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 Wn.App. 527, 536, 393 P.3d 1243, review
granted, 189 Wn.2d 1015, 404 P.3d 480 (2017).
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.
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.
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
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.
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).
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 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."
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).
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, ...