IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 81149-5-I ) Respondent, ) ) v. ) ) PEDRO BARRERA FLORES, ) PUBLISHED OPINION ) Appellant. ) ) VERELLEN, J. — 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. Bash1 while adhering to the principle that strict liability offenses are generally disfavored. 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. 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. 1 130 Wn.2d 594, 925 P.2d 978 (1996). No. 81149-5-I/2 FACTS 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. 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. 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. At the conclusion of the trial, the court provided the jury with instructions on the charged offenses.5 The court’s instruction on alien in possession of a firearm provided: 2We use “Pedro Barrera Flores,” the same as it appears in his brief on appeal, without a hyphen. 3 We refer to Dawn Barrera by her first name for clarity. 4 Report of Proceedings (RP) (Feb. 11, 2020) at 197, 213. 5 Barrera Flores requested and was granted an instruction on fourth degree assault. 2 No. 81149-5-I/3 [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 …
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