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In re Personal Restraint of Sanchez

Court of Appeals of Washington, Division 3

January 24, 2017

In re the Matter of the Personal Restraint of 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 shooting at the apartment of Ricky Causor and Michelle Kublic that left Causor and the couple's 3-year-old daughter dead 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).

         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 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, Decl. 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:

[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 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:

Officer David Cortez of the Yakima Police Department attempted to interview Kublic 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. Kublic 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 ...

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