¶37 (dissenting) — As the majority points out, the Tacoma Municipal Court order here does not mention the firearm prohibition. While the order fails to inform Robert Charles Breitung of the prohibition, it does not affirmatively mislead him, and thus, reversal of his conviction for unlawful possession of a firearm is not warranted. State v. Minor, 162 Wn.2d 796, 803, 174 P.3d 1162 (2008); State v. Carter, 127 Wn. App. 713, 720-21, 112 P.3d 561 (2005).
¶38 I understand the justice of the majority’s decision but fail to see the precedent for it. If the legislature wishes to restrict convictions to those who have been warned, it may do so. Lacking that, the usual rule prevails and Breitung’s ignorance of the law is no excuse.
¶39 Because I would affirm the firearm conviction, my analysis of the effective assistance of counsel issue also differs from the majority. The majority correctly states the factors we should consider to gauge whether a tactical decision not to request a lesser included offense instruction is sound or legitimate: (1) The difference in maximum penalties between the greater and lesser offenses; (2) whether the defense’s case theory is the same for both the greater and lesser offenses; and (3) the overall risk to the defendant, given the totality of the developments at trial. State v. Grier, 150 Wn. App. 619, 640-41, 208 P.3d 1221 (2009) (citing State v. Pittman, 134 Wn. App. 376, 387-88, 166 P.3d 720 (2006); State v. Ward, 125 Wn. App. 243, 249-51, 104 P.3d 670 (2004)).
¶40 Since Breitung admitted to the firearm possession, he was likely to be convicted of that offense, which carried a *626standard sentencing range of 9 to 12 months. Thus, Breitung was facing significant incarceration time even without the second degree assault convictions. This lessens the impact of the first and third Grier factors. As to the second Grier factor, related to the defense’s case theory, Breitung’s counsel had a difficult chore. The idea that Breitung decided to approach and threaten the victims with a microscope lens is implausible to the point of being comedic. Even if this story made any initial sense, the gun the victims described matched one of the firearms Breitung’s girl friend produced.
¶41 Faced with overwhelming evidence, defense counsel’s strategy made little difference. Applied here, the Grier factors do not demonstrate ineffective assistance of counsel. In addition, two other factors are noteworthy. First, many defendants prefer prison time to a long spell in county jail and Breitung may be one of them. Thus, the prospect of a 13 to 17 months’ prison sentence may have been preferable to a 9 to 12 months’ stay in the county jail. Second, we should be cautious to not interfere with defendants’ right to control their case’s presentation. Otherwise, trial judges seeking to prevent error will impose jury instructions on defendants who have made an informed choice to take a tactical risk. I would affirm.