State v. Garcia

• Decision Date: 05 July 2018
• Docket Number: No. 94457-1,94457-1
• Citation: 420 P.3d 1077
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Joaquin David GARCIA, Petitioner.

420 P.3d 1077

STATE of Washington, Respondent,

v.Joaquin David GARCIA, Petitioner.

No. 94457-1

Supreme Court of Washington.

Oral Argument Date: February 15, 2018

Filed Date: July 5, 2018.

Counsel for Petitioner(s): Nielsen Broman Koch PLLC, Attorney at Law, Jennifer M. Winkler, Nielsen, Broman & Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122

Counsel for Respondent(s): Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, Ian Ith, King County Prosecuting Attorney's Office, 516 Third Avenue, Seattle, WA, 98104

MADSEN, J.

¶ 1 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" of the firearm prohibition. State v. Garcia , 198 Wash. App. 527, 536, 393 P.3d 1243, review granted, 189 Wash.2d 1015, 404 P.3d 480 (2017).

¶ 2 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 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 of the firearm prohibition.

¶ 3 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

¶ 4 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.

¶ 5 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.

¶ 6 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).

¶ 7 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 10^{[1 ]} 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 of Proceedings (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 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 of the underlying conviction, Mr. Garcia received either oral or written notice.

Id. at 62 (emphasis added).

¶ 8 The State appealed, and the Court of Appeals reversed in a published decision. Garcia, 198 Wash. App. at 529, 393 P.3d 1243. 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, 393 P.3d 1243. 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, 393 P.3d 1243.

¶ 9 Garcia sought review of the Court of Appeals decision.

ANALYSIS

¶ 10 RCW 9.41.047(1)(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.

¶ 11 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 Wash.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 of RCW 9.41.047(1), holding, "The only remedy appropriate for the statutory violation is to reverse the current conviction." Id. at 804, 174 P.3d 1162.

¶ 12 We next considered a violation of RCW 9.41.047(1) in State v. Breitung , 173 Wash.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, 267 P.3d 1012. The defendant was subsequently convicted of second degree UPFA. Id. at 397, 267 P.3d 1012. 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 of the firearm possession prohibition that RCW 9.41.047(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, 267 P.3d 1012 (emphasis added) (quoting State v. Breitung , 155 Wash. 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, 267 P.3d 1012. To rebut the defense, the court then placed the burden on the State to establish that the defendant had "otherwise acquired actual knowledge" of the firearm possession prohibition. Id. at 402-04, 267 P.3d 1012. Garcia argues that "otherwise acquired actual knowledge" is sufficient to support a charge of UPFA only if such knowledge is acquired "at the time of the 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.

¶ 13 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 of the underlying conviction relevant to count 1 informed of his prohibition concerning possessing a firearm, in any way.

CP at 541-42.

¶ 14 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 of firearm 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 knowledge or understanding by the defendant that he is prohibited from possessing a firearm, regardless of the timing, nature, or source of that information.

¶ 15 This "court's fundamental objective is to ascertain and carry out the Legislature's intent." Dep't of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002) (citing State v. J.M. , 144 Wash.2d 472, 480, 28 P.3d 720 (2001) ).

¶ 16 RCW 9.41.047(1)'s mandate is clear that a convicting court must notify a defendant orally and in writing of a...