IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
No. 72497-5-1 STATE OF WASHINGTON, ) Respondent, )

v. DOUGLAS HO, Appellant. ) UNPUBLISHED OPINION FILED: June 27, 2016 Verellen, C.J. — Douglas Ho appeals his convictions forthree counts of first 

### degree assault while armed with a firearm and one count ofunlawful 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 ofSeattle 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 byVictor Contreras pulled up alongside Ngeth's car. Ho was in the frontpassenger seat. BothContrerasNo. 72497-5-1/2 and Howere members of a rival street gang, the Insane Boyz. Ho emerged from the sunroofofContreras'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 inthe 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. Hoappeals.
ANALYSIS Right to Counsel of Choice Ho contends that the trial court violated his constitutional right to counsel of his 

### choice whenit denied his requestfor a continuance ofthe trial date in order to substitute court-appointed counsel with retained counsel. We disagree. 

### Attorney Erick Spencer was appointed to representHo at thetime ofHo's 

### arraignment onAugust 9, 2012. Spencerlaterwithdrew 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 daysbefore trial was scheduled tobegin, Ho moved for a continuance of 90 days in order toretain attorney John Crowley. Crowley stated that he had met with Ho more than a year previously to discuss representation "butthere were 

### just some problems thatthe family was not able to go forward atthattime."1 Crowley emphasized thatHo was notdissatisfied with appointed counsel, norwas there a
1Report ofProceedings (RP) (Apr. 8, 2014) at 76.No. 72497-5-1/3 breakdown incommunications, 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 fiveweeks. 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, Imay let you in, actually. But itdepends on what happens with [the deputy prosecutor's April 9 case]. But that case would have a 

### huge—itwould 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 Iassume Mr. Toddwould notify you if 

### things change with [the deputyprosecutor] going out totrial 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 onApril 10 as scheduled. There is noindication thatHo 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 Butthe right to retain counsel ofchoice 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 inadvance of trial to permit the trial court to readily adjust its calendar; (2) the length ofthe continuance requested; (3) whether the continuance would carry the trialdate beyond the period specified inthe 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 ofthe 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 legitimatecause for dissatisfaction with counsel, even though it fell short of likely incompetent representation; 

### (9) whether there was a "rational basis" forbelieving that the defendant was seeking to change counsel "primarily for the purpose ofdelay"; (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). 

### 6Id,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 ofthe 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 itsdiscretion.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


### 7Id (quoting 3 WayneR. Lafave, etal, CriminalProcedure § 11.4(c)at 718-20 (3d ed. 2007)). 8]d at 670. 

### 9Id (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 clearthat 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 ofO'Dell. But O'Delldoes 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 

### thewrongfulness ofhis conductwas impaired by his youth.15 Witnessestestified that the defendant acted much younger than his chronological age and that his bedroom 

### containedchildish 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 Becausethis beliefwas erroneous, resentencing was warranted.18 

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


### onhis youth, nor did thetrial court state thatit 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.

6No. 72497-5-1/7 Comment on Right to Silence Ho contends that the testimony ofone ofthe State's witnesses amounted to an 

### impermissible opinion onguilt and a comment onhis righttoremain 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 forwhere they were. Q. Did both of them give the same kind ofanswers? 

### A. Yes. They
.. . were kind ofindifferentto the wholeincident, being interviewed, being advised of theirrights. 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, youknow, normally youwould 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 ofindifferent, just sat there. And when Iasked them ifthey could account for their—their whereabouts, itwas, "Idon't remember. Idon't know."[21]
19 We note that this same argument, as wellas the subsequent two arguments 

### regardingjury unanimity and prosecutorial misconduct, wereraised 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 firstdetermine whether it can be challenged for the first time on appeal. Ingeneral, 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 Hoargues that the testimony was an improperexpression of Detective Sevaaetasi's personal opinion that Ho was guilty. A witness may not offer opinion 

### testimonyregarding the defendant's guilt; whether a defendant isguilty is a question 

### "solely for thejury and [is] not the proper subjectofeither lay or expertopinion."24 However, testimonydescribing a defendant's demeanor is notopinion 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 ofHo's behavior. Furthermore, Detective Sevaaetasi did notimply that, in his experience, guilty people acted calm and relaxed in police 

### custody. In fact, hestated thatHo's demeanorwas"not atall unusual."26 Consequently, the testimony does notwarrantreview 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.

8No. 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 Hoappeared "nonchalant" and "indifferent" by contrasting his behaviorwith that of other people he had arrested. Because Detective Sevaaetasi's testimony was not an opinion on guilt or a 

### reference toHo's righttoremain silent, Ho fails toestablish manifesterror.29 Unanimity 

### Hocontends 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 thejury to consider or the court had to give thejury a unanimity instruction. When the State presents evidence that the defendant committed two or more 

### acts, any one ofwhich 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 notprovide any argumentin support ofthisclaim. Appellants waive assignments of error that theyfail to argue in 

### their opening appellatebriefs. Cowiche Canyon Conservancy v. Boslev, 118Wn.2d 801, 809, 828 P.2d 549 (1992).No. 72497-5-1/10 

### one act orthejury must be instructed thatit 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 ofconduct."31 We review the facts in a commonsense manner to determine whether criminal acts are a continuing course ofconduct.32 

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

### singular objective, theevidence 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 

### togetherin time and location and involved the same victims. Theyoccurred during a 

### single, continuous pursuit involving the samevehicles. Finally, theobjective ofboth shootings was the same: tokill aTRG member as partofa gang rivalry. Viewed in a
commonsense manner, the shootings were a continuing course of conduct. Prosecutorial Misconduct 

### Ho argues theprosecutor committed two instances ofmisconductduring closing argument. To prevail on a claim ofprosecutorial misconduct, a defendant must establish that the conduct was bothimproper and prejudicial.34 Ifthe defendant 

### objected attrial, he or she must show thattheprosecutor's misconduct resulted in 

### prejudice that had a substantial likelihood ofaffecting thejury'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).

10No. 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 improperlyvouched forWest'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 personalopinion that West's testimony identifying Ho and Contreras as the
shooters was credible. 

### Aprosecutor commits misconduct by vouching for awitness's credibility.38 However, a prosecutor's use ofthe word "we" amounts tovouching only ifit places the prestige ofthe government behind the witness orsuggests that information not 

### presented to thejury supports thewitness's testimony.39 Here, theprosecutor's remark did notexpress a personal opinion about West's credibility. Rather, the prosecutor used 

### thephrase "we know" tomarshal evidence actually admitted attrial. Furthermore, Ho did not objecttothis statement andfails toshow that anyimpropriety wasflagrant, illintentioned, or incurable. 

### Ho also contends the prosecutor disparaged defense counsel bytelling 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 pointwhereyou

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.

11No. 72497-5-1/12 lose—where itbecomes nonsensical."40 The trial court overruled Ho's objection to this
remark. 

### It is improper for the prosecutorto disparagingly comment on defense counsel's 

### role or impugn defense counsel's integrity.41 It is notimproper, however, to argue that the evidence does not supportthe 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 notdirectly orindirectly impugn defense counsel's role orintegrity. Ho has not shown, and the record does not demonstrate, a substantial likelihood that the remark affected thejury's verdict. Statement ofAdditional Grounds 

### Ho raises several arguments in a prose statement ofadditional 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 ofthejudgment 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 whenimposing 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).

12No. 72497-5-1/13 Ho raises additional claims ofprosecutorial 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 argumenttodraw reasonable inferences from theevidence.47 Such a statement was supported by the evidence.48 

### Ho challenges the sufficiency oftheevidence supporting the unlawful possession of a firearm conviction. ButWest testified that he saw Ho pointing a gun at him. And 

### this testimony was consistentwith 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 ofAdditional Grounds at 4. 47 State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). 

### Ho's other alleged instances ofmisconduct either repeat those made by 48 

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

### erredby stating, "It isclear. . . they are all guilty." However, the prosecutor actually stated, "It's clear, however, from all of the circumstantialevidence regardingthese three 

### individuals' intentthat they did have the intentto inflict great bodily harm. Ifone ofthem 

### did, then underaccomplice liability, theyall are guilty of assault in the first degree." RP (May 13, 2014) at 15. This was a proper characterization of the law.

13No. 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 decisionin 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 ofindigency. 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, 127Wn.2d 322, 335, 338 n.5, 899 P.2d 1251 (1995). 

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

14