INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ] No. 68030-7-1 Respondent, ] DIVISION ONE ooo —-iC

v. ] —!—H C3~r> 

## FELIXVINCENT SITTHIVONG, ; UNPUBLISHED 25 > ~o r.'i cc m r~ Appellant. ) FILED: June 17, 2013 up CO co^ -^"O


### Cox, J. —Felix Sitthivong appeals his judgment and sentence, claiming that the trial court abused its discretion when itrefused to instruct thejury on the 

### lesser-included instruction offirst degree manslaughter. Sitthivong also argues that he received ineffective assistance of counsel at trial because his attorney 

### failed to requesta selfdefense instruction for the charge offirst degree assault. In his Statement of Additional Grounds for Review, Sitthivong contends that the trial court abused its discretion and violated his Sixth Amendment right to confrontation when it ruled that a 911 tape recording relevant to this case was inadmissible. We affirm.No. 68030-7-1/2 On a Saturday night in 2010, Sitthivong was in the Belltown neighborhood with six friends. They visited several bars during the course ofthe night. At one ofthese bars in Belltown, Sitthivong argued with another group of men. Around 1:30 a.m., Sitthivong's group headed towards V-Bar, a late-night establishment in Belltown. Sitthivong testified that as they drove past V-Bar to park, he saw the same group of individuals with whom he had previously argued. Sitthivong testified that he made eye contact withthese individuals and believed they recognized him. No other witness reported that they saw this group, or that 

### any individuals in front of V-Barwere those with whom Sitthivong had argued earlier that night. 

### Atsome point during the drive to V-Bar, Sitthivong took a gun from another individual inthe car. He then put it in his waistband. Sitthivong testified that he did this because he felt afraid of the individuals in front of V-Bar. 

### Once they parked in a lotclose to V-Bar, Sitthivong and his friends got out of the car. Steve Sok, Phillip Nguyen, and YousoufAhmach, who had spent the 

### earlier part ofthe night in Pioneer Square, notBelltown, were standing on the
sidewalk near V-Bar. Attrial, there was conflicting testimony about the interaction between 

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

### Sitthivong testified he then saw Sok and Nguyen turn around and point guns at him. All other witnesses testified that Sok, Nguyen, and Sitthivong arguedNo. 68030-7-1/3 outside V-bar but that they had not seen Nguyen or Sok with guns. All agree that Sitthivong pulled out a gun and started shooting. Sitthivong fired eight shots into a crowded street. Sok was killed and Phillip Thomas, a bystander, was shot inthe stomach. Another individual who lived across the street from the V-Bar, recorded a video ofthe shooting from his apartment and also called 911 after the incident. Byamended information, the State charged Sitthivongwith firstdegree premeditated murder of Sok (count I) and, in the alternative, firstdegree murder 

### by extreme indifference for Sok's death (countV). The State also charged Sitthivong with first degree assault of Thomas, the innocent bystander, (countII) and two counts offirst degree attempted murder of Ahmach and Nguyen (count 

### III and IV). All charges carriedfirearm allegations. Finally, the State charged 

### Sitthivong with unlawful possession of a firearm in the second degree, a charge for which Sitthivong agreed to a bench trial. 

### After a lengthyjury trial, the trial courtprovided instructions to thejury 

### regarding Sitthivong'sjustifiable homicide selfdefense as toall five counts. It also provided a lesser included offense instruction for countI(premeditated first 

### degreemurder), instructing thejury on second degreemurder and first degree manslaughter. Thetrial court denied Sitthivong's requestto instructthejury on the lesser included offense offirst degree manslaughter for count V (first degree murder by extreme indifference). 

### Ajury convicted Sitthivong ofcountV(first degreemurder by extreme 

### indifference), counts III and IV (two counts ofsecond degree attempted murder),No. 68030-7-1/4 and count II (first degree assault). Thejury also convicted him ofthe lesser included offense of second degree intentional murder for count I. Finally, they found these crimes were committed while Sitthivong was armed with a firearm. The trial court found Sitthivong guilty ofthe firearm possession charge in the bench trial to which he agreed. The trial court sentenced Sitthivong to standard range sentences for all counts and vacated the second degree murder conviction on doublejeopardy grounds. Sitthivong appeals.
LESSER INCLUDED INSTRUCTION 

### Sitthivong argues that the trial court abused itsdiscretion when it denied his request for a lesser included first degree manslaughterjury instruction on countV, first degree murder of Sok by extreme indifference. We disagree. The right to instruct thejury on a lesser included offense is a statutory 

### right.1 Underthe testenunciated by the supreme court in Statev. Workman, a defendant is entitled to a lesser included offense instruction "iftwo conditions are 

### met."2 First, under the legal prong ofthe test, each element ofthe lesser offense 

### must bea necessary element ofthe charged offense.3 Second, underthe factual prong, "the evidence must support an inference that the lessercrime was

1 State v. Bowerman. 115 Wn.2d 794, 805, 802 P.2d 116 (1990); RCW 10.61.003, 10.61.006. 290 Wn.2d 443, 447, 584 P.2d 382 (1978). 3 State v. Sublett. 176 Wn.2d 58, 83, 292 P.3d 715 (2012).No. 68030-7-1/5 

### committed."4 "[T]he factual test includes a requirementthat there be a factual showing more particularized than that required for otherjury instructions. Specifically,
... the evidence must raise an inference that only the lesser included/inferiordegree offense was committed to the exclusion of the charged offense."5 An appellate court views the evidence that purports to support a requested 

### instruction in the light most favorable to the party who requested the instruction at trial.6 This court reviews de novo the legal prong of a request for a jury 

### instruction on a lesser included offense.7 Where a trial court's refusal to give instructions is based on the facts ofthe case, an appellate court reviews this 

### factualdetermination forabuse ofdiscretion.8 

### Here, the legal prong oftheWorkman test issatisfied. "The elements of 

### first degree manslaughter are necessarily included in first degreemurder by extreme indifference .
.. ."9

4kl 5State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000) (some emphasis added). 6 \± at 455-56. 

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

### 8]dL; Statev. Hunter, 152 Wn. App. 30, 43, 216 P.3d 421 (2009) (citing State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996), overruled on other 

### grounds by State v. Berlin, 133 Wn.2d 541, 547-49, 947 P.2d 700 (1997)). 9State v. Pettus. 89 Wn. App. 688, 700, 951 P.2d 284 (1998). 5No. 68030-7-1/6 Thus, the only question is whether the trial court abused its discretion in deciding that the factual prong was not satisfied. Specifically, did the evidence raise an inference that Sitthivong only committed first degree manslaughter, not first degree murder by extreme indifference? Under RCW 9A.32.060, first degree manslaughter requires proofthat the 

### defendant recklessly caused thedeath ofanother.10 In contrast under RCW 9A.32.030(1)(b), first degree murder byextreme indifference requires proofthat the defendant "acted (1)with extreme indifference, an aggravated form of 

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

### the death ofa person."11 There isno dispute here that thefiring ofshots created 

### a grave risk ofdeath toothers and that theshots caused thedeath ofSok. Thus, thequestion iswhether Sitthivong canpointtoany evidence in this record that 

### shows his actswere merely reckless.12 Two opinions addressing the question ofwhether a lesserincluded 

### instruction was warranted areinstructive: State v. Pastrana13 and State v. Pettus.14 Inboth ofthese cases, the defendant was charged with firstdegree 

### murder by extreme indifference.15 Division Two ofthis courtheld in both cases
10RCW9A.32.060(1)(a). 11 State v. Pastrana, 94 Wn. App. 463, 470, 972 P.2d 557 (1999). 

### 12 Id,at 471. 13 94 Wn. App. 463, 972 P.2d 557 (1999). 14 89 Wn. App. 688, 951 P.2d 284 (1998). 15 Id. at 691; Pastrana, 94 Wn. App. at 467.No. 68030-7-1/7 

### thatthefactual prong oftheWorkman test was not satisfied.16 Thus, neither defendant was entitled to a lesser included instruction on first degree 

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

### indifference after driving alongside the carofhis victim and firing atit.18 "The first shot hit the [victim's car] in front ofthe rear tire. The second shot hit [the victim] inthe left arm and penetrated his chest. Two other shots passed nearby or 

### through the windshield and exited through the plastic rearwindow."19 The court
concluded that: 

### [t]heevidence of the force of a .357 magnum, the time of day, the residential neighborhood, and Pettus's admitted inability to control the deadly weapon, particularly from a moving vehicle, does not 

### support an inferencethat Pettus's conduct presented a substantial 

### risk ofsome wrongful act instead ofa "grave risk ofdeath."[20] In Pastrana, the defendant was driving on the interstate when another car cut in front of him.21 

### Pastrana retrieved a gunfrom behind the seat[,].
. . rolled down the 

### passengerwindow and fired one shot out the window, directly in front of [the passenger's] face.



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

### 17 jcL 18 Pettus, 89 Wn. App. at 691-92. 19 Id at 692. 20 Id at 700. 21 Pastrana, 94 Wn. App. at 469.No. 68030-7-1/8

After he fired the gun, [the passenger] asked Pastrana what he was thinking. Pastrana replied that he was aiming for a tire. [The passenger] mentioned that "it's kind of hard to be aiming at 

### anything when you aregoing down the freeway thatfast."[22] Division Two then held that "indiscriminately shooting a gun from a moving 

### vehicle is precisely the type ofconduct proscribed by RCW 9A.32.030(1 )(b)."23 Here, as in Pastrana and Pettus. Sitthivong's actions demonstrated not
mere recklessness regarding human life but extreme indifference, an aggravated form ofrecklessness. He fired eight shots indiscriminately into a crowded street. He testified that he "wasn't really aiming. Iwasjust—Ijust pointed and Ishot and 

### Ijust wanted to get the heck out ofthere " When asked whether his eyes 

### were open or closedwhen hefired, Sitthivong stated that they were a "[l]ittle bit ofboth." And Sitthivong himselfagreed that "therewere a lot of people out there 

### thatnight... on the street." This conduct, when measured against Pettus and Pastrana, shows that the trial court was wellwithin its discretion to deny the requested instruction. 

### Sitthivong argues that because thecourt instructed on his theory ofself defense as to count V, he was also entitled to a lesser included instructionas to 

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

22 \± 

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

8No. 68030-7-1/9 In Schaffer, the supreme court held that the trial court erred when it failed 

### to instructthejury on the lesser included offense offirst degree manslaughter.25 There, Schaffer argued with anotherpatron of a nightclub, John Magee.26 According to the supreme court's opinion: When they left the club, Schaffer approached Magee, who shook his fist, swore at Schaffer, and threatened to kill him. When Magee moved his arm toward his back, Schaffer thought he was reaching for a gun. Schaffer drew his own gun and fired several shots. Two bullets struck Magee in the back and three in the legs. One bullet struck
... a passerby in the foot. Magee died at the scene. He was not armed.[27] 

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

### manslaughter.29 Thesupreme court held that thetrial court abused its discretion 

### by declining to give thelesser included instruction.30 It reasoned that "a defendant who reasonably believes he is in imminent danger and needs to act in self-defense, 'but recklessly or negligently used more force than was necessary 

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

25 id at 358. 

### 26 ]d at 357. 

### 27 jd 28 id 29 id 30 Id. at 358. 

### 31 id at 358 (quoting State v. Jones. 95Wn.2d 616, 623, 628 P.2d 472 (1981)).No. 68030-7-1/10 Despite the seemingly broad language on which Sitthivong relies, Schaffer does not support the argued proposition here: that a self-defense theory always entitles one to the giving of a lesser included instruction. This is not a case of recklessness or negligence in the use offorce. Rather, it is a case of extreme indifference to the consequences to human life exhibited by firing repeatedly into

a crowded area. The trial court properly exercised its discretion in denying the requested instruction. Schaffer does not command a different result.
INEFFECTIVE ASSISTANCE OF COUNSEL Sitthivong argues that his attorney's decision not to demand a selfdefense instruction as to the first degree assault charge deprived him of his right to effective assistance of counsel. We disagree. To prevail on a claim of ineffective assistance ofcounsel, a defendant must show that his counsel's performance fell below an objective standard of 

### reasonableness and thatthedeficient performance prejudiced his trial.32 The reasonableness inquirypresumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the 

### challenged conduct.33 Failure oneitherprong defeats a claim ofineffective assistance of counsel.34

32 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 

### 2d 674 (1984); State v. McFarland. 127Wn.2d 322, 334-35, 899 P.2d 1251 (1995).33 McFarland. 127 Wn.2d at 336. 34 Strickland. 466 U.S. at 697; State v. Foster. 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

10No. 68030-7-1/11 Here, Sitthivong claims his counsel's performance was not objectively reasonable because, though charged with first degree assault, the court only instructed the jury as to justifiable homicide, not selfdefense as to assault. This decision was not objectively unreasonable. Sitthivong's theory of selfdefense was that he used lawful selfdefense in shooting at Sok, Ahmach, and Nguyen. The evidence clearly indicated that the onlyreason forThomas's injurieswas a result of the shots fired by Sitthivong's at Sok, Ahmach, and Nguyen. Sitthivong had no alternative theory of selfdefense for the assault ofThomas. Nor was there evidence to support such a theory. 

### Sitthivong couldonly argue that, ifthe use of force as to Sok, Ahmach, and Nguyen was lawful, itwas also lawful as to Thomas. 

### The jurywas provided with thejustifiable homicide selfdefense instruction, which mirrorsWPIC 16.02. This instruction requires that the slayer 

### reasonably believe that theperson slain intended tocommit afelony ortoinflict death or great personal injury. The instruction reads as follows: It is a defense to the charges in Counts One through Five 

### that the homicide was justifiable as defined in this instruction. 

### Homicide isjustifiable when committed in the lawful defense of the slayer when: 

### (1) the slayerreasonably believed that the person slain or others whom the defendant reasonably believed were acting in 

### concert with the person slain intended to commit a felony or to inflictdeath or great personal injury; 

### (2) the slayerreasonably believed that there was imminent danger of such harm being accomplished; and (3) the slayer employed such force and means as a 

### reasonably prudent personwould use underthe same orsimilar

11No. 68030-7-1/12 conditions as they reasonably appeared to the slayer, taking into consideration all the facts and circumstances as they appeared to 

### him, at thetime ofandpriorto the incident.[35] Under this justifiable homicide instruction, ifthe jury found Sitthivong was justified in using force in selfdefense against Sok, Nguyen, and Ahmach, then the force was lawful. In that case, Sitthivong's conduct towards Thomas also would have been lawful. This was Sitthivong's theory of defense. His attorney was able to argue itfully without a separate self defense instruction on the 

### assault charges. Because the only intent that Sitthivong had was directed at Sok, Ahmach, and Nguyen, his selfdefense had to be related to this intent as well. Thus, Sitthivong's attorney's performance was not deficient. 

### Sitthivong argues that "where self defense is asserted against both homicide and non-homicide offenses, the jury should have received Washington 

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

## be injured."37 To supporthis argument, Sitthivong relies on Statev. Cowen.38 In Cowen. this court concluded that the justifiable homicide selfdefense 

### instruction was properly given, ratherthan the lesserinstruction, in a charge of

35 Clerk's Papers at 94. 

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

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

12No. 68030-7-1/13 

### attempted murder.39 Thecourt noted thedifference between these two
instructions: The distinction between the two instructions, WPIC 16.02 and WPIC 17.02, is in the degree of harm that the defendant must perceive. Under WPIC 16.02, the defendant must have 'reasonably believed that the victim intended to inflict death orgreatpersonal injury'to justify homicide. Bycontrast, under WPIC 17.02, the defendant need only have reasonably believed that 'he [was] about 

### to beinjured tojustify actsofforce.'401 The Cowen court went on to note that "the important issue is the defendant's 

### mental state in committing the crime, notwhetherthe victim in fact died."41 Here, the only beliefthat Sitthivong argued he had to explain hisactions,
was that Ahmach, Sok and Nguyen were intending to inflict death or great 

### personal injury against him. There was no evidence that Thomas intended 

### anything toward Sitthivong, nor did Sitthivong argue thatthis was the case. In 

### response to the alleged actions ofAhmach, Sok, and Nguyen, Sitthivong shot at them, accidentally hitting Thomas. On thesefacts, under Cowen. only the 

### justifiable homicide instruction was warranted. Counsel's performance was not
deficient. 

### Because Sitthivong's attorney's performance wasnot deficient, we need not reach the prejudice prong ofthe test. 

### In sum, Sitthivong has failed in his burden to show his attorneywas ineffective at trial. 

### 39 id at 53. 

### 40 id (some emphasis added) (quoting WPIC 17.02 and WPIC 16.02). 41 id

13No. 68030-7-1/14
STATEMENT OF ADDITIONAL GROUNDS Sitthivong submitted a statement of additional grounds for review in which 

### he argues that the trial court abused itsdiscretion when it refused to admitthe 911 tape recording of a neighbor, who witnessed the shooting. Sitthivong also argues that the trial courtviolated his Sixth Amendment right to confrontation when it failed to admit the 911 tape recording forimpeachment purposes. We disagree with both arguments. SixthAmendment Right to Confrontation The Confrontation Clause ofthe Sixth Amendment provides that "[i]n all 

### criminal prosecutions, theaccused shall enjoy theright... to beconfronted with thewitnesses against him."42 An objection based on this Sixth Amendment right 

### mustbe made attrial to preserve the errorfor appeal.43 Here, while Sitthivong's attorney objected to thecourt's denial ofhis 

### requestto admitthe 911 tape recording for impeachment purposes, he did not base this objection on an alleged Sixth Amendmentviolation. Thus, Sitthivong's 

## argument is not preserved for appeal. And there is no explanation provided why we should consider this argument further under RAP 2.5(a). Excited Utterance 

### Sitthivong also argues thatthe trial court abused its discretion byfailing to admitthe 911 tape recording as an excited utterance exception to the prohibition against hearsay. We do not reach the merits ofthis argument.

42 U.S. Const, amend. VI. 

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

14No. 68030-7-1/15 We note that the 911 tape recording is not a part ofthe record. Itdoes not appear that Sitthivong requested itbe made a part ofthe record on appeal. We will not review a claim without an adequate record to do so. Because the record here is inadequate, we do not reach the merits of this claim. We affirm the judgment and sentence. 

# Cm>T.

WE CONCUR:

15