IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON, ) No. 72497-5-1

Respondent, )

v.

DOUGLAS HO,

Appellant. )

UNPUBLISHED OPINION

FILED: June 27, 2016

Verellen, C.J. — Douglas Ho appeals his convictions for three counts of first

degree assault while armed with a firearm and one count of unlawful possession of a

firearm. Ho contends that he was denied his constitutional right to counsel of choice

and that a law enforcement officer's testimony amounted to an impermissible opinion on

his guilt and a comment on his right to remain silent. Ho also raises claims relating to

prosecutorial misconduct, jury unanimity, and mitigating factors considered at

sentencing. We affirm.

FACTS

On the evening of July 22, 2012, William Ngeth and two other men, Lawrence

West and Troung Ngo, were driving in the Beacon Hill neighborhood of Seattle in

Ngeth's car. All three men were members of a street gang called the Tiny Raskal

Gangsters (TRG). While waiting at an intersection, a car driven by Victor Contreras

pulled up alongside Ngeth's car. Ho was in the front passenger seat. Both Contreras
No. 72497-5-1/2

and Ho were members of a rival street gang, the Insane Boyz. Ho emerged from the

sunroof of Contreras's car holding a gun and fired a shot at Ngeth's car. A high speed

chase ensued. About 20 blocks away, Ngeth's car crashed onto a curb and Ngeth,

West, and Ngo fled the car. Contreras and Ho pursued the men on foot and shot at

them, striking West in the arm and torso.

The State charged Ho with three counts offirst degree assault and two counts of

first degree unlawful possession ofa firearm. Ajury convicted Ho as charged and the

trial court imposed a standard range sentence. Ho appeals.

ANALYSIS

Right to Counsel of Choice

Ho contends that the trial court violated his constitutional right to counsel of his

choice when it denied his request for a continuance ofthe trial date in order to substitute

court-appointed counsel with retained counsel. We disagree.

Attorney Erick Spencer was appointed to represent Ho at the time ofHo's

arraignment onAugust 9, 2012. Spencerlater withdrew due to a conflict involving one

of the State's witnesses, and Brian Todd was appointed to represent Ho on June 12,

2013. The trial date was set for April 10,2014.

On April 8, 2014, two days before trial was scheduled to begin, Ho moved for a

continuance of 90 days in order to retain attorney John Crowley. Crowley stated that he

had met with Ho more than a year previously to discuss representation "but there were

just some problems that the family was not able to go forward at that time."1 Crowley

emphasized that Ho was not dissatisfied with appointed counsel, norwas there a

1Report of Proceedings (RP) (Apr. 8, 2014) at 76.
No. 72497-5-1/3

breakdown in communications, but "[h]ejust wanted the counsel of his choice at this

time."2 Contreras, Ho's codefendant, objected to any continuance. The deputy

prosecutor informed the trial court she was also handling another trial that was expected

to begin the following day, April 9, and would last five weeks. The trial court

provisionally denied Ho's request, stating:

COURT: Well, Ithink that—I think I'm going to have to deny this

without prejudice. Mr. Crowley, I may let you in, actually.

But it depends on what happens with [the deputy

prosecutor's April 9 case]. But that case would have a

huge—it would have a huge ripple effect on all the other

cases in the system. So at this point I'm going to keep you

on for trial in two days.

CROWLEY: Very well.

COURT: All right. Mr. Todd, you're still on the case.

TODD: Thank you.

COURT: Thank you. And I assume Mr. Todd would notify you if

things change with [the deputy prosecutor] going out to trial

in [the April 9 case].

CROWLEY: That's greats

The record contains no further mention of the prosecutor's other trial, and Ho's

trial began on April 10 as scheduled. There is no indication that Ho renewed his motion

for a continuance or substitution of counsel.

Where a defendant retains counsel, the Sixth Amendment encompasses the right

to counsel of his or her choice.4 But the right to retain counsel of choice is not

2\±

3 Id at 78.

4 United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. Ct. 2557, 165 L.

Ed. 2d 409 (2006).
No. 72497-5-1/4

unlimited, and a trial court must balance this right with the need to efficiently administer

justice.5 These situations are highly fact dependent and "'[t]here are no mechanical

tests'" that can be used.6 Instead, a trial court must consider all relevant information,

including

(1) whether the request came at a point sufficiently in advance of trial

to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the

period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the

defendant's request;

(5) whether the continuance would seriously inconvenience the

witnesses;

(6) whether the continuance request was made promptly after the

defendant first became aware of the grounds advanced for

discharging his or her counsel;

(7) whether the defendant's own negligence placed him or her in a

situation where he or she needed a continuance to obtain new

counsel;

(8) whether the defendant had some legitimate cause for

dissatisfaction with counsel, even though it fell short of likely

incompetent representation;

(9) whether there was a "rational basis" for believing that the defendant

was seeking to change counsel "primarily for the purpose of delay";

(10) whether the current counsel was prepared to go to trial;

5 State v. Hampton, 184 Wn.2d 656, 662-63, 361 P.3d 734 (2015), cert, denied,

No. 15-8300, 2016 WL 777205 (U.S. Apr. 25, 2016).

6 Id, at 669 (quoting Unaar v. Sarafite. 376 U.S. 575, 589, 84 S. Ct. 841, 11 L.

Ed. 2d 921 (1964)).
No. 72497-5-1/5

(11) whether denial of the motion was likelyto result in identifiable

prejudice to the defendant's case of a material or substantial

nature.'71

This court reviews the denial of a continuance in order to allow a defendant to

retain counsel for abuse of discretion.8 A trial court abuses its discretion when its

decision "'is manifestly unreasonable, or is exercised on untenable grounds, or for

untenable reasons.'"9

Here, Ho did not move to substitute retained counsel until two days before trial.

Thus, he failed to move "at a point sufficiently in advance of trial to permit the trial court

to readily adjust its calendar."10 Additionally, Ho candidly admitted he had no "legitimate

cause for dissatisfaction with [appointed] counsel."11 And the record shows that the trial

court had granted at least 16 previous continuances at Ho's request. Finally, the trial

court denied Ho's motion without prejudice, contingent upon the deputy prosecutor's

schedule, and invited Ho to renew his motion, which Ho did not do. We conclude the

trial court's order was an appropriate exercise of its discretion.12

Youth as Mitigating Factor in Sentencing

After Ho was sentenced, the Washington Supreme Court issued its opinion in

State v. O'Dell, holding that a defendant's youth can justify an exceptional sentence

7 Id (quoting 3 Wayne R. Lafave, etal, Criminal Procedure § 11.4(c) at 718-20

(3d ed. 2007)).

8]d at 670.

9 Id (quoting State v. Blackwell. 120 Wn.2d 822, 830, 845 P.2d 1017 (1993)).

10 Id at 669.

11 Id

12 Though Ho argues that the trial court's denial of his right to counsel of choice

constituted structural error requiring reversal, Gonzalez-Lopez is clear that only the

erroneous deprivation of this right is structural error. 548 U.S. at 150.
No. 72497-5-1/6

below the standard range.13 Ho, who was 18 when he committed the crimes, contends

that he is entitled to resentencing in light of O'Dell. But O'Dell does not provide a basis

for the relief Ho seeks.

As a general rule, a defendant may not appeal the imposition of a standard range

sentence unless the court refuses to exercise its discretion at all or denies an

exceptional sentence for impermissible reasons.14 In O'Dell, the defendant asked the

court to impose an exceptional sentence downward because his capacityto appreciate

the wrongfulness of his conduct was impaired by his youth.15 Witnessestestified that

the defendant acted much younger than his chronological age and that his bedroom

contained childish memorabilia such as toys and stuffed animals.16 The trial court

denied the request based on its beliefthat it could not consider the defendant's age as a

possible mitigating factor.17 Because this belief was erroneous, resentencing was

warranted.18

Here, in contrast, Ho did not request an exceptionalsentence downward based

on his youth, nor did the trial court state that it could not impose one. Thus, Ho has not

demonstrated that the trial court refused to exercise its discretion or misconstrued its

authority.

13183 Wn.2d 680, 358 P.3d 359 (2015).

14 State v. Grayson, 154 Wn.2d 333, 341 -42, 111 P.3d 1183 (2005).

15 O'Dell, 183Wn.2d685.

16 Id at 697-98.

17 Id at 685-86.

18 Id. at 696-97.

6
No. 72497-5-1/7

Comment on Right to Silence

Ho contends that the testimony of one of the State's witnesses amounted to an

impermissible opinion on guilt and a comment on his right to remain silent.19 We

decline to review these claims because Ho fails to establish a manifest error affecting a

constitutional right.20

At trial, Detective Robert Sevaaetasi testified regarding Ho's attitude and

demeanor following his arrest:

Q. When asked about their whereabouts on the night in question, was

there an answer?

A. They couldn't account for where they were.

Q. Did both of them give the same kind of answers?

A. Yes. They .. . were kind of indifferent to the whole incident, being

interviewed, being advised of their rights. It was like nonchalant to

them, and Ifound this not at all unusual.

Q. The nonchalance you didn't find unusual?

A. Yeah, or the indifference to it and that there was similar behavior.

Q. Explain nonchalance and indifference.

A. Well, you know, normally you would arrest someone, put them in

handcuffs, and take them to the police station. They would—some

protestation about guilt or innocence or whatever or whythey're

there. There was no such attitude from them. They were - really

kind of indifferent, just sat there. And when I asked them if they

could account for their—their whereabouts, it was, "I don't

remember. I don't know."[21]

19 We note that this same argument, as well as the subsequent two arguments

regarding jury unanimity and prosecutorial misconduct, were raised and rejected in

Contreras's direct appeal.

20 RAP 2.5(a).

21 RP (May 6, 2014) at 97-98.
No. 72497-5-1/8

Because Ho did not object to this testimony below, we must first determine

whether it can be challenged for the first time on appeal. In general, failure to raise an

issue at trial waives the issue on appeal unless it is a manifest error affecting a

constitutional right.22 An error is manifest only if it had practical and identifiable

consequences in the case.23

Ho argues that the testimony was an improper expression of Detective

Sevaaetasi's personal opinion that Ho was guilty. A witness may not offer opinion

testimony regarding the defendant's guilt; whether a defendant is guilty is a question

"solely for the jury and [is] not the proper subjectofeither lay or expertopinion."24

However, testimony describing a defendant's demeanor is not opinion and is admissible

if relevant.25

Detective Sevaaetasi's testimony was not an opinion on Ho's guilt. His testimony

that Ho acted "nonchalant" and "indifferent" to being interviewed did not convey an

opinion butmerely his observation of Ho's behavior. Furthermore, Detective Sevaaetasi

did not imply that, in his experience, guilty people acted calm and relaxed in police

custody. In fact, he stated that Ho's demeanor was "not at all unusual."26

Consequently, the testimony does notwarrant review for the first time on appeal.

22 State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007).

23 State v. Schaler, 169 Wn.2d 274, 282-83, 236 P.3d 858 (2010).

24 State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967).

25 State v. Day, 51 Wn. App. 544, 552, 754 P.2d 1021 (1988).

26 RP (May 6, 2014) at 98.

8
No. 72497-5-1/9

Ho also contends that the testimony was a comment on his Fifth Amendment

right to remain silent. "A police witness may not comment on the silence of the

defendant so as to infer guilt from a refusal to answer questions."27

Here, however, Ho did not invoke his right to silence. Instead, Ho was

responsive to questions, stating he did not remember where he had been the night of

the shootings. And Detective Sevaaetasi's testimony that people who are arrested

typically make "some protestation about guilt or innocence or whatever or why they're

there" was not a comment on Ho's silence.28 Instead, Detective Sevaaetasi explained

how Ho appeared "nonchalant" and "indifferent" by contrasting his behavior with that of

other people he had arrested.

Because Detective Sevaaetasi's testimony was not an opinion on guilt or a

reference to Ho's right to remain silent, Ho fails to establish manifest error.29

Unanimity

Ho contends that his right to a unanimous juryverdict on the assault charges was

violated. Because the evidence showed that shots were fired in two separate locations,

Ho argues the State had to elect one location for the jury to consider or the court had to

give the jury a unanimity instruction.

When the State presents evidence that the defendant committed two or more

acts, any one of which could constitute the crime charged, the State either must elect

27 State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996).

28 RP (May 6, 2014) at 97-98.

29 In his assignments of error Ho also contends that defense counsel was

ineffective for failing to objectto the testimony, but does not provide any argument in

support ofthis claim. Appellants waive assignments of error that they fail to argue in

their opening appellate briefs. Cowiche Canyon Conservancy v. Boslev, 118Wn.2d

801, 809, 828 P.2d 549 (1992).
No. 72497-5-1/10

one act orthe jury must be instructed that it must unanimously agree on a single act.30

No election or unanimity instruction is required, however, ifthe defendant's acts were

part of a "continuing course of conduct."31 We review the facts in a commonsense

manner to determine whether criminal acts are a continuing course of conduct.32

Generally, where the defendant engages in a series of actions intended to achieve a

singular objective, the evidence establishes a continuing course ofconduct.33

Here, neither an election nor an instruction was required because the shootings

were a continuing course of conduct. The shootings in this case were relatively close

together in time and location and involved the same victims. They occurred during a

single, continuous pursuit involving the same vehicles. Finally, the objective of both

shootings was the same: to kill a TRG member as partofa gang rivalry. Viewed in a

commonsense manner, the shootings were a continuing course of conduct.

Prosecutorial Misconduct

Ho argues the prosecutor committed two instances ofmisconduct during closing

argument. To prevail on a claim of prosecutorial misconduct, a defendant must

establish that the conduct was both improper and prejudicial.34 If the defendant

objected at trial, he or she must show thatthe prosecutor's misconduct resulted in

prejudice that had a substantial likelihood of affecting the jury's verdict.35 However,

30 State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984), overruled on other

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

31 ]d at 571.

32 id

33 State v. Fiallo-Lopez. 78 Wn. App. 717, 724, 899 P.2d 1294 (1995).

34 State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).

35 State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).

10
No. 72497-5-1/11

where defense counsel fails to object, any error is waived unless "the prosecutor's

misconduct was so flagrant and ill-intentioned that an instruction could not have cured

the resulting prejudice."36

Ho contends the prosecutor improperly vouched for West's credibility by saying,

"[W]e only know for certain two of the individuals that were shooting that night. That

was Mr. Contreras and Mr. Ho."37 He argues that this statement conveyed the

prosecutor's personal opinion that West's testimony identifying Ho and Contreras as the

shooters was credible.

Aprosecutor commits misconduct by vouching for a witness's credibility.38

However, a prosecutor's use ofthe word "we" amounts to vouching only if it places the

prestige ofthe government behind the witness orsuggests that information not

presented to the jury supports thewitness's testimony.39 Here, the prosecutor's remark

did notexpress a personal opinion about West's credibility. Rather, the prosecutor used

the phrase "we know" to marshal evidence actually admitted at trial. Furthermore, Ho

did not object to this statement and fails to show that any impropriety wasflagrant, illintentioned, or incurable.

Ho also contends the prosecutor disparaged defense counsel by telling the jury

that defense counsel had "gone through in their closing and tried to explain away or

dismiss every single piece of the State's evidence. But it gets to a point where you

36 id at 760-61.

37 RP (May 13, 2014) at 15-16.

38 State v. Robinson, 189 Wn. App. 877, 892, 359 P.3d 874 (2015).

39 Id. at 894.

11
No. 72497-5-1/12

lose—where it becomes nonsensical."40 The trial court overruled Ho's objection to this

remark.

It is improper for the prosecutor to disparagingly comment on defense counsel's

role or impugn defense counsel's integrity.41 It is not improper, however, to argue that

the evidence does not support the defense theory or to comment critically on a defense

argument.42 The remark challenged here focused on the validity of defense counsel's

arguments and did not directly or indirectly impugn defense counsel's role or integrity.

Ho has not shown, and the record does not demonstrate, a substantial likelihood that

the remark affected the jury's verdict.

Statement ofAdditional Grounds

Ho raises several arguments in a pro se statement of additional grounds. None

have merit.

Ho contends that the trial court failed to make an individualized inquiry into his

ability to pay legal financial obligations, as required by State v. Blazina.43 But Blazina

addressed only discretionary legal financial obligations. Areview ofthe judgment and

sentence shows that the trial court imposed onlythe victim penalty assessment and

DNA collection fee. These obligations are mandated by statute, and a trial court lacks

discretion to consider a defendant's ability to pay when imposing them.44

40RP(May 13, 2014) at 87.

41 State v. Thorqerson, 172 Wn.2d 438, 451, 258 P.3d 43 (2011).

42 id at 465.

43182 Wn.2d 827, 344 P.3d 680 (2015).

44 State v. Lundv, 176 Wn. App. 96, 105, 308 P.3d 755 (2013).

12
No. 72497-5-1/13

Ho raises additional claims of prosecutorial misconduct during closing argument.

He contends the prosecutor misstated the burden of proof by stating:

And again, finally, who had which firearm? We have a pretty good idea.

Are you convinced beyond a reasonable doubt who was holding which

gun? You don't need to be to find the defendants guilty of the charged

crimes in this case.'451

But the prosecutor did not tell the jury they did not need to find all of the elements of the

crime beyond a reasonable doubt. Rather, the prosecutor explained to the jurythat,

because Ho had been charged as both a principal and an accomplice, itwas not

necessary for the juryto determine whether Ho's bullet or Contreras's bullet struck

West. Ho also contends that the prosecutor "testified] as a witness" by arguing that

Ho's intent was to hurt or kill the three men.46 But a prosecutor has wide latitude in

closing argument to draw reasonable inferences from the evidence.47 Such a statement

was supported by the evidence.48

Ho challenges the sufficiency ofthe evidence supporting the unlawful possession

of a firearm conviction. But West testified that he saw Ho pointing a gun at him. And

this testimony was consistent with the physical evidence, including the position of

West's gunshotwounds and a bullet strike on Ngeth's car. Moreover, Ho'sfingerprints

45RP(May 13, 2014) at 36.

46 Statement of Additional Grounds at 4.

47 State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).

48 Ho's other alleged instances of misconduct either repeat those made by

appellate counsel or misstate the record. For example, Ho contends the prosecutor

erred by stating, "It is clear. . . they are all guilty." However, the prosecutor actually

stated, "It's clear, however, from all of the circumstantial evidence regarding these three

individuals' intentthat they did have the intentto inflict great bodily harm. If one ofthem

did, then under accomplice liability, they all are guilty of assault in the first degree."

RP (May 13, 2014) at 15. This was a proper characterization of the law.

13
No. 72497-5-1/14

were found on a Kimber handgun that matched shell casings found at the scene. This

was sufficient evidence for the jury to find beyond a reasonable doubt that Ho

possessed a firearm.49

In his supplemental assignments of error, Ho contends this court should not

award any costs on appeal. The State responds that costs should be awarded on

appeal. Both raise arguments related to this court's recent decision in State v.

Sinclair.50

We adhere to Sinclair. Ho was found indigent both for trial and for appeal. He

has been sentenced to more than 50 years in prison. The State has not provided any

factual basis to overcome the continuing presumption of indigency. Consistent with

Sinclair, we conclude that no costs should be awarded on appeal.

Affirmed.

WE CONCUR:

- —^ ^e^--i^>. .A-d

49 Ho's remaining claimsinvolve matters outside the record and therefore cannot

be addressed in a direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 338 n.5, 899

P.2d 1251 (1995).

50192Wn. App. 380, 367 P.3d 612 (2016) (petition for review pending).

14