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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )
                                            )       No. 66373-9-I
                      Respondent,           )
                                            )         DIVISION ONE
              v.                            )
                                            )
ALI E. DIVSAR, aka                          )         UNPUBLISHED OPINION
ALI AY, b.d. 07/19/92,                      )
                                            )
                      Appellant.            )         FILED:  February 21, 2012
________________________________)

       Becker, J.  --  Convicted of "Assault in the Fourth Degree  --  Domestic 

Violence," appellant Ali Divsar is now prohibited by statute from possessing a 

firearm.  Divsar contends he is not ineligible to possess a firearm because the 

information filed against him did not provide factual or legal support for the 

domestic violence designation.  The firearm prohibition, however, is not 

punishment and the domestic violence designation is not an essential element of 

the crime. We conclude the information was sufficient and deny Divsar's 

request for relief.  

                                        FACTS

       According to unchallenged findings of fact entered by the trial court in 

support of the conviction, on the evening of March 22, 2010, Eraj Divsar and his  

No. 66373-9/2

9-year-old son returned home after dining out.  Shortly after they entered the 

house, Eraj heard his 17-year-old stepson Ali Divsar shouting swear words.  

Concerned that his young son was hearing this, Eraj approached Ali's closed 

bedroom door.  He knocked on the door and told Ali to calm down.  Ali opened 

the door and immediately pushed and punched Eraj in the torso.  Eraj retreated 

to the living room and called 911.  Two police officers arrived and arrested Ali.  

The State charged him with assault in the fourth degree with a domestic violence 

designation.  

       At the bench trial in juvenile court, Divsar did not challenge the domestic 

violence designation and did not argue it was factually unfounded.  The court 

found Divsar guilty as charged and imposed a disposition within the standard 

range.  

       Normally, ineligibility to possess a firearm is not a consequence of a 

conviction for fourth degree assault.  But that status is a consequence for a 

person convicted of fourth degree assault when the crime is one of domestic 

violence -- that is, committed by one family or household member against 

another.  RCW 9.41.040(2)(a)(i), .010(5); RCW 10.99.020(5)(d).  The meaning 

of "family or household members" includes "legal parent-child relationship, 

including stepparents and stepchildren." RCW 10.99.020(3).  

       The court informed Divsar at sentencing that as a result of the conviction, 

he lost the right to possess a firearm and it would be a felony for him to possess 

a firearm until his rights were restored.  Also at sentencing, the court gave 

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No. 66373-9/3

Divsar a "Notice of Ineligibility to Possess Firearm," informing him in writing of 

the prohibition:  "Pursuant to RCW 9.41.047 and RCW 9.41.040, you are not 

permitted to possess a firearm until your right to do so is restored by a court of 

record.  You are further notified that you must immediately surrender any 

concealed pistol license." 

       On appeal, Divsar does not challenge the assault conviction.  He 

contends the firearm prohibition was "imposed as punishment" and asks this 

court to "vacate" it.  

                        THE ESSENTIAL ELEMENTS RULE 

       Divsar begins by arguing that the State violated the essential elements 

rule by failing to include in the information the legal and factual foundation for 

subjecting him to enhanced punishment.  

       In every prosecution, the defendant must be informed of the nature and 

cause of the accusation.  U.S. Const., amend. VI; Wash. Const. art. I, § 22; see

also CrR 2.1(a)(1).  The charging document must contain all essential elements 

of an alleged crime, including both statutory and nonstatutory elements.  State v. 

Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991).  An element is essential if 

its specification is necessary to establish the very illegality of the behavior.  

State v. Yates, 161 Wn.2d 714, 757, 168 P.3d 359 (2007), cert. denied, 554 U.S. 

922 (2008).  The primary goal of the "essential elements" rule is to give notice to 

an accused of the nature of the crime that he or she must be prepared to defend 

against.  Kjorsvik, 117 Wn.2d at 101.  

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       The information accused Divsar of "Assault in the Fourth Degree  --  

Domestic Violence."  

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No. 66373-9/5

              I, Daniel T Satterberg, Prosecuting Attorney for King County 
       in the name and by the authority of the State of Washington, do 
       accuse ALI E DIVSAR AKA ALI AY of the crime of Assault in the 
       Fourth Degree  --  Domestic Violence, committed as follows

              That the respondent, ALI E DIVSAR AKA ALI AY, In King 
       County, Washington on or about March 22, 2010, did intentionally 
       assault Eraj Divsar,

              Contrary to RCW 9A.36.041 and against the peace and 
       dignity of the State of Washington.

       Divsar contends the bare mention of "domestic violence" in the 

information was insufficient notice because the information did not allege that 

the victim was a household or family member and it did not cite the firearms 

prohibition statute, RCW 9.41.040.  Divsar argues domestic violence is an 

essential element because it "punishes" him by making him subject to the firearm 

prohibition law.  

       This court has already rejected an argument that fourth degree assault  --  

domestic violence is a distinct crime.  State v. O.P., 103 Wn. App. 889, 13 P.3d 

1111 (2000).  When the legislature enacted the domestic violence act, chapter 

10.99 RCW, the legislature did not create new crimes.  The legislature was 

focused on implementing procedural requirements designed to enhance 

enforcement of existing laws.  O.P., 103 Wn. App. at 892.  Thus, a domestic 

violence designation "does not alter the elements of the underlying offense; 

rather, it signals the court that the law is to be equitably and vigorously 

enforced."  O.P., 103 Wn. App at 892; State v. Goodman, 108 Wn. App. 355, 

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No. 66373-9/6

359, 30 P.2d 516 (2001), review denied, 145 Wn.2d 1036 (2002).  

       O.P. and Goodman were decided before both Blakely v. Washington, 542 

U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Recuenco, 

163 Wn.2d 428, 180 P.3d 1276 (2008).  Divsar contends that Blakely and 

Recuenco compel the relief he seeks.  

       In Recuenco, our Supreme Court held that the defendant was erroneously 

sentenced with a firearm enhancement that was not alleged or submitted to the 

jury and that this type of error is not harmless.  Recuenco, 163 Wn.2d at 442.

Because the enhancement was the basis for a sentence greater than the 

maximum authorized statutory sentence, it became the equivalent of an element 

of a greater offense than the one covered by the jury's guilty verdict.  Recuenco, 

163 Wn.2d at 434, citing Apprendi v. New Jersey, 530 U.S. 466, 490, 494, n.19, 

120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).  Such enhancements must be 

properly included in an information.  Recuenco, 163 Wn.2d at 434.  Divsar

argues the State must likewise allege facts and law supporting the "element" of 

domestic violence because of the "enhanced punishment" that results from such 

a conviction.           

       This court rejected a similar argument in State v. Felix, 125 Wn. App. 575, 

105 P.3d 427, review denied, 155 Wn.2d 1003 (2005).  The defendant in Felix

was convicted of fourth degree assault, and the court found the crime was one of 

domestic violence.  Felix argued this finding expanded his punishment because 

it resulted in the deprivation of his right to carry a firearm.  We held that Blakely

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No. 66373-9/7

does not require the domestic violence designation to be proved to the trier of 

fact because the designation does not increase a defendant's punishment. 

Felix, 125 Wn. App. at 579-80.

       In Felix, we relied on State v. Schmidt, 143 Wn.2d 658, 23 P.3d 462 

(2001).  In Schmidt, the appellant argued that amendments to the firearm laws 

expanding the effects of previous convictions violated constitutional ex post facto 

prohibitions.  Our Supreme Court rejected this argument.  The court reasoned 

that the firearm prohibition did not constitute punishment: 

              Although the prohibitions of the firearms statute impose a 
       disability and present a threat of criminal punishment if violated, 
       the prohibitions do not amount to punishment for a prior conviction, 
       nor do they "alter the standard of punishment" applicable to those 
       crimes.

Schmidt, 143 Wn.2d at 676.  The court observed that firearms have always been 

subject to government regulation for safety purposes.  Schmidt, 143 Wn.2d at 

676.  

       Felix found Schmidt dispositive because there was no principled reason 

to distinguish punishment for Blakely purposes from punishment for ex post facto 

purposes.  Divsar contends Felix must be reconsidered in light of District of 

Columbia v. Heller, 554 U.S. 570, 595, 128 S. Ct. 2783, 171 L. Ed. 2d 

637 (2008), and State v. Sieyes, 168 Wn.2d 276, 291, 225 P.3d 995 (2010).

According to Divsar, these newer cases show that Felix and Schmidt were 

incorrect in regarding firearm prohibitions as regulatory rather than punitive.  

       In Heller, the United States Supreme Court clarified that the Second 

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No. 66373-9/8

Amendment1 confers an individual right to keep and bear arms.  Heller, 554 U.S. 

at 595.  The Court found a violation of the Second Amendment in the District of 

Columbia's total handgun ban in the home and its prohibition against making 

any lawful firearm in the home operable for the purpose of immediate self-

defense.  Heller, 554 U.S. at 635.  The Second Amendment is fully applicable to 

the States.  McDonald v. Chicago, __ U.S. __, 130 S. Ct. 3020, 3027, 177 L. Ed.

2d 894 (2010); Sieyes, 168 Wn.2d at 291. Our state constitutional analog to the 
Second Amendment, article I, section 24,2 also plainly guarantees an individual

right to bear arms.  Sieyes, 168 Wn.2d at 292.  

       These cases do not undermine Felix or Schmidt.   Heller simply 

recognized that the right to bear arms is an individual right and that this right 

may be infringed when the State limits firearm possession inside one's home.  

And Sieyes's recognition that article I, section 24 secures an individual right to 

possess a firearm is not new.  See, e.g., State v. Gohl, 46 Wash. 408, 410, 90 P. 

259 (1907).  

       The State contends Divsar is improperly using a direct appeal to 

challenge a "collateral consequence" of his conviction.  Seizing upon this 

phrase, Divsar contends any distinction between direct and collateral 

       1 The Second Amendment provides: "A well regulated Militia, being necessary 
to the security of a free State, the right of the people to keep and bear Arms, shall not 
be infringed."

       2 Article I, section 24 of the Washington Constitution declares: "Right To Bear 
Arms.  The right of the individual citizen to bear arms in defense of himself, or the state, 
shall not be impaired, but nothing in this section shall be construed as authorizing 
individuals or corporations to organize, maintain or employ an armed body of men."
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No. 66373-9/9

consequences of a conviction has been obliterated by Padilla v. Kentucky, __ 

U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).  Padilla establishes that the 

Sixth Amendment right to effective assistance of counsel includes the right to 

advice about immigration consequences of a criminal conviction, specifically 

deportation.  Padilla, 130 S. Ct. at 1482.  Kentucky's high court had ruled that 

deportation was a "collateral" matter not within the sentencing authority of the 

trial court.  Padilla, 130 S. Ct. at 1481.  Rejecting this view, the Supreme Court 

reasoned that characterizing deportation as a "collateral" consequence was not 

necessarily dispositive on the issue of what advice must be given by counsel:

              We, however, have never applied a distinction between 
       direct and collateral consequences to define the scope of 
       constitutionally "reasonable professional assistance" required 
       under Strickland [v. Washington], 466 U.S. [688], 689, 104 S. Ct. 
       2052[, 80 L. Ed.2d 674 (1984)].  Whether that distinction is 
       appropriate is a question we need not consider in this case 
       because of the unique nature of deportation.

Padilla, 130 S. Ct. at 1481. 

       Divsar does not make a compelling argument for applying Padilla in this 

case.  Padilla was not decided under Blakely.  The Second Amendment was 

also not involved.  The court referred to the "unique" nature of deportation.  In 

addition, Schmidt and Felix stated other reasons to conclude the firearm 

prohibition is regulatory rather than punitive that have nothing to do with 

characterizing it as a collateral consequence.  Possession of firearms has 

always been subject to government regulation for safety purposes.  Schmidt, 143 

Wn.2d at 676.  Restricting the firearm rights of a person who commits a domestic 

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No. 66373-9/10

violence misdemeanor clearly is an attempt to increase the safety of potential 

future domestic violence victims by decreasing such a defendant's access to 

lethal force.  Felix, 125 Wn. App. at 581.    

       In summary, neither Padilla nor the more recent right to bear arms case 

law justifies a different conclusion than the one this court reached in Felix.  It is 

not punishment to forbid a misdemeanant convicted of a domestic violence 

assault from possessing firearms.  Following Felix, we conclude Divsar was not 

subjected to additional punishment, the domestic violence designation was not 

an element, the essential elements rule has no application, and the information 

was not deficient.  

                      Firearm ineligibility -- a status, not a court order

       Divsar also contends the court lacked authority to prohibit him from 

possessing a firearm because the conclusions of law entered by the trial court 

did not establish that the State proved domestic violence.  

       He starts from a false premise.  The court did not prohibit Divsar from 

possessing a firearm.  The court simply notified him that he had lost his right to 

possess firearms.  That prohibition is imposed by statute.  Divsar's status as a 

misdemeanant convicted of a domestic violence is what makes him, like a 

convicted felon, now subject to charge and punishment for unlawful ownership, 

possession or control of any firearm.  See Schmidt, 143 Wn.2d at 676.  The

court was not required to conclude that the State proved domestic violence 

because, as discussed above, domestic violence was not an element.  

                                           10 

No. 66373-9/11

       The statute that makes Divsar ineligible to possess firearms is RCW 

9.41.040(2)(a)(ii).  Divsar contends the statute violates both the Second 

Amendment and article I, section 24.  Even though he did not make this 

argument below, he contends the argument is properly before this court under 

the rule that illegal or erroneous sentences may be challenged for the first time 

on appeal.  State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008).  

       The notice given to Divsar by the court was not part of his sentence.  It 

was not even a court order.  See State v. Hunter, 147 Wn. App. 177, 186, 195 

P.3d 556 (2008) (reasoning firearm notification was not a ruling by the trial 

court), reversed on other grounds, State v. R.P.H., 173 Wn.2d 199, 265 P.3d 

890 (2011).  Because there is no court ruling or sentence to which Divsar has 

assigned error, his appeal is not a suitable vehicle for a constitutional challenge 

to the statute.  

       Affirmed.

WE CONCUR:

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No. 66373-9/12

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