¶78 (concurring in part with the concurrence/ dissent) — I concur in part with the concurrence/dissent. Maribel Gomez established a prima facie showing of actual and substantial prejudice from receiving ineffective assistance of counsel. However, because the extent of prejudice is unclear from the record, we should remand the petition for a reference hearing. See RAP 16.11(b); In re Pers. Restraint of Riley, 122 Wn.2d 772, 782, 863 P.2d 554 (1993); In re Pers. Restraint of Rice, 118 Wn.2d 876, 885, 828 P.2d 1086 (1992). At the reference hearing, the court should inquire into the prejudicial effect of defense attorney Robert Moser’s deficient use of interpreters and preparation of Dr. Janice Ophoven.
*370¶79 Deficient use of interpreters. The extent of the prejudice resulting from Robert Moser’s minimal use of an interpreter is unclear. According to Moser, Gomez’s English language skills “were not very good,” and he usually communicated with Gomez without an interpreter. Am. Opening Br. of Pet’r, App. 4, at 4. There is evidence, however, that Gomez hired interpreters on at least three occasions and that Gomez’s friends would sometimes interpret. Id. at 3-4. It is not clear from the record how well Gomez speaks and understands English and whether using an interpreter would have actually altered the outcome of trial (e.g., whether Gomez would have revealed information that would have resulted in a different verdict).
¶80 Deficient preparation of expert witness. The prejudicial effect of Moser’s deficient preparation of Dr. Ophoven is also unclear. The court should inquire as to what Dr. Ophoven would have testified had Moser properly prepared her.
¶81 Therefore, I would remand the petition for a reference hearing to resolve how the ineffective assistance of counsel affected Gomez’s trial. I dissent from the majority opinion and concur in part with the concurring/dissenting opinion.