¶49 (dissenting) — The majority opinion holds that a criminal defendant’s due process rights necessarily preclude an investigating officer from ever making a sentencing recommendation contrary to a plea agreement as the representative of a deceased victim. U.S. Const, amend. V; Wash. Const, art. I, § 3.1 respectfully disagree. In the very narrow circumstances presented by the specific facts of this case, the trial court properly exercised its discretion to give meaning to the victim’s rights without violating the defendant’s. I would affirm the Court of Appeals, and I respectfully dissent.
ANALYSIS
¶50 The guiding inquiry is one of “[b]asic agency principles and simple fairness.” State v. Sanchez, 146 Wn.2d 339, 359, 46 P.3d 774 (2002) (Madsen, J., dissenting); see also id. at 356 (Chambers, J., concurring in part and dissenting in part) (deciding the issues in light of “principles of fairness and agency”). In most cases, those guidelines prevent an investigating officer from making sentence recommendations that deviate from a plea agreement. Here, however, we are presented with an unusual situation, where the officer, Detective Scott Tompkins, was the only practical victim representative because the crime was a homicide and the victim had no estate or surviving family to speak on her behalf. In these extremely narrow circumstances, the investigating officer should be allowed to step out of his role as an agent for the prosecutor and into the role of victim representative.
I. An investigating officer can, and in this case did, act as a victim representative, rather than an agent of the prosecution
¶51 The question of agency is “where resolution of this case should begin.” Id. at 360 (Madsen, J., dissenting); see also id. at 356 (Chambers, J., concurring in part and dissenting in part) (noting the relevance of agency principles). In an *23agency relationship, the principal maintains some level of direction and control over an agent and the agent acts within the actual or apparent authority expressly or impliedly granted by the principal. Wash. Imaging Servs., LLC v. Dep’t of Revenue, 171 Wn.2d 548, 562, 252 P.3d 885 (2011) (“[T]here must be facts or circumstances that ‘establish that one person is acting at the instance of and in some material degree under the direction and control of the other.’ ” (quoting Matsumura v. Eilert, 74 Wn.2d 362, 368-69, 444 P.2d 806 (1968))). The facts and circumstances presented here show that Detective Tompkins was not acting as an agent of the prosecutor when he addressed the sentencing court.
¶52 In most stages of a criminal action, the investigating officer is clearly an agent of the prosecutor. The prosecutor must “ensure that a thorough factual investigation has been conducted,” RCW 9.94A.411(2)(b)(i), which includes directing specific investigations that are necessary and overseeing the timeliness of the investigation and the techniques used, id. at (i)-(iii). When an officer is engaged in those investigative activities, he or she is acting as an agent of the prosecutor. Sanchez, 146 Wn.2d at 357-58 (Chambers, J., concurring in part and dissenting in part), 361-62 (Madsen, J., dissenting). When Detective Tompkins spoke to the court at sentencing, however, he was not engaged in those activities.
¶53 Furthermore, the events that occurred at the sentencing hearing clearly show that Detective Tompkins was not acting as a prosecutorial agent. The prosecutor brought Detective Tompkins’ desire to speak to the court’s attention, but there is no evidence the prosecutor asked or encouraged him to speak or had any influence on what he said.6 The prosecutor explicitly distinguished her sentencing recom*24mendation, which was consistent with the plea agreement, from anything Detective Tompkins might say:
He has asked me to ask the court if he could speak. Arlene Roberts has no family. Detective Tompkins has — I’ve made clear to him that I don’t want to know what he’s going to say. I have no idea what it will be. It doesn’t do anything to affect my recommendation. My recommendation is still solidly for 16 months because that’s what the agreement was. So with the court’s permission, Detective Tompkins would like to speak.
Clerk’s Papers (CP) at 191-92; cf. State v. Sledge, 133 Wn.2d 828, 842-43, 947 P.2d 1199 (1997) (plea agreement breached where the prosecutor “insisted] upon a hearing” and actively elicited testimony that served no purpose “other than to vitiate and contradict the State’s standard range recommendation”).
¶54 The sentencing court explicitly allowed Detective Tompkins to speak solely on behalf of the victim and not as an agent or representative of the prosecutor:
As I understand it, Detective Tompkins is here speaking with respect to the victim.
In many cases, if not all criminal cases, particularly serious ones such as this, a victim advocate very frequently speaks to the court on behalf of the victim. There is no victim advocate speaking here today, and I think Detective Tompkins may take that role.
CP at 194; see also id. at 197 (“I want to make clear that I allowed Detective Tompkins to speak insofar as he is speaking on behalf of the victim since there’s not a victim advocate here today and not so much as a comment on the nature of the plea negotiations or the evidence as such.”), 210 (“I want to make clear that, as I stated before, I took Detective Tompkins’ statements really as a substitution for any victim advocate, and I don’t believe that the court construed it in any way to be other than that.”).
¶55 The trial court’s careful explanation of its decision and reasoning makes it clear that trial court judges need no *25additional guidance from us on recognizing the difference between acting as an investigative agent of the State and providing a voice to a homicide victim at a sentencing hearing. Detective Tompkins was not acting as an agent of the prosecution when he spoke at sentencing, but as a representative of the victim. The prosecutor did not attempt to undercut or circumvent the plea agreement.
II. It is only under extremely narrow circumstances that an investigating officer should be allowed to serve as a victim representative
¶56 While it is possible for an investigating officer to act as a representative for a victim, whether he or she should be allowed to do so is another matter entirely. Usually it will not be appropriate. In the extremely narrow circumstances presented here, however, the only reasonable way to give effect to the victim’s constitutional rights was to allow Detective Tompkins to step out of his agency relationship with the prosecutor and speak as a representative of the victim.7 A bright-line rule that the investigating officer can never speak on behalf of a victim requires the defendant’s rights to supplant the victim’s and silences the voices of those victims who are least able to speak for themselves.
¶57 The constitutional rights of the defendant and the victim must both be considered. The defendant has the constitutional right to due process, which includes fair proceedings and good faith on the part of the prosecutor in plea bargaining. Sanchez, 146 Wn.2d at 357 (Chambers, J., concurring in part and dissenting in part), 367 (Madsen, J., dissenting). Meanwhile, a crime victim has the “basic and fundamental right [ ] ... to make a statement at sentencing.” Wash. Const, art. I, § 35.8 This right cannot be mini*26mized on the basis that the victim of a brutal homicide is deceased. Instead, where the “victim is deceased . . . the prosecuting attorney may identify a representative to appear to exercise the victim’s rights. This provision shall not constitute a basis for error in favor of a defendant in a criminal proceeding.” Id. Wherever possible, these constitutional rights must be harmonized to give effect to both. State v. Gentry, 125 Wn.2d 570, 624-25, 888 P.2d 1105 (1995).
¶58 If reasonable effort would or could identify anyone else to act as a victim representative, the investigating officer should not fill that role. See RCW 7.69.030. When an investigating officer acts as a victim representative, there is obvious potential for conflict, the officer’s role must be carefully circumscribed, and the likelihood of apparent or actual unfairness is significant. In Sanchez, five justices correctly determined that it was unfair in the circumstances presented to allow the investigating officer to speak and to make a sentencing recommendation that was inconsistent with the plea agreement. 146 Wn.2d at 358-59 (Chambers, J., concurring in part and dissenting in part), 359 (Madsen, J., dissenting). However, in that case, the victim and her parents could and did speak at sentencing. Id. at 343 (Bridge, J., lead opinion). Sanchez did not discuss the victim’s constitutional rights as applied to the unusual context of this case.
¶59 Here, the victim was killed at the age of 80, over 30 years before anyone was charged with her murder. There was nobody available other than Detective Tompkins to either exercise or waive the victim’s rights.9 This is not a situation where the victim or a representative actually spoke, see id., or could have spoken but chose not to, see *27State v. Carreno-Maldonado, 135 Wn. App. 77, 80, 86, 143 P.3d 343 (2006). With no family, friends, or estate to speak or request a victim representative, Detective Tompkins was the only person familiar with the horrific reality of the victim’s death. Without Detective Tompkins, the victim would have had no one to speak on her behalf.
¶60 The prosecutor recommended the sentence in the plea agreement. Detective Tompkins acted as a victim representative and not as an agent of the prosecutor, and there was no one else who could have spoken on the victim’s behalf. The trial court properly exercised its discretion by allowing the victim’s voice to be heard through Detective Tompkins, and the plea agreement was not breached.
III. Specific performance in this context is a very limited remedy
¶61 Finally, I note that if the plea agreement had been breached, the defendant’s remedy would be choosing between withdrawing his plea or specific performance of the plea agreement. State v. Barber, 170 Wn.2d 854, 855, 248 P.3d 494 (2011). Specific performance where a plea agreement is breached (rather than based on mutual mistake) means only that the defendant is entitled to a new sentencing hearing before a different judge where the prosecutor makes the sentencing recommendation in the plea agreement. Id. at 859-60. The sentencing judge would still not be bound by the recommended sentence. State v. Harrison, 148 Wn.2d 550, 557, 559, 61 P.3d 1104 (2003).
CONCLUSION
¶62 In the extremely narrow circumstance where the victim is deceased and has no estate or surviving family or any other representative, I would hold that it is permissible for an investigating officer to fill that role. Here, the prosecutor did nothing to undermine the State’s agreed-upon *28plea recommendation and the sentencing court properly exercised its discretion in allowing Detective Tompkins to address the court. I respectfully dissent.
Stephens and González, JJ., concur with Yu, J.If the prosecutor had in fact appointed a victim representative or elicited testimony from one, the representative would be acting much more at the request and direction (that is, much more like an agent) of the prosecutor than Detective Tompkins did.
Contrary to the assertions of the majority, “we do not check our common sense at the door,” Diaz v. State, 175 Wn.2d 457, 474, 285 P.3d 873 (2012), and no citation is needed to exercise it.
The unique position of a crime victim is also codified in our statutes. The victim’s rights must be “honored and protected by law enforcement agencies, prose*26cutors, and judges in a manner no less vigorous than the protections afforded criminal defendants.” RCW 7.69.010; see also RCW 7.69.030(14); RCW 9.94A.500(1).
The right to speak at sentencing belongs to the victim, not the victim’s representative. See Wash. Const, art. I, § 35 (“[T]he prosecuting attorney may identify a representative to appear to exercise the victim’s rights.” (emphasis added)). Detective Tompkins’ rights, or lack thereof, are not at issue.