                                                                        FILED ,
                                                                COUR OF APPEALS  DIV
                                                                 STATE OF WASHINGTON

                                                                2018 JAN 22 AH 10: 10




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Personal             )       No. 72376-6-1
Restraint of                              )
                                          )
FELIX VINCENT SITTHIVONG,                 )       UNPUBLISHED OPINION
                                          )
                     Petitioner.          )       FILED: January 22, 2018
                                          )
       MANN, J. — Felix Sitthivong petitions for relief from personal restraint resulting

from his convictions for murder, attempted murder, and assault, all with firearm

enhancements. This court affirmed Sitthivong's conviction on direct appeal and our

Supreme Court denied review. Sitthivong then filed this personal restraint petition

(PRP), which we dismissed because the issues raised were previously litigated. Our

Supreme Court, however, granted Sitthivong's motion for discretionary review and

remanded the PRP for us to reconsider in light of its recent decision in State v.

Henderson, 182 Wn.2d 734, 344 P.3d 1 (2015). Henderson addressed whether a

defendant charged with first degree murder by extreme indifference is entitled to an

instruction for the lesser included offense of first degree manslaughter.
No. 72376-6-1/2

        In light of Henderson, we agree that Sitthivong was entitled to the lesser included

instruction for first degree manslaughter. However, because Sitthivong failed to meet

his burden to demonstrate prejudice, we deny his petition.

                                                 FACTS

                                           Substantive Facts

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

group of friends. They visited several bars during the evening. At one of these bars,

Sitthivong testified that he was confronted by a group of men that included Steve Sok

and Landon Nguyen, and that during the confrontation someone threatened to kill him.

        Around 1:30 a.m., Sitthivong and his friends drove to V-Bar, another bar in the

Bel[town neighborhood. Sok, Landon Nguyen, Phillip Nguyen, Yousouf Ahmach, and

several of their friends were already at V-Bar when Sitthivong and his friends arrived.

Sitthivong testified that when they arrived at V-Bar he saw the same group of men who

had confronted him at the other bar. After they parked their car, Sitthivong borrowed a

gun from one of his friends, tucked it into his pants, got out of the car, and walked

toward the bar.

        At this point, testimony from the State's witnesses differed from Sitthivong's

testimony) Sitthivong testified that Sok, Landon Nguyen, and a third person walked up

to him and confronted him. Sitthivong testified that after Sok's group walked away, both

Sok and Nguyen turned around and pulled out guns. Sitthivong stated he then grabbed

the gun he was carrying and started shooting. Sitthivong testified he focused on

shooting towards the gun that was pointed at him, while the second man ducked into

        1 Sitthivong admits that the majority of the witness testimony, including the testimony of
Sitthivong's companions, was consistent with the State's case. Sitthivong's testimony is mostly
uncorroborated.
                                                  -2-
No. 72376-6-1/3

the doorway. Sitthivong stated he was not aiming, that he was *moving as he fired, and

that he just pointed and shot as he ran back to the car.

       Phillip Nguyen testified that about 30 minutes after arriving at V-Bar, he and Sok

went outside to smoke a cigarette. While they were standing outside he heard a series

of gunshots and ducked into the entryway of the bar. He turned and saw Sok on the

ground where he had been smoking. Nguyen testified he did not see anyone holding a

gun, though he saw a muzzle flash.

       Landon Nguyen and Ahmach testified that they also left V-Bar to smoke a

cigarette. They stated that as they walked away from the bar, Sitthivong approached

them, and after a confrontation, grabbed a gun from the waistline of his pants then

started shooting. When they saw Sitthivong's gun, they both turned around and ran the

opposite direction, back towards the entrance to V-Bar.

       Three of Sitthivong's companions, Kenrique Thomas, Ron Battles, and Nam

Nguyen, also testified that Sitthivong had a short verbal confrontation with Landon

Nguyen and Ahmach. All testified that they had never seen either Landon Nguyen or

Ahmach before that confrontation. Sitthivong asked if the Landon Nguyen or Ahmach

knew "Sonny," and when they said yes, he drew his gun. Landon Nguyen and Ahmach

turned and ran the opposite direction, towards V-Bar. When the gun did not fire,

Sitthivong pulled back the slide to load a bullet, and then rapidly fired eight shots down

the sidewalk at Landon and Ahmach as they ran. As Sitthivong started shooting, his

friends also started running back to the car. Sitthivong eventually ran back to the car.

He was the last one to get in the car.




                                          -3-
No. 72376-6-1/4

       A cell phone video taken from across the street revealed eight rapidly fired

gunshots and two men running down the street, seemingly away from the shots. A

crime scene investigation determined that the shots all came from the direction where

Sitthivong stood, were shot toward the entrance to V-bar, and all of the casings were

fired from the same gun.

       Sok died of a gunshot wound to the head. Phillip Thomas, a bystander who was

not associated with any of the other parties, was shot in the abdomen, but survived.

                                     Procedural Facts

       By amended information, the State charged Sitthivong with first degree

premediated murder(count 1) and, in the alternative, first degree murder by extreme

indifference for Sok's death (count 5). The State also charged Sitthivong with first

degree assault of Thomas (count 2), and two counts of first degree attempted murder of

Ahmach and Landon Nguyen (counts 3 and 4). All charges included firearms

enhancements.

       Because Sitthivong's primary defense at trial was justifiable homicide, the trial

court provided a justification instruction for all five counts. Sitthivong also requested

lesser included offense instructions for second degree murder under count 1, and first

and second degree manslaughter instructions for all counts. The trial court concluded

the evidence supported the lesser instruction for second degree murder and first degree

manslaughter for counts 1, 3, and 4. The trial court denied Sitthivong's request to




                                           -4-
No. 72376-6-1/5

instruct the jury on the lesser included offense of first degree manslaughter for count 5

(first degree murder with extreme indifference).2

        After a lengthy trial, a jury convicted .Sitthivong of killing Sok under count 5 (first

degree murder by extreme indifference) and the lesser included offense of second

degree murder under count 1. The jury also convicted Sitthivong of first degree assault

(count 2) and two counts of attempted second degree murder (counts 3 and 4). Each

conviction included a firearm enhancement. The trial court sentenced Sitthivong to

standard range sentences for all counts and vacated the second degree murder

conviction under count 1 on double jeopardy grounds.3

        Sitthivong appealed his convictions to this court. In his direct appeal Sitthivong

raised several issues, including that the trial court abused its discretion when it refused

to instruct the jury on the lesser included offense of first degree manslaughter. This

court affirmed the judgment and sentence in an unpublished decision.4 Our Supreme

Court denied review.

        Sitthivong timely filed a PRP alleging substantially the same issues as on his

direct appeal. This court dismissed the PRP. Our Supreme Court granted discretionary

review and "remanded to the Court of Appeals Division One for reconsideration in light

of State v. Henderson, 182 Wn.2d 734, 344 P.3d 1207(2015)."




        2 Sitthivong asked the court to reconsider the next day, providing supplemental briefing for his
objection, but the trial court adhered to its ruling.
        3 The jury found Sitthivong guilty of second degree intentional murder of Steve Sok and first
degree murder by extreme in difference of Steve Sok. On double jeopardy grounds the court cannot
impose a sentence for the same murder on two separate counts; the lesser count was vacated.
        4 See State v. Sitthivonb, No. 68030-7-1 (Wash. Ct. App. June 17, 2013)(unpublished),
http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.show0pinion&filename=680307MAJ
                                                 -5-
No. 72376-6-1/6

                                         ANALYSIS

                                Personal Restraint Petition

       As a threshold matter, the State urges that we dismiss Sitthivong's PRP because

the claim raised was already decided in his direct appeal. We disagree.

       The collateral relief available through a PRP is limited. Relief may only be

granted if the petitioner is under an unlawful restraint as defined by RAP 16.4. A

petitioner generally "is prohibited from renewing an issue that was raised and rejected

on direct appeal." In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1

(2004). The court will reconsider an issue previously raised only when "the interests of

justice require relitigation of that issue." Davis, 152 Wn.2d at 671. The interests of

justice require such reconsideration if there has been "an intervening change in the law"

or the petitioner provides "some other justification for having failed to raise a crucial

point or argument in the prior application." In re Pers. Restraint of Yates, 177 Wn.2d 1,

17, 296 P.3d 872(2013)(internal quotation marks omitted). We will decline to consider

an issue if the petitioner is merely "supporting a previous ground for relief with different

factual allegations or with different legal arguments." Davis, 152 Wn.2d at 671.

       Sitthivong's claim that the trial court abused its discretion in denying his request

for a lesser included instruction of first degree manslaughter was previously rejected by

this court. Subsequent to Sitthivong's direct appeal, however, our Supreme Court

decided Henderson which directly addressed when a defendant charged with first

degree murder by extreme indifference is entitled to an instruction for the lesser

included offense of first degree manslaughter.




                                           -6-
No. 72376-6-1/7

        In Henderson, as in this case, the defendant was charged with murder by

extreme indifference and requested an instruction on the lesser included offense of first

degree manslaughter. The trial court denied the motion, applying the broader and more

general definition of "recklessness, which is when a person disregards a substantial risk

that a wrongful act may occur." Henderson, 182 Wn.2d at 744. The trial court

concluded that the evidence did not support an inference that the conduct presented a

substantial risk of some wrongful act instead of a "grave risk of death." Henderson, 182

Wn.2d at 744. The court reached this conclusion by relying on State v. Pastrana, 94

Wn. App. 463, 972 P.2d 557(1999) and State v. Pettus, 89 Wn. App. 688, 951 P.2d 284

(1998), both of which applied the same incorrect definition of manslaughter.

        Our Supreme Court reversed, holding the trial court abused its discretion by

applying the incorrect legal standard.5 The court explained that'Pettus and Pastrana

"are no longer valid" because, as was clarified in State v. Gamble,"the proper definition

of recklessness in the context of manslaughter is disregarding a substantial risk that a

homicide may occur, not simply the risk of any wrongful act." Henderson, 182 Wn.2d at

744 (citing State v. Gamble, 154 Wn.2d 457,467, 114 P.3d 646 (2005)). The court

further opined that judges must "err on the side of instructing juries on lesser included

offenses." Henderson, 182 Wn.2d at 736.

        Our Supreme Court then remanded Sitthivong's PRP for our reconsideration in

light of Henderson. This is a strong indicator that the Supreme Court believes

Henderson represents "a significant change in the law" under RAP 16.4(4). See Davis,

152 Wn.2d at 750. Because both this court and the trial court relied on Pettus and


       5 A court abuses its discretion when its decision is based on the incorrect legal standard.
Henderson, 182 Wn.2d at 743.
                                                 -7-
No. 72376-6-1/8

Pastrana in affirming the decision not to allow the lesser included instruction, we will

review this issue in the interest of justice.6

                  Sitthivong Was Entitled to the Lesser Included Instruction

       The right to a lesser included offense instruction is statutory, codified by RCW

10.61.006. A defendant is entitled to an instruction on a lesser included offense when

two prongs are satisfied:(1)each of the elements of the lesser offense is a necessary

element of the charged offense, and (2) the evidence in the case supports an inference

that the lesser crime was committed. State v. Workman, 90 Wn.2d 443,447-48, 584

P.2d 382(1978); Henderson, 182 Wn.2d at 742.

       Washington courts have repeatedly established that the elements of first degree

manslaughter are necessary elements of first degree murder by extreme indifference.

See Henderson, 182 Wn.2d at 742. Thus, the issue before us is whether the evidence

supports an inference that the lesser crime, manslaughter, was committed rather than

the greater crime of first degree murder by extreme indifference. When evaluating

whether the evidence supports an inference that the lesser crime was committed, we

review the evidence "in the light most favorable to the party that requested the

instruction." Henderson, 182 Wn.2d at 742.

       We review a trial court's decision whether the evidence supports a lesser

included offense instruction for an abuse of discretion. State v. Walker, 136 Wn.2d 767,

771-72, 966 P.2d 883(1998). A court abuses its discretion when its decision is based

on the incorrect legal standard, including application of the incorrect legal standard

"based on outdated case law." Henderson, 182 Wn.2d at 743.


       6 Sitthivonq,   No. 68030-7-1, slip op. at 3-4.
                                                          ,

                                                    -8-
No. 72376-6-1/9

       A lesser included offense instruction is supported if "the evidence presented in

the case supports an inference that only the lesser offense was committed, to the

exclusion of the greater, charged offense." State v. Condon, 182 Wn.2d 307, 316, 343

P.3d 357(2015). Sitthivong was convicted of first degree murder by extreme

indifference, which occurs when someone "[u]nder circumstances manifesting an

extreme indifference to human life. . . engages in conduct which creates a grave risk of

death to any person, and thereby causes the death of a person" RCW 9A.32.030(1)(b)

(emphasis added). First degree manslaughter occurs when a person "recklessly

causes the death of another person." RCW 9A.32.060(1)(a). "Recklessly" means that

"a person knew of and disregarded a substantial risk that a homicide may occur."

Henderson, 182 Wn.2d at 743.

       Consequently, the question before us is "whether a rational jury could have found

that [Sitthivong's] actions constituted a disregard of a substantial risk that a homicide

may occur but not an extreme indifference that created a grave risk of death."

Henderson, 182 Wn.2d at 744. As our Supreme Court recognized in Henderson,"this is

a fairly difficult question because those two definitions are so similar." Henderson, 182

Wn.2d at 744.

       Henderson involved a shooting outside of a house party. After visiting a friend in

the hospital that had been shot earlier in the evening, Henderson and another friend left

the hospital and went to a house party. While standing outside the party, Henderson

learned that his friend had died of the gunshot. Shortly thereafter, Henderson pulled a

gun and fired six shots toward the front of the house from the street. One of the shots

hit and killed one of the people hired as security for the party. Henderson, 182 Wn.2d at


                                          -9-
No. 72376-6-1/10

737-39. Henderson, like Sitthivong, was charged with and convicted of first degree

murder by extreme indifference. Henderson, 182 Wn.2d at 741.

       In concluding that Henderson was entitled to an instruction for the lesser included

offense of manslaughter, the Court explained its holding "was based on two unique

aspects" of the case. Henderson, 182 Wn.2d at 737. First, the evidence consisted

largely of eyewitness testimony that varied widely and was often conflicting. And thus,

"viewing the evidence in the light most favorable to the defendant results in a much

more significant shift than it would in cases with uncontroverted evidence." And second,

"the definitions of the lesser crime (disregarding a substantial risk that a homicide may

occur) and the greater crime (creating a grave risk of death) are very close to each

other—much closer than is typical." Henderson, 182 Wn.2d at 737. Both of these

"unique aspects" also exist in this case.

       The Henderson court continued by listing several facts that it believed would

support the jury finding manslaughter rather than murder, including "(1) testimony...

that only three people were outside the house at the time of the shooting,(2) police

testimony that no bullets or bullet strikes were found inside the house,. ..(3) the fact

that most of the shots... did not appear to land near people, and (4)testimony that

Henderson shot from the street rather than closer to the house. Henderson, 182 Wn.2d

at 745. The court reasoned, viewing the evidence in the light most favorable to the

defense, "the jury could have concluded that Henderson intended to scare those in the

house by erratically firing his gun rather than aiming at the security people in the yard,"

accordingly the "jury could rationally find that he committed first degree manslaughter




                                            -10-
No. 72376-6-1/11

and not first degree murder by extreme indifference." Henderson, 182 Wn.2d at 745-

746.

       Sitthivong argues that the facts in this case are so similar to those in Henderson

and that, viewing the evidence in the light most favorable to his defense, this court

should draw substantially the same inferences and conclusions as in Henderson. We

disagree.

       For example, Sitthivong testified that there were only three people in his line of

fire—similar to the three people standing in front of the house party in Henderson.

However, all of the witnesses testified there was a minimum of 10, and up to 30 people

in the area. Sitthivong also testified that he paid no attention to whether people were

standing and walking in the area into which he opened fire. Sitthivong had driven past

the bar immediately before the shooting and stated he saw "a lot of people" standing

outside. Even if we assume Sitthivong did not intend to shoot anyone, the number of

people within range of Sitthivong's shooting was substantially greater than in

Henderson, and the evidence demonstrated that he fired all of his shots towards people.

Moreover, Sitthivong's testimony was almost entirely contradicted by the other

witnesses and evidence collected at the scene. While we are to view the evidence in

the light most favorable to defense, this does not mean we must disregard all evidence

that conflicts with Sitthivong's testimony. The court is to consider all of the evidence

that is presented at trial when it is deciding whether or not an instruction should be

given. State v. Fernandez-Medina, 141 Wn.2d 448, 456,6 P.3d 1150(2000).

       Considering all of the evidence, it is unlikely that a rational juror viewing the

evidence that Sitthivong intentionally shot directly at multiple people standing in front of


                                           -11-
No. 72376-6-1/12

a downtown bar, could have found that Sitthivong only disregarded a "substantial risk

that a homicide may occur" and find he did not create a "grave risk of death" for many

people.

        However, there is another important distinction between this case and

Henderson. Henderson did not involve a claim of self-defense.' Sitthivong argues the

reasonableness of his actions, when viewed in a light most favorably to the defense,

must be considered based on his belief that he was facing "an active and aggressive

shooter or shooters." 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." State

v. Schaffer, 135 Wn.2d 355, 358, 957 P.2d 214(1998)(quoting State v. Jones, 95

Wn.2d at 623,628 P.2d 472(1981)); see also State v. Hughes, 106 Wn.2d 176, 190,

721 P.2d 902(1986).

        Although the majority of the testimony contradicts Sitthivong's claims that Philip

Nguyen, Sok, Landon Nguyen, or Ahmach displayed a weapon before the shooting

started,7 there is at least some evidence that Sitthivong believed he was in imminent

danger and acted in self-defense—at least enough to merit a justification instruction. In

addition to Sitthivong's own testimony, Thomas testified that he recalled muzzle flashes

by a shooter who had come out of the bar. In addition, several witnesses provided

descriptions of the shooter that did not match Sitthivong.

        In Henderson, our Supreme Court advised that courts should "err on the side of

instructing juries on lesser included offenses." Henderson, 182 Wn.2d at 736. In light

        7 For example, Sitthivong friends all testified that they did not see either Landon or Ahmach
holding a weapon, and none saw Sitthivong have a confrontation with Philip or Sok.

                                                 -12-
No. 72376-6-1/13

of Henderson, and viewing the evidence in the light most favorable to Sitthivong, a

rational jury could find Sitthivong saw one or more weapons, and acting in self-defense,

acted recklessly and disregarded a substantial risk that a homicide may occur, but that

he did not with extreme indifference creating a grave risk of death. Henderson, 182

Wn.2d at 744. Sitthivong was entitled to receive an instruction for the lesser included

defense of first degree manslaughter for count 5.

                         Sitthivong Cannot Demonstrate Prejudide

       Unlike in Henderson, this case arises out of a PRP. While our Supreme Court

has opined "the erroneous failure to instruct the jury on a lesser included offense" is per

se prejudice on direct appeal, it has never held it to be per se prejudicial on collateral

review. State v. Condon, 182 Wn.2d 307, 326, 343 P.3d 357 (2015); In re Pers.

Restraint of Coggin, 182 Wn.2d 115, 120, 340 P.3d 810(2014)("Even in those cases

where the error would never be harmless on direct review, we have not adopted a

categorical rule that would equate per se prejudice on collateral review with per se

prejudice on direct review."); In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328-29,

823 P.2d 492(1992). Consequently, Sitthivong must meet a heightened showing

required on collateral review before this court will grant relief.

       A petitioner bringing a PRP has the burden to demonstrate by a preponderance

of the evidence "actual prejudice" for constitutional errors, and "to show a fundamental

defect resulting in a complete miscarriage of justice for nonconstitutional errors." State

v. Chambers, 176 Wn.2d 573, 584, 293 P.3d 1185(2013); In re Pers. Restraint of

Goodwin, 146 Wn.2d 861, 867, 50 P.3d 618(2002). The failure to instruct on a lesser

included offense is not an error of constitutional magnitude. State v. Lord, 117 Wn.2d


                                           -13-
No. 72376-6-1/14

829, 880, 822 P.2d 177 (1991); State v. O'Hara, 167 Wn.2d 91, 101, 217 P.3d 756

(2009).8 Consequently, Sitthivong must demonstrate, by a preponderance of the

evidence, that the exclusion of the manslaughter instruction under count 5 resulted in a

complete miscarriage of justice.

       The complete miscarriage of justice standard includes, for example, substantial

errors in sentencing calculations, such as, a sentence that is based upon an incorrect

offender score, incarceration for an offense which was not criminal at the time it was

committed, and incarceration for charges brought beyond the time allowed by the

statute of limitation. See Goodwin, 146 Wn.2d at 868; In re Pers. Restraint of Woods,

154 Wn.2d 400, 409, 114 P.3d 607(2005); In re Pers. Restraint of Thompson, 141

Wn.2d 712, 719, 10 P.3d 380 (2000); In re Pers. Restraint of Stoudmire, 141 Wn.2d

342, 354, 5 P.3d 1240(2000). In each case, a fundamental miscarriage of justice was

found because the court acted without statutory authority. Goodwin, 146 Wn.2d at 868;

Stoudmire, 141 Wn.2d at 355; Thompson, 141 Wn.2d at 723.

       Sitthivong has not demonstrated how the failure to provide the lesser included

instruction for manslaughter in the first degree resulted in a complete miscarriage of

justice. Sitthivong simply relies on the broad argument that he was inherently

prejudiced by the lack of a lesser included offense instruction. We disagree.

      This court has previously held that "[a]n error in failing to instruct on a lesser

included offense does not require reversal if the factual question posed by the omitted

instruction was necessarily resolved adversely to the defendant under other, properly




      8 See   also State v. Scott, 110 Wn.2d 682, 688, n.5, 757 P.2d 492(1988).

                                               -14-
No. 72376-6-1/15

given instructions." State v. Hansen,46 Wn. App. 292, 297, 730 P.2d 706(1986).9

Here, counts 1 and 5 were both for the killing of Steve Sok. Count 1, first degree

premeditated murder, included the lesser offense instructions for second degree murder

and first degree manslaughter, with an additional justification instruction. The jury was

instructed that "if, after full and careful deliberation on this charge, you are not satisfied

beyond a reasonable doubt that the defendant is guilty, then you will consider whether

the defendant is guilty of the lesser crime of Manslaughter in the First Degree." The jury

found Sitthivong guilty of second degree murder—defined as acting "with intent to cause

the death of another person but without premeditation." The jury's verdict necessarily

rejected both the manslaughter instruction and the justification instruction. We presume

juries follow the instructions provided. State v. Ervin, 158 Wn.2d 746, 756, 147 P.3d

567(2006).

        The policy reasons for requiring lesser included instructions are also absent here.

As the Henderson court explained, lesser included instructions help "protect the integrity

of our criminal justice system by ensuring that juries considering defendants who are

'plainly guilty of some offense' do not set aside reasonable doubts in order to convict

them and avoid letting them go free." Henderson, 182 Wn.2d at 742(quoting Keeble v.

U.S., 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1973)). In this case,

although count 5 only gave one instruction, the jury had already considered the

separate charge in count 1 for the killing of Sok, which included instructions for first

degree murder, second degree murder, first degree manslaughter, and justification.


       9 Holding it was harmless error to fail to instruct on a lesser included offense of unlawful
imprisonment when jury rejected the intermediate offense of second degree kidnapping and convicted
defendant of first degree kidnapping. Hansen, 46 Wn. App. at 297. See also State v. Guilliot, 106 Wn.
App. 355, 369, 22 P.3d 1266 (2001).

                                               -15-
No. 72376-6-1/16

Because the jury had already found Sitthivong guilty for the killing of Sok,(as well as

four other charges), there was no risk that a finding of not guilty on the final count would

result in acquittal.

        We hold Sitthivong has failed to demonstrate by a preponderance of the

evidence that that the error was a fundamental defect which inherently resulted in a

complete miscarriage of justice.

                                 Ineffective Assistance of Counsel

        Sitthivong next argues he received ineffective assistance of counsel when his

counsel failed to obtain the manslaughter instruction.10 To prevail on a claim of

ineffective assistance of counsel, a defendant must show (1)that his counsel's

performance fell below an objective standard of reasonableness and (2)that the

deficient performance prejudiced his trial. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 80 L. Ed. 2d 674(1984). Failure on either prong defeats the claim.

Strickland, 466 U.S. at 697.

        The reasonableness inquiry presumes effective representation. State v.

McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). "Competency of counsel is

determined based upon the entire record below." McFarland, 127 Wn.2d at 335. "A fair

assessment of attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged

conduct, and to evaluate the conduct from counsel's perspective at the time."




        10 The State argues that this claim was untimely. We disagree. An instructional error claim
viewed "through the lens of ineffective assistance does not transform it into a different claim; the claim
remains one of instructional error." In re Pers. Restraint of Wilson, 169 Wn. App. 379, 388, 279 P.3d 990
(2012).

                                                 -16-
No. 72376-6-1/17

Strickland, 466 U.S. at 689; see also State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260

(2011).

       Sitthivong has failed to demonstrate his defense counsel's performance fell

below an objective standard of reasonableness. Defense counsel specifically requested

the instruction for the lesser included offense of manslaughter and provided meaningful

argument in support of its use. When that request was rejected, defense counsel

submitted supplemental briefing providing more support for the request. Then, on

appeal, Sitthivong's appellate counsel again raised the claim that the trial court erred in

refusing to instruct on manslaughter.

       Sitthivong cites to In re Pers. Restraint of Morris, 176 Wn.2d 157, 167, 288 P.3d

1140 (2012), where our Supreme Court held the defendant's attorney should have

known about a case that had "without qualification" stated the necessary rule, as

counsel "had but to look at this court's public trial jurisprudence" to find the rule. Morris,

176 Wn.2d at 167. Sitthivong argues that, in this case, the correct standard for

manslaughter was stated in Gamble, and that his counsel should have known to argue

that the decision in Gamble "abrogated" Pettus and Pastrana. Essentially, Sitthivong

argues that vie should hold his counsel's performance was not objectively reasonable

because his counsel failed to make the same connection the Supreme Court made in

Henderson, even before Henderson was decided. Henderson, 182 Wn.2d at 741. This

court evaluates counsel's conduct from counsel's perspective at the time, and, contrary

to Sitthivong's argument, neither Pettus nor Pestrana were specifically overturned or

"abrogated" by Gamble. Gamble, 154 Wn.2d at 467. Unlike in 'Morris, there was no




                                           -17-
No. 72376-6-1/18

obvious case stating this rule at the time of Sitthivong's trial. We hold defense counsel's

performance did not fall below an objective standard of reasonableness.

       We deny Sitthivong's petition.




WE CONCUR:




                                         -18-
