Find Legal Information

Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41389-2-II

                             Respondent,

       v.

JESUS CLOVIS SANCHEZ, JR.,                                 UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.  --     Jesus Clovis Sanchez, Jr. appeals his conviction of first degree 

child molestation, arguing that conflict with his attorney constructively deprived him of his right 

to counsel and that the trial court erred in including a prior conviction in his offender score.  In a 

pro se statement of additional grounds (SAG),1 Sanchez also contends that he received ineffective 

assistance of counsel when his attorney failed to challenge two prospective jurors for cause or by 

peremptory challenge.  We affirm the conviction but remand for resentencing.  

                                             Facts

       On December 15, 2009, the State charged Sanchez with first degree child molestation.  

The State alleged that Sanchez had sexual contact with J.F.P., who was born in 1998, when he 

1 RAP 10.10. 

No. 41389-2-II

was babysitting her.  

       On January 7, 2010, the trial court appointed an attorney to represent Sanchez.  On March 

17, defense counsel successfully argued against admission of Sanchez's prior sex offenses under 

former RCW 10.58.090 (2008) and ER 404(b), and during a trial confirmation hearing on May 6, 

counsel informed the court that he had been looking, with the assistance of Sanchez and an 

investigator, into the possibility of an alibi witness.  On May 13, defense counsel obtained a 

continuance because of Sanchez's ill health after the trial court questioned Sanchez and 

determined that he was voluntarily waiving his speedy trial rights.  

       On June 10, Sanchez filed a letter addressed to the trial court in which he requested a 

hearing to have new counsel appointed.  Sanchez asserted that he and his attorney "have had a 

complete breakdown of communication."  Clerk's Papers (CP) at 47.  Sanchez added that his 

attorney wanted him to go along with a theory that was not the truth and that current counsel 

could not provide adequate legal representation "due to the fact       we have an inability to 

communicate and his failure to consider the direction I want this case to go." CP at 47.  

       Accompanying this filing was a letter from Laura Kotula stating that, while she was sitting 

outside the courtroom, she heard defense counsel speak to the prosecuting attorney about 

Sanchez's case in a joking manner.  She opined that counsel was not acting professionally.  In a 

separate but apparently contemporaneous filing, Sanchez alleged that his attorney was slandering 

him in public and failing to represent him to the full extent of his defense by not subpoenaing 

witnesses, not allowing witness testimony, and not exchanging case information with him.  

       At a trial confirmation hearing on June 17, defense counsel informed the court,

       Defense is ready to confirm.  I have been advised by Mr. Sanchez that he -- I know 
       it's been his long desire to hire the legal services of Don McConnell and 

                                               2 

No. 41389-2-II

       Associates, so he spoke with apparently Jonathan Meyer, who advised him I 
       assume, as would Mr. McConnell too advise him to tender a waiver of speedy trial 
       and then request a continuance to have more time to come up with the money to 
       hire Mr. McConnell, but the defense -- I'm very prepared, very ready.  Mr. 
       Armstrong the Court approved investigator we have thoroughly -- we're prepared 
       for trial, prepared to confirm.

Report of Proceedings (RP) (June 17, 2010) at 2.   

       The State opposed any continuance, and the trial court expressed its reluctance to 

continue the trial, pending since December, so that Sanchez could try to come up with the funds 

to hire an attorney.  The court observed that Sanchez had competent counsel and that due to the 

alleged victim's age, it would have to enter statutory findings to continue the trial.  

       Sanchez then spoke directly to the trial court, noting that he was seeking a continuance on 

the advice of several attorneys.  "I believe that there's been an accumulation of events that clearly 

shows me and Mr. Havirco do not have any kind of communication skills in this case together, 

and I don't fully understand all the aspects of what's coming against me." RP (June 17, 2010) at 

4.  He then apologized to the court:  "These issues have been building up for a long time, and I 

feel like I'm wrong for asking to get the attorney." RP (June 17, 2010) at 4.

       The court assured Sanchez that he was not wrong and should not be afraid to speak up 

either now or during trial.  The court added, however, that it was not willing to continue a case 

pending since December based on Sanchez's request for more time to raise money for retained 

counsel.  

       After a CrR 3.5 hearing, Sanchez's jury trial was held on June 24 and 25.  Sanchez did not 

renew his request for new counsel and testified at the CrR 3.5 hearing and during trial.  He denied 

babysitting J.F.P. on the night in question or touching her in the manner alleged.  The jury found 

                                               3 

No. 41389-2-II

him guilty as charged.  

       At sentencing, the main contention was whether Sanchez's 1996 federal conviction for 

attempted bank robbery by use of a dangerous weapon counted toward his offender score.  The 

trial court agreed with the State that the federal conviction was comparable to the crime of 

attempted first degree robbery in Washington and that it added two points to Sanchez's offender 

score.  Sanchez's attorney withdrew his earlier objection, believing that the State had proved the 

comparability of the federal offense.  Based on an offender score of six, the trial court imposed a 

standard range indeterminate sentence of 130 months to life.  

                                           Discussion

Denial of Counsel Based on Irreconcilable Conflict

       Sanchez argues that he was denied his constitutional right to counsel when, after he 

asserted that he had an irreconcilable conflict with defense counsel, the trial court failed to 

conduct any meaningful inquiry into the nature of the problem.

       A criminal defendant has a constitutional right to receive effective representation from his 

attorney.  Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988).  

This right does not guarantee a defendant the right to his counsel of choice or to counsel with 

whom he has a meaningful attorney-client relationship.  Wheat, 486 U.S. at 159;  Daniels v. 

Woodford, 428 F.3d 1181, 1197 (9th Cir. 2005), cert. denied, 550 U.S. 968 (2007); State v. 

Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004).  The defendant must show good cause to 

justify appointment of new counsel, as shown by a conflict of interest, an irreconcilable conflict, 

or a complete breakdown in attorney-client communication.  Varga, 151 Wn.2d at 200.  

Generally, a defendant's loss of confidence or trust in his attorney is not sufficient reason to 

                                               4 

No. 41389-2-II

appoint a new one.  Varga, 151 Wn.2d at 200.  But if the attorney-client relationship completely 

collapses, the refusal to substitute new counsel violates the defendant's right to effective 

assistance of counsel.  United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998).  We review 

a trial court's denial of motions for new counsel or continuances to obtain new counsel for abuse 

of discretion.  Varga, 151 Wn.2d at 200.

       In determining whether a trial court abused its discretion in denying a motion for new 

counsel based on a claim of  irreconcilable conflict, we must consider (1) the extent of the 

conflict, (2) whether the trial judge made an appropriate inquiry into the extent of the conflict, and 

(3) the timeliness of the motion to substitute counsel.  In re Pers. Restraint of Stenson, 142 

Wn.2d 710, 724, 16 P.3d 1 (2001).  When inquiring into the extent of the conflict, courts have 

examined both the extent and nature of the breakdown in communication between attorney and 

client and the breakdown's effect on the representation the client actually received.  Stenson, 142 

Wn.2d at 724.  

       Sanchez cites several decisions from the Ninth Circuit Court of Appeals to support his 

claim of irreconcilable conflict.  In one case, the defendant went to trial with an attorney with 

whom he would not cooperate or communicate after the trial court summarily denied four 

motions for new counsel.  Brown v. Craven, 424 F.2d 1166, 1169 (9th Cir. 1970).  The defendant 

did not testify and his resulting defense was perfunctory.  Brown, 424 F.2d at 1169.  The Ninth 

Circuit found it not unreasonable to believe that the defendant would have been convicted of a 

lesser-included offense had he been represented by an attorney in whom he had confidence.  

Brown, 424 F.2d at 1170.  In Moore, the defendant and his attorney had a serious argument when 

counsel failed to disclose an important development in the case.  159 F.3d at 1159.  The 

                                               5 

No. 41389-2-II

defendant threatened to sue for malpractice, and his attorney felt physically threatened as a result.  

Moore, 159 F.3d at 1159.  These facts, coupled with counsel's limited investigative efforts, led 

the court to find a breakdown comparable to that in Brown.  Moore, 159 F.3d at 1160.  

       Sanchez relies heavily on the Ninth Circuit's finding of similar conflict in United States v. 

Nguyen, 262 F.3d 998 (9th Cir. 2001).  In Nguyen, there was a "complete breakdown" in the 

attorney-client relationship.  262 F.3d at 1004.  By the time of trial, Nguyen would not speak to 

his attorney and thus could not confer with him about trial strategy, additional evidence, or even 

receive explanations of the proceedings.  Nguyen, 262 F.3d at 1004.  As a result, he was left to 

fend for himself.  Nguyen, 262 F.3d at 1004.  Sanchez also cites Daniels, where the defendant 

refused to communicate with his attorney for reasons the Ninth Circuit found understandable.  

428 F.3d at 1198.  The defendant did not testify in his own behalf, and defense counsel presented 

an  "implausible" defense.  Daniels, 428 F.3d at 1199.  Communications did not break down 

because they never existed.  Daniels, 428 F.3d at 1199; see also United States v. Adelzo-

Gonzalez, 268 F.3d 772, 778-80 (9th Cir. 2001) (citing several examples of serious discord and 

friction to show that attorney-client relationship was "antagonistic, lacking in trust, and 

quarrelsome").  

       The extent of any conflict between Sanchez and his attorney is not comparable to the 

conflicts described above.  Sanchez informed the court that he and his attorney could not 

communicate, but the record demonstrates otherwise.  Sanchez testified at the CrR 3.5 hearing 

and during trial.  After the June 17 hearing, he did not again complain about his attorney or 

attempt to replace him, and the record contains no subsequent evidence of attorney-client discord.  

The record simply does not support Sanchez's claim on appeal that there was serious conflict or a 

                                               6 

No. 41389-2-II

complete breakdown in communication between him and his attorney.

       The second factor to consider in assessing whether the trial court erred in denying a 

motion for new counsel is the extent of the trial court's inquiry into any potential conflict.  Where 

the extent of the conflict was not great and the breakdown in communication not severe, our 

Supreme Court found a detailed discussion of this factor unnecessary.  Stenson, 142 Wn.2d at 

731.  

       In examining the trial court's inquiry, we note that although Sanchez asked for the 

appointment of a different attorney in his written statement to the court, he did not renew that 

request during the hearing that followed.  Nor did he refer to the three written statements in the 

court file.  Rather, Sanchez requested a continuance so that he could have more time to raise 

money to retain a specific attorney.  In explaining why it was denying that request, the trial court 

made an implicit reference to RCW 10.46.085.  This statute provides that when the case involves 

a sex offense and the alleged victim is a minor, the court may grant a continuance only if 

substantial and compelling reasons exist to postpone the trial date.  State v. Downing, 151 Wn.2d 

265, 273, 87 P.3d 1169 (2004).  The benefit of postponing must outweigh the detriment to the 

victim. RCW 10.46.085.  At the time of trial, J.F.P. was 12 years old.  Sanchez makes no 

reference to RCW 10.46.085 in criticizing the trial court's inquiry, but the court properly 

considered it in denying the continuance he requested.  We acknowledge that the trial court did 

not question Sanchez about the alleged breakdown in communication with his attorney, but the 

record does not show that an extensive inquiry was warranted.

       Finally, we must consider the timeliness of Sanchez's motion.  As stated, Sanchez moved 

at the June 17 hearing not for the appointment of substitute counsel but for additional time to 

                                               7 

No. 41389-2-II

raise the necessary funds to retain an attorney.  In the statement filed on June 10, however, he did 

                                               8 

No. 41389-2-II

ask that new counsel be appointed.2  Sanchez's trial began on June 24.  As Sanchez points out, 

the Ninth Circuit stated in Daniels that even if the trial court becomes aware of a conflict on the 

eve of trial, a motion to substitute counsel is timely if the conflict is serious enough to justify the 

delay.  428 F.3d at 1200.  The court added that "[t]his is particularly true where the trial court has 

reason to know of the conflict months before the trial but does not inquire into the conflict."  

Daniels, 428 F.3d at 1200.  

       The record before us does not show that a serious conflict existed either on the eve of trial 

or months before.  The goal of the right to counsel is to guarantee an effective advocate for each 

criminal defendant rather than to ensure that a defendant "will inexorably be represented by the 

lawyer whom he prefers."  Wheat, 486 U.S. at 159.   Regardless of the timeliness of Sanchez's 

motion, the goal described in Wheat was realized, and the trial court did not abuse its discretion in 

denying the continuance that Sanchez requested.

Offender Score Calculation

       Sanchez also argues that the trial court erred in concluding that his federal conviction for 

attempted bank robbery was comparable to a Washington offense and in including this prior 

conviction in his offender score.  Although defense counsel agreed to its inclusion below, Sanchez 

may raise this claim of error for the first time on appeal.3  See State v. Ross, 152 Wn.2d 220, 229, 

95 P.3d 1225 (2004) (erroneous sentence may be challenged for the first time on appeal).

2 The record does not support Sanchez's assertion that he initially requested substitute counsel on 
May 3, 2010.  The record shows instead that the prosecuting attorney stated that Sanchez might 
have requested a different attorney on May 6.  Our transcript of the May 6 hearing reveals no 
such request, and we have no record of a May 3 hearing.  When the trial court questioned 
Sanchez on May 13, he made no reference to a desire for new counsel.  

3 Consequently, we need not consider Sanchez's alternative claim that his attorney's agreement to 
his offender score constituted ineffective assistance of counsel.
                                               9 

No. 41389-2-II

       Including a prior out-of-state conviction in an offender score is permissible if the State 

proves that the conviction would be a felony under Washington law.  State v. Ford, 137 Wn.2d 

472, 479, 973 P.2d 452 (1999).  In determining the comparability of crimes, courts must first 

compare their elements.  In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 

(2005).  Where the elements are not substantially similar, the sentencing court may look at the 

defendant's conduct to determine whether it would have violated a comparable Washington 

statute.  Lavery, 154 Wn.2d at 255.  

       In Lavery, the Supreme Court held that the crimes of federal bank robbery and second 

degree robbery in Washington are not legally comparable because federal bank robbery is a 

general intent crime and second degree robbery in Washington requires specific intent to steal.  

154 Wn.2d at 255; see State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P.2d 86 (1991) (intent to steal is 

essential nonstatutory element of robbery).  This holding compels the conclusion that Sanchez's 

federal attempted bank robbery conviction is not legally comparable to first degree robbery in 

Washington.  

       The State concedes that it did not provide evidence of the facts underlying Sanchez's 

federal bank robbery conviction and thus did not prove factual comparability.  The State argues 

that, as a consequence, Sanchez's federal conviction counted as one point instead of two under 

RCW 9.94A.525(3), which provides that if there is no clearly comparable offense            under 

Washington law, a federal conviction shall be scored as a class C felony equivalent if the federal 

offense was a felony under the relevant federal statute.  Sanchez's federal conviction for 

attempted bank robbery was a felony and therefore should have counted as one point toward his 

offender score.  18 U.S.C. § 2113(a), (d); RCW 9.94A.525(8).  We accept the State's concession 

                                               10 

No. 41389-2-II

and remand for resentencing based on an offender score of five.

Ineffective Assistance of Counsel

       Finally, Sanchez argues in his SAG that his attorney provided ineffective assistance by 

failing to challenge two prospective jurors during voir dire.

       To prove a claim of ineffective assistance of counsel, a defendant must show that his 

attorney's performance was deficient and that the deficiency was prejudicial.  State v. 

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).  Sanchez's claim of ineffective assistance 

is aimed at his attorney's failure to challenge jurors 3 and 15.

       Sanchez contends that his attorney should have challenged Juror 15 because of the implied 

bias shown by her employment in the prosecutor's office.  As support, he cites RCW 4.44.180(2), 

which states that a challenge for implied bias may be taken when the juror is employed by the 

adverse party.  Juror 15 was employed not by the State but by the prosecutor's office, however, 

and thus was not employed by the adverse party.  

       Even if Juror 15 were considered an indirect employee of the State, she would not be 

subject to a challenge for cause because a "substantial relationship" did not exist between the 

interests she had in her employment and the interest the government was advancing as a litigant.  

State v. Johnson, 42 Wn. App. 425, 429, 712 P.2d 301 (1985), review denied, 105 Wn.2d 1016 

(1986).  There was no showing that Juror 15's continuing employment depended on the outcome 

of the State's prosecution in this case.  See Johnson, 42 Wn. App. at 430.  Moreover, Juror 15 

stated that she did not know anything about the case in particular and could be impartial.  "'[T]he 

imputation of bias simply by virtue of governmental employment, without regard to any actual 

partiality growing out of the nature and circumstances of particular cases, rests on an assumption 

                                               11 

No. 41389-2-II

without any rational foundation.'"  Johnson, 42 Wn. App. at 429 (quoting United States v. Wood, 

299 U.S. 123, 147-49, 57 S. Ct. 177, 81 L. Ed. 78 (1936)).  There was no basis in the record for 

either a challenge for cause or a peremptory challenge regarding Juror 15.  

       Juror 3 informed the court that she had been a victim of child molestation but that she 

could be impartial as a juror.  Sanchez admits that she may have seemed impartial but that she 

must have suffered "deep psychological damage" that necessarily impaired her judgment.  SAG at 

9.  There is no support in the record for this statement.  Indeed, Juror 3 disagreed with other 

jurors that the criminal justice system favors the defendant.  Her responses to questioning during 

voir dire did not support a challenge for cause, and counsel may well have been satisfied that no 

peremptory challenge was necessary.  We will not second guess this decision, and Sanchez's claim 

of ineffective assistance of counsel fails.   

       We affirm the conviction of first degree child molestation but remand for resentencing.

       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 pursuant to RCW 2.06.040, it is so 

ordered.

                                                 QUINN-BRINTNALL, J.
We concur:

HUNT, J.

WORSWICK, A.C.J.

                                               12