       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION ONE

THE STATE OF WASHINGTON,                  )      No. 78978-3-I
                                          )
                          Respondent,     )
                                          )
                 v.                       )      ORDER WITHDRAWING AND
                                          )      SUBSTITUTING OPINION
MALEK KALID PTAH,                         )
                                          )
                          Appellant.      )

       The panel has determined that the opinion filed on June 1, 2020 should be

withdrawn and a substitute opinion filed to correct a typo on page 12. Now,

therefore, it is hereby

       ORDERED that the opinion filed on June 1, 2020 shall be withdrawn and a

substitute unpublished opinion shall be filed.
        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION ONE

THE STATE OF WASHINGTON,                          )       No. 78978-3-I
                                                  )
                              Respondent,         )
                                                  )
                     v.                           )       UNPUBLISHED OPINION
                                                  )
MALEK KALID PTAH,                                 )
                                                  )
                              Appellant.          )

        BOWMAN, J. — Malek Kalid Ptah appeals his jury convictions of two counts

of second degree assault with firearm enhancements and two counts of theft of a

firearm. Ptah raises issues of prosecutorial misconduct, violation of his right to

present a defense, ineffective assistance of counsel, and sentencing errors. We

affirm Ptah’s convictions but remand for the trial court to recalculate Ptah’s

offender score and determine whether he qualifies for waiver of the $100 DNA1

fee.

                                             FACTS

        Ptah faced a jury trial for charges resulting from events that occurred at

the apartment of his friend Christina Seymour. Ptah raised self-defense and

diminished capacity defenses. Testimony at trial described the events as follows.



        1   Deoxyribonucleic acid.


       Citations and pin cites are based on the Westlaw online version of the cited material.
No. 78978-3-I/2


         Ptah had a “traumatic” childhood marked by instability and sexual abuse.

As an adult, he experienced significant mental health issues, including two

involuntary hospitalizations. Ptah had consistent diagnoses of paranoia,

schizotypal personality disorder, and substance abuse. His health records also

contained occasional diagnoses of psychosis, bipolar disorder, delusional

disorder, and post-traumatic stress disorder.

         Seymour was one of the few significant relationships in Ptah’s life. The

two were like siblings and were godparents to each other’s children. Ptah had a

very close relationship with the two-year-old daughter Seymour shared with her

boyfriend Quinton Hoard.

         On the evening of December 23, 2016, Ptah went to visit Seymour at her

apartment. Ptah and Seymour talked and shared some wine. Ptah spent the

night.

         The next morning on December 24, Hoard returned to the apartment after

work. Hoard, who had a concealed weapons permit, showed Ptah the guns he

had stored in a large black bag in Seymour’s closet. Hoard kept the ammunition

in the bag but in a separate, locked ammunition box. None of the guns were

loaded. Seymour testified that Hoard had two assault rifles and three pistols—a

.45, a pink .22, and a Glock.

         According to Hoard, he showed Ptah his pink Sig Sauer Mosquito .22

caliber semiautomatic pistol, his black 9 mm Glock 19 handgun, his black

Springfield XD Tactical .45 caliber handgun, and his AK-47 tactical rifle. Hoard

planned to pawn some of the weapons for Christmas presents. Ptah expressed




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No. 78978-3-I/3


interest in the pink Sig Sauer .22, wanting Hoard to give him the gun for

protection. Hoard refused, telling Ptah he would need a background check. Ptah

was adamant about wanting the gun but Hoard continued to refuse. Hoard

testified, “I kept telling him no, no, no, he just kept getting a little more angry, a

little more frustrated each time.”

       According to Ptah, Hoard also showed him his Del-Ton Sport AR-15 rifle

and agreed to sell him one of the assault rifles. Ptah also testified that Hoard

demonstrated that the pink .22 caliber handgun did not work. Hoard pointed the

weapon at the ground and pulled the trigger repeatedly but it failed to fire. Ptah

claimed that he, Hoard, and Seymour discussed Ptah holding onto the .22

because Ptah knew somebody who could fix the weapon.

       Later that morning, Hoard went to work, leaving Ptah to spend time with

Seymour and her daughter. Ptah testified that Seymour’s daughter made a

statement he interpreted to mean that Hoard had molested her. Ptah believed

that Seymour heard and understood her daughter’s statement as well.

       Seymour did not believe Hoard had molested their daughter, but Ptah

continued with the accusations. Ptah began making plans to get Hoard out of the

apartment. Ptah testified that he told Seymour they needed to call the police.

Ptah insisted that Seymour and her daughter could not stay in the apartment with

Hoard. Ptah also decided to remove the firearms from the apartment. He

devised a plan to put the guns in the car, call the police, then wait in the parking

lot for Hoard and the police. Ptah claimed he wanted to separate Hoard from the

guns so that Hoard could not shoot everyone when they accused him of




                                            3
No. 78978-3-I/4


molesting his daughter. According to Ptah, Hoard had claimed he would shoot

Seymour and others in the past.

       Ptah testified that he and Seymour talked about this plan for several

hours. They were going to take the guns down to the curb, put them in the trunk

of the car, and call the police. Ptah said he believed Seymour agreed to the

plan. Ptah testified that he and Seymour gathered all the guns and bullets into a

bag. Ptah attached the Sig Sauer .22 caliber handgun to his hip.

       Ptah testified that when he tried to take the bag out of the apartment,

Seymour “flipped the script on me” and would not let him leave with the guns.

Ptah and Seymour fought over the bag of guns. She grabbed his arm and tried

to hit him. He claimed Seymour said she was going to shoot him and tried to

retrieve a gun. Ptah tried to bite her and hold her back but she hit him multiple

times on the head. He eventually pistol-whipped her once.

       Seymour’s testimony differed. According to her, Ptah was extremely

agitated and concerned about the weapons in the closet and his suspicion that

Hoard molested her daughter. She “play[ed] along” and agreed with his theories,

hoping he would tire of the topic. But she never agreed to help him take the

weapons. When Ptah began taking the guns out of the closet, Seymour said he

could not leave with Hoard’s property. Ptah would not listen, and they argued.

The argument turned into a physical altercation. Ptah told Seymour he would

pistol-whip her if she did not let him take the weapons. Seymour did not believe

Ptah would physically hurt her. But as they “tussl[ed]” over the bag of weapons

and Seymour refused to let go, Ptah “pulled out a pistol and started hitting” her




                                         4
No. 78978-3-I/5


about the head and face. Seymour recalled that he struck her more than five

times. Her daughter was nearby, “[s]creaming and saying no.” When a neighbor

knocked on the door, Ptah stopped hitting Seymour and left with multiple bags

and the guns.

       Seymour was bleeding, with contusions and cuts on her face. She called

Hoard, who thought she was “playing” and did not believe that Ptah had

assaulted her. When Seymour made a video call, Hoard saw the blood and

quickly returned to the apartment. Seymour called the police.

       Ptah testified that he walked out of the apartment elevator with the bags to

find Hoard with a weapon in his hand. Ptah then drew the .22 from his waist to

try to scare Hoard. Ptah testified that he believed the .22 was not operable. He

aimed the gun toward the sill of the door next to Hoard to scare him. Ptah pulled

the trigger, knowing the gun would not fire.

       Hoard testified that he was walking toward the apartment building doors

when he saw Ptah and asked, “ ‘What’s going on.’ ” Ptah had the bags and held

the .22 caliber pistol in his hand. Ptah said, “ ‘I gotta do this’ ” and cocked the

gun. Hoard drew his gun and backed up until he was hiding behind a car in the

parking lot. Hoard called the police from his hiding spot.

       Police arrived to find Hoard pointing his gun toward the apartment

building. Hoard was compliant with police demands, saying he would drop his

weapon when Ptah dropped his. At that point, the officer noticed Ptah with the

bags and guns at his feet. Both men put down their guns at the officer’s

command.




                                          5
No. 78978-3-I/6


       The police officer approached Ptah and saw a garbage bag and several

other bags at his feet. Two assault rifles protruded from the garbage bag. A

backpack contained the pink .22 caliber pistol and an AR-15 magazine.

       Ptah willingly spoke with the police. He told the officer that he and

Seymour planned to confront Hoard with accusations of molestation and then

have him arrested. However, when Ptah began collecting the guns, Seymour

appeared to change her mind and tried to prevent Ptah from taking the weapons.

Ptah claimed that Seymour had punched him several times in the jaw and he

retaliated by hitting her twice with the .22. He then left the apartment with the

bags and guns. When Hoard arrived, Ptah put the magazine in the pistol,

pointed it at Hoard, and pulled the trigger three times. The gun “ ‘clicked’ ” rather

than fired.

       Detectives noted concerns about Ptah’s mental health. He was “very

excited” while talking to responding officers. Kirkland Police Detective Brian

Frankeberger testified, “The chronological order of things was kind of skewed,

and he would talk over himself and then come back and then talk about a

different part of the incident and then come back.” Ptah testified that he was

“[e]xcited” and “happy” when the police arrived because he believed his plan to

secure the guns and have the police arrest Hoard had succeeded. Ptah told a

detective, “ ‘You’re lucky the motherfucker isn’t dead, add that to your report.’ ”

       The State charged Ptah with two counts of second degree assault of

Seymour and Hoard while armed with a firearm and two counts of theft of a




                                          6
No. 78978-3-I/7


firearm—“a pistol” and “an AR15 rifle” belonging to Hoard.2 After several days of

testimony, the jury convicted Ptah as charged. The trial court imposed a

concurrent sentence within the standard range, two consecutive 36-month

firearm enhancements, and legal financial obligations. Ptah timely appeals.

                                          ANALYSIS

Prosecutorial Misconduct

        Ptah argues the prosecutor committed misconduct during closing

argument. He contends that the prosecutor improperly appealed to the jury’s

passion and prejudice, misstated the law of self-defense, and argued law not

contained in the jury instructions.

        To prove prosecutorial misconduct, a defendant must establish that

conduct was both improper and prejudicial in the context of the entirety of the

case. State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008). Where, as

here, the defendant fails to object at trial, the error is waived absent misconduct

so flagrant and ill intentioned that an instruction could not have cured the

resulting prejudice. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653

(2012). To demonstrate this level of misconduct, “the defendant must show that

(1) ‘no curative instruction would have obviated any prejudicial effect on the jury’

and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of

affecting the jury verdict.’ ” Emery, 174 Wn.2d at 761 (quoting State v.

Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).



        2  The State also charged Ptah with two counts of unlawful possession of a firearm in the
second degree. The State asked and the court agreed to dismiss those counts at the beginning
of the trial.


                                                7
No. 78978-3-I/8


      We review statements in a prosecutor’s closing arguments in the context

of the issues in the case, the total argument, the evidence addressed in the

argument, and the jury instructions. State v. Boehning, 127 Wn. App. 511, 519,

111 P.3d 899 (2005). A prosecutor has wide latitude to draw reasonable

inferences from the evidence during closing argument. Boehning, 127 Wn. App.

at 519. “However, a prosecutor may not make statements that are unsupported

by the evidence and prejudice the defendant.” Boehning, 127 Wn. App. at 519.

      I. Uncharged Crimes

      Ptah claims the prosecutor improperly appealed to the jury’s passion and

prejudice by suggesting that the State could have charged Ptah with more than

just two counts of theft of a firearm. We disagree.

      References to dismissed or uncharged crimes may prejudice a defendant

by inviting a jury to determine guilt based on improper grounds. See Boehning,

127 Wn. App. at 522; State v. Torres, 16 Wn. App. 254, 256, 554 P.2d 1069

(1976). For example, in Boehning, the prosecutor referred to three counts of

rape during closing argument that had been dismissed at the close of evidence.

Boehning, 127 Wn.2d at 517. The prosecutor’s remarks were improper because

dismissal of the charges was not evidence from which reasonable inferences and

arguments about the charged crimes could be made. Boehning, 127 Wn. App. at

522. The purpose of the remarks was clearly to appeal to the passion and

prejudice of the jury to infer guilt of the charged crimes. Boehning, 127 Wn. App.

at 522. Similarly, in Torres, the State charged three codefendants with rape.

Torres, 16 Wn. App. at 255. Two of the codefendants were also charged with




                                         8
No. 78978-3-I/9


burglary. The prosecutor suggested during opening statement that the State

could have charged the third codefendant with burglary as well. Torres, 16 Wn.

App. at 256. This suggestion was not relevant to any issue at trial and

improperly allowed the jury to infer the defendant’s guilt on both charged and

uncharged crimes.

       This case differs from Boehning and Torres. The evidence in this case

showed that Ptah took multiple firearms. But the State charged Ptah with theft of

only two of the guns. To preserve jury unanimity, the prosecutor had to identify

the two specific firearms the State intended to rely on as evidence of the thefts.

See State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), abrogated on

other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988); State v.

Carson, 184 Wn.2d 207, 217, 357 P.3d 1064 (2015). The prosecutor identified

those firearms and argued, “[I]n this particular case, the State charged two of the

firearms. We didn’t charge theft of all four; we just picked two of the firearms.”

He explained, “Did the defendant take the other ones? Yes. But the State

elected to move forward on two counts of theft instead of multiple counts of theft.

So those are the two it’s referring to.”

       The prosecutor’s statements were made in the context of explaining the

“to convict” instructions for the two theft of a firearm counts and focused the jury

on the firearms that the State elected to pursue as evidence of those counts.

The argument was relevant to an issue at trial and did not amount to an improper

appeal to the passion and prejudice of the jury.




                                           9
No. 78978-3-I/10


      II. Law of Self-Defense

      Ptah argues the prosecutor committed misconduct by misstating the law of

self-defense as defined in the jury instructions. According to Ptah, the prosecutor

erroneously suggested that the self-defense instruction should apply to Hoard

rather than Ptah. We conclude that the prosecutor’s analogy was a proper

explanation of the law of self-defense.

      To raise self-defense, the defendant must produce some evidence of

reasonable apprehension of great bodily harm and imminent danger. State v.

Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999). Once properly raised, the

burden shifts to the State to prove the absence of self-defense beyond a

reasonable doubt. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).

      The trial court instructed the jury, in pertinent part:

             The use of force upon or toward the person of another is
      lawful when used by a person who reasonably believes that he is
      about to be injured in preventing or attempting to prevent an
      offense against the person, when the force is not more than is
      necessary.
             The use of force upon or toward the person of another is
      lawful when used in preventing or attempting to prevent a malicious
      trespass or other malicious interference with real or personal
      property lawfully in that person’s possession, and when the force is
      not more than is necessary.

      In closing argument, the prosecutor argued that the language of the

instruction relating to defense of property would apply to Hoard if he had been

charged, but does not apply to Ptah. He encouraged the jury to “[g]o through the

self-defense instruction” and argued that “a good application of that self-defense

instruction is applied to Mr. Hoard.” He argued that Hoard’s “property is being




                                          10
No. 78978-3-I/11


stolen, so that self-defense instruction says he can use reasonable force to

protect his property.” The prosecutor later argued:

       You can’t go and steal somebody’s property and then claim self-
       defense when they are hanging on to [sic] the property that you’re
       trying to steal. Can you imagine that? Go steal somebody’s
       property and when they try to keep in from you, “Hey, I was just
       defending myself when I beat him up or shot him when I was
       stealing the property.” It doesn’t apply there.

       The prosecutor also argued that the language of the instruction relating to

lawful defense of person would apply to Hoard if he were charged, but does not

apply to Ptah. The prosecutor told the jury that Ptah “has just beat up [Hoard’s]

girlfriend, is coming out with a firearm, points a firearm at him and tries to shoot

him.” He argued that the “self-defense instruction would say that Mr. Hoard

could use reasonable force in order to defend himself in that situation.” The

prosecutor concluded by explaining, “[T]hat’s how that instruction works. So if

the State somehow tried Mr. Hoard for that offense . . . [,] you can see how it

applies to Mr. Hoard. But that instruction does not apply in this case with regard

to the defendant.”

       Ptah argues that “whether Hoard would hypothetically have been entitled

to a self-defense instruction is irrelevant” because the charge of the jury is to

“measure Ptah’s conduct against the legal standard for when force is lawful.” But

the prosecutor’s hypothetical was clearly an effort to do just that. The prosecutor

contrasted Ptah’s actions with Hoard’s in an attempt to demonstrate that Ptah’s

conduct did not meet the legal standard of lawful force.




                                         11
No. 78978-3-I/12


       III. First Aggressor

       Ptah also argues that the prosecutor committed misconduct by suggesting

to the jury that Ptah could not raise self-defense because he was the first

aggressor. Ptah contends that the prosecutor’s argument was improper because

the court did not provide the jury a first-aggressor instruction.

       “Statements made during closing argument that pertain to the law must be

confined to the law set forth in the instructions.” State v. Souther, 100 Wn. App.

701, 714, 998 P.2d 350 (2000). A “first aggressor” instruction is appropriate

“[w]here there is credible evidence from which a jury can reasonably determine

that the defendant provoked the need to act in self-defense.” Riley, 137 Wn.2d

at 909-10.

       The prosecutor argued:

       [Hoard] was not the aggressor in this case. The defendant should
       be thankful that he’s not shot, even though he tried to take the life
       of somebody else.
              So look through that self-defense instruction. First of all, it
       doesn’t apply given the facts of this case because the defendant is
       the aggressor, and you can’t be the aggressor and then use self-
       defense. It also doesn’t apply because the force he used is totally
       unreasonable under the circumstances. But again, he struck
       [Seymour]. He tried to shoot Mr. Hoard. Self-defense does not
       apply. It would have applied to Mr. Hoard if he would have acted,
       but not to the defendant in this case.

       Ptah mischaracterizes the prosecutor’s argument. He did not argue that

Ptah was the first aggressor—that Ptah provoked Hoard into assaulting him,

creating the need for Ptah to act in self-defense. Rather, the prosecutor argued

that Ptah was the only aggressor—that Ptah was not entitled to argue self-

defense because he was not defending himself when he tried to shoot Hoard.




                                          12
No. 78978-3-I/13


The State has the burden to prove the absence of self-defense. Kyllo, 166

Wn.2d at 862. The prosecutor’s argument was not a misstatement of the law

and was confined to the law as proscribed in the jury instructions.

Washington Privacy Act

       Ptah contends the trial court erred in excluding recorded phone calls. We

review a trial court’s legal conclusions on a motion to suppress de novo. State v.

Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011) (citing State v. Smith, 165

Wn.2d 511, 516, 199 P.3d 386 (2009)).

       At trial, Ptah moved to admit the content of eight telephone calls he

recorded from his cell phone. Seven of the calls involved Seymour. The eighth

recording was a call between Ptah and Hoard. Ptah argued that the calls were

admissible as impeachment evidence, as evidence of present sense

impressions, and to show his then existing mental state.

       The State moved to exclude the evidence pursuant to the Washington

privacy act (WPA), chapter 9.73 RCW. The trial court excluded five of the calls

with Seymour, concluding that she had not consented to the recordings. The

court reserved ruling on two other recordings because it lacked sufficient

information to determine whether Seymour consented. The court also reserved

ruling on the call between Hoard and Ptah but later admitted the evidence.3 Ptah

did not renew his motion to admit the two recordings with Seymour. One of

those calls consisted of a voicemail with Seymour’s voice in the background.




       3 During Hoard’s testimony, defense counsel offered the call between Hoard and Ptah,
which the trial court admitted.


                                             13
No. 78978-3-I/14


The other call contained Ptah rapping and reciting poetry and ends with Seymour

saying someone threatened her, but she does not say who threatened her.

       The WPA prohibits the recording of private communications without the

consent of all parties. RCW 9.73.030(1). A recording violates the WPA if it

captures “(1) a private communication transmitted by a device, which was (2)

intercepted by use of (3) a device designed to record and/or transmit, (4) without

the consent of all parties to the private communication.” State v. Christensen,

153 Wn.2d 186, 191-92, 102 P.3d 789 (2004) (citing RCW 9.73.030(1)(a)). Any

information obtained in violation of the WPA is inadmissible in criminal cases.

RCW 9.73.050.

       “A party is deemed to have consented to a communication being recorded

when another party has announced in an effective manner that the conversation

would be recorded.” State v. Townsend, 147 Wn.2d 666, 675, 57 P.3d 255

(2002) (citing RCW 9.73.303(3)). Additionally, “a communicating party will be

deemed to have consented to having his or her communication recorded when

the party knows that the messages will be recorded.” Townsend, 147 Wn.2d at

675.

       Ptah claimed at trial and again on appeal that he announced to Seymour

in an effective manner that he recorded all of their telephone calls. He points to

one recording of a call with Seymour in which he complains about a conversation

he had with his son’s mother as evidence that Seymour consented. In that call,

he told Seymour to “ ‘hear this conversation’ ” with his son’s mother and then

said, “ ‘You know my phone records everything.’ ” Seymour replied, “ ‘Ah, shit.’ ”




                                        14
No. 78978-3-I/15


However, during a defense interview, Seymour explained that she thought Ptah’s

comment about recording calls on his phone referred to only his conversations

with his son’s mother. She was not aware that Ptah recorded her conversations

with him as well.

       Ptah fails to establish that Seymour consented to the recording of her

conversations. Ptah’s comment to Seymour in the context of a contentious

conversation with his son’s mother was not an “effective” announcement that he

recorded all calls with Seymour. RCW 9.73.030(3); Townsend, 147 Wn.2d at

675. And the undisputed evidence shows that Seymour did not know that Ptah

recorded their calls. Townsend, 147 Wn.2d at 675. Because Seymour did not

consent to the recordings, they were inadmissible under RCW 9.73.050.

Right To Present a Defense

       Ptah also raises a due process challenge to the exclusion of the recorded

calls as an infringement of his right to present a defense. We review a

constitutional issue de novo. State v. Jones, 168 Wn.2d 713, 719, 230 P.3d 576

(2010).

       “The right of an accused in a criminal trial to due process is, in essence,

the right to a fair opportunity to defend against the State’s accusations.”

Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297

(1973). However, a defendant’s right to present a defense is sometimes limited

by the “procedural and evidentiary rules that control the presentation of

evidence.” State v. Baird, 83 Wn. App. 477, 482, 922 P.2d 157 (1996). In such

cases, “the court must evaluate whether the interests served by the rule justify




                                         15
No. 78978-3-I/16


the limitation. Restrictions imposed by such rules may not be arbitrary or

disproportionate to the purposes they are designed to serve.” Baird, 83 Wn. App.

at 482.4 This requires balancing the interests promoted by the evidentiary statute

against those of the defendant in offering the evidence. Baird, 83 Wn. App. at

843. Evidentiary statutes cannot bar highly probative evidence essential to the

defense. See Jones, 168 Wn.2d at 723-24.

       In this case, the WPA controls the admission of the recorded calls. “Its

purpose is straightforward: to preserve as private those communications

intended to be private.” Baird, 83 Wn. App. at 482-83. Washington has a long

history of robust protection of private telephone communications. State v. Archie,

148 Wn. App. 198, 202, 199 P.3d 1005 (2009). We weigh this against Ptah’s

stated purpose for seeking admission of the recorded conversations—

impeachment, present sense impression, and then existing mental state. In

particular, Ptah argues the telephone calls were relevant to the jury in

determining his state of mind as it pertained to his diminished capacity defense.

       But Ptah had ample opportunity to present evidence of his state of mind

without relying on the calls recorded in violation of the WPA. A mental health

expert testified as to Ptah’s state of mind and mental health. According to the

expert, Ptah demonstrated schizotypal paranoid thinking, particularly when he

concluded that Hoard was molesting Seymour’s daughter. Ptah saw clues that

only he understood and came to the conclusion of sexual abuse. This set into

motion a series of choices that made sense only to Ptah. The expert described



       4   Citations omitted.


                                        16
No. 78978-3-I/17


this as Ptah’s “grandiose delusion” that he would “protect” Seymour and her

daughter and save them from Hoard. This attempt to save Seymour and her

daughter turned to “betrayal” when she refused to cooperate with the plan to

remove the guns. The expert testified that the shock of this betrayal motivated

Ptah to the confrontations with Seymour and Hoard. The expert opined,

“[S]omeone with a full deck wouldn’t act like this.”

       Ptah also testified in detail about his mental state at the time of the

incident. Ptah detailed his difficult childhood and the sexual abuse he

experienced, which made him hypervigilant. He described his worry that his son

was being molested and his belief that Hoard was molesting Seymour’s

daughter. He expressed his concerns about Hoard having weapons and his

fears for the safety of Seymour and her child. He talked about formulating the

plan with Seymour and her change of heart. He described feeling “happy” when

the police arrived because he thought the plan had succeeded. Police officers

also described their observations of Ptah and mental health concerns.

       Given this extensive testimony, the recorded calls had little additional

probative value as to Ptah’s mental state at the time of the incident. Exclusion of

the calls did not prevent Ptah from presenting his diminished capacity defense.

Ineffective Assistance of Counsel

       Ptah claims his trial counsel was ineffective for failing to object to the

prosecutor’s improper closing argument and for failing to renew Ptah’s motion to

admit recorded calls with Seymour. To succeed on a claim of ineffective

assistance of counsel, the defendant must demonstrate that defense counsel’s




                                          17
No. 78978-3-I/18


representation fell below an objective standard of reasonableness and the

deficient representation resulted in prejudice. State v. McFarland, 127 Wn.2d

322, 334-35, 899 P.2d 1251 (1995). “When counsel’s conduct can be

characterized as legitimate trial strategy or tactics, performance is not deficient.”

Kyllo, 166 Wn.2d at 863.

       As discussed above, the prosecutor’s closing argument was not an

attempt to appeal to the passion and prejudice of the jury, did not misstate the

law, and did not stray from the law as provided in the jury instructions.

Accordingly, failure to object to the argument does not amount to deficient

representation.

       Neither was counsel’s failure to renew Ptah’s motion to admit recordings

of his telephone calls deficient. The recordings had little probative value.

Discussion during the motion in limine shows confusion about the content and

significance of the calls. The State expressed concern that the conversations

would confuse the jury. Given the minimal probative value, the likelihood of

confusion, and the ample additional evidence of Ptah’s mental state, counsel’s

failure to revisit the evidence does not amount to ineffective assistance.

Sentencing Issues

       Ptah requested an exceptional sentence. He asked the court to “forego

the firearm enhancements” and impose standard-range concurrent sentences for

each count. He also asked the court to find that the two convictions for theft of a

firearm constitute the same criminal conduct for the purpose of calculating his

offender score. The trial court denied both of Ptah’s requests and sentenced him




                                         18
No. 78978-3-I/19


to concurrent standard-range sentences on each count and two consecutive 36-

month firearm enhancements. The court waived all nonmandatory legal financial

obligations and ordered Ptah to pay restitution, the $500 victim penalty

assessment, and the $100 DNA collection fee. Ptah appeals.

       We review a sentencing court’s decision for abuse of discretion or

misapplication of the law. State v. Delbosque, 195 Wn.2d 106, 116, 456 P.3d

806 (2020). A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds. Delbosque, 195 Wn.2d at 116. A

failure to exercise discretion is also an abuse of discretion. State v. Stearman,

187 Wn. App. 257, 270, 348 P.3d 394 (2015). Interpretation of a statutory

provision is a question of law we review de novo. State v. Haddock, 141 Wn.2d

103, 110, 3 P.3d 733 (2000).

       I. Firearm Enhancements

       Ptah argues the trial court failed to recognize that it had discretion to

“forego” imposing consecutive sentences for the firearm enhancements. In

support of his contention that the trial court had discretion to impose concurrent

sentences for the firearm enhancements, Ptah cites to In re Personal Restraint of

Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007), and State v. McFarland, 189

Wn.2d 47, 399 P.3d 1106 (2017). Both cases are inapposite.

       Mulholland addressed the court’s discretion in sentencing multiple serious

violent offenses. Mulholland, 161 Wn.2d at 327. Under RCW 9.94A.589(1)(b),5

multiple serious violent offenses are served consecutive to each other. In


       5We note the legislature recently amended RCW 9.94A.589. LAWS OF 2020, ch. 276, §
1. The amendments do not affect the analysis throughout this opinion.


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No. 78978-3-I/20


Mulholland, the court concluded that the explicit language of RCW 9.94A.5356

gives trial courts discretion to impose concurrent sentences for serious violent

offenses. Mulholland, 161 Wn.2d at 329-30.

        In McFarland, the court considered whether the language in RCW

9.94A.535 also authorized discretion to depart from the requirement that courts

impose consecutive sentences for multiple “firearm-related” offenses under RCW

9.94A.589(1)(c). McFarland, 189 Wn.2d at 52-53. It concluded that there was

“no statutory basis to distinguish between the consecutive sentencing language

in these two subsections.” McFarland, 189 Wn.2d at 53.

        Neither Mulholland nor McFarland addressed firearm enhancements.

Firearm enhancements are added to a standard-range sentence and are

governed by RCW 9.94A.533(3). The imposition of firearm enhancements is

mandatory:

        Notwithstanding any other provision of law, all firearm
        enhancements under this section are mandatory, shall be served in
        total confinement, and shall run consecutively to all other
        sentencing provisions, including other firearm or deadly weapon
        enhancements, for all offenses sentenced under this chapter.

RCW 9.94A.533(3)(e).

        The explicit language of RCW 9.94A.533(3)(e) requires the imposition of

firearm enhancements and mandates that they run consecutive to all other

sentencing provisions and to each other. Unlike the consecutive sentence

statute at issue in Mulholland and McFarland, RCW 9.94A.535 does not provide


         6 RCW 9.94A.535 provides the guidelines for imposing an exceptional sentence and

states, in pertinent part, “A departure from the standards in RCW 9.94A.589 (1) and (2) governing
whether sentences are to be served consecutively or concurrently is an exceptional sentence
subject to the limitations in this section.”


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authority to depart from the mandates of the firearm enhancement statute.

“[J]udicial discretion to impose an exceptional sentence does not extend to a

deadly weapon enhancement in light of the absolute language of [RCW

9.94A.533(3)(e)].” State v. Brown, 139 Wn.2d 20, 29, 983 P.2d 608 (1999),

overruled on other grounds by State v. Houston-Sconiers, 188 Wn.2d 1, 391

P.3d 409 (2017).7

        II. Same Criminal Conduct

        In general, offender score calculations include all current and prior

convictions. RCW 9.94A.589(1)(a); see State v. Roose, 90 Wn. App. 513, 515-

16, 957 P.2d 232 (1998). However, multiple current offenses encompassing the

same criminal conduct count as one crime. RCW 9.94A.589(1)(a); see State v.

Tresenriter, 101 Wn. App. 486, 496, 4 P.3d 145 (2000). RCW 9.94A.589(1)(a)

defines “same criminal conduct” as “two or more crimes that require the same

criminal intent, are committed at the same time and place, and involve the same

victim.” If one of these elements is missing, the sentencing court must count the

offenses separately in the offender score. Haddock, 141 Wn.2d at 110.

        Ptah argues that his two convictions for theft of a firearm constitute the

same criminal conduct for the purpose of calculating his offender score. He

contends that the trial court abused its discretion by failing to conduct a same-

criminal-conduct analysis. The State concedes this error, but the parties



         7 In Houston-Sconiers, our Supreme Court concluded that the Eighth Amendment to the

United States Constitution requires that courts sentencing juveniles must have discretion to
consider the mitigating circumstances of youth and held that “[t]o the extent our state statutes
have been interpreted to bar such discretion with regard to juveniles, they are overruled.”
Houston-Sconiers, 188 Wn.2d at 21, 9 (footnote omitted). Ptah makes no argument that he was
a juvenile offender at the time of his sentencing.


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No. 78978-3-I/22


disagree as to the proper remedy on appeal. Ptah contends that we should

determine whether the crimes constitute the same criminal conduct and remand

for recalculation of his offender score and resentencing. The State argues that

we should remand for the trial court to conduct a same-criminal-conduct analysis.

We agree with Ptah.

       “Deciding whether crimes involve the same time, place, and victim often

involves determinations of fact.” State v. Graciano, 176 Wn.2d 531, 536, 295

P.3d 219 (2013). But “when the underlying facts are undisputed, the

determination of same criminal conduct may be resolved as a matter of law.”

State v. Hatt, 11 Wn. App. 2d 113, 141, 452 P.3d 577 (2019), review denied, 195

Wn.2d 1011, 460 P.3d 176 (2020). Here, the facts are not in dispute. The

record clearly establishes that Hoard was the victim of both thefts and that the

thefts occurred simultaneously at Seymour’s apartment. We conclude that the

theft of firearm convictions constitute the same criminal conduct for the purpose

of calculating Ptah’s offender score. See Tresenrieter, 101 Wn. App. at 497. We

remand to the trial court for recalculation of Ptah’s offender score.

       III. DNA Fee

       Ptah claims that the trial court erroneously imposed a $100 DNA fee

without consideration of whether his mental health conditions impact his ability to

pay the fee. The State properly concedes error based on RCW 9.94A.777(1)

and State v. Tedder, 194 Wn. App. 753, 756-57, 378 P.3d 246 (2016). We

remand for the trial court to consider Ptah’s ability to pay.




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No. 78978-3-I/23


Statement of Additional Grounds

       Ptah submitted a statement with several additional grounds for relief. We

address these to the extent we can discern his legal arguments.

       I. Mental Illness

       Ptah argues he did not receive adequate accommodations for his mental

illness. In particular, he claims his mental illness required the court to appoint a

guardian ad litem (GAL) under RCW 4.08.060. However, RCW 4.08.060

pertains to only civil cases. Similarly, Ptah cites to King County Superior Court’s

mental proceeding rules allowing for GAL appointment in commitment hearings.

See LMPR 1.7. These rules are also inapplicable in the criminal context.

       Ptah also claims rights under chapter 10.77 RCW. Ptah’s mental illness

did not entitle him to the rights and procedures for the criminally insane as

defined in that chapter.

       II. Ineffective Assistance of Counsel

       Ptah argues that his attorney was ineffective because he failed to

convince the court to admit his recorded telephone calls. He claims his attorney

“[led] me to believe” that the evidence was “Gold,” creating the expectation that

the recordings would be admitted. The trial court properly excluded the recorded

phone calls pursuant to the WPA. Counsel’s inability to admit the evidence was

not deficient.

       We affirm Ptah’s convictions for two counts of theft of a firearm and two

counts of assault in the second degree with firearm enhancements but remand




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for the trial court to recalculate Ptah’s offender score and determine whether he

qualifies for waiver of the $100 DNA fee.




WE CONCUR:




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