                                                                     LI.’
                                                          COUF’T CF APPEALS OW 1
                                                           ~iAiE OF~ WASHINGTON

                                      ZO18SEP 10 AM 8:38
 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,                     )
                                         )      No. 75474-2-I (consolidated
                    Respondent,          )      with No. 76072-6-I)
                                         )
             v.                          )      DIVISION ONE
                                         )
KAMRAN MONGHATE,                         )      UNPUBLISHED OPINION
                                         )
                    Ap~eIIant.           )      FILED: September 10, 2018


      TRICKEY, J.   —   A jury convicted Kamran Monghate of two counts of first

degree arson and one aggravating factor. On appeal, he argues that the State

withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 5. Ct. 1194,

10 L. Ed. 2d 215 (1963), and that the prosecutor committed various forms of

misconduct. Monghate also contends that the trial court erred when it failed to

make sufficient inquiry into his competency to stand trial, denied his motion to

discharge his court appointed counsel, and did not consider his mental illness in

determining his ability to pay any legal financial obligations. Finally, Monghate

maintains that the trial court erred by imposing an exceptional sentence

disproportionate to similar cases. Finding no error, we affirm.

                                      FACTS

       Monghate was born in Iran, and left following the 1979 revolution. In 1987,

while on refugee status in England, Monghate came to the United States to visit
No. 75474-2-I I 2

his sister, Mitra Mohandessi.1 Monghate remained in the United States after his

tourist visa expired, and his refugee passport to England lapsed.

       Monghate applied for permanent residency in the United States, but the

process took many years. Monghate could not work without a valid passport or

documentation. Monghate finally obtained a work permit in 1998.

       Monghate lived with Mitra and her husband, Sahba Mohandessi, for about

a year. He moved into his own apartment in Bellevue in August 1988. He helped

build two homes in lssaquah that were finished in 1992 and 1993. Mitra and

Sahba’s family occupied one of the houses. Sahba’s sister, Taraneh Mohandessi,

and their elderly mother lived in the other house.

       Around 2005, Monghate began to visit his relatives less frequently.

Monghate also began to resent Sahba, and came to believe that Sahba was

manipulating others to undermine him.

       In 2009, Monghate stopped working.             He subsequently had difficulty

supporting himself financially.      Monghate stopped paying rent in January or

February 2010, and both Monghate and Monghate’s landlord contacted Mitra

about his rent. Mitra paid Monghate’s outstanding rental payments, and continued

to pay his rent each month.

       In the fall of 2011 or 2012, after a period of very limited contact between

Monghate and his family members, Mitra and Monghate’s mother went to

Mong hate’s apartment. Mong hate became very angry, slapped Mitra, and told her

to leave him alone. Afterward, Mitra told Monghate that he needed to be evaluated

1For clarity, members of the Mohandessi family will be referred to by their first names. No
disrespect is intended.
                                            2
No. 75474-2-I I 3

and to get help.

       In December 2012, Monghate’s landlord told Mitra that Monghate had not

been seen leaving his apartment for some time.         Mitra and Sahba went to

Monghate’s place with the police to conduct a welfare check. When Monghate

opened the door, he handed a handwritten letter to a police officer, who in turn

gave it to Sahba.

       The letter was addressed to Sahba, and contained many profanities and

insults directed toward him and his family. Monghate accused Sahba of ruining

his life and improperly using his position as a government employee to manipulate

Mitra. Monghate was also convinced that Sahba owed him $200,000 from the time

that Monghate had been unable to obtain permanent residency in the United

States.

          On March 18, 2013, at approximately 5:00 a.m., Taraneh called Mitra and

Sahba because her home was on fire. Taraneh and her mother had been asleep

upstairs when the fire started. Mitra and Sahba ran outside of their home and saw

fire and smoke coming from the garage of Taraneh’s home.

          Mitra and Sahba learned that another fire, which had not caught on, had

been started on the side of Taraneh’s home. A fire in that location would have

blocked the only stairway down from the upper floor of the home, where the

bedrooms were located. After the fire was extinguished, Taraneh and her mother

went to live in Mitra and Sahba’s home.

          Fire Investigator Thomas Devine of the King County Sheriff’s Office was

dispatched to Taraneh’s home. Devine observed two areas of damage on the


                                          3
No.75474-2-1/4

outside of the home. He smelled a pungent odor similar to kerosene. Near one of

the origin points of the fires, Devine found melted remains of a black plastic

garbage bag containing combustible materials. The combustible materials were

mostly mailers, flyers, and United States Postal cardboard envelopes addressed

to Kamran Monghate at his Bellevue address.

       Following his investigation, Devine concluded that the fire had been set

intentionally. Devine conducted additional investigations from March 29 to April 3,

2013, including an interview about Monghate with Taraneh, Mitra, Sahba, and

Mitra and Sahba’s children.

       On April 8, 2013, there was another fire at Taraneh’s home.                Fire

Investigator Charles Andrews of the King County Sheriff’s Office investigated the

fire. The home had been unoccupied when the second fire occurred.

       Andrews concluded that the fire had been intentionally set because the fire

started outside of an unoccupied home and originated in an area without a source

of ignition. He also detected the odor of ignitable liquid at the fire’s origin point.

He recovered a melted black plastic bag and a water bottle that smelled of the

ignitable liquid. Later testing concluded that the liquid in the water bottle contained

partly evaporated gasoline and a heavy range petroleum distillate.

       Andrews sent the plastic bottle to the Washington State Patrol Crime

Laboratory. The crime laboratory was able to obtain DNA (deoxyribonucleic acid)

from the bottle. The sample was slightly degraded and was a mixture of DNA

profiles, but included Monghate’s DNA profile. According to the crime laboratory’s

 report, the likelihood of a random person being a potential contributor to the DNA


                                           4
No. 75474-2-I I 5

mixture was one in one million.

       After the second fire, Devine met with Mitra and obtained the letter that

Monghate had written to Sahba. On May 2, 2013, Devine, Andrews, and other law

enforcement officers executed a search warrant on Monghate’s apartment. Devine

located Monghate in the apartment, and took him into custody. The apartment

contained a large amount of paperwork similar to that which had been found at the

ignition source of the March 18 fire.

       While Devine was escorting Monghate out of the apartment, Monghate

directed the police to an envelope marked “Police.”2 The envelope included a letter

written by Monghate dated September 19, 2011. The letter detailed Monghate’s

anger at perceived wrongs done by Mitra and Sahba, and contained a great deal

of profanity that was primarily directed toward Sahba. The letter mentioned that

Monghate “should have killed” Sahba years before, and directed Sahba and his

family to “die.”3

       Later, Andrews and others seized several containers that contained liquid

or may have contained ignitable liquids from a truck owned by Monghate. Analysis

of the containers’ contents indicated petroleum products, including partly

evaporated gasoline and heavy range petroleum distillate.4 A search of a car that

Monghate owned revealed two lighters and crumpled paper.

       The State charged Monghate with two counts of first degree arson: count I

for the fire on March 18, 2013, and count II for the fire on April 8, 2013. The March



2  31 Report of Proceedings (RP) (Apr. 27, 2016) at 2122.
~ 34 RP (May 3, 2016) at 2654, 2657.
~‘ Monghate disputed whether the containers’ contents included ignitable liquids at trial.


                                             5
No. 75474-2-1/6

18 count also alleged the aggravating factor that Monghate knew or should have

known that the “victim(s)” were particularly vulnerable and incapable of resistance,

and that his knowledge was a substantial factor in his commission of the offense.5

       In January 2014, the trial court found Monghate incompetent to stand trial

and committed him for a restoration period.          Monghate’s diagnoses were

psychosis, auditory hallucinations, schizophrenia, and major depressive disorder

that was in partial remission. In June 2014, the trial court ruled that the State had

failed to prove that Monghate’s competency had been restored. In October 2014,

Monghate demanded a jury trial on the issue of his competency. In December

2014, a jury found that Monghate was competent to stand trial.

       On September 30, 2015, midway through his first trial on the arson charges,

Monghate’s counsel raised the issue of his competency again. Monghate had

chosen to testify. His counsel argued that it was still her position that Monghate

was not competent and was unable to assist counsel and take advantage of the

advice of counsel.     Monghate’s counsel did not request a new competency

evaluation.

       The trial court noted Monghate’s counsel’s continuing concerns, but stood

by the prior jury finding of competency. The trial court made an oral finding that

Monghate appeared to be aware of the court proceedings and the roles of the

people involved, and that he was assisting counsel adequately.

       In October 2015, the trial court declared a mistrial in Monghate’s first trial

because the jury was unable to reach a unanimous verdict.


~ Clerk’s Papers (CP) at 133.
                                          6
No. 75474-2-I I 7

       On March 31, 2016, Monghate moved to discharge his court-appointed

counsel, arguing that his attorney had not kept him informed of proceedings, was

disrespectful towards him, and was unreliable.         The trial court noted that

Monghate’s counsel had obtained a mistrial in the prior proceedings, and that she

was a very experienced and well-respected lawyer.           The trial court denied

Mong hate’s motion without prejudice.

       The next day, Monghate again moved to discharge counsel. Monghate

argued that his counsel had not provided him with a full transcript of his previous

trial despite his request, had not fully investigated several issues, and argued with

him.   Monghate’s counsel stated that she had ordered relevant parts of the

transcript, and had answered Monghate’s questions about her investigation into

his immigration status as he had requested. The trial court found that appointing

new counsel would not address Monghate’s concerns, and denied Monghate’s

motion.

       In April 2016, the trial court declared a mistrial early in Monghate’s second

trial when Devine testified about evidence the trial court had suppressed.

       On May 6, 2016, after a third trial, the jury found Monghate guilty of both

counts of arson in the first degree. Monghate was one of the witnesses who

testified. The jury further found the aggravating factor that Monghate knew or

should have known that the victim was particularly vulnerable.

       After the jury returned its verdicts, Monghate moved for dismissal or a new

trial, arguing that the State had violated Brady, 373 U.S. 83, by failing to disclose

impeachment evidence about Devine’s background. The evidence concerned an


                                          7
No. 75474-2-I I 8

allegation of cheating against Devine when he attended the Washington State

Patrol Academy in 1996, his dismissal for cause from the academy, and his later

failure to disclose his termination when he reapplied in 2004. Devine submitted a

declaration that he had been exonerated of the accusation, as well as documentary

evidence showing that he had disclosed the incident to the King County Sheriff’s

Office when he applied to work as an arson investigator.

      The trial court denied Monghate’s Brady motion, finding in part that the

allegation of cheating was unsubstantiated and that Devine’s declaration

established that he had been exonerated. The trial court also denied Monghate’s

motion to vacate the jury’s finding of the vulnerable victim aggravating

circumstance and his motion for a new trial based on prosecutorial misconduct

during closing argument.

      The trial court imposed an exceptional sentence of 120 months. The trial

court also imposed mandatory legal financial obligations (LFO5) but waived

interest, trust fees, and non-mandatory costs.

      Monghate appeals.

                                   ANALYSIS

                           Motion to Discharge Counsel

      Monghate argues that the trial court erred when it denied his motion to

discharge court appointed counsel without sufficient inquiry into the alleged

dispute. Because the trial court received adequate clarification about Monghate’s

complaints, we disagree.




                                        8
No. 75474-2-I / 9

      When the “relationship between lawyer and client completely collapses, the

refusal to substitute new counsel violates the defendant’s Sixth Amendment right

to effective assistance of counsel.” In re Pers. Restraint of Stenson, 142 Wn.2d

710, 722, 16 P.3d 1(2001).

       When reviewing a trial court’s refusal to appoint new counsel, the appellate

court considers “(1) the extent of the conflict, (2) the adequacy of the [trial court’s]

inquiry, and (3) the timeliness of the motion.” Restraint of Stenson, 142 Wn.2d at

724 (citing United States v. Moore, 159 F.3d 1154, 1158-59 (9th Cir. 1998)).

       When analyzing the extent of the conflict, the trial court examines the extent

and nature of the breakdown in communication and its effect on the representation

of the defendant. Restraint of Stenson, 142 Wn.2d at 724. Conflicts sufficient to

merit a discharge of counsel include “a conflict of interest, an irreconcilable conflict,

or a complete breakdown in communication between the attorney and the

defendant.” State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997). A lack

of accord, general loss of trust, or disagreement over trial tactics are insufficient to

warrant a substitution of counsel. See State v. Cross, 156 Wn.2d 580, 606-07,

132 P.3d 80 (2006); Restraint of Stenson, 142 Wn.2d at 724; Stenson, 132 Wn.2d

at 734.

          “An adequate inquiry must include a full airing of the concerns     .   .   .   and a

meaningful inquiry by the trial court.” Cross, 156 Wn.2d at 610.

          The appellate court reviews “trial court decisions relating to attorney/client

differences for abuse of discretion.” Cross, 156 Wn.2d at 607.




                                            9
No. 75474-2-I /10

      Here, the trial court held two hearings on Monghate’s motions to discharge

counsel. Monghate was given an opportunity to describe his dissatisfaction with

his counsel at length. After hearing Monghate’s complaints, the trial court asked

Monghate’s counsel to clarify the alleged disputes and inquired into what steps

were being taken to address Monghate’s concerns. Following its inquiries, the trial

court concluded that Monghate had not provided a factual basis for his complaints,

that his trial counsel was taking steps to address his concerns where possible, and

that Monghate would not be benefitted by dismissing his counsel.

       Thus, the trial court provided Monghate with an opportunity to voice his

concerns, inquired into the steps his counsel had taken to address any issues, and

concluded that the conflict did not warrant discharging Monghate’s counsel. In

light of the trial court’s inquiries, we conclude that the trial court did not abuse its

discretion when it denied Monghate’s motions to dismiss his counsel.6

                                  Competency Hearing

       Monghate argues that the trial court erred when it did not order an expert

evaluation of his competency to stand trial when the issue arose during his first

trial. Because Monghate did not offer new information demonstrating a change in

his competency since a jury determined that he was competent, we disagree.

       Due process prohibits the State from forcing an incompetent person to

stand trial. U.S. CONST. amend. XIV; State v. Coley, 180 Wn.2d 543, 551, 326


6 We also note that Monghate’s counsel only requested the parts of the prior trial’s
transcript that she determined were relevant to Monghate’s defense strategy. An
attorney’s choice of trial tactics and related matters are generally not sufficient to warrant
dismissal of counsel. Cross, 156 Wn.2d at 606. We conclude that these grounds are
insufficient to support Monghate’s arguments that the trial court erred in declining to
discharge his counsel.
                                             10
No. 75474-2-I/li

P.3d 702 (2014); see also RCW 10.77.050. ‘“Incompetency’ means a person lacks

the capacity to understand the nature of the proceedings against him or her or to

assist in his or her own defense as a result of mental disease or defect.” ROW

10.77.010(15). If a reason to doubt the defendant’s competency arises, a qualified

expert or professional person approved by the prosecuting attorney shall be

appointed to evaluate and report upon the defendant’s mental condition. ROW

10.77.060(1)(a). “The determination of whether a competency examination should

be ordered rests generally within the discretion of the trial court.” In re Pers.

Restraint of Fleming, 142 Wn.2d 853, 863, 16 P.3d 610 (2001).

        Here, a jury found Monghate competent to stand trial. Once a determination

of competency has been made, that determination will stand “unless it can be said

that new information presented has altered the status quo ante.” State v. Ortiz,

119 Wn.2d 294, 301, 831 P.2d 1060 (1992). Monghate did not present any such

information challenging the prior determination or revealing that his competency

status had changed.

        Rather, Monghate’s counsel only voiced her continuing concerns over

Monghate’s competency. Therefore, we conclude that the trial court did not abuse

its discretion when it did not order a new competency evaluation during trial.

                             Prosecutorial Misconduct

        Monghate argues that the prosecutor committed misconduct several times

during his closing argument. We will examine each of Monghate’s arguments in

turn.




                                         ii
No. 75474-2-1/12

      As quasi-judicial officers, prosecutors must act impartially and insure that

an accused person has a fair trial. State v. Warren, 165 Wn.2d 17, 27, 195 P.3d

940 (2008); State v. Boehninq, 127 Wn. App. 511, 518, 111 P.3d 899 (2005).

      “Where prosecutorial misconduct is claimed, the defense bears the burden

of establishing the impropriety of the prosecuting attorney’s comments and their

prejudicial effect.” State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). In

evaluating a claim of prosecutorial misconduct, the appellate court reviews the

remarks “in the context of the total argument, the issues in the case, the evidence

addressed in the argument, and the instructions given to the jury.” Brown, 132

Wn.2d at 561. “To establish prejudice, the defense must demonstrate there is a

substantial likelihood the misconduct affected the jury’s verdict.”    Brown, 132

Wn.2d at 561.

       “Defense counsel’s failure to object to the misconduct at trial constitutes

waiver on appeal unless the misconduct is ‘so flagrant and ill-intentioned that it

evinces an enduring and resulting prejudice’ incurable by a jury instruction.” State

v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009) (internal quotation marks

omitted) (quoting State v. Gregory, 158 Wn.2d 759, 841, 147 P.3d 1201 (2006)).

“[T]he absence of an objection by defense counsel ‘strongly suggests to a court

that the argument or event in question did not appear critically prejudicial to an

appellant in the context of the trial.” State v. McKenzie, 157 Wn.2d 44, 53 n.2,

134 P.3d 221 (2006) (quoting State v, Swan, 114 Wn.2d 613, 661, 790 P.2d 610

(1990)).




                                         12
No. 75474-2-I /13

      “Allegations of prosecutorial misconduct are reviewed under an abuse of

discretion standard.” State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995).

      Appealing to the Emotions of the Juiy

      Monghate argues that the prosecutor committed misconduct by appealing

to the emotions of the jury when he mentioned intent to kill and attempted murder

during his closing argument. He principally relies on Boehning, where the Court

of Appeals, Division Two, granted a new trial because the prosecutor in closing

argument referred to evidence excluded and charges dismissed during trial. 127

Wn. App. at 519-23. Monghate maintains his situation is similar to the defendant

in Boehning, in that here he was charged with arson not attempted murder.

Because the prosecutor’s statements did not constitute flagrant and ill-intentioned

misconduct that could not have been cured by a jury instruction, we disagree.

          Prosecutors must “seek convictions based only on probative evidence and

sound reason.” State v. Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74

(1991). “Mere appeals to the jury’s passion or prejudice are improper.” Gregory,

158 Wn.2d at 808, overruled on other grounds by State v. W.R., Jr., 181 Wn.2d

757, 336 P.3d 1134 (2014).

          During closing arguments, “‘[c]ounsel are permitted latitude to argue the

facts in evidence and reasonable inferences” therefrom. State v. Dhaliwal, 150

Wn.2d 559, 577, 79 P.3d 432 (2003) (alteration in original) (quoting State v. Smith,

104 Wn.2d 497, 510, 707 P.2d 1306 (1985)).           But counsel may not “make

prejudicial statements that are not sustained by the record.” Dhaliwal, 150 Wn.2d

at 577.


                                          13
No. 75474-2-lI 14

        A prosecutor may make inferential statements about a defendant’s motive

if the statements are based on the record. See, e.g., McKenzie, 157 Wn.2d at 58-

59 (prosecutor’s statements that defendant hoped to purchase victim’s silence

were permissible inferences from evidence of defendant pursuing a mediated

settlement and considering finding a counselor in Canada for the victim).                  In

addition, “the prosecutor, as an advocate, is entitled to make a fair response to the

arguments of defense counsel.” State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747

(1994).

          Monghate suggested during his closing argument that Mitra and Sahba may

have framed Monghate because they resented paying his rent. In rebuttal, the

prosecutor stated that Monghate was offering an alternative to the State’s theory

of the case that Sahba “tried to kill his mother and tried to kill his sister when he

set their home on fire as they slept” and that “somehow     .   .   .   [Mitral must be in on

it.”7

          Later in rebuttal, the prosecutor noted that Monghate used his mail to start

the fire.8 He then quoted Monghate’s testimony that, “I don’t stab you in the back.

I stab you in the front.”9 The prosecutor stated, ‘When Devine went and asked

Mitra, ‘Do you know Kamran Monghate?’ That question forever changed that

family because he stabbed her in the front.”1°

          When concluding his rebuttal argument, the prosecutor stated, “In opening,

Defense said, ‘The letter’s not a confession.’ And that’s kind of true. It’s not a


~ 36 RP (May 5, 2016) at 3017.
8 36 RP (May 5, 2016) at 3023.
~ 36 RP (May 5, 2016) at 3023.
1036 RP (May 5, 2016) at 3023.

                                           14
No. 75474-2-1/15

confession to arson. ‘You and your family      .   .   .   die.’ That’s a confession to an

attempted murder. And that’s really what his intent was the first time he burnt that

home down knowing that they were there. Knowing that they were vulnerable

because they were asleep.”11

       Monghate did not object to any of these statements.

      The prosecutor’s reference to Monghate’s intent to kill when setting the fire

may have been improper because Monghate was not charged with attempted

murder. Further, his arson charges and the aggravating factor alleged against him

do not require the State to prove that he intended to kill a victim.

       Yet unlike the prosecutor in Boehninq, the prosecutor here discussed the

charged crimes and the evidence admitted at trial. He also was responding to

defense argument. The prosecutor’s reference to Sahba attempting to kill Taraneh

and his mother was a direct rebuttal to Monghate’s closing argument, and thus

was not improper. The prosecutor’s description of Devine’s question of Mitra

closely mirrored Monghate’s own testimony. Given that context, and the failure to

object to the statements below, Monghate has not demonstrated that the

prosecutor’s statements rise to the level of flagrant and ill-intentioned misconduct.

Any prejudice could have been cured by an instruction to the jury to disregard the

reference to Monghate’s possible intent to kill or to attempted murder.

       Therefore, we conclude that the prosecutor’s statements regarding intent to

kill and attempted murder do not amount to reversible prosecutorial misconduct.




~ 36 RP (May 5, 2016) at 3023-24.

                                          15
No. 75474-2-1/16

      Shifting the State’s Burden

       Monghate argues that the prosecutor committed misconduct when he

improperly shifted the burden of proof to Monghate by arguing that there was no

evidence disproving the State’s case.          Because the prosecutor’s challenged

remarks did not shift the burden of proof to Monghate, we disagree.

       Requiring a defendant to establish a defense theory beyond the State’s

failure to meet its burden of proof, and produce evidence in support of that theory,

infringes on the defendant’s presumption of innocence.     .~   State v. Walker, 182

Wn.2d 463, 479-80, 341 P.3d 976 (2015). The prosecution cannot comment on

the lack of defense evidence. State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d

830 (2003). But “the prosecutor, as an advocate, is entitled to make a fair response

to the arguments of defense counsel.” Russell, 125 Wn.2d at 87.

       “Arguments by the prosecution that shift or misstate the State’s burden to

prove the defendant’s guilt beyond a reasonable doubt constitute misconduct.”

State v. Lindsay, 180 Wn.2d 423, 434, 326 P.3d 125 (2014); see also State v.

Miles, 139 Wn. App. 879, 890, 162 P.3d 1169 (2007) (‘[lIt is flagrant misconduct

to shift the burden of proof to the defendant,” and a prosecutor commits

misconduct if the “prosecutor’s argument presented the jurors with a false choice,

that they could find [the defendant] not guilty only if they believed his evidence.”).

       During his closing argument, the prosecutor challenged Monghate’s

expert’s comparison of samples taken from the arson scene and accelerants taken




                                          16
No. 75474-2-I / 17

from Monghate’s residence.12 Monghate’s expert had testified that the samples

did not match, because the arson scene samples produced lower carbon numbers.

       The prosecutor argued that the comparison was invalid because

Monghate’s expert had relied on the State’s analysis of the arson scene samples,

and the State’s expert had testified that the State’s tests could only produce certain

numbers.13 Monghate objected to the argument on burden shifting grounds, which

the trial court overruled. In his closing argument, Monghate contended that the

State had not been precluded from conducting tests that could have produced

higher carbon numbers.

       The prosecutor’s comments about Monghate’s expert’s testimony

concerned the data on which he relied in making his comparison. Specifically, the

prosecutor explained the difference in the carbon numbers by noting that the

State’s expert had testified to a reason for the discrepancy other than the samples

containing different substances. The prosecutor did not argue that Monghate had

to produce evidence to prove his innocence; rather, the prosecutor’s argument

explained why Monghate’s expert’s comparison was unpersuasive. Therefore, the

prosecutor’s statement did not improperly shift the burden to Monghate by

requiring him to produce evidence to prove his innocence. We conclude that the




12 The carbon numbers of the arson scene samples went up to 18. The carbon numbers
of the accelerant samples taken from Monghate’s residence went up to 22.
13 The State had used a “PAE strip” to test the debris, which limited the carbon numbers

produced to 18. 36 RP (May 5, 2018) at 2985. Monghate’s expert’s testing produced
carbon numbers up to 22. The State also noted that Monghate’s expert “said that the
manner in which you test things can greatly influence whether or not it’s appropriate to
compare them.” 36 RP (May 5, 2018) at 2985.
                                          17
No. 75474-2-1/18

prosecutor’s statements about Monghate’s expert’s comparison were not

improper.

         Separately, as discussed above, during his closing argument Monghate

suggested that Mitra and Sahba had framed him for financial reasons. In rebuttal,

the prosecutor stated that Monghate was arguing an alternative theory to the

State’s case. Monghate did not object to this statement.

         The prosecutor did not tell the jury that it had to choose between the two

theories. The prosecutor noted that the “burden is all on the State” and did not

argue that Monghate had to produce evidence proving his innocence.14 Further,

the prosecutor was making a reasonable response to Monghate’s closing

argument when he made this argument. Russell, 125 Wn.2d at 87. We conclude

that the prosecutor’s comment did not constitute flagrant and ill-intentioned

misconduct that could not have been cured by an instruction.

          Vouching for Witnesses

         Monghate argues that the prosecutor committed misconduct by improperly

vouching for the credibility of witnesses or expressing personal opinion by using

the phrase “we know” on multiple occasions.15 Because the prosecutor’s use of

“we know” properly referred to testimony and evidence in the record, we disagree.

         “It is improper for a prosecutor personally to vouch for the credibility of a

witness.” Brett, 126 Wn.2d at 175.

         Although individual statements of a prosecutor may sound like expressions

of personal opinion standing alone, they must be examined in light of the total

14   36 RP (May 5, 2016) at 3017.
1536    RP (May 5, 2016) at 3017-1 8.
                                           18
No. 75474-2-1/19

argument, the issues in the case, the evidence discussed during the argument,

and the trial court’s instructions. McKenzie, 157 Wn.2d at 53-54. “‘Prejudicial error

does not occur until such time as it is clear and unmistakable that counsel is not

arguing an inference from the evidence, but is expressing a personal opinion.”

McKenzie, 157 Wn.2d at 54 (quoting State v. Papadopoulos, 34 Wn. App. 397,

400, 662 P.2d 59 (1983)).

         Although a prosecutor should avoid using “we know” because it “readily

blurs the line between improper vouching and legitimate summary,” he or she may

use the phrase to marshal evidence or draw reasonable inferences from the

evidence. State v. Robinson, 189 Wn. App. 877, 894-95, 359 P.3d 874 (2015)

(quoting United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005)). The

prosecutor may not use the phrase “we know” to imply “special knowledge” of

facts outside the record “or express a personal opinion.” Robinson, 189 Wn. App.

at 895 (quoting United States v. Bentley, 561 F.3d 803, 812 (8th Cir. 2009)).

         During closing argument, the prosecutor first used the phrase “we know” to

rhetorically ask the jury, “The question is is [sic] how is it that we know that Kamran

Monghate,     .   .   .   how it is that we know that he is the one that actually committed

these offenses. That’s the question for you to answer.”16 He then used the phrase

to emphasize key testimony and pieces of evidence in the record or a lack thereof.

Finally, the prosecutor highlighted the reliability of the State’s testing methodology

and analysis of the DNA samples.                 Monghate did not object to any of the

prosecutor’s uses of “we know.”


16   RP (May 5, 2016) at 2973.
                                                 19
No. 75474-2-I /20

      The prosecutor’s uses of “we know” did not constitute improper vouching or

expressions of personal opinion, and did not rise to the level of flagrant and ill-

intentioned misconduct that could not have been cured by a jury instruction. The

prosecutor used the phrase rhetorically at the beginning of his argument, and

subsequently used it to refer to testimony and evidence in the record.17 Moreover,

even if the prosecutor’s use of “we know” is considered improper, any prejudice

could have been substantially reduced if Monghate had objected to the

prosecutor’s first use of the phrase or requested a curative instruction.        We

conclude that the prosecutor’s use of the phrase “we know” did not constitute

reversible prosecutorial misconduct.

       Denigrating Defense Counsel

       Monghate argues that the prosecutor committed misconduct by denigrating

Monghate’s counsel. Because the prosecutor was reasonably responding to an

argument by Monghate’s counsel, we disagree.

       “It is improper for the prosecutor to disparagingly comment on defense

counsel’s role or impugn the defense lawyer’s integrity.” State v. Thorgerson, 172

Wn.2d 438, 451, 258 P.3d 43 (2011) (prosecutor impugned defense counsel’s

integrity, “particularly in referring to his presentation of his case as ‘bogus’ and

involving ‘sleight of hand,” but the misconduct was not likely to have prejudiced

the defendant).

       As discussed above, Monghate suggested that Sahba and Mitra had framed

Monghate for financial reasons. In rebuttal, the prosecutor stated, “[lit is absurd

17On appeal, Monghate acknowledges that “the prosecutor used this phrase to argue the
evidence supported convicting Mr. Monghate.” Appellant’s Opening Br. at 48.
                                         20
No. 75474-2-I /21

and insulting to suggest that Mitra and Sahba and their son are in on trying to kill

Taraneh and Mom for $400 a month. It’s absurd.”18 Monghate did not object to

the prosecutor’s statement.

         Monghate suggested that Mitra, Sahba, and their son could have put their

relatives’ lives in danger for purely financial reasons. The prosecutor’s response

expressed disbelief in Monghate’s alternative theory. The prosecutor did not return

to this point or otherwise impugn the integrity of Monghate’s counsel. Therefore,

even if the prosecutor’s comment is considered improper, the comment does not

constitute flagrant and ill-intentioned misconduct that could not have been cured

by an instruction to the jury. We conclude that the prosecutor’s comment does not

constitute reversible prosecutorial misconduct.

                              Evidence Supporting Aggravating Factor

         Monghate argues that there was insufficient evidence at trial to support the

jury’s finding of the aggravating factor charged against him for the March 18 arson.

We conclude any rational trier of fact could have found the evidence was sufficient.

         “A person is guilty of arson in the first degree if he or she knowingly and

maliciously    .   .   .   [clauses a fire or explosion which damages a dwelling.” RCW

9A.48.020(1)(b). An aggravating factor that can support a sentence above the

standard range is “[t}he defendant knew or should have known that the victim of

the current offense was particularly vulnerable or incapable of resistance.” RCW

9. 94A.535(3)(b).




18   36 RP (May 5, 2016) at 3018.
                                               21
No. 75474-2-I I 22

      “We use the same standard of review for the sufficiency of the evidence of

an aggravating factor as we do for the sufficiency of the evidence of the elements

of a crime.” State v. Ziqan, 166 Wn. App. 597, 601, 270 P.3d 625 (2012). “[W]e

review the evidence in the light most favorable to the State to determine whether

any rational trier of fact could have found the presence of the aggravating

circumstances beyond a reasonable doubt.” Ziqan, 166 Wn. App. at 601-02.

       Here, the evidence at trial established that the March 18 fire occurred after

Taraneh went to bed around midnight and both she and her elderly mother were

asleep. The home’s bedrooms were located on the second floor, and one stairway

led down to the ground floor. One of the fire’s ignition points would have blocked

the staircase leading down from the second story of the home. Monghate had

helped build the home at which the March 18 arson occurred.

       The evidence at trial established Monghate knew or should have known that

the occupants of the home, one of whom was an elderly person, were asleep

upstairs. He then set a fire that would have blocked their only way to the ground

floor of the home. The placement of the fire in particular, in light of his knowledge

of the layout of the home and the characteristics of the victims, indicates that the

victims’ vulnerability was a substantial factor motivating Monghate’s commission

of the crime. Taken as true and viewed in the light most favorable to the State,

there was sufficient evidence at trial that any rational jury could have found the

facts underlying the aggravating factor beyond a reasonable doubt.

       Monghate argues that the aggravating factor of a particularly vulnerable

victim only applies when the victim was chosen precisely because of the


                                         22
No. 75474-2-1/23

vulnerability and inability to defend himself or herself.19 We disagree. Taraneh’s

mother was particularly vulnerable because she was unable to quickly react to the

arson. Monghate’s placement of a source of ignition near the only stairway leading

down from the second floor of the home, where both victims were asleep, indicates

that the victims’ vulnerability was a substantial reason motivating his offense.

       In sum, we conclude that there was sufficient evidence at trial that any

rational jury could have found the facts underlying the aggravating factor alleged

against Monghate beyond a reasonable doubt.2°

                                  Excessive Sentence

       Monghate argues that the trial court erred when it imposed a clearly

excessive sentence for the count I March 18 arson with the aggravating factor.

Because the jury’s finding of the aggravating factor was supported by substantial




19 Monghate cites State v. Gordon, 172 Wn.2d 671, 680, 260 P.3d 884 (2011) (in second-
degree murder case, evidence was sufficient to support finding of aggravating factor
where witnesses testified that victim was unable to defend himself while outnumbered
during fatal beating); State v. Berube, 150 Wn.2d 498, 512-14, 79 P.3d 1144 (2003)
(sufficient evidence supporting aggravating factor in homicide abuse case where 23-
month-old victim was completely dependent upon defendants for well-being and was
unable to communicate to other adults about abuse); and State v. Hicks, 61 Wn. App. 923,
930-31, 812 P.2d 893 (1991) (sufficient evidence supporting aggravating factor in first
degree rape case where one victim was elderly and another was attacked while she was
sleeping).
20 Mong hate also contends that the prosecutor, while discussing the jury instructions with

the court and in his closing argument, stated that the victims’ specific vulnerability was
premised on their being asleep. Monghate argues that, therefore, the State was restricted
to this ground in establishing the facts justifying the aggravating factor. In reviewing the
sufficiency of the evidence supporting an aggravating factor, this court reviews the entirety
of the evidence relevant to determine whether there was sufficient evidence to support the
jury’s finding. See Ziqan, 166 Wn. App. at 601-02. The nature of this inquiry does not rely
on the prosecutor’s summary of supporting evidence while discussing jury instructions
with the trial court or in closing argument with the jury. Therefore, we reject Monghate’s
argument.
                                             23
No. 75474-2-I I 24

evidence and the trial court noted multiple circumstances justifying an exceptional

sentence, we disagree.

      The purposes of the Sentencing Reform Act of 1981 (SRA) include

“[ensuring] that the punishment for a criminal offense is proportionate to the

seriousness of the offense and the offender’s criminal history;   .   .   .   [is] just; [and]

commensurate with the punishment imposed on others committing similar

offenses.” ROW 9.94A.01 0(1)-(3).

      “The court may impose a sentence outside the standard sentence range for

an offense if it finds, considering the purpose of [the SRA], that there are

substantial and compelling reasons justifying an exceptional sentence.” ROW

9.94A.535. An aggravating factor that can support a sentence above the standard

range is “[t]he defendant knew or should have known that the victim of the current

offense was particularly vulnerable or incapable of resistance.”                       ROW

9.94A.535(3)(b).

       “A sentence is clearly excessive if it is based on untenable grounds or

untenable reasons, or an action no reasonable judge would have taken.” State v.

Branch, 129 Wn.2d 635, 649-50, 919 P.2d 1228 (1996).

       The question of whether a sentence is clearly excessive is reviewed for

abuse of discretion. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).

      As a first time offender, Monghate’s standard range sentence was 31 to 41

months. In light of the aggravating factor, the State requested an exceptional

sentence on count I of 120 months.           The trial court followed the State’s

recommendation and imposed a total of 120 months of incarceration.


                                        24
No. 75474-2-I125

       Here, as discussed above, the jury’s finding of the aggravating factor that

Monghate’s victims were particularly vulnerable was supported by substantial

evidence. Thus, the trial court was authorized to impose a sentence outside the

standard range.       The trial court considered a variety of circumstances in

determining the appropriate length of Monghate’s sentence, including the

significant evidence against Monghate and that setting two separate fires

demonstrated Monghate’s unwillingness to stop blaming Sahba for his troubles.21

The trial court’s reliance on the jury’s finding of the aggravating factor and its

consideration of other circumstances indicate that its sentence was not based on

untenable grounds or reasons. We conclude that the trial court did not abuse its

discretion in imposing an exceptional sentence.22


21 Monghate argues that the State offered improper arguments justifying an exceptional
sentence, including Mong hate’s future dangerousness, the length of time taken to restore
Monghate to competency and prosecute him, the possibility that Monghate would be
released immediately if he was not given an exceptional sentence, and that Monghate
may receive services while incarcerated.
         This is unpersuasive. The trial court did not adopt the State’s reasons that
Monghate has challenged as improper. For example, the trial court stated that Monghate
would receive mental health treatment while incarcerated, and hoped that he would be
“stabilized in a way that will give him a future when he’s released.” 39 RP (July 8, 2016)
at 3097. This was not given as a justification for the exceptional sentence. Further, as
discussed above, the trial court was justified in imposing an exceptional sentence on
Monghate following the jury’s finding of the aggravating factor alleged against him.
22 Monghate has argued below and on appeal that his sentence is clearly excessive

because other cases involving first-time offenders convicted of arson did not result in
exceptional sentences. This is unpersuasive.
         “The purpose of the SRA is to structure, but not eliminate, discretionary trial court
decisions.” State v. Ritchie, 126 Wn.2d 388, 397, 894 P.2d 1308 (1995) (citing RCW
9.94A.010). “Comparison with, but more importantly limitation by, standard sentences is
inconsistent with the trial court having found substantial and compelling reasons to justify
an exceptional sentence.” Ritchie, 126 Wn.2d at 397.
         In the present case, as discussed above, the jury’s finding of the aggravating factor
alleged against Monghate was supported by sufficient evidence. The trial court imposed
an exceptional sentence upon Monghate based on this aggravating factor. Therefore,
Monghate’s reliance on prior arson cases in which exceptional sentences were not
imposed cannot demonstrate an abuse of discretion by the trial court in the present case.
                                             25
No. 75474-2-I I 26

                           Violation of Brady v. Maryland

       Monghate argues that the trial court erred when it denied his motion for

dismissal or a new trial because the State withheld material evidence in violation

of Brady, 373 U.S. 83. Because the evidence at issue was not material under

Brady, we disagree.

       “[S]uppression by the prosecution of evidence favorable to an accused.

violates due process where the evidence is material either to guilt or punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at

87. The defendant need not request the evidence, and “the duty encompasses

impeachment evidence as well as exculpatory evidence” that is known to either

the prosecutor or police investigators. Strickler v. Greene, 527 U.S. 263, 280-81,

119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999).

       When claiming a violation of Brady, a defendant must establish that “[(1)]

The evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; [(2)] that evidence must have been

suppressed by the State, either willfully or inadvertently; and [(3)] prejudice must

have ensued.”      State v. Mullen, 171 Wn.2d 881, 895, 259 P.3d 158 (2011)

(alterations in original) (quoting Strickler, 527 U.S. at 281-82).

       Under the third element of a Brady violation claim, “[t]he terms “material”

and “prejudicial” are used interchangeably.” Mullen, 171 Wn.2d at 897 (internal

quotation marks omitted) (quoting United States v. Price, 566 F.3d 900, 911 n.12

(9th Cir. 2009). Evidence is material “if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would


                                          26
No. 75474-2-I I 27

have been different.” Mullen, 171 Wn.2d at 897 (internal quotation marks omitted)

(quoting Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S. Ct. 1555, 131 L. Ed. 2d

490 (1995)). A reasonable probability exists if the suppression of the evidence,

viewed collectively, “‘undermines confidence in the outcome of the trial.” Mullen,

171 Wn.2d at 897 (internal quotation marks omitted) (quoting Kyles, 514 U.S. at

434).

          A Brady violation claim is reviewed de novo on appeal. Mullen, 171 Wn.2d

at 893.

          After his conviction, upon learning that Devine had been terminated for

cause from the Washington State Patrol Academy following an allegation of

cheating, Monghate moved for dismissal or a new trial. Through public disclosure

requests, Monghate determined that Devine had been terminated for cause from

the academy in 1996, and he had reapplied in 2004 without disclosing that he had

previously been terminated for cause. Devine had disclosed this incident to the

King County Sheriff’s Office when he applied to work as an arson investigator.

Devine had not revealed this history during a defense interview prior to Monghate’s

trial.

          In June 2016, in response to Monghate’s motion, Devine declared under

penalty of perjury that he had been accused of cheating on his final exam at the

academy, had immediately appealed, and had been exonerated by an

administrative law judge. He declared that the administrative law judge had found

no evidence supporting the allegation of cheating.

          Devine did not provide documentary evidence of the administrative hearing.


                                          27
No. 75474-2-1/28

He declared that he had lost the administrative law judge’s decision when he

moved residences, and that the attorney who had represented him had retired and

could not be located. He declared that the State had destroyed his file due to the

length of time that had elapsed since the hearing.

       Here, the State’s failure to produce the evidence of the allegation of

cheating against Devine did not violate Brady because the evidence was not

material.    The allegation of cheating against Devine was made in 1996,

approximately 20 years before Monghate’s trial. The trial court found that the

witnesses against Devine ‘said they saw Devine writing on a desk days before the

test was taken. These witnesses claimed that, although writing on the desk raised

red flags, they didn’t know what had really happened.”23 Further, although Devine

was terminated for cause from the academy, he declared under penalty of perjury

that he immediately disputed the allegation and was exonerated by an

administrative law judge because there was no evidence of cheating.24

       In sum, the State’s failure to produce evidence of the allegation of cheating

against Devine and his subsequent termination from the academy does not

undermine confidence in the outcome of Monghate’s trial. There is no reasonable

probability that evidence of the allegation of cheating against Devine and related


23CP at 1651.
24 Monghate argues that Devine’s sworn declaration is insufficient because it is not
supported by other evidence. Appellant’s Opening Br. at 2 (challenging trial court’s finding
that Devine was exonerated because “no evidence supports Investigator Devine’s
unsubstantiated claim of exoneration”); Appellant’s Opening Br. at 25 (“Investigator
Devine made a declaration that he was cleared of the misconduct in an administrative
hearing, but no such evidence exists.”). Monghate does not cite legal authority or offer
substantive argument challenging the validity of Devine’s declaration, and has not offered
contrary evidence. RAP 10.3(a)(6). We reject Monghate’s contention that Devine’s
declaration is insufficient.
                                            28
No. 75474-2-I I 29

incidents would have changed the outcome of Monghate’s trial.25 We conclude

that the evidence was not material under Brady, and thus cannot support

Monghate’s claim of a Brady violation.26

                          Legal Financial Obligations (LFOs)

        Monghate argues that the trial court erred when it failed to make an

individualized inquiry into whether his LFOs should be waived because of his

mental health condition. Because Monghate did not raise this issue below, we

decline to reach the merits of his argument.

       “The appellate court may refuse to review any claim of error which was not

raised in the trial court.” RAP 2.5(a).

       “Before imposing any legal financial obligations upon a defendant who

suffers from a mental health condition, other than restitution or the victim penalty




25 The parties dispute whether evidence of the allegation of cheating against Devine and
his termination from the academy would have been admissible at trial. The evidence at
issue must be admissible to support a Brady violation claim, See Wood v. Bartholomew,
516 U.S. 1, 6, 116 5. Ct. 7, 133 L. Ed. 2d 1(1995). Monghate argued below that the
evidence was admissible under ER 608(b), but the trial court rejected this argument.
Because we conclude that the evidence at issue is not material under Brady, we decline
to reach the issue of whether the evidence would have been admissible under ER 608(b)
or evaluate the trial court’s findings pertaining to admissibility.
26 Monghate also argues that Devine’s failure to inform the academy of his prior

termination for cause when he reapplied in 2004 is also a basis for a Brady violation claim.
This is unpersuasive.
         Devine declared that he had not filled out the 2004 application to the academy,
and was not aware of its contents until June 28, 2016. The application was completed
and signed by Lawrence Canary, not Devine. As discussed above, Monghate has not
demonstrated that Devine’s declaration is invalid and has not offered evidence rebutting
its content.
         Thus, although the information in the 2004 academy application was erroneous,
any dishonesty was not attributable to Devine and was not probative on the issue of his
credibility. We conclude that the inaccurate 2004 academy application cannot support
Mong hate’s Brady violation claim.
                                            29
No. 75474-2-I I 30

assessment under RCW 7.68.035, a judge must first determine that the defendant

    has the means to pay such additional sums.” ROW 9.94A.777(1).

       The question of whether a trial court properly inquired into a defendant’s

ability to pay due to a mental health condition is subject to RAP 2.5(a). State v.

Tedder, 194 Wn. App. 753, 756, 378 P.3d 246 (2016).

       Here, the trial court imposed mandatory LFOs consisting of restitution, the

victim penalty assessment, and a $100 DNA fee. Monghate did not challenge the

imposition of the DNA fee below under RCW 9.94A.777. Therefore, we decline to

reach the merits of his argument.

                                  Cumulative Error

       Monghate argues that cumulative error denied him of his Fourteenth

Amendment right to a fair trial. “Cumulative error may warrant reversal, even if

each error standing alone would otherwise be considered harmless.” State v.

Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Because Monghate has not

prevailed on his claims of error on appeal, we conclude that cumulative error did

not deprive Monghate of a fair trial.

       Affirmed.
                                                 ~-~--

                                                     lf~C’I~Q\( 1cj

WE CONCUR:




                                                ~              1.
                                                             ‘I
                                        30
