State Of Washington v. Faisal Guled Adan

• Court: Court of Appeals of Washington
• Decided: November 9, 2020
• Docket: 80056-6
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 80056-6-I ) Respondent, ) ) v. ) ) FAISAL GULED ADAN, ) UNPUBLISHED OPINION ) Appellant. ) )

VERELLEN, J. — Faisal Adan challenges his standard range sentence, arguing

that the trial court misunderstood his nonstatutory “failed self-defense” mitigating

factor. But the substance of his argument was based upon his paranoid delusions,

and the court adequately considered and reasonably exercised its discretion to reject

his delusions as a mitigating factor.

The court did not abuse its discretion by imposing a standard range sentence.

Therefore, we affirm.

FACTS

One afternoon, Faisal Adan boarded a bus around rush hour. Adan recognized

one of the passengers, Ahmed Sheikah, and they started talking. Minutes later, Adan

stood up and shot Sheikah multiple times. Adan then pushed his way through to the No. 80056-6-I/2

front of the bus, pointed his revolver at the bus driver, and ordered him to open the

door. Adan fled.

Soon after, Renton police officers apprehended Adan. Adan confessed to

shooting Sheikah. Adan explained he shot him because Sheikah asked Adan to get

off of the bus, had a look in his eyes, reached toward his hip, spoke with someone on

the phone, and then said, “We’re gonna see what’s gonna happen.”1 Adan also

admitted to taking a “whole bunch” of methamphetamine and other controlled

substances before the shooting.2 Adan contends he believed that Sheikah was

threatening his life.

Adan pleaded guilty to first degree murder, first degree unlawful possession of a

firearm, and second degree assault. Based on these charges and Adan’s criminal

history, a standard range sentence was between 317 and 417 months. The State

requested a sentence of 396 months. Adan requested an exceptional sentence below

the standard range.

At sentencing, the court heard arguments from both parties and testimony from

Dr. Mark McClung, the bus driver, and family members. It rejected Adan’s request for

an exceptional sentence and imposed a standard range sentence of 353 months.

Adan appeals.

1 Clerk’s Papers (CP) at 85. 2 CP at 426.

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ANALYSIS

Adan argues the court erred when it imposed his standard range sentence.

Standard range sentences are not appealable under the Sentencing Reform Act

(SRA).3 But an appellant can challenge “the procedure by which a sentence within the

standard range was imposed.”4 When an appellant has requested an exceptional

sentence below the standard range, our “review is limited to [deciding whether] the

court has refused to exercise discretion at all or has relied on an impermissible basis

for refusing to impose” the requested sentence.5 A trial court abuses its discretion

when its discretion is based on untenable grounds or reasons.6

Adan contends “the court believed it had no discretion to grant a mitigated

sentence on the basis of a failed self-defense claim and had a “mistaken belief that it

could only grant the sentence if [Adan] produced evidence that [Sheikah] actually

provoked or was the actual aggressor prior to the shooting.”7

Under the SRA, RCW 9.94A.535(1) lists various mitigating factors a trial court

can weigh when considering an exceptional sentence. Under RCW 9.94A.535(1)(a), a

court can consider whether “[t]o a significant degree, the victim was an initiator, willing

participant, aggressor, or provoker of the incident,” and under .535(1)(e) whether “[t]he

3 RCW 9.94A.210(1). 4 State v. Ammons, 105 Wn.2d 175, 183, 713 P.2d 719 (1986). 5 State v. Garcia-Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997). 6State v. Guevara Diaz, 11 Wn. App. 2d 843, 856, 456 P.3d 869, review denied, 195 Wn.2d 1025, 466 P.3d 772 (2020). 7 Appellant’s Br. at 9.

3 No. 80056-6-I/4

defendant’s capacity to appreciate the wrongfulness of his or her conduct, or to

conform his or her conduct to the requirements of the law, was significantly impaired.

Voluntary use of drugs or alcohol is excluded.” Notably, “‘failed defenses’ may

constitute mitigating factors supporting an exceptional sentence below the standard

range.”8

Here, at sentencing, Dr. McClung testified Adan suffered from paranoid

delusions and he “misperceived or misinterpreted the look in Mr. Sheikah’s eye or the

statement he had overheard.”9 Relying on Dr. McClung’s testimony, Adan identified

failed self-defense as a mitigating factor. But his articulation of failed self-defense and

his use of authority to support his argument was unclear.

Adan’s sentencing memorandum addressed failed self-defense and cited a

variety of cases, including State v. Whitefield,10 which directly address failed self-

defense under RCW 9.94A.535(1)(a). Specifically, Adan focused on Dr. McClung’s

opinion that Adan’s “mental disorder” could have caused him to misinterpret reality in a

paranoid manner which may have contributed to his perception that he was in acute

danger at the time of the shooting. Dr. McClung concluded that Adan’s “paranoid

perception of the immediate situation could have made him believe that he needed to

act in self-defense.”11 The defense presented Adan’s “paranoid perceptions” under a

8 State v. Jeannotte, 133 Wn.2d 847, 851, 947 P.2d 1192 (1997). 9 Report of Proceedings (RP) (May 17, 2019) at 151. 1099 Wn. App. 331, 337-38, 994 P.2d 222 (1999) (holding that to a significant degree the victim provoked the incident and that the persistence of the victim warranted an application of the mitigating factor under RCW 9.94A.535(1)(a)). 11 CP at 60-61.

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theory of failed self-defense, relying at least in part on authority tied to

RCW 9.94A.535(1)(a).12 But the defense also concluded the failed self-defense

section of Adan’s sentencing brief by asserting, “As Dr. McClung’s opinion . . . seems

sufficient to submit a diminished capacity defense . . . , it follows that his opinion

certainly serves as the basis for an exceptional sentence downward.” 13 The defense’s

sentencing memorandum conclusion mentions the “diminished capacity defense,” but

their argument still categorizes Adan’s “paranoid perceptions” as a theory of failed self-

defense, including references to RCW 9.94A.535(1)(a).

At sentencing, Adan’s counsel confusingly argued, “[W]e are not relying on the

statutory mitigating factor for [failed self-defense], that [instead] there is a body of case

law that specifically cites to failed self-defense, even though that typically leads to . . .

a conviction on a lesser charge by the jury than as a sentencing issue.”14 His counsel

noted that the subjective portion of the self-defense test asks the fact finder to stand in

the position of the defendant. Adan’s counsel asserted that here, based on Dr.

McClung’s testimony, Adan “delusionally believed that he was acting in self-defense

[which] is grounds for an imposition of an exceptional sentence [below the standard

range].”15

12 In his sentencing memorandum, Adan also emphasized State v. Mitchell, 102 Wn. App. 21, 997 P.2d 373 (2000). In Mitchell, this court held that a trial court should have admitted expert testimony on whether the defendant may have been experiencing paranoid delusions at the time of the incident. Id. at 26-28. 13 CP at 61. 14 RP (May 15, 2019) at 93. 15 Id. at 94.

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The trial court evaluated Dr. McClung’s testimony before rejecting Adan’s failed

self-defense theory. The court noted that no matter what Adan perceived, Sheikah’s

actual conduct was not sufficient to prove that Sheikah or the bus driver was the

“initiator,” “aggressor,” or “provoker of the incident.” The court also addressed Adan’s

mental state and his delusions, concluding that they did not support a mitigated

sentence.

Adan contends the trial court misunderstood his failed self-defense mitigating

factor and his counsel’s oral argument that he was not relying on

RCW 9.94A.535(1)(a). But it is understandable that the trial court addressed

RCW 9.94A.535(1)(a) in light of the defense’s written materials that included cases

referring to the statutory failed self-defense mitigating factor. The court accurately

recited that the mitigating factor under RCW 9.94A.535(1)(a) requires the court to find

“to a significant degree the victim was the initiator, willing participant, aggressor, or

provoker of the incident.” And there was no indication that either Sheikah or the bus

driver engaged in such conduct.

As presented to the sentencing court, Adan’s delusional misperceptions were

not, in substance, a failed self-defense mitigating factor but rather a variation on the

“failed mental state” mitigating factor under RCW 9.94A.535(1)(e). Consistent with Dr.

McClung’s testimony, Adan linked his delusions and misperceptions to concepts of

diminished capacity. The court expressly considered Adan’s arguments that his

“mental deficiencies significantly impaired his capacity . . . to conform . . . his conduct

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to the requirements of the law.”16 What Adan labels as a nonstatutory failed self-

defense factor was adequately considered by the sentencing court when it addressed

Adan’s mental state, including his delusions and diminished capacity. The court did

not abuse its discretion when it considered and rejected that argument.

Adan contends in his opening brief that the trial court “conflated two different

mitigating factors [in rejecting his failed self-defense theory] which are separate and

distinct.”17 He argues that the court should have analyzed his failed self-defense

theory under RCW 9.94A.535(1)(c) (duress, coercion, threat or compulsion insufficient

to constitute a full defense) instead of RCW 9.94A.535(1)(a). But in both the written

materials and at oral argument, Adan’s counsel argued only two mitigating factors,

namely, RCW 9.94A.535(1)(a) and RCW 9.94A.535(1)(e). As discussed, Adan’s

mitigating argument in substance focused upon his delusional mental state, implicating

RCW 9.94A.535(1)(e). The court adequately considered and responded to the

materials and arguments made by the defense.

Next, Adan contends that the trial court rendered its decision under the

mistaken assumption that because Adan used controlled substances before

committing his crimes, the trial court was precluded from granting him a mitigated

A court’s consideration of drug use under RCW 9.94A.535(1)(e) is limited “to

only those circumstances in which the use might have formed the basis for a defense,

16 RP (May 17, 2019) at 152. 17 Appellant’s Br. at 17.

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that is, to those circumstances when the defendant’s intoxication at the time of the

offense was induced by fraud or force.”18 “Drug addiction and its causal role in an

addict’s offense may not serve to justify a durational departure from a standard range

sentence.”19

Here, the trial court considered Adan’s drug induced impairment relative to his

“capacity to [appreciate] the wrongfulness of his conduct” as required by

RCW 9.94A.535(1)(e).20 The court weighed Dr. McClung’s testimony that Adan was in

a state of “substance abuse psychosis” when he committed his crimes against the fact

that Dr. McClung never diagnosed Adan with posttraumatic stress disorder or

antisocial personality disorder.21 The court found that Adan’s mental state when he

committed the crime did not satisfy RCW 9.94A.535(1)(e) because “his ability to

appreciate wrongful behavior was diminished but not substantially impaired as is

required by the SRA.”22

Adan contends that the court “believed it was impossible” to grant him a

mitigated sentence because he consumed controlled substances.23 But the court

merely recognized that the “voluntary ingestion of drugs and alcohol may not be

18 State v. Gaines, 122 Wn.2d 502, 515, 859 P.2d 36 (1993). 19 Id. at 509. 20 RP (May 17, 2019) at 151. 21 Id. 22 Id. 23 Appellant’s Br. at 22.

8 No. 80056-6-I/9

considered a mitigating factor.”24 Although a failed mental state can be a basis for

mitigation, the court rejected any showing of a true diminished capacity due to Adan’s

“voluntary ingestion of drugs.”25 And, as discussed, the court considered other

mitigating circumstances after acknowledging Adan’s voluntary drug consumption.

Finally, Adan argues that the court relied on various facts not supported by the

record. But his arguments are all grounded in his contention that the court did not

believe and credit his versions of the various disputed facts. Because the trial court is

not required to accept the defense’s version of disputed facts, Adan’s argument fails.

WE CONCUR:

24 RP (May 17, 2019) at 150. 25 Id. at 150-51.