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                                                             SUSAN L CARLSON
                                                           SUPREME GOURT CLERK




              IN THE SUPREME COURT OF THE STATE OF WASHINGTON




 STATE OF WASHINGTON,
                                                   No. 94457-1
                         Respondent,

         V.                                       En Banc


 JOAQUIN DAVID GARCIA,

                         Petitioner.               Filed
                                                             JUL 0 5 2018



         MADSEN,J.—Joaquin Garcia was charged with unlawful possession of a firearm

(UPFA)in the first degree. He moved for dismissal, arguing that the predicate offense

 relied on by the State in bringing the charge is invalid because the convicting court did

 not notify him of his ineligibility to possess firearms. The trial court dismissed the

 charge, and the Court of Appeals reversed, holding that Garcia had "otherwise had actual

 knowledge" ofthe firearm prohibition. State v. Garcia, 198 Wn. App. 527, 536, 393

 P.3d 1243, review granted, 189 Wn.2d 1015, 404 P.3d 480(2017).

         This case presents two issues: (1) whether the trial court properly dismissed the

 UPFA charge on the basis that Garcia was not advised of the firearm prohibition flowing
No. 94457-1



from Garcia's conviction at the time of his 1994 conviction, despite his later acquired

knowledge that he was prohibited from possessing firearms, and (2) whether pretrial

dismissal of a UPFA charge is proper where a defendant was not given notice ofthe

firearm prohibition.

       We hold that Garcia had "otherwise acquired actual knowledge" of his ineligibility

to possess firearms. We also hold that whether a defendant received statutory notice that

he was prohibited from possessing a firearm may properly be resolved pretrial.

                                         FACTS


       In November 2014, Garcia's girlfriend told a doctor at Seattle Indian Health

Board, a charitable clinic, that Garcia "threatened her the night before and was currently

in the waiting room," armed with a handgun. Clerk's Papers(CP)at 4. When the police

officers arrived, Garcia's girlfriend explained that Garcia was armed, and she walked the

police officers to the waiting room and identified Garcia. The police officers placed

Garcia in handcuffs, and he admitted,"This is her gun and I am just carrying it for her.

She knows I can't carry again." Id. Garcia also acknowledged that he was a convicted

felon and that he knew he could not carry a gun. The police officers subsequently found

a loaded .40 caliber Ruger semiautomatic handgun inside Garcia's waistband.

       Garcia was charged with first degree UPFA based on Garcia's 1994 conviction for

first degree rape of a child. Garcia was 13 years old at the time of his 1994 conviction,

and pleaded guilty to the charge.
 No. 94457-1




        Prior to trial, Garcia filed a motion, pursuant to CrR 8.3(c), to prohibit the use of

 his 1994 conviction as a predicate offense for the crime. In his motion, Garcia argued

 that his 1994 conviction was not a constitutionally valid predicate offense because at the

 time of his sentencing he was not informed orally and in writing of his ineligibility to

 possess firearms, as required by RCW 9.41.047(1).

        In response, the State conceded that it was unable to prove that Garcia was given

 either written or oral notice at the time of his 1994 conviction. However,the State did

 argue that despite its inability to prove that Garcia received his statutory advisement at

 the time of Garcia's conviction, it could prove that Garcia had subsequent actual

 knowledge of his ineligibility to possess firearms. Specifically, the State argued that

 Garcia was


        notified approximately        times since 1996 of his [ineligibility] to
        possess a firearm,. . . that message has clearly gotten home to Mr.
        Garcia—^I mean in all of the statements that he's making to the police, he is
        saying over and over again,"I know I am not supposed to have a gun."

 Verbatim Report ofProceedings(VRP)at 36. The State also added that "the defense still

 needs to meet their burden . .. and provide something which would indicate that Mr.




'Garcia was convicted of several felonies after his 1994 conviction, including attempt to elude a
police vehicle, rape of a child in the third degree, failure to register as a sex offender, assault in
the third degree, and UFFA in the second degree. Garcia received formal written notice of his
ineligibility to possess firearms after many of these convictions. Any ofthese convictions, with
the attendant firearm advisement, could have supported a charge of second degree UPFA.
Indeed, these other felonies were used as predicate offenses for second degree UPFA in the
underlying case. However, Garcia's 1994 conviction is the only possible predicate offense that
could support a conviction for first degree UPFA because none of his other felonies qualify as a
"serious offense" under RCW 9.41.010(23).
No. 94457-1



Garcia never affirmatively received notice." Id. at 38. The trial court disagreed. Instead,

in granting Garcia's motion, the trial judge explained that

       as a matter of law, we need not at this stage conclude that this is any longer
       a matter of fact, and that it is—^that it would become Mr. Garcia's burden of
       proof, because as a matter of law, the evidence does not establish that at the
       time ofthe underlying conviction, Mr. Garcia received either oral or written
       notice.


Id. at 62(emphasis added).

       The State appealed, and the Court of Appeals reversed in a published decision.

Garcia, 198 Wn. App. at 529. The Court of Appeals held that the trial court "erred by

deciding Garcia's affirmative defense on a CrR 8.3(c) motion" and that lack of notice is

an affirmative defense that Garcia must prove by a preponderance of evidence to the jury.

Id. at 533. The Court of Appeals also held that "the State may overcome the lack of

notice affirmative defense by presenting other evidence of actual knowledge of the law or

the firearm prohibition," and in this case, the subsequent knowledge that Garcia had of

his ineligibility to possess firearms was sufficient to overcome his defense. Id. at 535-36.

       Garcia sought review of the Court of Appeals decision.

                                       ANALYSIS


   RCW 9.41.047(l)(a) states:

      At the time a person is convicted ... the convicting or committing court
      shall notify the person, orally and in writing, that the person must
      immediately surrender any concealed pistol license and that the person may
      not possess a firearm unless his or her right to do so is restored by a court
       of record.
No. 94457-1



       RCW 9.41.047(1) does not expressly provide a remedy for a convicting court's

failure to comply with its terms. However, because of the statute's constitutional

underpinnings, this court fashioned a remedy for such a violation in State v. Minor, 162

Wn.2d 796, 174 P.3d 1162(2008). There, we reversed the defendant's conviction for

unlawful possession of a firearm where the trial court failed to comply with the statutory

notice requirement ofRCW 9.41.047(1), holding,"The only remedy appropriate for the

statutory violation is to reverse the current conviction." Id. at 804.

       We next considered a violation of RCW 9.41.047(1) in State v. Breitung, 173

Wn.2d 393, 267 P.3d 1012(2011){Breitung II). There, the defendant was convicted of

"domestic violence assault, making him ineligible to own firearms," but was not notified

of his ineligibility to possess firearms by the convicting court. Id. at 402. The defendant

was subsequently convicted of second degree UPFA. Id. at 397. This court affirmed the

Court of Appeals, which held:

      "where a convicting court has failed to give the mandatory notice directed
       in RCW 9.41.047(1) and there is no evidence that the defendant has
       otherwise acquired actual knowledge ofthefirearm possession prohibition
       that RCW9.41.047(1) is designed to impart, the defendant's subsequent
       conviction for unlawful possession of a firearm is invalid and must be
       reversed."


Id. at 402(emphasis added)(quoting State v. Breitung, 155 Wn. App. 606,624, 230 P.3d

614(2010){Breitung I)). Additionally, we stated that lack of notice must be established

by the defendant as an affirmative defense. Id. at 403. To rebut the defense, the court

then placed the burden on the State to establish that the defendant had "otherwise

acquired actual knowledge" ofthe firearm possession prohibition. Id. at 402-04. Garcia
No. 94457-1



argues that "otherwise acquired actual knowledge" is sufficient to support a charge of

UPFA only if such knowledge is acquired "at the time ofthe underlying conviction."

VRP at 62. Because the defendant in Breitung did not possess "otherwise acquired actual

knowledge," the court did not define "otherwise acquired actual knowledge" or decide

whether such knowledge had to be obtained contemporaneously with the conviction, as

required by the statute.

       The trial court, in its written order, held that

             RCW 9.41.047(1) is the controlling statute. This statute required the
      court sentencing Mr. Garcia in the predicate serious offense to "at the time"
      inform Mr. Garcia orally and, additionally, in writing that that conviction
      rendered him ineligible to possess a firearm. The Court "shall" so notify.
      "The statute is unequivocal in its mandate." There is no evidence,
       circumstantial or direct, that Mr. Garcia was at the time ofthe underlying
       conviction relevant to count 1 informed of his prohibition concerning
       possessing a firearm, in any way.

CP at 541-42.


       The State argues that failure to provide notice of a firearms prohibition at the time

of the underlying conviction does not require dismissal per se. Instead, the State

contends that it should have been able to present evidence of Garcia's subjective

knowledge that he was prohibited from possessing firearms. Specifically, the State

wished to present "evidence of Garcia's own admissions and actions showing

longstanding actual knowledge," including "at least half a dozen formal advisements of

his loss offirearm rights while being sentenced for his more-recent felonies." Suppl. Br.

of Resp't at 6. The State urges that "otherwise acquired actual knowledge" is any
No. 94457-1



knowledge or understanding by the defendant that he is prohibited from possessing a

firearm, regardless ofthe timing, nature, or source of that information.

       This "court's fundamental objective is to ascertain and carry out the Legislature's

intent." Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4

(2002)(citing State v. J.M., 144 Wn.2d 472, 480,28 P.3d 720(2001)).

       RCW 9.41.047(l)'s mandate is clear that a convicting court must notify a

defendant orally and in writing of a firearm prohibition. The legislature's intent was to

ensure that a convicting court informs the defendant that by committing a crime, he or

she has lost the constitutional right to bear arms. See Breitung II, 173 Wn.2d at 403

('"The statute is unequivocal in its mandate.' ... [DJespite RCW 9.4I.047(I)'s failure to

provide a remedy for violation, we explained that '[t]he presence of a notice requirement

shows the legislature regarded such notice of deprivation offirearms rights as

substantial.'"(third alteration in original)(quotuig Minor, 162 Wn.2d at 803)).

       While this court has not had occasion to decide what evidence will satisfy

Breitung's,"otherwise acquired actual knowledge" standard, the Court of Appeals has

addressed this issue in State v. Carter, 127 Wn. App. 713, 112 P.3d 561 (2005). In

Carter, the defendant was charged with UPFA but argued the charge should have been

dismissed because he was not notified of his loss of firearm rights at the time of his

predicate offense. Id. at 715. The Court of Appeals affirmed the trial court's refusal to

grant the defendant's motion, holding that the defendant had actual knowledge of the

firearm prohibition because he was formally notified at the time of a felony conviction
No. 94457-1



that occurred after the predicate offense but before the UPFA charge. Id. at 721. We

agree with Carter that "otherwise acquired actual knowledge" may be sufficient to

overcome a failure to comply with RCW 9.41.047(l)'s requirements when the defendant

receives statutory notice following a subsequent conviction.

      Such after acquired knowledge is the primary goal of notice required by RCW

9.41.047(1), thereby preserving a predicate offense for a UPFA charge. We hold that

"otherwise acquired actual knowledge" need not be contemporaneous, but it must be

consistent with the type of notice that RCW 9.41.047(1) is designed to provide

defendants. Indeed, the Court of Appeals in Breitung 1 explained that

             In this circumstance, the required notice imparts actual knowledge of
      the prohibition."'Notice is knowledge or information legally equivalent to
      knowledge, brought home to the party notified in immediate connection
      with the subject to which the notice relates.'" Catholic Med. Ctr. v.
      Executive RiskIndem., Inc., 151 N.H. 699, 702, 867 A.2d 453, 456-57
      (2005)(quoting Baldwin v. Fid. Phenix Fire Insur. Co. ofN.Y,260 F.2d
      951, 953-54(6th Cir. 1958)); see also Barron'S Law DICTIONARY 317
      (2d ed. 1984)(defining "notice" as"'information concerning a fact,
      actually communicated to a person by an authorized person, or actually
      derived by him from a proper source'"(quoting United States v.
      Tuteur, 215 F.2d 415, 418 (7th Cir. 1954))). Here the requirement of both
      oral and written notice of the firearm possession prohibition is clearly
      intended to impart actual notice of the illegality. "Actual notice" is defined
      in part as "direct positive knowledge of fact in question." Barron'S Law
      Dictionary 317(emphasis omitted).

155 Wn. App. at 624 n.ll.

       Accordingly, information that is communicated by or derived from an authorized

source, such as a judge, a probation officer, a member ofthe court staff, or defense

counsel, even though later acquired, will meet the requirement ofthe statute.
No. 94457-1



       Here, while Garcia was not notified of a firearm prohibition at the time of his 1994

conviction, he did receive formal notice at the time of his subsequent convictions.

Because Garcia was formally notified by authorized persons during his subsequent

convictions, he had "otherwise acquired actual knowledge" and his 1994 conviction

constitutes a valid predicate offense.

       The State also argues that the trial court erred in determining that lack of statutory

notice is a question of law that a judge may determine pretrial because Breitung II

characterizes lack of notice as an affirmative defense. In the State's view, the burden is

on Garcia to "present actual evidence of some kind to prove to a factfmder at trial that he

did not receive notice in 1994 and did not have actual knowledge of the prohibition when

he unlawfully possessed the loaded handgun." Suppl. Br. of Resp't at 16. If Garcia

meets his burden, the State would then be permitted to "rebut the affirmative defense by

presenting evidence that the defendant knew that he was prohibited from possessing

firearms." Id.


        We begin with the observation made in Minor "that knowledge ofthe illegality

of firearm possession is not an element of the crime." 162 Wn.2d at 802. Moreover,

while we characterized lack of statutory notice as an affirmative defense in Breitung II,

because knowledge is not an element such a defense does not operate like a true

affirmative defense. "An affirmative defense admits the defendant committed a criminal

act but pleads an excuse for doing so." State v. Fry, 168 Wn.2d I, 7, 228 P.3d I (2010)
No. 94457-1



(plurality opinion). Lack of statutory notice does not excuse UPFA. Rather, lack of

statutory notice acts as a bar to using the predicate offense as support for a UPFA charge.

       Because a UPFA charge cannot proceed without a valid predicate offense, lack of

statutory notice is a preliminary question that the trial court may resolve pretrial.

Specifically, lack of statutory notice should be determined pretrial pursuant to the same

procedures used in State v. Knapstad, 107 Wn.2d 346, 349, 729 P.2d 48 (1986). Thus, a

defendant may raise lack of statutory notice by initiating a motion pretrial with a sworn

affidavit. Id. at 356. The State may then submit its own affidavit to allege facts that

rebut the defendant's affidavit. Id. The court may then decide the motion as a matter of

law if there is insufficient evidence to prove that the defendant had notice ofthe firearm

prohibition. Id. at 357.

                                      CONCLUSION


       We affirm the Court of Appeals' decision reversing dismissal ofthe charge of first

degree UPFA and hold that Garcia had "otherwise acquired actual knowledge" of his

ineligibility to possess firearms. Additionally, we hold that a trial court may dismiss a

charge of UPFA for lack of notice pretrial.




                                              10
No. 94457-1




WE CONCUR:




              11
State V. Garcia, No. 94457-1
Fairhurst, C.J.(dissenting)




                                          No. 94457-1


       FAIRHURST, C.J. (dissenting)—^RCW 9.41.047(l)(a) requires oral and

written notice ofthe ineligibility to possess firearms at the time a person is convicted.

I disagree with the majority's creation of an evidentiary standard to cure violations

of RCW 9.41.047(l)(a). I would reverse the Court of Appeals and reinstate the trial

court's dismissal of Joaquin David Garcia's unlawful possession of a firearm

(UPFA)charge in the first degree.

        Garcia brought a pretrial motion to dismiss his first degree UPFA charge

because his 1994 predicate offense failed to comply with the notice requirements of

RCW 9.41.047(l)(a).^ The State conceded the lack of statutory notice. This court


       'While not necessary for my legal analysis, I call attention to the underlying charges in
this case and the State's prosecutorial decisions. See majority at 2-3. Garcia was charged with first
and second degree UPFA. His first degree UPFA charge is based on a 1994 conviction that he
pleaded guilty to at age 13. There is no evidence that Garcia was given oral or written notice of his
ineligibility to possess firearms as required by RCW 9.41.047(l)(a). Similarly, the defendant in
State V. Minor had just turned 15 years old at his disposition hearing when the court failed to give
oral and written notice of his ineligibility to possess firearms. 162 Wn.2d 796, 804,174 P.3d 1162
(2008)("It is reasonable to believe a [15-year-old] would not necessarily know the degrees of
crimes or how their crime may impair their rights.").
        Subsequently, Garcia was convicted of several other felonies and received formal notice
of his ineligibility to possess firearms. However, Garcia's 1994 conviction is the only conviction
that can support         degree UPFA because it was a "serious offense." RCW 9.41.040(l)(a),
                                                  1
State V. Garcia, No. 94457-1
Fairhurst, C.J.(dissenting)


has already established that "[l]ack of notice under RCW 9.41.047(1) is an

affirmative defense, which [the defendant] must establish by a preponderance ofthe

evidence." State v. Breitung, 173 Wn.2d 393, 403, 267 P.3d 1012(2011).^ Lack of

notice under RCW 9.41.047(1) means notice pursuant to the statute. The statute has

three clear requirements. State v. Minor, 162 Wn.2d 796, 803, 174 P.3d 1162(2008)

("The statute is unequivocal in its mandate."). First, notice must be given "[a]f the

time a person is convicted or found not guilty by reason ofinsanity ...ov at the time

a person is committed by court order." RCW 9.41.047(l)(a) (emphasis added).

Second, notice must be given by "the convicting or committing court." Id. And third,

notice must be given "orally and in writing." Id. "The presence of a notice

requirement shows the legislature regarded such notice of deprivation of firearms

rights as substantial. Relief consistent with the purpose of the statutory requirement

must be available where the statute has been violated." Minor, 162 Wn.2d at 803-

04.




.010(23). His other felonies support only second degree UPFA. The distinction between first and
second degree UPFA is more than just a formality. RCW 9.41.040; RCW 9A.20.021 (second
degree UPFA is a class C felony with a 5 year maximum sentence; first degree UPFA is a class B
felony with a 10 year maximum sentence). We should not allow the State to create legal work
arounds to increase their charges.
      ^ "An affirmative defense admits the defendant committed a criminal act but pleads an
excuse for doing so. . . .An affirmative defense does not negate any elements of the charged
crime." State v. Fry, 168 Wn.2d 1, 7, 228 P.3d 1 (2010).
                                               2
State V. Garcia, No. 94457-1
Fairhurst, C.J.(dissenting)


      Following Breitung, Garcia established his affirmative defense, which the

State failed to rebut. Despite the language of the statute, the majority circumvents

this simple conclusion and holds that notice "need not be contemporaneous" with

the conviction and can be communicated by people other than the court (e.g., court

staff or defense counsel). Majority at 8.1 find this to be hugely problematic.

      In Breitung, we affirmed the Court of Appeals and held that the defendant was

entitled to reversal ofhis UPFA conviction. 173 Wn.2d at 403. After explaining that

lack of statutory notice is an affirmative defense to UPFA,"we conclude[d that]

Breitung was not notified of his firearm prohibition as required under RCW

9.41.047(1) and did not otherwise have notice of the prohibition against possession

of firearms. Absent that notice, he [was] entitled to reversal of the [UPFA]

conviction."Id. at 404. The "otherwise acquired actual knowledge" standard that the

majority focuses on comes from the Breitung Court of Appeals decision, which was

quoted within this court's Breitung opinion as well. Id. at 402 (quoting State v.

Breitung, 155 Wn. App.606,624,230 P.3d 614(2010)). The Court of Appeals cited

no authority for that standard, nor did this court. The majority implies that this

language created an open question: "[W]hat evidence will satisfy Breitung's

'otherwise acquired actual knowledge' standard[?]." Majority at 7. Herein lies the

problem. There is no open question. The statute clearly states what is required. RCW
State V. Garcia, No. 94457-1
Fairhurst, C.J.(dissenting)


9.41.047(l)(a). Rebuttal evidence must be evidence that proves compliance with the

statute (e.g., court transcripts, judgment and sentence documents, video or audio

recordings, testimony or affidavits from people who were present at the sentencing).

The majority's rebuttal standard is completely untethered from the statute and should

be rejected.^ I respectfully dissent.




       ^ Procedurally, I agree with the majority that the trial court can resolve the affirmative
defense pretrial when it can be determined as a matter oflaw that there is insufficient evidence to
prove that the required notice was provided. Majority at 10.
                                                4
State V. Garcia, No. 94457-1
Fairhurst, C.J.(dissenting)




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