, orthe 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 butthatthe cheeks neededto be more hollow, the chin different, and the hair longer.
6No. 32633-1-III Pers. Restraint of Sanchez
Onthe night ofFebruary 22, Officer Cortezreturnedto the hospital and showed Kublic aphotomontage. Before allowing Kublic to view this and laterphoto arrays, he admonished her that she was notrequired or expected to choose anyone butjustto pickthe person who did the crime, and that the purpose ofthe review is not only to arrest offenders but to clear the innocent. The photo array presentedby Cortezhappened to include Jose Luis SanchezJr., but only as a filler photo because he was notyet a suspect. Kublic did not identify him or anyone else from the array. Detective Kellettreturnedto the hospital again late onthe night of February 23 to present Kublic with a binder including a 20-page serial array ofindividual photographs. Among them were photographs ofJunior Sanchez, Mario Mendez, andManuel Sanchez. The detective did nottell herthat Junior Sanchezhad been arrested. Kublic appeared more alert. Detective Kellettpositioned himselfbeside her andturned thepages, pausing about three seconds with each page. Upon seeing Mendez's photo, Kublic gasped and said, "[T]hat looks like him." She did notreact in any way upon seeingthe photographs ofJunior Sanchez orManuel Sanchez. After reviewing all ofthephotographs, Kublie tookthe book from the detective's hands, turnedbackto the photo ofMendez and expressed assurance thathe was "the one withoutthe mask." OnMarch 2, several days afterKublic was released from the hospital, she met with Detective.Kellettto provide a tape-recorded statement. By that time, Junior's bookingphoto had appeared in the newspaper and on local television news. Inthe course ofKublic's recorded statement, she stated that she nowthoughtthe suspect she had earlier described as having very shorthair mighthave beenthe one with the automatic gun. She also statedthat she hadthoughthe hadhair, "but after I saw him onthe news, he'sthe one withthe shaved head, the one thatthey have." Detective Kellett's understanding was that Kublic had been sure on February 23 thatMendezwas the one withoutthe mask, but onMarch 2 was now sure that "the one thatthey have" (Junior) was the one withoutthe mask. Sanchez, 171 Wn. App. at 528-32 (citation omitted). 7No. 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 submittedto thejury. Atthe 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 shooterhad beenthe
man with orwithout the mask passed as she recovered from the trauma ofthe 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 shorterhair. She had seen him clearlyjustbefore he pulled the trigger and was 100 percent sure it was Sanchez. Kublie also testified that sometime after her hospital release, she saw a newspaper photo clipping ofSanchez 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 injail clothes and handcuffs. When asked abouttelling Detective Kellett in the March 2 interview that she saw Sanchez onthe news, she answered that she could not remember. She did not recall previously seeing him on television or in the newspaper.

8No. 32633-1-111 Pers. Restraint of Sanchez
Dr. Robert Shomer, the defense eyewitness identification expert, testified atthe hearing and opinedthatthe combination ofKublie viewing Sanchez in a 6-packphoto 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 confusionthat ledherto mistakenly believe
someone pictured in the montages was familiar from the crime scene. He opinedthis irrevocably tainted Kublic's memory ofthe primary suspect and irreparably undermined the validity ofher identification such that it lacked independentreliability and rendered any in-court identification unreliable. The trial court denied the suppression motion on the basis the police employed no impermissibly suggestive identificationprocedures. It further notedthat Kublic's in-court identification would appropriately be tested on cross-examination and its reliability would be a matter for thejuryto decide. The court did commentthatby the time ofKublic's March 2 interview with Detective Kellett, she must have either seen an account ofthe Sanchez arrest on the news orbeentold about it by someone in her family orelsewhere. This court upheld the trial court's ruling on direct appeal. See Sanchez, 171 Wn. App. at 581-83. Attrial, Michelle Kublie testified to the details ofthe shooting incident andher certain identification ofSanchez as the shooter. She lefther apartmentto run an errand
9

# ! ' No. 32633-1-III Pers. Restraintof Sanchez

onthe night ofFebruary 20, 2005. While backing her vehicle from its parking spot, she
was confronted by a Hispanic manwith a gun, who appeared in front ofthe vehicle, illuminated by herheadlights. A second Hispanic man openedthe driver's door, grabbed herby the hair, andpulled her from her vehicle. The second manheld a gun to herhead and walked her backto the apartment where she and Ricky Causor, a drug dealer, lived with their two daughters. Causor openedthe door andthe man holding Kublic hostage pointed his gun at Causor. Kublic noticed the gun was square-shapedwith its ammunition clip inserted from the bottom. Causor let the gunman enter. Once inside, the gunman forced Kublic to kneel on the floor withher daughters. The man Kublic had first seen in her headlights (Mendez) soon enteredthe apartment, now wearing a mask. He carried a revolver-style handgun and guarded her in the living room while the unmasked intrudertook Causor into the kitchen to retrieve marijuana and approximately $900 in currency. Theunmasked intruder escorted Causor backto the living room. Causorthen knelt down facing Kublic, with their daughters on the floor between them. Kublic testified that at thatpoint, she sawthatthe unmasked intruderhad a really mad look on his face. He walked directly behind Causor and fired five shots from his .45 caliberhandgun at the heads ofCausor and Kublie. Kublie said it
was at that moment she saw the shooterthe best. She identified him in court as the
10No. 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 thathe shot with the same squareshaped gun he had earlierpointed 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 ofKublic's eyewitness identification, the defense extensively cross-examined her about the differences in her descriptions ofthe assailants at various times, including while she was in the hospital. She maintainedthat despite any variations ofwhat she told detectives, her first good look at either assailant was the person in front ofher vehicle who was then notwearing a mask but later wore one. But in the end, she gotthe best look at the person who never wore a mask, and it was that person (Sanchez) who shother family. She further said she did not recall seeing Sanchez in the news. Sanchez presented defenses ofalibi (that he was at a girlfriend's apartment at the time ofthe killings) and misidentification, including Dr. Shomer's expert testimony relating the same source confusiontheory as he did at the suppression hearing. Thejury accepted the State's witnesses' testimonies that Sanchezwas the shooter, rejected
11No. 32633-1-III Pers. Restraint of Sanchez
Sanchez'stheories ofalibi 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-ARRAIGNMENTWITHOUT COUNSEL PRESENT Generally, to obtain reliefin a personal restraint petition the petitioner must show either a constitutional errorresulted in actual and substantial prejudice, or a nonconstitutional error caused a fundamental defectresulting 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 "morethan speculation, conjecture, or inadmissible hearsay," and failure to meet this burden calls for dismissal ofthe petition. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992). Sanchez's primary claim seeks to avoid Cook's requirement that actual and substantial prejudice be shown. He claims his arraignment was a critical stage in the proceedings such that his counsel's absence constitutes structural error requiring automatic reversal ofhis convictions without considering prejudice. Sanchezrelies primarily onHamilton 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 ofcounsel at arraignment-a critical stage under Alabama law-wasreversible error without a showing ofprejudice.
12No. 32633-1-111 Pers. Restraint of Sanchez Alternatively, ifthere 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 criminaljustice system." UnitedStates v. Cronic, 466 U.S. 648, 653, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Underboth the United States and Washington Constitutions, a defendant is entitledto the assistance ofcounsel at all critical stages ofcriminal 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); UnitedStates 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 ofthe proceedings" during which the accused "requires the guiding hand ofcounsel." Powell v. Alabama, 287 U.S. 45, 57, 69, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Washington courtrules 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
13No. 32633-1-III Pers. Restraint of Sanchez earliest). When an accused appears without counsel at arraignment, the court is required to inform the defendant ofthe right to counsel before the defendant may be arraigned. CrR4. l(c). A defendant may proceed forward with the arraignment by waiving the right to counsel, but the waiver must be supportedby appropriate findings entered into the record. CrR4.1(d). The Washington Supreme Courthas recognized that "[a] complete denial of counsel at a critical stage ofthe 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; Bellv. Cone, 535 U.S. 685, 696 n.3, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) (denial ofcounsel at critical stage is structural error and grounds for reversal without a demonstration ofprejudice)). "Acritical stage is one 'inwhich a defendant's rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome ofthe
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
14No. 32633-1-111 Pers. Restraint of Sanchez
determination ofguilt or innocence, and no criminal punishment may be regarded as fundamentally fair."' Id. (quotingRose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)). Forthis reason, structural errors are not subjectto harmless
error analysis. Id. at 309-1O; see In re Pers. Restraint of Stockwell, 179 Wn.2d 588, 608, 316 P.3d 1007 (2014) (McCloud, 

### J., concurring). ButUnited States Supreme Courtjurisprudence establishes that constitutional harmless error analysis applies to the denial ofthe Sixth Amendment right to counsel at all stages ofcriminal proceedings, except for those where "the deprivation ofthe 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 ofthe Sixth Amendment did not "pervade the entire proceeding" and was subjectto harmless error analysis. Id. at 256. Likewise, in Fulminante, the admission ofa confession obtained in violation ofthe Sixth Amendment was subject to harmless error analysis. Fulminante, 499 U.S. at 310- 11. The United States Supreme Courthas 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 ofdeprivation ofcounsel that
15No. 32633-1-III Pers. Restraint of Sanchez "by their very nature cast so much doubt on the fairness ofthe trial process that, as a matter oflaw, they can neverbe considered harmless." Satterwhite, 486 U.S. at 256; see also Wade, 388 U.S. at 225 (observing Hamilton as an example ofPowell's "guiding hand ofcounsel" principle because it involved the "type ofarraignment" where certain rights might be sacrificed or irretrievably lost ifnot asserted); see also Bell, 535 U.S. at 695-96 (observing Hamilton and White as examples ofa trial beingpresumptively unfair due to denial ofpresence ofcounsel at a critical stage, "such as arraignment, that held significant consequences for the accused"). InHamilton, 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 ofinsanity or the defense was deemed waived, only recoverable on discretion ofa trialjudgewhose 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 ofone
race from grandjuries, or claims that the grandjurywas otherwise improperly drawn to be made at the time ofarraignment. Id. at 53-54. The Court concluded that "[w]hatever may be the function and importance ofarraignment in otherjurisdictions
... in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole
16No. 32633-1-III Pers. Restraint of Sanchez
trial. Available defenses may be
... irretrievably lost, ifnot then and there asserted." Id. at 54. The Courtthus held that denial ofcounsel to Hamilton at arraignment was reversible error without consideringprejudice. 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. ReferencingHamilton, the Supreme Court determined that the preliminary hearing was "as 'critical' a stage as arraignment under Alabama law" because White entered apleathat 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 thejudgmentwithout considering prejudice, the court reasoned that "'[ o]nly the presence ofcounsel could have enabledthis accused to know all the defenses available to him and to plead intelligently."' White, 373 U.S. at 60 (quotingHamilton, 368 U.S. at 55). 1

1For other examples ofcases ofpresumed 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 ofcounsel on appeal); Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978) (conflict ofinterest in representation throughout entire proceeding); Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) (denial ofaccess to counsel during overnight recess); Massiah v. UnitedStates, 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 ofdefense counsel); Gideon v. 17No. 32633-1-III Pers. Restraint of Sanchez
As illustrated by the above-cited United States Supreme Court cases, the characterization ofSanchez's hearing as an arraignment is not determinative ofwhether the hearing was a critical stage so that defense counsel's absence was presumptively prejudicial. Rather, we must examine the nature ofSanchez's arraignmentbefore we can determine whether it was a critical stage. Only ifthe nature ofhis arraignmentwas such that he stood to lose importantrights that might affect the outcome ofhis case should it be considered a critical stage. See Heddrick, 166 Wn.2d at 910. Unlike in Hamilton, Sanchez stood no risk ofwaiving any rights or foregoing any defenses at his arraignment. Nor did he make admissions ofguilt like the defendant in White. He did not forfeit any right to plead guilty orto plead not guilty by reason of insanity. Hadhe wished to raise an insanity defense, he could have done so "atthe time ofarraignment 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 soughtto 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 withthis petitionthathe
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 18No. 32633-1-111 Pers. Restraint of Sanchez
defenses ofgeneral 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 observedthat "[t]he arraignmentprocedure essentially consists ofascertaining the defendant's name, advising the defendant of certain rights including the right to counsel, and informing the defendant ofthe charges that have been filed." State v. Frazier, 99 Wn.2d 180, 184,661 P.2d 126 (1983) (citing former CrR4.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 ofcounsel at Sanchez's arraignment did not contaminate the entire trial proceeding so as to bring this case within the purview ofHamilton, White, or otherpreviously noted cases ofpresumedprejudice. Consistent with this conclusion is State v. Jackson, 66 Wn.2d 24, 400 P.2d 774 (1965). The Jackson court held, the "name ofthe stage ofthe criminal proceeding is not controlling" and "[t]he court must look at substance and notmerely at form" to ascertain
Wn.2d 669,679,675 P.2d 209 (1983) (no independent showing ofprejudice required 19No. 32633-1-III Pers. Restraint of Sanchez
the possibility ofprejudice to the defendant in the defense ofhis case. Id. at 28; see also State v. Louie, 68 Wn.2d 304, 308-09, 413 P.2d 7 (1966). As discussed, Sanchez's arraignmentproceeding lacked the type ofsubstance 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 presumedprejudice 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) (ifa 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) (citingIn 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 ofhis counsel's absence at his arraignment, where counsel couldhave objected to media filming
or photographing his face. We disagree.

when error was deprivation ofconflict-free counsel). 20No. 32633-1-III Pers. Restraint of Sanchez
Sanchez cross-examined Kublic at trial with respect to variations in her descriptions ofthe intruders and her alleged media exposure. Sanchez also presentedhis "source confusion" misidentificationtheory to thejurythrough Dr. Shomer's expert testimony. Thejury credited Kublie'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 thejury's determinations as to weight ofthe 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 affectedhis ability to argue his misidentification defense at trial. Moreover, Sanchez has never established whatmedia footage orphotographs 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 ofwhether Kublie even saw Sanchez's face in the media is mere speculation. Thejury has already credited Kublic's testimony that her identification ofhim as the shooter did not come from any mediabut from her own independent observation ofhis face when he fired the shots. Finally, Kublic's identification ofSanchez was notthe only evidence the State produced linking Sanchezto the crimes. Forhis part in the Causorhome invasion,
21No. 32633-1-III Pers. Restraint of Sanchez
Mendez pleaded guilty to two counts offirst degree murder and other crimes in exchange for a 30-year sentence and truthful testimony at Sanchez'strial. Thejurywas told ofthis agreement. Mendez testified as to the details ofhis and Sanchez'splanning and commission ofthe 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 Sancheztold him priorto 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 ofthe State's other evidenceMendez's testimony accepted by thejury, and the presence ofthe murder weapon at Sanchez's residence-Sanchez fails to show he was actually and substantiallyprejudiced by Fessler's absence at his arraignment. Sanchez fails his burden under Cook in his ground one claim.

22No. 32633-1-111 Pers. Restraint of Sanchez
GROUND TWO-INEFFECTIVE ASSISTANCE OF COUNSEL In the alternative, Sanchez claims he was denied effective assistance ofcounsel when Fessler failed to appear and objectto his being filmed/photographed by media at his arraignment. To establish ineffective assistance ofcounsel, Sanchez must show that his attorney's performance was deficient, i.e., that the representation "fell below an objective standard ofreasonableness" based on consideration ofall the circumstances, and that he
was prejudicedby the deficiency. Stricklandv. 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]fa personal restraintpetitioner makes a successful ineffective assistance ofcounsel claim, he has necessarily met his burden to show actual and substantial prejudice." In re Pers. Restraintof Crace, 174 Wn.2d 835, 846-47, 280 P.3d 1102 (2012). We need not address bothprongs ofthe ineffective assistance test ifthe 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).

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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, Sanchezmakes no claim entitling him to relief. We, therefore, deny and dismiss his PRP. 

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# ~'(**~** Lawrence-Berrey, J. WE CONCUR: 

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