Opinion
No. 57297-1-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 03-1-09178-9, Linda Lau, J., entered November 1, 2006.
Affirmed by unpublished per curiam opinion.
Appellant Laiching Julia Siu, charged with first degree murder, was convicted of second degree murder as a lesser degree offense. Her claim that second degree murder was factually unsupported is unreviewable because she submitted lesser offense instructions, thereby inviting the alleged error. She also claims that the court proceeded on a mistaken understanding of the law in denying her request for an exceptionally low sentence based on battered woman's syndrome. Because the record shows that the trial court properly exercised its discretion in imposing a standard range sentence, this claim is also unreviewable.
The State charged Laiching Julia Siu with first degree murder for killing Raymond Ubis. Siu elected to proceed with a bench trial. The State presented evidence that Siu shot Ubis at point blank range while he was sitting in front of her on a staircase in her home. At the time of the killing, Siu was 45 years old and Ubis was age 54. In the defense case, Siu testified that she and Ubis had begun a romantic relationship in March of 2003. They had worked together for several years, but began dating only after Ubis ended his 27 year marriage. Siu testified that this was the first significant romantic relationship in her life, and that Ubis said he planned to marry her.
Report of Proceedings, September 1, 2005, at 25-26.
Ubis gradually withdrew from the relationship. In mid-October, Siu became despondent and called her sister in New Zealand to say that she was planning to take her own life. Shortly after this telephone call, Ubis stopped by Siu's home unexpectedly and told her they should go their separate ways. Siu testified that this news felt "like the end of the world." She said that Ubis stepped outside for a moment and she went into her bedroom to cry. While there she picked up her gun. She said it was her intention to commit suicide in front of Ubis. Siu emerged from her bedroom and found Ubis sitting on the staircase. She said she sat down behind him with the gun in her right hand and leaned on him while crying. Siu testified that Ubis extended his hand to grab the gun and somehow it went off, accidentally firing a shot directly into the back of his head.
Report of Proceedings, September 1, 2005, at 39.
Report of Proceedings, September 1, 2005, at 39.
The trial court concluded that the physical evidence introduced by the State contradicted Siu's claim that the shooting was accidental. The court found that Siu had likely been on the verge of killing herself that evening, but "chose not to take her own life and spontaneously and intentionally took the life of the victim instead." Finding of fact E-8 (in part). Finding insufficient proof of premeditation, the court convicted Siu of second degree murder with a firearm. Siu appeals.
Siu first contends the trial court erred in considering the uncharged offense of second degree murder as a lesser degree offense of first degree murder. A lesser included or lesser degree offense is properly considered only if the affirmative evidence supports the inference that only the lesser offense was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000). Siu contends the evidence at trial did not support an inference that the killing was intentional, but without premeditation. The State responds that review of this issue is precluded because error, if any, was invited.
The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). A party may not request an instruction and later complain on appeal that the requested instruction was given. Henderson, 114 Wn.2d at 870. Where the error was invited, the appellate court need not address the issue. State v. Studd, 137 Wn.2d 533, 548, 973 P.2d 1049 (1999).
Siu proposed instructions on second degree murder as a lesser degree offense of first degree murder as well as a verdict form providing for conviction of second degree murder. During closing argument, Siu asked the court to consider lesser included offenses. The invited error doctrine precludes judicial review of this issue.
Siu also contends the court erred in denying her request for a sentence below the standard range. The standard sentencing range for the conviction was 123 to 220 months. The court imposed a sentence of 140 months, plus a 60 month mandatory firearm enhancement, for a total of 200 months. Siu had asked the court to grant her an exceptional sentence of 60 months on the murder conviction, for a total of 120 months including the firearm enhancement.
Generally, a sentence within the standard range shall not be appealed. RCW 9.94A.585(1). Review is allowed, however, if the trial court either refused to exercise its discretion at all or relied on an impermissible basis for refusing to impose an exceptional sentence. State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
Siu's sentencing memorandum claimed that she killed Ubis "in response to a period of continued verbal and physical abuse" and that this justified a downward departure under RCW 9.94A.535(1)(h) (court may impose a sentence outside of the standard range if the defendant "suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse"). Siu submitted a psychological evaluation prepared by a clinical psychologist, Dr. Boyd, which stated Siu "clearly fits the description of a battered woman." At sentencing, both Ubis's ex-wife and his daughter testified that they had never witnessed Ubis engage in domestic violence.
Clerk's Papers at 45 (Defendant's Memorandum in Support of Exceptional Sentence, October 19, 2005).
Clerk's Papers at 116 (Letter from Vicki D. Boyd, Clinical Psychologist, October 23, 2005).
The court denied Siu's request for an exceptional sentence, stating "there is no reliable evidence to support either a failed defense or that the defendant suffered from battered woman's syndrome when she shot Ray Ubis. Dr. Boyd's opinion relies entirely on defendant's unconfirmed self-report of abuse." The court added, "Notably, neither Dr. Boyd's opinion nor Ms. Siu's statements support a claim that the defendant shot Ubis in response to a continuing pattern of physical or emotional abuse. Her instant claims in support of leniency are in direct conflict with her claim of accident at trial." According to Siu, this statement shows that the court impermissibly proceeded on the mistaken belief that an exceptional sentence is not available to a defendant when the grounds upon which it is requested are inconsistent with the defense offered at trial. The record does not bear out this belief attributed to the trial court. At sentencing, the court recognized that "it is not unusual to offer alternative defenses at trial." The court's ruling as a whole demonstrates the court simply found insufficient evidence of battered woman's syndrome to justify an exceptional sentence downward.
Report of Proceedings, October 28, 2005, at 42.
Report of Proceedings, October 28, 2005, at 42.
Report of Proceedings, October 28, 2005, at 40.
Affirmed.