FILE:o COURT OF APPEALS DIV I STATE OF WASHINGTOM 

### 2017 APR -3 All 0:514

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) No. 74779-7-1 Appellant, ) ) DIVISION ONE v. ) ) PUBLISHED OPINION JOAQUIN DAVID GARCIA, ) ) Respondent. ) FILED:April 3, 2017 ) 

### APPELWICK,J. — Garcia was charged with unlawful possession ofa firearm in thefirstdegree. He moved to exclude the priorconviction underlying this charge, because the predicate court did not notify him of the firearm prohibition. The trial court granted the motion and dismissed the charge. We reverse and remand. FACTS The State charged Joaquin Garcia with unlawful possession of a firearm in the first degree,among other offenses. To satisfy the prior conviction element of this crime,the charge was premised on Garcia's 1994 conviction for rape ofa child in the first degree. Garcia moved to exclude his 1994 conviction as a predicate offense. He argued thatthe State could not prove thatthe 1994 conviction was constitutionally valid. And, he argued that he had an affirmative defense to the first degreeNo.74779-7-1/2

unlawful possession of a firearm charge, because the predicate court failed to notify him ofthe firearm prohibition. The parties submitted evidence concerning Garcia's 1994 conviction. After oral argument on the motion, the court concluded as a matter of law that Garcia did notreceive the required notice of his ineligibility to possessfirearms atthe time of the 1994 conviction. As a result, the court excluded the 1994 conviction. Because that conviction was Garcia's only prior offense that could support the charge of unlawful possession ofa firearm in the first degree,the court dismissed that charge. The State appeals. DISCUSSION The State argues that the trial court erred by excluding Garcia's 1994 conviction and dismissing the firstdegree unlawful possession ofafirearm charge. It contends that the trial court erred in deciding this issue in the context of a CrR 8.3(c)motion. And,it asserts that the trial court erroneously applied a per se rule instead of examining whether Garcia had actual knowledge of the firearm prohibition. I. CrR 8.3(c) Motion The State contends that the trial court erred in determining this issue as a matter of law. It contends that the trial court should have treated Garcia's challenge to the underlying conviction as an affirmative defense,a question forthe jury.

2No.74779-7-1/3 Pretrial, a defendant may move to dismiss a criminal charge if there are no material disputed facts and the undisputed facts do not establish a prima facie
case of the charged crime.' CrIR 8.3(c); State v. Knapstad, 107 Wn.2d 346, 352- 53, 729 P.2d 48 (1986). The defendant initiates such a motion by filing a sworn affidavit. Knapstad, 107 Wn.2d at 356. The State can defeat the motion by filing
an affidavitthatdenies the defendant's alleged materialfacts. Id. Ifthe State does not dispute the facts or allege other material facts, the court must determine whether the facts relied upon by the State establish a prima facie case of guilt as
a matter of law. Id. at 356-57. On appeal, this court reviews de novo the trial court's decision to dismiss
on a Knapstad motion,viewing the facts and inferences in the light mostfavorable to the State. State v. Newcomb, 160Wn.App.184,188-89,246 P.3d 1286(2011). We will affirm the trial court's dismissal ofa charge based on a Knapstad motion if

no rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. O'Meara, 143 Wn.App.638,641, 180 P.3d 196 (2008). This case involves a charge offirstdegree unlawful possession ofafirearm. The elements of this offense are:(1)the defendant knowingly owned a firearm or knowingly had a firearm in his or her possession or control,(2)the defendantwas previously convicted,adjudicated guilty as a juvenile, orfound notguilty by reason of insanity of a serious offense, and (3)the ownership or possession or control 1 CrR 8.3(c)delineatesthe proceduresfirst outlined in Knapstad. See State v. Horton, 195 Wn.App. 202, 217 n.12, 380 P.3d 608 (2016), review denied, 187 Wn.2d 1003, 386 P.2d 1083(2017). 3No.74779-7-1/4

occurred in the state of Washington. RCW 9.41.040(1)(a); 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 133.02 (4th ed. 2016). Knowledge that possession of a firearm is illegal is not an element of the offense. State v. Sweeney, 125 Wn.App. 77, 83, 104 P.3d 46 (2005). But, the defendant may raise the lack ofthe required notice under RCW 9.41.047(1)as an affirmative defense. State v. Breitunq, 173Wn.2d 393,403,267P.3d 1012(2011). RCW 9.41.047(1) requires that a convicting court "shall notify the person, orally and in writing, that the person must immediately surrender any concealed pistol license and thatthe person may not possess a firearm unless his or her right to do
so is restored by the court." In his motion below,Garcia argued thatthe State could not meet its burden to prove that his 1994 conviction was constitutionally valid. He argued that he pleaded guilty to rape of a child in the first degree without effective assistance of counsel and without understanding the nature of the crime or the consequences of the guilty plea. Garcia further contended that his guilty plea did not have an adequate factual basis. Alternatively, Garcia argued that he had an affirmative defense to the charge,because the predicate courtdid not notify him ofthefirearm prohibition. The trial court denied the portion of Garcia's motion addressing the constitutional validity of the 1994 conviction. And, it determined that Garcia's affirmative defense could be decided as a matter oflaw. The court concluded that Garcia did not receive the required oral and written notice at the time of his

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predicate conviction and sentencing, so the predicate offense must be excluded. Consequently, it dismissed the first degree unlawful possession of a firearm charge. An affirmative defense generallydoes not negate an elementofthe offense. See State v. Frost, 160 Wn.2d 765, 773, 161 P.3d 361 (2007) (the affirmative defense ofduress excuses the defendant's unlawful conduct rather than negating
an element of the offense). Instead, an affirmative defense excuses the defendant's otherwise unlawful conduct. Id.at 773-74;State v.Votava, 149Wn.2d 178, 187-88, 66 P.3d 1050 (2003). This particular affirmative defense is no different, since the case law has specifically recognized that knowledge is not an element of the offense. See State v. Minor, 162 Wn.2d 796, 802, 174 P.3d 1162 (2008). Thus,the lack of notice affirmative defense does not negate an element, rather it is an affirmative defense that attempts to excuse the defendant's unlawful possession. We conclude that the trial court erred by deciding Garcia's affirmative defense on a CrR 8.3(c) motion.2 CrR 8.3(c) permits the trial court to dismiss a charge where the State's facts, if true, would not establish a prima facie case of

2 Garcia contends that Washington courts have previously decided a lack of notice affirmative defense on a motion to dismiss. He contends that Breitunq involved a similar procedural posture. We disagree. While the defendant in Breitunq moved to dismiss the unlawful possession ofa firearm charge, his motion was denied. See State v. Breitunq, 155 Wn.App. 606, 619, 612, 230 P.3d 614 (2010), aff'd, 173 Wn.2d 393. He was convicted of the charge. Breitunq, 173 Wn.2d at 397. The Washington Supreme Court reversed the conviction and affirmed the Court of Appeals decision vacating and dismissing the charge with prejudice. Id. at 404; Breitunq, 155 Wn.App.at 625. Breitung does not stand for the proposition that a CrR 8.3(c) motion may be used to decide a lack of notice affirmative defense.

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guilt. But,Garcia's lack ofnotice affirmative defense admitsthefacts ofthe State's case—he does not argue that the elements of the offense were not satisfied.3 Thus,whether Garcia proved lack of notice by a preponderance of the evidence should have been a question for the jury. II. Dismissal of Unlawful Possession ofa Firearm Charge The State contends that the trial court erroneously interpreted Washington Supreme Courtcase law4 regarding a lack ofnotice affirmative defense to unlawful possession ofa firearm. In Minor, the Washington Supreme Court addressed the proper remedy where the predicate court failed to provide notice of the firearm prohibition. 162 Wn.2d at 804. Minor was convicted of first degree unlawful possession of a firearm. Id. at 799. But,when Minor's prior conviction was adjudicated,the court failed to check the appropriate paragraph notifying him that he wasprohibited from possessing firearms. Id. at 800. And,the record was silent as to whether Minor
was orally notified of the prohibition. Id. Thus, the parties agreed that Minor did not receive oral or written notice ofthe firearm prohibition. Id. In determining the proper remedy for the statutory violation, the court focused on whether the predicate court affirmatively misled Minor. Id. at 802-03. After assessing the legislative history behind RCW 9.41.047(1), the court noted that the statutory notice requirement "is unequivocal in its mandate." Id. at 803.

3

### While Garcia argued below that his prior conviction wasnotconstitutionally valid,the trial court rejected this argument.

4 

### The State does not ask us to interpret RCW 9.41.047(1). Therefore, we limit our analysis to prior case law interpreting the statute. 6No.74779-7-1/7

The court held thatthe predicate courtviolated RCW 9.41.047(1)byfailing to notify Minor of the firearm prohibition, and that it affirmatively misled Minor by representing to him that this prohibition did not apply to him. Id. at 804. The only available remedyfor this violation wasto reverse Minor's conviction. Id. Because of the evidence that Minor was affirmatively misled, the court did not address whetherfailure to comply with the statute alone would warrant reversal. Id. at 804 n.7. In Breitung, the courtaddressed the question leftopen by Minor. 173Wn.2d at 397,402. Breitung was convicted of second degree unlawful possession of a firearm. Id. at 397. Breitung established thatthe predicate courtdid not notify him ofthefirearm prohibition:the record contained no evidence oforal notification,and the judgment and sentence did not mention firearms at all. Id. at 403-04. The court concluded,

The State did not establish that Breitung otherwise had knowledge of the law or notice of the firearm prohibition. On the contrary, the record evidences a lack of actual knowledge on Breitung's part. Based on this record,we conclude Breitung was not notified ofhisfirearm prohibition as required under ROW 9.41.047(1) and did not otherwise have notice of the prohibition against possession offirearms. Absent that notice, he is entitled to reversal ofthe unlawful possession offirearms conviction. Id. at404. Here, the parties generally agree as to the facts surrounding Garcia's predicate offense. On October 27,1994,Garcia pleaded guilty to firstdegree rape of a child. While the disposition order notified Garcia of the sex offender registration requirements, it contained no mention of the firearm prohibition or

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firearms at all. Nor did Garcia's statement on plea of guilty mention the firearm prohibition. No record is available of Garcia's guilty plea hearing, sentencing hearing, or subsequent revocation of the special sex offender disposition alternative. Thus,there is no evidence that Garcia received oral notification ofthe firearm prohibition from the predicate court. The State argues that Breitunq's "otherwise have notice" language creates the possibilitythatactual knowledge can satisfy RCW 9.41.047(1). Itcontendsthat by treating a lack of oral and written notice at the time of the predicate conviction
as conclusively establishing Garcia's affirmative defense,the trial court converted Breitunq into a per se rule. The Breitunq court took careful steps to avoid crafting a bright line rule. Rather than concluding the analysis after determining that Breitung did not receive oral or written notice ofthe firearm prohibition,the court continued. See Breitunq, 173Wn.2d at403-04. It reasoned that because the State did not otherwise prove that Breitung had actual knowledge of the law or the firearm prohibition, the conviction must be reversed. Id. at 404. This language demonstrates that the court specifically considered the lack of evidence of actual knowledge. In other words, the fact that Breitung showed that he did not receive oral or written notice alone was not necessarily enough. It was the fact that the State did not demonstrate actual knowledge ofthe firearm prohibition thatwarranted reversal of the conviction. We conclude that Breitung did not create a bright line rule, but instead suggested that the State may overcome the lack of notice affirmative defense by
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presenting other evidence ofactual knowledge ofthe law orthefirearm prohibition. Here,the State provided recordsfrom Garcia'sconvictionssubsequenttothe 1994 conviction, which informed him of his ineligibility to possess a firearm. It also pointed tothe underlying factsofthe currentcase. Garcia'sgirlfriend told the police that Garcia made her purchase firearms in her name,because he was aware that he could notbuythem himself. And,police officers reported thatGarcia repeatedly told them that he was a convicted felon who could not possess a gun. This evidence could support a determination that Garcia otherwise had actual knowledge of the firearm prohibition. Even ifthe trial court could decide an affirmative defense as a matter of law pretrial, it erred in doing so here. We conclude that the trial court erred in dismissing the first degree unlawful possession of a firearm charge. And, we conclude thatthe issue of appellate costs is not ripe for review. We reverse and remand for proceedings consistentwith this opinion.

WE CONCUR:

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