      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                         ]         No. 68030-7-1

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                     Respondent,             ]         DIVISION ONE                      —-iC

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                                                                                         C3~r>
              v.                             ]

FELIX VINCENT SITTHIVONG,                    ;         UNPUBLISHED
                                                                                    25
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                                                                                         cc m r~

                                                                                    up   co^
                     Appellant.              )         FILED: June 17, 2013              -^"O
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       Cox, J. — Felix Sitthivong appeals his judgment and sentence, claiming

that the trial court abused its discretion when it refused to instruct the jury on the

lesser-included instruction of first degree manslaughter. Sitthivong also argues

that he received ineffective assistance of counsel at trial because his attorney

failed to request a selfdefense instruction for the charge offirst degree assault.
In his Statement of Additional Grounds for Review, Sitthivong contends that the

trial court abused its discretion and violated his Sixth Amendment right to

confrontation when it ruled that a 911 tape recording relevant to this case was

inadmissible. We affirm.
No. 68030-7-1/2


       On a Saturday night in 2010, Sitthivong was in the Belltown neighborhood

with six friends. They visited several bars during the course of the night. At one

of these bars in Belltown, Sitthivong argued with another group of men.

       Around 1:30 a.m., Sitthivong's group headed towards V-Bar, a late-night

establishment in Belltown. Sitthivong testified that as they drove past V-Bar to

park, he saw the same group of individuals with whom he had previously argued.

Sitthivong testified that he made eye contact with these individuals and believed

they recognized him. No other witness reported that they saw this group, or that

any individuals in front of V-Bar were those with whom Sitthivong had argued

earlier that night.

       At some point during the drive to V-Bar, Sitthivong took a gun from

another individual in the car. He then put it in his waistband. Sitthivong testified

that he did this because he felt afraid of the individuals in front of V-Bar.

       Once they parked in a lot close to V-Bar, Sitthivong and his friends got out

of the car. Steve Sok, Phillip Nguyen, and Yousouf Ahmach, who had spent the

earlier part of the night in Pioneer Square, not Belltown, were standing on the

sidewalk near V-Bar.

       At trial, there was conflicting testimony about the interaction between

Sitthivong, Sok, Nguyen, and Ahmach. Sitthivong claims Sok and Nguyen
confronted him and then turned and started walking back to V-bar with Ahmach.

Sitthivong testified he then saw Sok and Nguyen turn around and point guns at
him. All other witnesses testified that Sok, Nguyen, and Sitthivong argued
No. 68030-7-1/3


outside V-bar but that they had not seen Nguyen or Sok with guns. All agree that

Sitthivong pulled out a gun and started shooting.

      Sitthivong fired eight shots into a crowded street. Sok was killed and

Phillip Thomas, a bystander, was shot in the stomach. Another individual who

lived across the street from the V-Bar, recorded a video of the shooting from his

apartment and also called 911 after the incident.

       By amended information, the State charged Sitthivong with first degree

premeditated murder of Sok (count I) and, in the alternative, first degree murder

by extreme indifference for Sok's death (count V). The State also charged

Sitthivong with first degree assault of Thomas, the innocent bystander, (count II)

and two counts of first degree attempted murder of Ahmach and Nguyen (count

III and IV). All charges carried firearm allegations. Finally, the State charged

Sitthivong with unlawful possession of a firearm in the second degree, a charge

for which Sitthivong agreed to a bench trial.

       After a lengthy jury trial, the trial court provided instructions to the jury

regarding Sitthivong's justifiable homicide selfdefense as to all five counts. It
also provided a lesser included offense instruction for count I (premeditated first
degree murder), instructing the jury on second degree murder and first degree
manslaughter. The trial court denied Sitthivong's request to instruct the jury on
the lesser included offense of first degree manslaughter for count V (first degree

murder by extreme indifference).

       Ajury convicted Sitthivong of count V (first degree murder by extreme
indifference), counts III and IV (two counts of second degree attempted murder),
No. 68030-7-1/4


and count II (first degree assault). The jury also convicted him of the lesser

included offense of second degree intentional murder for count I. Finally, they

found these crimes were committed while Sitthivong was armed with a firearm.

       The trial court found Sitthivong guilty of the firearm possession charge in

the bench trial to which he agreed.

       The trial court sentenced Sitthivong to standard range sentences for all

counts and vacated the second degree murder conviction on double jeopardy

grounds.

       Sitthivong appeals.

                       LESSER INCLUDED INSTRUCTION

       Sitthivong argues that the trial court abused its discretion when it denied

his request for a lesser included first degree manslaughter jury instruction on

count V, first degree murder of Sok by extreme indifference. We disagree.

       The right to instruct the jury on a lesser included offense is a statutory

right.1 Under the test enunciated by the supreme court in State v. Workman, a
defendant is entitled to a lesser included offense instruction "iftwo conditions are

met."2 First, under the legal prong of the test, each element of the lesser offense
must be a necessary element of the charged offense.3 Second, under the factual
prong, "the evidence must support an inference that the lesser crime was


       1 State v. Bowerman. 115 Wn.2d 794, 805, 802 P.2d 116 (1990); RCW
10.61.003, 10.61.006.

       2 90 Wn.2d 443, 447, 584 P.2d 382 (1978).

       3 State v. Sublett. 176 Wn.2d 58, 83, 292 P.3d 715 (2012).
No. 68030-7-1/5


committed."4 "[T]he factual test includes a requirement that there be a factual
showing more particularized than that required for other jury instructions.

Specifically, ... the evidence must raise an inference that only the lesser

included/inferior degree offense was committed to the exclusion of the charged

offense."5

          An appellate court views the evidence that purports to support a requested

instruction in the light most favorable to the party who requested the instruction at

trial.6

          This court reviews de novo the legal prong of a request for a jury

instruction on a lesser included offense.7 Where a trial court's refusal to give

instructions is based on the facts of the case, an appellate court reviews this

factual determination for abuse of discretion.8
          Here, the legal prong ofthe Workman test is satisfied. "The elements of
first degree manslaughter are necessarily included in first degree murder by
extreme indifference . .. ."9



          4kl

      5 State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000)
(some emphasis added).

          6 \± at 455-56.

          7State v. LaPlant, 157 Wn. App. 685, 687, 239 P.3d 366 (2010) (citing
State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998)).

          8]dL; State v. Hunter, 152 Wn. App. 30, 43, 216 P.3d 421 (2009) (citing
State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other
grounds by State v. Berlin, 133 Wn.2d 541, 547-49, 947 P.2d 700 (1997)).

          9State v. Pettus. 89 Wn. App. 688, 700, 951 P.2d 284 (1998).
                                                5
No. 68030-7-1/6


      Thus, the only question is whether the trial court abused its discretion in

deciding that the factual prong was not satisfied. Specifically, did the evidence

raise an inference that Sitthivong only committed first degree manslaughter, not

first degree murder by extreme indifference?

       Under RCW 9A.32.060, first degree manslaughter requires proof that the

defendant recklessly caused the death of another.10 In contrast under RCW
9A.32.030(1)(b), first degree murder by extreme indifference requires proof that

the defendant "acted (1) with extreme indifference, an aggravated form of

recklessness, which (2) created a grave risk of death to others, and (3) caused

the death of a person."11 There is no dispute here that the firing ofshots created
a grave risk of death to others and that the shots caused the death of Sok. Thus,
the question is whether Sitthivong can point to any evidence in this record that
shows his acts were merely reckless.12
       Two opinions addressing the question ofwhether a lesser included
instruction was warranted are instructive: State v. Pastrana13 and State v.
Pettus.14 In both of these cases, the defendant was charged with first degree

murder by extreme indifference.15 Division Two of this court held in both cases


       10RCW9A.32.060(1)(a).

       11 State v. Pastrana, 94 Wn. App. 463, 470, 972 P.2d 557 (1999).

       12 Id, at 471.
       13 94 Wn. App. 463, 972 P.2d 557 (1999).

       14 89 Wn. App. 688, 951 P.2d 284 (1998).

        15 Id. at 691; Pastrana, 94 Wn. App. at 467.
No. 68030-7-1/7


that the factual prong ofthe Workman test was not satisfied.16 Thus, neither
defendant was entitled to a lesser included instruction on first degree

manslaughter.17
       In Pettus, the defendant was convicted of first degree murder by extreme

indifference after driving alongside the car of his victim and firing at it.18 "The first
shot hit the [victim's car] in front of the rear tire. The second shot hit [the victim]

in the left arm and penetrated his chest. Two other shots passed nearby or

through the windshield and exited through the plastic rear window."19 The court
concluded that:

       [t]he evidence of the force of a .357 magnum, the time of day, the
       residential neighborhood, and Pettus's admitted inability to control
       the deadly weapon, particularly from a moving vehicle, does not
       support an inference that Pettus's conduct presented a substantial
       risk of some wrongful act instead of a "grave risk of death."[20]
       In Pastrana, the defendant was driving on the interstate when another car

cut in front of him.21

       Pastrana retrieved a gun from behind the seat[,]. . . rolled down the
       passenger window and fired one shot out the window, directly in
       front of [the passenger's] face.




       16 Pastrana, 94 Wn. App. at 471-72; Pettus, 89 Wn. App. at 700.

       17 jcL
        18 Pettus, 89 Wn. App. at 691-92.

        19 Id at 692.

        20 Id at 700.

        21 Pastrana, 94 Wn. App. at 469.
No. 68030-7-1/8




            After he fired the gun, [the passenger] asked Pastrana what
      he was thinking. Pastrana replied that he was aiming for a tire.
      [The passenger] mentioned that "it's kind of hard to be aiming at
      anything when you are going down the freeway that fast."[22]
       Division Two then held that "indiscriminately shooting a gun from a moving

vehicle is precisely the type of conduct proscribed by RCW 9A.32.030(1 )(b)."23
       Here, as in Pastrana and Pettus. Sitthivong's actions demonstrated not

mere recklessness regarding human life but extreme indifference, an aggravated

form of recklessness. He fired eight shots indiscriminately into a crowded street.

He testified that he "wasn't really aiming. I was just—I just pointed and I shot and

Ijust wanted to get the heck out of there         " When asked whether his eyes

were open or closed when he fired, Sitthivong stated that they were a "[l]ittle bit
of both." And Sitthivong himself agreed that "there were a lot of people out there

that night... on the street." This conduct, when measured against Pettus and
Pastrana, shows that the trial court was well within its discretion to deny the

requested instruction.

       Sitthivong argues that because the court instructed on his theory of self
defense as to count V, he was also entitled to a lesser included instruction as to

that count. He relies principally on State .v. Schaffer.24 That case is
distinguishable.




       22 \±

       23 Id, at 471.
       24 135 Wn.2d 355, 957 P.2d 214 (1998).

                                              8
No. 68030-7-1/9


       In Schaffer, the supreme court held that the trial court erred when it failed

to instruct the jury on the lesser included offense offirst degree manslaughter.25
There, Schaffer argued with another patron of a nightclub, John Magee.26
According to the supreme court's opinion:

       When they left the club, Schaffer approached Magee, who shook
       his fist, swore at Schaffer, and threatened to kill him. When Magee
       moved his arm toward his back, Schaffer thought he was reaching
       for a gun. Schaffer drew his own gun and fired several shots. Two
       bullets struck Magee in the back and three in the legs. One bullet
       struck ... a passerby in the foot. Magee died at the scene. He
       was not armed.[27]

Schaffer was charged with first degree premeditated murder.28 He argued self
defense and requested a lesser included instruction as to first degree

manslaughter.29 The supreme court held that the trial court abused its discretion
by declining to give the lesser included instruction.30 It reasoned that "a
defendant who reasonably believes he is in imminent danger and needs to act in

self-defense, 'but recklessly or negligently used more force than was necessary

to repel the attack,' is entitled to an instruction on manslaughter."31


       25 id    at 358.


       26 ]d    at 357.


       27 jd

       28 id

       29 id

       30 Id.   at 358.

       31 id at 358 (quoting State v. Jones. 95 Wn.2d 616, 623, 628 P.2d 472
(1981)).
No. 68030-7-1/10


       Despite the seemingly broad language on which Sitthivong relies, Schaffer

does not support the argued proposition here: that a self-defense theory always

entitles one to the giving of a lesser included instruction. This is not a case of

recklessness or negligence in the use of force. Rather, it is a case of extreme

indifference to the consequences to human life exhibited by firing repeatedly into

a crowded area. The trial court properly exercised its discretion in denying the

requested instruction. Schaffer does not command a different result.

                   INEFFECTIVE ASSISTANCE OF COUNSEL

       Sitthivong argues that his attorney's decision not to demand a self defense

instruction as to the first degree assault charge deprived him of his right to

effective assistance of counsel. We disagree.

       To prevail on a claim of ineffective assistance of counsel, a defendant

must show that his counsel's performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced his trial.32 The
reasonableness inquiry presumes effective representation and requires the

defendant to show the absence of legitimate strategic or tactical reasons for the

challenged conduct.33 Failure on either prong defeats a claim of ineffective

assistance of counsel.34



       32 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).

       33 McFarland. 127 Wn.2d at 336.

       34 Strickland. 466 U.S. at 697; State v. Foster. 140 Wn. App. 266, 273, 166
P.3d 726 (2007).


                                             10
No. 68030-7-1/11


       Here, Sitthivong claims his counsel's performance was not objectively

reasonable because, though charged with first degree assault, the court only

instructed the jury as to justifiable homicide, not self defense as to assault. This

decision was not objectively unreasonable.

       Sitthivong's theory of self defense was that he used lawful self defense in

shooting at Sok, Ahmach, and Nguyen. The evidence clearly indicated that the

only reason for Thomas's injuries was a result of the shots fired by Sitthivong's at

Sok, Ahmach, and Nguyen. Sitthivong had no alternative theory of self defense

for the assault of Thomas. Nor was there evidence to support such a theory.

Sitthivong could only argue that, if the use of force as to Sok, Ahmach, and

Nguyen was lawful, it was also lawful as to Thomas.

       The jurywas provided with the justifiable homicide self defense

instruction, which mirrors WPIC 16.02. This instruction requires that the slayer

reasonably believe that the person slain intended to commit a felony or to inflict
death or great personal injury. The instruction reads as follows:

               It is a defense to the charges in Counts One through Five
       that the homicide was justifiable as defined in this instruction.

              Homicide is justifiable when committed in the lawful defense
       of the slayer when:

              (1) the slayer reasonably believed that the person slain or
       others whom the defendant reasonably believed were acting in
       concert with the person slain intended to commit a felony or to
       inflict death or great personal injury;

             (2) the slayer reasonably believed that there was imminent
       danger of such harm being accomplished; and

              (3) the slayer employed such force and means as a
       reasonably prudent person would use underthe same or similar

                                                 11
No. 68030-7-1/12


      conditions as they reasonably appeared to the slayer, taking into
      consideration all the facts and circumstances as they appeared to
       him, at the time ofand prior to the incident.[35]
       Under this justifiable homicide instruction, if the jury found Sitthivong was

justified in using force in self defense against Sok, Nguyen, and Ahmach, then

the force was lawful. In that case, Sitthivong's conduct towards Thomas also

would have been lawful. This was Sitthivong's theory of defense. His attorney

was able to argue it fully without a separate self defense instruction on the

assault charges. Because the only intent that Sitthivong had was directed at

Sok, Ahmach, and Nguyen, his self defense had to be related to this intent as

well. Thus, Sitthivong's attorney's performance was not deficient.

       Sitthivong argues that "where self defense is asserted against both

homicide and non-homicide offenses, the jury should have received Washington

Pattern Jury Instructions (WPIC) 16.02 ... and WPIC 17.02" instructions.36
WPIC 17.02 requires that the defendant "reasonably believes that he is about to

be injured."37 To support his argument, Sitthivong relies on State v. Cowen.38
       In Cowen. this court concluded that the justifiable homicide self defense

instruction was properly given, rather than the lesser instruction, in a charge of




       35 Clerk's Papers at 94.

       36 Brief of Appellant at 19.
       37 Washington Practice: Washington Pattern Jury Instructions:
Criminal 17.02, at 253 (3d ed. 2008) (WPIC).

       38 87 Wn. App. 45, 939 P.2d 1249 (1997).

                                               12
No. 68030-7-1/13


attempted murder.39 The court noted the difference between these two
instructions:

                The distinction between the two instructions, WPIC 16.02
       and WPIC 17.02, is in the degree of harm that the defendant must
       perceive. Under WPIC 16.02, the defendant must have 'reasonably
       believed that the victim intended to inflict death or great personal
       injury' to justify homicide. By contrast, under WPIC 17.02, the
       defendant need only have reasonably believed that 'he [was] about
       to be injured to justify acts of force.'401
The Cowen court went on to note that "the important issue is the defendant's

mental state in committing the crime, not whether the victim in fact died."41
       Here, the only belief that Sitthivong argued he had to explain his actions,

was that Ahmach, Sok and Nguyen were intending to inflict death or great

personal injury against him. There was no evidence that Thomas intended
anything toward Sitthivong, nor did Sitthivong argue that this was the case. In
response to the alleged actions of Ahmach, Sok, and Nguyen, Sitthivong shot at
them, accidentally hitting Thomas. On these facts, under Cowen. only the
justifiable homicide instruction was warranted. Counsel's performance was not
deficient.

        Because Sitthivong's attorney's performance was not deficient, we need
not reach the prejudice prong of the test.

        In sum, Sitthivong has failed in his burden to show his attorney was

ineffective at trial.



        39 id at 53.
        40 id (some emphasis added) (quoting WPIC 17.02 and WPIC 16.02).
        41 id

                                                13
No. 68030-7-1/14


                   STATEMENT OF ADDITIONAL GROUNDS

      Sitthivong submitted a statement of additional grounds for review in which

he argues that the trial court abused its discretion when it refused to admitthe

911 tape recording of a neighbor, who witnessed the shooting. Sitthivong also

argues that the trial court violated his Sixth Amendment right to confrontation

when it failed to admit the 911 tape recording for impeachment purposes. We

disagree with both arguments.

                     Sixth Amendment Right to Confrontation

       The Confrontation Clause of the Sixth Amendment provides that "[i]n all

criminal prosecutions, the accused shall enjoy the right... to be confronted with
the witnesses against him."42 An objection based on this Sixth Amendment right
must be made at trial to preserve the error for appeal.43
       Here, while Sitthivong's attorney objected to the court's denial of his
request to admit the 911 tape recording for impeachment purposes, he did not
base this objection on an alleged Sixth Amendment violation. Thus, Sitthivong's
argument is not preserved for appeal. And there is no explanation provided why
we should consider this argument further under RAP 2.5(a).
                                 Excited Utterance

       Sitthivong also argues that the trial court abused its discretion by failing to
admit the 911 tape recording as an excited utterance exception to the prohibition
against hearsay. We do not reach the merits ofthis argument.

       42 U.S. Const, amend. VI.

       43 State v. O'Cain, 169 Wn. App. 228, 235, 279 P.3d 926 (2012).

                                              14
No. 68030-7-1/15


      We note that the 911 tape recording is not a part of the record. It does not

appear that Sitthivong requested it be made a part of the record on appeal. We

will not review a claim without an adequate record to do so. Because the record

here is inadequate, we do not reach the merits of this claim.

      We affirm the judgment and sentence.

                                                         Cm>T.
WE CONCUR:




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