C- iVA;;'r:J;-;T 

### 2015 JAN 20 m S-kZ
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. FRANCISCO MENDOZA-GOMEZ, Appellant. DIVISION ONE
No. 70506-7-1 UNPUBLISHED OPINION
FILED: January 20, 2015 Dwyer, J. — Following a jury trial, Francisco Mendoza-Gomez (Mendoza) 

### was convicted ofconspiracy to commit murder in the firstdegree, kidnapping in the firstdegree, and assault in the second degree. On appeal, Mendoza contends that, because his trial attorney failed to interpose an objection or 

### request a mistrial after his co-defendant's counsel informed the venireduring jury selection that the trial did not involve the death penalty, he was deprived of his 

### right to the effective assistance of counsel. Because Mendoza does not establish that his counsel's performance was deficient and because Mendoza has not shown that he suffered any prejudice as a result of the alleged deficiency, we affirm.
I On the afternoon ofSeptember 30, 2011, Tawney Eckert and her 

### husband, Taylor, arrived at a Shell gas stationin FederalWay. As they entered the station parking lot, the Eckerts noticed a blackAcura SUV parkednearby. The SUV pulled up to the front ofthe station's convenience store as TaylorNo. 70506-7-1/2
noticed a commotion inside the store. Suddenly, two men bolted from the store 

### and jumpedinto the SUV, which sped away. Taylor noticed that one of the men, who appeared to be ofSamoan descent (the Samoan man), was holding a gun. Anotherbystander heard the driver of the SUV, a woman, yell to the two men that they needed to go as they exited the store. The Eckerts entered the store, and found Juan Moreno-Zuazo (Moreno) 

### lying on thefloor behind the cash register. Moreno had gashes onhis forehead andjaw and was bleeding significantly. Tawney, a trained paramedic, began to treat Moreno's injuries while her husband spoke with a 911 emergency dispatcher. 

### Federal Way Police Departmentofficers responded to the Shell station 

### and spoke to theclerk, Hossam Gayed, who wasworking there thatafternoon. 

### Gayed testified that he had been behind the cash registerwhen aman crashed through thefront door ofthe storeand leapt overthecounter. Theman was followed in hotpursuit by a larger, Samoan man. Fearing that the store was 

### aboutto be robbed, Gayed hid in an interioroffice, behind a locked door. From inside the office, he heard a man screaming andyelling. When he came out of 

### theoffice, he saw theman who had raced into thestore first lying on theground. He wasbleeding severely from thehead and neck and wasbeing treated by Tawney. 

### Moreno described the events leading up to his dramatic entrance into the 

### gas station store attrial. He testified that he paid avisitto aSeaTac apartment in the mid-afternoon ofSeptember30 to see a woman named Cheila. Moreno
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had met Cheila at the apartment a few days prior while visiting Mendoza but did
not know that she was Mendoza's sister-in-law. Moreno and Cheila were speaking when, without notice, Mendoza arrived at the apartment, accompanied by Amalia Cervantes-Castillo (Castillo). Mendoza, who appeared to be angry, demanded to speak with Cheila privately. Castillo remained with Moreno and told him that he was in trouble. About 10 minutes later, two men, including the Samoan man, arrived at the apartment and spoke to Castillo. The Samoan man then walked up to Moreno, pointed a handgun at his torso, and pushed him toward a waiting vehicle. Moreno was driven at gunpoint to a Tukwila motel, where he was escorted into a

room. The Samoan man, Agalega Pua, testified that he had been sleeping in a room at a Tukwila motel on the afternoon of September 30 when he was awoken by a phone call from Castillo, his older brother's long-term romantic partner. Castillo told Pua that a car would be coming to pick him up at his motel. When the car arrived, Pua was driven to Castillo's location, at the SeaTac apartment. Castillo told Pua that Moreno had been caught in a compromising situation with the wife ofMendoza's brother. She gave Pua a handgun and told him to keep watch on Moreno. Castillo talked to Mendoza then returned and told Pua that Mendoza had directed her to kill Moreno. At Castillo's direction, Pua took Moreno at gunpoint to a waiting car, which 

### transported them back to Pua's Tukwila motelroom. A few minutes later, Mendoza and Castillo arrived, along with Mendoza's brother, and spoke angrily
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with Moreno. Mendoza was armed with a .45 caliber handgun and a baseball 

### bat. Mendoza swung the bat at Moreno's head. Moreno's hand was injured after he raised it to block the impact to his skull. Mendoza spoke to Castillo and then gave his .45 caliber pistol to Pua. Castillo told Pua to take Moreno to a waiting black Acura SUV with her. Once inside the vehicle, Castillo told Pua that they were going to kill Moreno. She also 

### informed Moreno, in Spanish, that she had been ordered to kill him. Castillo then drove the SUV to pick up a friend, Eric Tharp, in Federal Way. When Tharp got 

### into the car, he suggested that Fort Lewis, in Tacoma, would be a suitable place 

### to dispose ofMoreno. TheSUV began toexperience mechanical trouble, and 

### Tharp suggested thatthey stop at a nearby Walmartfor "oil."1 Upon returning to the SUV, Tharprealized that he did not have a funnel to pourthefluid into the 

### vehicle's receptacle anddirected Castillo todrive to the Shell station across the street. Atthe gas station, Tharp obtained afunnel and poured the "oil" into the SUV. Castillo, who had kept the vehicle's doors locked throughout this time, 

### unlocked the doors so that Tharpcould enter. Castillo neglected to re-lock the 

### doors before beginning todrive away. Moreno seized the opportunity to escape, 

### running from the carinto the gas station store. Puaand Tharp both chased after Moreno. Once they caught him, they beat andkicked him. They thenreturned to the car, which drove away.

In actuality, thevehicle required transmission fluid, which Tharp purchased.
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Pua testified that he received a few hundred dollars and a small amount of 

### methamphetamine from Mendoza for hisefforts. Pua explained that Mendoza
was upset with himbecause Moreno had survived. 

### Castillo and Tharp were stopped while driving together on October 12, 2011 and arrested. A search ofthe vehicle recovered a number offirearms and 

### a notebookentitled "Maty's little book." "Maty" is Castillo'snickname. On one 

### page, dated September 30, 2011, thefollowing entry wasmade: "Today Istart a newbeginning with Chaparro." "Chaparro" isMendoza's nickname. Mendoza did nottestify in his defense. Castillo testified in her case in chief. She claimed that Mendoza had phoned her on the afternoon ofSeptember 30 because he had discovered Moreno with his sister-in-law and Moreno had 

### threatened to beathim up. Shetold thejurythat sheremoved Mendozafrom the 

### scene to avoid any conflictand thatthey were surprised when they visited Pua laterthatafternoon at hismotel room andfound Moreno there. Castillo testified 

### that Moreno and Mendoza began toargue and that Mendoza struck Moreno with a bat. Castillo claimed that she interceded and offered to give Moreno a ride to Tacoma to prevent further fighting. 

### Castillo claimed not to understandwhy Moreno bolted from the SUV at the 

### gas station orwhy Pua chased afterhim. Shetestified thatshedirected Tharp to bring Pua backto the carand that she drove away, leaving Moreno behind, once 

## they returned. Castillo denied thatMendoza had directed herto kill Moreno. She did admit, however, that sheworked for Mendoza, for example, managing his fleet of vehicles, which included the black Acura SUV.
-5-No. 70506-7-1/6 Mendoza, Castillo, Pua, and Tharp were charged with several offenses arising out of this series of events. Initially, Mendoza and Tharp were tried together, following severance of Pua's and Castillo's cases. Mendoza's and Tharp's trial ended in a mistrial due to prosecutorial error, and their cases were scheduled for a new trial. Before the retrial, Tharp pleaded guilty to amended charges. Mendoza's case was then joined with Castillo's, and the two were prosecuted together on charges of conspiracy to commit murder in the first degree.2 Mendoza was also tried for kidnapping inthe first degree and assault in the second degree.3 By jury verdicts rendered on April 26, 2013, Mendoza was convicted on all counts. Castillo was also found guilty on the conspiracy charge.
II Mendoza contends that he was denied the effective assistance of counsel. This is so, he asserts, because his trial attorney failed to interpose an objection
or take any other action after his co-defendant's counsel informed the venire 

### during voir dire that the trial did not involve the death penalty. We disagree. We apply the two-parttest from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to determine whether a defendant had 

### constitutionally sufficientrepresentation. State v. Cienfueqos, 144 Wn.2d 222, 226-27, 25 P.3d 1011 (2001). First, the "'defendant must show that counsel's

2By thistime, Castillo had already been convicted at a separate trial on charges of kidnapping, unlawful possession of a firearm, and possession ofmethamphetamine. Thejury at her first trialwas unable to reach a unanimous verdict as to the charge ofconspiracy to commit firstdegree murder. Hence, the retrialwith Mendoza occurred. 3The conspiracy and kidnapping charges included a firearm sentencing enhancement; the assault included a deadly weapon sentencing enhancement.
-6-No. 70506-7-1/7 performance was deficient.'" Cienfuegos, 144 Wn.2d at 226 (quoting Strickland, 466 U.S. at 687). To establish deficient performance, a defendant must "demonstrate that the representation fell below an objective standard of reasonableness under professional norms." State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001). Second, the "'defendant must show that the 

### deficientperformance prejudiced the defense.'" Cienfuegos, 144 Wn.2d at 227 (quoting Strickland, 466 U.S. at 687). "Provingthat counsel's deficient 

### performance prejudiced the defense 'requires showing that counsel's errors were
so serious as to deprive the defendant of a fair trial, a trialwhose result is reliable.'" State v. Hicks, 163 Wn.2d 477, 488, 181 P.3d 831 (2008) (quoting 

### Strickland, 466 U.S at 687). Reversal of the outcome of a trial court proceeding 

### is required only where the defendant demonstrates bothdeficient performance and resulting prejudice. Strickland, 466 U.S. at 687. 

### "[I]t is errortoinform thejury during thevoir dire in a noncapital case that the deathpenalty isnot involved." Hicks, 163Wn.2d at487; accord Townsend, 142 Wn.2d at 840: see also Shannon v. United States, 512 U.S. 573, 579, 114 S. 

### Ct. 2419, 129 L. Ed. 2d 459 (1994) ("It iswell established that when ajury has no 

### sentencing function, it should beadmonished to 'reach its verdictwithout regard to what sentence might be imposed.'" (footnote omitted) (quoting Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091, 45 L. Ed. 2d 1 (1975))); State v. Bowman, 57 Wn.2d 266, 271, 356 P.2d 999 (1960) ("Thequestion of the 

### sentence to be imposed bythe court is never a proper issue for the jury's 

### deliberation, exceptin capital cases."). There is no "distinction between a court
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or counsel-initiated and a juror-initiated discussion of the inapplicability of the death penalty." Hicks, 163 Wn.2d at 487; accord State v. Mason, 160 Wn.2d 910, 929, 162 P.3d 396 (2007). "[I]n response to any mention ofcapital punishment, the trialjudge should state generally that the jury is not to consider sentencing." Hicks, 163 Wn.2d at 487. 

### Moreover, "[considering the long-standing rule that no mention be made ofsentencing in noncapital cases," defense counsel's performance will be deemed deficient for informing the jury that a case does not involvethe death 

### penalty orfailing to object when another actor makes similar reference, unless 

### "counsel's performance is the result oflegitimate trial strategies ortactics." Townsend, 142 Wn.2d at 847; see also Mason, 160 Wn.2d at 930 

### (acknowledging the possibility that"there are legitimate strategic andtactical
reasons why informing ajury about issues ofpunishment would advance the interestof justice and provide a more fair trial"); State v. Rafav, 168Wn. App. 734, 781, 285 P.3d 83 (2012) (holding that it was a legitimate strategy to inform 

### thevenire during voir dire that the case did not involve the deathpenalty). We
are mindful of the risk, identified by our Supreme Court, that "ifjurors knowthat 

### the death penalty is notinvolved, they may be less attentive during trial, less deliberative in their assessment of the evidence, and less inclined to hold out if 

### they know thatexecution is not a possibility." Townsend, 142Wn.2d at847. Yet, "[w]e must presume thatdefense counsel [was] well aware of[this concern]," and that she "[was] in the bestposition toassess such concernsin light of[her] own voir dire and trialstrategies." Rafav, 168 Wn. App. at 781.
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Mendoza's claim of ineffective assistance pertains to the following discussion between co-defendant Castillo's counsel and a venire member during that attorney's first round ofquestioning during the voir dire stage of jury selection, with the entire venire present in the courtroom: MS. CRUZ: I'd like to hear from you. Was itreligious views or philosophical views that make you feel that you would not be able to sit on this particularjury with these charges? JURY PANELIST 9: It was unclear to me as to whether this wasMS. CRUZ: Can Ihave you speak into the mic. JURY PANELIST 9: It was unclear to me whether there was a death penalty involved. INTERPRETER: Ididn't hear, something involved. JURY PANELIST 9: Death penalty. Ifthat were the case, Iwould be uncomfortable. MS. CRUZ: In this particular case, we are not dealing with a death penalty case. Does that change it? JURY PANELIST 9: I have no problem. MS. CRUZ: You have no problem sitting on the jurythen? JURY PANELIST 9: That's correct. 

### Mendoza's counsel did not interpose an objection during or after this exchange,


### nordid she later request a mistrial or an instruction from the courtdirecting the venire to disregard any sentencing consequences when considering the evidence presented at trial. 

### Beginning with the first part of the Strickland test, Mendoza must prove 

### that his counsel's performance was deficient. There is a strongpresumption that trial counsel's performance was adequate, and exceptionaljudicial deference 

### must begiven when evaluating counsel's strategic decisions. Strickland, 466 U.S. at689; State v. McFarland, 127Wn.2d 322, 335, 899 P.2d 1251 (1995). If trialcounsel's conduct can be characterized as legitimate trial strategy or tactics, itcannot serve as a basis for a claim that the defendant received ineffectiveNo. 70506-7-1/10
assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). We have previously recognized that "there might be legitimate tactical
reasons in a noncapital case to inform thejury that the case does not involve the death penalty." Rafav, 168 Wn. App. at 777. The presumption of adequate representation is not overcome ifthere is any "conceivable legitimate tactic" that
can explain counsel's performance. State v. Reichenbach. 153 Wn.2d 126, 130, 101 P.3d 80 (2004). In this case, at least two legitimate tactical reasons exist for declining to object to the venire being informed that the case did not involve the death penalty. First, it is conceivable that Mendoza's attorney may have been favorably impressed by this panel ofprospectivejurors. The conversation 

### between Jury Panelist 9 and Mendoza's co-defendant's attorney took place toward the end of that attorney's first round of voir dire, after the trial court had 

### posed general questions and after the State's first round ofquestioning. Thus, Mendoza's counsel had a basis upon which to assess the venire. It is easily 

### conceivable that counsel may have made the tactical determination that the risk of requesting a mistrial, which would have caused the existing venire to be 

### replaced, possibly by a panelshe found moreproblematic, outweighed the risk of moving forward with the existing panel. Second, it isconceivable that Mendoza's counsel made the strategic decision to remain silent rather than interposing an 

### objection with the expectation that, because she did notinvite the error, the 

### exchange between Jury Panelist 9 and the co-defendant'sattorney could form

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the basis of a later appeal ifMendoza was convicted at trial.4 This is, ofcourse, exactly what happened. Mendoza has not established deficient representation. Under the second part of the Strickland test, Mendoza must also prove that he was prejudiced by his counsel's allegedly deficient performance. This requires the defendant to prove that, but for counsel's deficient performance, there is a "reasonable probability" that the outcome would have been different. Cienfuegos, 144 Wn.2d at 227; see also State v. Crawford. 159 Wn.2d 86, 99- 100,147 P.3d 1288 (2006) (defining a "reasonable probability" as a probability sufficient to undermine confidence in the outcome). 

### There is no showing that Mendoza was deprived of a fairtrial or that the 

### trial outcome likely would have differed. There is no indication that the jurors 

### failed to take their dutyseriously. Moreover, there is abundant evidence in the 

### record to supportMendoza's conviction, making a guilty verdict likely even ifthe 

### jury had not been informed that the case was noncapital. Here, thevictim ofa terrifying series of events testified to hisabduction and planned execution by 

### gunshot at Mendoza's direction. Thevictim's testimony was corroborated by one of Mendoza's henchmen and significant physical and video evidence. Under these circumstances, there is not a reasonable probability that the jury would 

### have implicitly accepted Mendoza'sexplanation and acquitted him ofthe charge ofconspiracy to commit murder ifonly they had not been relieved of a

4In its merits briefing, the State also suggeststhat, given thestigma ofbeing charged with acapital offense, Mendoza's counsel could have felt thatitwould reflect more favorably upon herclientfor thejury tolearn thatthe Statedid not believe his actions warranted the harshest punishment.
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-No. 70506-7-1/12 hypothetical, mistaken beliefthat he might be subjected to capital punishment. Mendoza establishes neither deficient performance nor prejudice.
Affirmed. 

# "^7^' We concur: yy



# Ps^w^f r^eJfel,

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