State v. Flores

• Decision Date: 26 July 2021
• Docket Number: No. 81149-5-I,81149-5-I
• Citation: 492 P.3d 184
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Pedro Barrera FLORES, Appellant.

492 P.3d 184

STATE of Washington, Respondent,

v.Pedro Barrera FLORES, Appellant.

No. 81149-5-I

Court of Appeals of Washington, Division 1.

FILED July 26, 2021

Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Gregory Charles Link, Tiffinie Bie Ha Ma, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Skagit County Prosecuting Atty., Attorney at Law, 605 So. Third St., Courthouse Annex, Mount Vernon, WA, 98273, Haley Wolcott Sebens, Attorney at Law, 605 S 3rd St., Mount Vernon, WA, 98273-3867, for Respondent.

PUBLISHED OPINION

Verellen, J.

¶1 In determining whether the crime of alien in possession of a firearm, RCW 9.41.171, is a strict liability offense, we consider the plain language and legislative history of the statute and "other relevant factors" provided by State v. Bash ¹ while adhering to the principle that strict liability offenses are generally disfavored.

¶2 Because RCW 9.41.171 does not contain an explicit mental state element and its legislative history coupled with the relevant Bash factors weigh against the imposition of a strict liability offense, we conclude that "knowing possession" is an "implied" essential element of RCW 9.41.171.

¶3 Because the to convict instruction did not contain the "knowing possession" element, we reverse Pedro Barrera Flores’ conviction for alien in possession of a firearm and remand for further proceedings consistent with this opinion.

FACTS

¶4 On November 11, 2018, Pedro Barrera Flores² started an altercation with his then-wife Dawn Barrera³ and their nephew, who was staying with them. During the incident, Barrera Flores ordered Dawn to open a safe located in a closet off of the dining room. When Dawn refused, Barrera Flores reached behind the safe, pulled out an AK-47, and threatened to kill them. After Dawn and their nephew escaped, Dawn called 911.

¶5 When the responding officers arrived, Barrera Flores was asleep. The officers searched the residence and found a "rifle ... located behind the safe" and "some handguns" and ammunition inside the safe.⁴ The State charged Barrera Flores with second degree assault, harassment, and alien in possession of a firearm.

¶6 At trial, Dawn, the responding officers, and an officer from Immigration and Customs Enforcement (ICE) testified. The ICE officer stated that Barrera Flores was undocumented and ineligible for a firearms license.

¶7 At the conclusion of the trial, the court provided the jury with instructions on the charged offenses.⁵

¶8 The court's instruction on alien in possession of a firearm provided:

[T]o convict the defendant of the crime of alien in possession of a firearm as charged in Count III each of the following elements of the crime must be proved beyond a reasonable doubt: One that on or about November 11, 2018, the defendant was in possession of a firearm. Two, that the defendant was not a citizen of the United States. Three, that the defendant was not a lawful permanent resident of the United States. Four, that the defendant had not obtained a valid alien firearm license. Five, that the defendant, A, did not have a valid passport or Visa showing he's in the country legally. B, was not approved for temporary importation of firearms and ammunition. C, did not possess a valid hunting license issued by any state or territory of the United States. Or D, did not possess an invitation to participate in a trade show or sports shooting event. Six, that the possession of the firearm occurred in the state of Washington.^{[6 ]}

A jury convicted Barrera Flores of fourth degree assault and alien in possession of a firearm.

¶9 Barrera Flores appeals his conviction for alien in possession of a firearm.

ANALYSIS

¶10 Barrera Flores contends that the trial court erred in failing to instruct the jury that knowing possession was implicitly required to convict him of alien in possession of a firearm. We review questions of statutory interpretation de novo.⁷ "The primary goal of statutory interpretation is to ascertain and give effect to the legislature's intent and purpose."⁸

¶11 Alien in possession of a firearm, RCW 9.41.171, provides:

It is a class C felony for any person who is not a citizen of the United States to carry or possess any firearm, unless the person: (1) Is a lawful permanent resident; (2) has obtained a valid alien firearm license pursuant to RCW 9.41.173 ; or (3) meets the requirements of RCW 9.41.175.^{[9 ]}

¶12 The question before this court, whether alien in possession of a firearm is a strict liability offense, is an issue of first impression. We begin "with a review of the language of the statute and any legislative history."¹⁰

¶13 RCW 9.41.171 does not contain an explicit mental state element.¹¹ The legislature adopted section .171 in 2009 and since its adoption there have been no amendments nor any legislative history addressing whether the legislature intended to create a strict liability offense. But as our Supreme Court noted in State v. Anderson regarding second degree unlawful possession of a firearm, "[the legislature's] additional failure to provide in the statute for the affirmative defense of unwitting conduct or to expressly eliminate lack of knowledge as a defense are ... other indicators of its intent to make knowledge an element of the offense."¹² The legislature did not provide for the affirmative defense of unwitting conduct nor expressly eliminate lack of knowledge as a defense to alien in possession of a firearm. Although the legislative history tends to favor the conclusion that RCW 9.41.171 is not a strict liability offense, it is not dispositive.

¶14 Because neither the plain language nor the legislative history of section .171 is conclusive, we consider the "other relevant factors" our Supreme Court adopted in Bash "as aids in determining whether the legislature has created a strict liability crime."¹³

¶15 The factors provide:

(1) ... [T]he statute must be construed in light of the background rules of the common law, and its conventional mens rea element; (2) whether the crime can be characterized as a ‘public welfare offense’ created by the Legislature; (3) the extent to which a strict liability reading of the statute would encompass seemingly entirely innocent conduct; (4) ... the harshness of the penalty[;] (5) the seriousness of the harm to the public; (6) the ease or difficulty of the defendant ascertaining the true facts; (7) relieving the prosecution of difficult and time-consuming proof of fault where the Legislature thinks it important to stamp out harmful conduct at all costs, ‘even at the cost of convicting innocent-minded and blameless people"; and (8) the number of prosecutions to be expected.^{[14 ]}

"All of these factors are to be read in light of the principle that offenses with no mental element are generally disfavored."¹⁵

¶16 First, "we consider the statute ‘in light of the background rules of common law.’ "¹⁶ But there is no common law "antecedent" for RCW 9.41.171 and therefore "the conventional mens rea element cannot directly control."¹⁷ This factor is unhelpful.

¶17 Second, we consider whether RCW 9.41.171 is a public welfare offense.¹⁸ Public welfare offenses tend to be "regulatory" and often involve " ‘pure food and drugs, labeling, weights and measures, building, plumbing and electrical codes, fire protection, air and water pollution, sanitation, highway safety and numerous other areas.’ "¹⁹

¶18 Here, RCW 9.41.171 is not a public welfare offense because it is not regulatory. And although the purpose of the statute at least in part is to protect "the public's health and safety, the link is not so strong that it conclusively establishes" section .171 as a public welfare offense.²⁰ This factor does not support strict liability.²¹

¶19 Third, we consider " ‘the extent to which a strict liability reading of the statute would encompass seemingly entirely innocent conduct.’ "²² "[F]irearms are potentially dangerous items ... [but] a statute will not be deemed to be one of strict liability where such construction would criminalize a broad range of apparently innocent behavior."²³ Possession can be either actual or constructive.²⁴ A person has actual possession of an object if the object is in the "personal custody of the person charged with possession" whereas a person is in constructive possession if the person has "dominion and control" over the object.²⁵ Mere proximity to an object is insufficient to establish constructive possession.²⁶

¶20 But unwittingly having a firearm located close enough to a person who could reduce it to their control is sufficient to establish constructive possession.²⁷ In Anderson, our Supreme Court held that "knowing possession" is an "implied" essential element of second degree unlawful possession of a firearm.²⁸ The court noted that otherwise, "entirely innocent conduct may fall within the net cast by the statute in question."²⁹ Similarly, in State v. Williams, our Supreme Court held that "knowing possession" is an "implied" essential element of possession of an unlawful firearm.³⁰ The court was concerned "that possessing a firearm can be innocent conduct. ... If strict liability is imposed, a person could innocently come into possession of a shotgun, rifle, or weapon meeting the definition of a machine gun but then be subject to imprisonment, despite ignorance of the gun's characteristics." ³¹

And in State v. Warfield, in regard to the crime of possession of an unlawful firearm this court noted, " RCW 9.41.190 does not require that an unlawful firearm be on the defendant's person; mere possession or control will suffice. Without a knowing possession element, the offense would implicate a significant amount of innocent conduct, which is a result that the legislature likely did not intend."³²

¶21 Therefore, consistent with Anderson, Williams, and Warfield, strict liability for alien in possession of a firearm would encompass innocent conduct because a noncitizen...