### FILED June 9, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent,
V. JUAN JOSE SERRANOBERRIOS, Appellant. ) ) ) ) ) ) ) ) ) No. 33271-3-111

UNPUBLISHED OPINION

LAWRENCE-BERREY, A.CJ.

- Juan Serrano Berrios appealshis convictions for first degree unlawfulpossession ofa firearm andpossessionofmethamphetamine. He argues thatdefense counselprovided ineffective assistanceby notrequesting an 

### Old Chiefstipulationtohisprior felony conviction, andby notrequesting ajury instruction
onthe affirmative defense ofinadequate notice. Mr. Serrano Berrios also makes a number ofarguments inhis statementofadditional grounds for review (SAG). We disagree withMr. Serrano Berrios's arguments and affirm.

1 

### Old Chief v. UnitedStates, 519 U.S. 172, 117 S. Ct. 644, 136

### L. Ed. 2d 574 (1997).No. 33271-3-III State v. Serrano Berrios
FACTS On August4, 2014, Mr. Serrano Berrios was walking down the sidewalkwith a
womanjust outside ofMoses Lake. OfficerJeffrey Gaddis told OfficerPaul Ouimette that Mr. Serrano Berrios was walking down the street. Officer Ouimette knew thatMr. Serrano Berrios had outstandingwarrants for his arrest. Officer Ouimette stopped his police car about 15 feet from Mr. Serrano Berrios and stepped out ofthe car. Officer Ouimette told Mr. Serrano Berrios to stop, and that he
was under arrest. Mr. Serrano Berrios looked startled and took a couple steps down the sidewalk. Officer Ouimette then ordered Mr. Serrano Berrios to stop again, drew his firearm, and ordered Mr. Serrano Berrios to get on the ground. Officer Ouimette quickly observed the sidewalk before Mr. Serrano Berrios got on the ground, and he did not see any items on the sidewalk. Mr. Serrano Berrios then got on the ground and laid on his stomach. As Mr. Serrano Berrios laid on the ground, he brought his right hand down toward his waistband. Officer Ouimette told Mr. Serrano Berrios to stop reaching in his waistband, and Mr. Serrano Berrios complied. As Officer Ouimette was telling the
woman that she neededto step back, Mr. Serrano Berrios again reached down toward his waistband with his right hand. Officer Ouimette again told Mr. Serrano Berrios to stop
2No. 33271-3-111 State v. Serrano Berrios reaching in his waistband, butMr. Serrano Berrios did not comply right away. Officer Ouimette had to repeat the instruction another time or two, and eventually Mr. Serrano Berrios complied. Officer Gaddis arrived. Officer Ouimette then went and securedMr. Serrano Berrios's hands, and Officer Gaddis handcuffed him. The officers then rolled Mr. Serrano Berrios onto his side. Officer Gaddis found a handgun underneath Mr. Serrano Berriosjustbelow his groin area. Officer Gaddis picked up the gun, sawthat itwas loaded, and handed it to Officer Ouimette. Officer Ouimette dumped the bullets out of the magazine and ejected the round from the chamber. Officer Gaddis then emptiedMr. Serrano Berrios's pockets, and found a small bag containing a substance that he recognized as methamphetamine. The State charged Mr. Serrano Berrios with first degree unlawful possession ofa firearm and possession ofmethamphetamine.2 The predicate "serious offense" the State alleged for the first degree unlawful possession charge was Mr. Serrano Berrios's 2011 conviction for attempted second degree burglary. Before trial, defense counsel movedto dismiss the case on the basis that Mr. Serrano Berrios did not have adequate notice that he

2 The State also chargedMr. Serrano Berrios with carrying a concealedpistol without a license, but later realized that charge is an infraction and not a criminal offense. The trial court dismissed the charge. 

### 3No. 33271-3-III State v. Serrano Berrios

was ineligible to possess a firearm. Defense counsel argued that Mr. Serrano Berrios
never signed the 2011 judgment and sentence, nor did his prior defense counsel. Defense counsel acknowledgedthatthe previousjudge orally advised Mr. Serrano Berrios that he
was ineligible to possess a firearm at the guiltypleahearing, but argued that Mr. Serrano Berrios neverreceived written notice because English is Mr. Serrano Berrios's second language and thejudgment and sentence did not contain a translation certificate. The trial court denied Mr. Serrano Berrios's motion. The trial courtreviewedthe plea agreement and transcript ofthe plea colloquy from Mr. Serrano Berrios's 2011 attempted burglary case, and found that the trial court advised Mr. Serrano Berrios both orally and in writing that he was ineligible to possess firearms perRCW 9.41.047(1). The trial courtreasoned that RCW 9.41.047 (1) requires trial courts to advise defendants that they are ineligible to possess firearms at the time they are "convicted," andpeople are "convicted" when they plead guilty-notwhen the court signs thejudgment and sentence. Thus, it did not matterthat thejudgment and sentence lacked a translation certificate and Mr. Serrano Berrios's signature. Attrial, both police officers testified that they recovered the handgun from under Mr. Serrano Berrios. Defense counsel objected to the gun's admissibility on the grounds that the police never recorded the gun's serial number, and therefore Officer Gaddis could
4No. 33271-3-III State v. Serrano Berrios

not testify that the gun the State presented was the same gun he found underMr. Serrano Berrios. The trial court overruled the objection, finding that it wentto the evidence's weight and not its admissibility. The State then moved to admit the felonyjudgment and sentence from Mr. Serrano Berrios's 2011 attempted second degree burglary case. Defense counsel objected onthe grounds that it included Mr. Serrano Berrios's entire criminal history, andthen requested
a redacted copy. Defense counsel did notrequest an OldChief stipulation to Mr. Serrano Berrios'sprior attempted second degree burglary conviction. The State also called a former investigator for the prosecutor's office, Michael Shay. The State had asked Mr. Shay to examine the fingerprints onMr. Serrano Berrios's 2011 judgment and sentence and compare them to Mr. Serrano Berrios's booking fingerprints from whenthe officers arrested him in this case. Mr. Shay concluded the fingerprints matched. During closing arguments, defense counsel arguedthat Mr. Shay's conclusion that Mr. Serrano Berrios's fingerprints were on the 2011 judgment and sentence could be wrong, given that Mr. Shay's training was outdated and that Mr. Shay hadbeen in administrative positions since his training. Defense counsel also argued thatthe 2011 judgment and sentence did not contain Mr. Serrano Berrios's signature, his attorney's


### 5No. 33271-3-III 

### State 

### v. Serrano Berrios signature, or a translation certificate, and therefore Mr. Serrano Berrios likely lacked notice that he was ineligible to possess a firearm. Defense counsel did notpropose ajury instruction on the affirmative defense oflack ofnotice. Thejury convicted Mr. Serrano Berrios ofboth charges. Mr. Serrano Berrios appeals. ANALYSIS 

### A. Whether defense counselprovidedineffective assistance Mr. Serrano Berrios argues he received ineffective assistance ofcounsel because defense counsel did not request an 

### Old Chief stipulationthathe hadbeen convicted ofa "serious offense," thus allowing the State to introduce thejudgment and sentence from his 2011 attempted second degree burglary conviction. Mr. Serrano Berrios argues the only tactical reason for defense counsel not to stipulate was so he could argue to thejury that Mr. Serrano Berrios lacked notice that he was ineligible to possess a firearm. Mr. Serrano Berrios further argues that this tactical reason was frustrated by his counsel's failure to request ajuryinstruction on lack ofnotice, thus resulting in the prejudicial conviction being needlessly presentedto thejury. Under RCW 9.41.040(1 )(a), aperson commits unlawful possession ofa firearm in the first degree "ifthe person owns, has in his orher possession, orhas in his or her control any firearm afterhaving previously been convicted
... in this state or elsewhere
6No. 33271-3-III State v. Serrano Berrios
ofany serious offense as defined in this chapter." "'The existence ofa constitutionally validprior conviction is an essential element ofthe offense, one the State mustprove beyond a reasonable doubt."' State v. Lopez, 107 Wn. App. 270,276, 27 P.3d 237 (2001) (quoting State v. Reed, 84 Wn. App. 379, 384, 928 P.2d469 (1997)), ajf'd, 147 Wn.2d 515, 55 P.3d 609 (2002). The Sixth Amendmentto the United States Constitution guarantees criminal defendants the right to effective assistance ofcounsel.3 Stricklandv. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendantreceives ineffective assistance ifthe attorney's conduct (1) falls below a minimum objective standard ofreasonable attorney conduct, and (2) there is a reasonable probabilitythe attorney's conduct affectedthe case's outcome. State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993). "There is a strongpresumption that counsel has rendered adequate assistance and has made all significant decisions in the exercise ofreasonable professionaljudgment." Id. at 665. Ineffective assistance is not established ifdefense counsel's trial conduct can be characterized as legitimate trial strategy ortactic. Id.

3 Because ineffective assistance ofcounsel is an issue ofconstitutional magnitude, it may be considered for the first time on appeal. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). 7No. 33271-3-III State v. Serrano Berrios
Ineffective assistance is a mixed question oflaw and fact and is reviewed de novo. State
v. Sutherby, 165 Wn.2d 870,883,204 P.3d 916 (2009). 1. Whether or not requestingan Old Chiefstipulation was ineffective assistance When the name or nature ofa prior offense that serves as an element ofa current offense might taint the verdict, and when the purpose ofthe evidence is solely to prove the element ofthe prior offense, the defendant may stipulate to the previous conviction. Old Chief, 519 U.S. at 174. "The most thejuryneeds to know is that the conviction admitted by the defendant falls within the class ofcrimes that [the legislature] thought should bar a convict from possessing a gun." 

### Id. at 190-91. A trial court must accept a defendant's offerto stipulate to the existence ofa prior conviction when evidence ofthe prior conviction is unduly prejudicial. State v. Johnson, 90 Wn. App. 54, 62-63, 950 P.2d 981 (1998). Mr. Serrano Berrios is correctthat there are strategic reasons to stipulate to a predicate conviction under certain circumstances. Here, stipulating to Mr. Serrano Berrios'sprior conviction as an unnamed felony would have kept his attempted second degree burglary conviction from reaching thejury. However, applying the strongpresumption that counsel has rendered adequate assistance and has made all significant decisions in the exercise ofreasonable 8No. 33271-3-III State v. Serrano Berrios professionaljudgment, defense counsel's decision notto stipulate to Mr. Serrano Berrios's prior conviction can be properly characterized as a strategic one. Itis clearthat defense counsel thoughtfully considered the prejudicial nature ofthe information contained in thejudgment and sentence, given thathe objectedto portions ofthe document and persuaded the trial court to require the State to redact Mr. Serrano Berrios's entire criminal history from it. During closing argument, defense counsel argued that Mr. Shay'straining was outdated, and suggested thatMr. Shay erroneously concluded that the fingerprints on the 2011 judgment and sentencebelonged to Mr. Serrano Berrios. Moreover, by naming the conviction-attempted second degree burglary-defense counsel preventedthejury from speculating thatMr. Serrano Berrios may have been convicted ofa muchmore serious, violent crime. Thus, given the nature ofthe prior conviction, not stipulating costMr. Serrano Berrios little in terms ofprejudice and opened up a way for defense counsel to attack the State's evidence. Itwas a legitimate tactical decision. 2. Whether or not requesting ajury instruction on inadequate notice was ineffective assistance Lack ofnotice ofthe firearm prohibition is an affirmative defense to unlawful possession ofa firearm. State v. Breitung, 173 Wn.2d 393,403,267 P.3d 1012 (2011). To succeed, defendants must show that when they were convicted ofthe prior offense, 9No. 33271-3-III State v. Serrano Berrios they did not receive either oral orwritten notice that it was illegal for them to own a firearm. Id.; see also RCW 9.41.047(1)(a) (requiringthe convicting courtto notify a person orally and in writing when a conviction makes him or her ineligible to possess a firearm). A person is "convicted" at the time "aplea ofguilty has been accepted, or a verdict ofguilty has been filed, notwithstandingthe pendency of
... sentencing or disposition." RCW 9.41.040(3). A defendant is entitled to ajury instruction supporting his or hertheory ofthe case ifthere is substantial evidence in the record supporting his or hertheory. State v. Powell, 150 Wn. App. 139,154,206P.3d 703 (2009). Thus, in order for defense counsel's failure to request ajury instructionon an affirmative defense to constitute deficient performance, the defendantmust show that had counsel requested this instruction, the trial court would have given it. Id. Here, the trial court's pretrial ruling made clearthatMr. Serrano Berrios receivedboth oral and written notice that he was ineligible topossess a firearm per RCW 9.41.047(1)(a). Athis change ofplea hearing inthe attempted second degree burglary case, the trial court orally advised Mr. Serrano Berrios thathe could notpossess
a firearm or have one underhis control. Mr. Serrano Berrios acknowledgedthat he understood. Mr. Serrano Berrios's guiltyplea in that case also stated that
10No. 33271-3-III State v. Serrano Berrios
I may not possess, own, orhave under my control any firearm unless my right to do so is restored by a superior court in Washington State, and by a federal court ifrequired. I must immediately surrender any concealed pistol license. Clerk's Papers at 46. Mr. Serrano Berrios told the courtthat the interpreter read the guilty pleato him in Spanish and that his attorney had explained it to him. Mr. Serrano Berrios signed the guilty plea, and his previous attorney and the interpreterboth certified that they interpreted and explained it to him. Because the trial court correctly determined before trial that Mr. Serrano Berrios received adequate notice, the trial court would not have given ajuryinstruction on the affirmative defense ofinadequate notice even ifdefense counsel had requested one. Therefore, defense counsel did not perform deficiently. SAG ISSUE I: Whether Mr. Serrano Berrios receivedadequate notice that he couldnotpossess afirearm In his first SAG, Mr. Serrano Berrios appears to argue that he neverreceived adequate notice thathe was ineligible to possess a firearm, given that he never signed the judgment and sentence from his 2011 attempted second degree burglary conviction and that the interpreter in that case neverread himhis rights. As discussed above, the trial court gave Mr. Serrano Berrios both oral and written notice at the guiltypleahearing. Because RCW 9.41.047(l)(a) only requires oral and written notice upon conviction, and
11No. 33271-3-III State v. Serrano Berrios
Mr. Serrano Berrios was convicted when he pleaded guilty, the fact that hisjudgmentand sentence was never signed or interpreted is immaterial for notice purposes. SAG ISSUE II: Whether the trial courtabused its discretion when it found the State authenticatedthefirearm Mr. Serrano Berrios argues thatthe police officers "didnot do a sufficient investigation ofthe gun. They did not take fingerprints, [or] run the pin number." SAG (translation). From the context ofthe trial, it appears that Mr. Serrano Berrios takes issue with the trial court's finding that the State properly authenticated the handgun. "This court reviews a trial court's decision regarding the authenticity ofan exhibitunder
an abuse ofdiscretion standard." State v. Williams, 136 Wn. App. 486,499, 150 P.3d 111 (2007). To be admissible, evidence must be authenticated or identified as to what the proponent claims it is. ER90l(a). Evidence may be identified by a witness with personal knowledge. ER901(b)(1 ). "Theproponent need not identify the evidence with absolute certainty and eliminate every possibility ofalteration or substitution." State v. Campbell, 103 Wn.2d 1, 21, 691 P.2d 929 (1984). Minor discrepancies or uncertainty affect only the weight ofthe evidence, not its admissibility. Id. Here, Officer Gaddis testified that the Hi-Pointhandgun the State presented in court was the same weapon he found under

12No. 33271-3-III State v. Serrano Berrios
Mr. Serrano Berrios. He also testified that he put the gun in an evidence bag, and included his initials, a case number, and an evidence number on the bag. SAG ISSUE III: Whether the trial courtdeniedMr. Serrano Berrios an interpreter Mr. Serrano Berrios also appears to argue that the trial court denied him an interpreter. "[T]he right ofa defendant in a criminal case to have an interpreter is based upon the Sixth Amendment constitutional right to confrontwitnesses and 'theright inherent in a fair trial to be present at one's own trial."' State v. Gonzales-Morales, 138 Wn.2d 374,379,979 P.2d 826 (1999) (quoting State v. Woo Won Choi, 55 Wn. App. 895, 901, 781 P.2d 505 (1989)). Providing interpreters for non-English-speakingpersons is also statutorily required per chapter 2.43 RCW. Here, the record demonstrates that the trial court provided Mr. Serrano Berrios a certified court interpreter for trial and for every other courtproceeding throughout the case. SAG ISSUE IV: Whether appellate counsel's brief adequately addresses the issuespertainingto Mr. Serrano Berrios 's case Mr. Serrano Berrios's final SAG argument appears to take issue with the specific argument his appellate counsel makes in his brief. However, Mr. Serrano Berrios's SAG is his opportunity to identify and discuss additional issues pertaining to his case thathe believes "have not been adequately addressed by the brieffiled by [his] counsel." RAP
13No. 

### 33271-3-III State v. Serrano Berrios 10.lO(a). While Mr. Serrano Berrios appears to argue that his appellate counsel's brief does not adequately address "whatwe are appealing," Mr. Serrano Berrios fails to specify what he is appealing, apart from the issues he already raises in his other SAG arguments. Accordingly, Mr. Serrano Berrios has failed to "informthe court ofthe nature and
occurrence ofalleged errors." See RAP 10.lO(c). Affirmed. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Law~nce-Berrey7A.CJ. { WE CONCUR:

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