Opinion
No. 60908-4-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-01208-3, Christopher A. Washington, J., entered October 23, 2007.
Affirmed by unpublished opinion per Leach, J., concurred in by Agid and Ellington, JJ.
David McNulty was convicted of taking a motor vehicle without permission in the second degree. He challenges the order setting restitution, arguing that, as a mere passenger in the vehicle, he should not be held liable for the full amount of damage to the vehicle. We affirm.
Background
McNulty was a passenger in a stolen 1991 Honda Civic driven by David Lancaster. At trial, McNulty argued that he did not know the vehicle was stolen. Lancaster testified that he had obtained the car from his girlfriend, Unique Menniger.
Menniger was the former live-in caretaker for Robert Gauthier, the car's owner. When she lived with him, Gauthier frequently allowed Menniger to drive his car to perform errands for him. Menniger and Gauthier remained friends after he moved to a nursing home in Bremerton. One day in January 2007, Menniger visited Gauthier and, without permission, took Gauthier's car keys, got in his car, and drove it away. Gauthier called police and reported the car stolen.
Lancaster testified that he believed Menniger had permission to use the vehicle. He had driven Gauthier's vehicles in the past, so when Menniger went to jail on an unrelated charge, Lancaster continued to drive Gauthier's car. Lancaster testified that he knew he did not have permission to drive the car, but he did not think the car was reported stolen because Menniger had permission to drive it. To explain the punched ignition, Lancaster testified that a friend of Menniger's had punched it for her because she had lost the keys to the car.
Lancaster testified that the night he was arrested, he saw McNulty standing on the side of the road as he was driving along on Pacific Highway in Des Moines. He knew McNulty, so when McNulty waved at him, he picked him up and offered to give him a ride. However, on the way to McNulty's destination, Lancaster first stopped to pick up another passenger, Alicia Sherrington. Immediately after Sherrington got in the car, a police officer pulled up behind them.
The police officer ran the license plate number and discovered the vehicle was reported stolen. After McNulty, Lancaster, and Sherrington were arrested, police searched the car and discovered the ignition switch sitting on the driver's side floorboard. There were pry marks around the steering wheel and ignition switch area, and the ignition had been altered so the car could be driven without a key. The owner of the car testified that when it was returned to him, the stereo was missing, loose wires were hanging from the dash, and several items were missing from the trunk.
McNulty was convicted by a jury of one count of taking a motor vehicle without permission in the second degree and given a special drug offender sentencing alternative (DOSA). He was also ordered to pay $2,021.73 in restitution to the owner of the car. At the restitution hearing, he argued that he should not be liable for any of the damages because he was merely an unknowing passenger and had a minimal role in the crime. He now challenges the restitution order, arguing that the sentencing court erroneously believed it did not have discretion to impose a lesser amount of restitution.
Standard of Review
We review an order of restitution for abuse of discretion and will not reverse a restitution order unless it is manifestly unreasonable or based on untenable grounds or reasons.
State v. Enstone, 137 Wn.2d 675, 679-80, 974 P.2d 828 (1999).
Discussion
Restitution in criminal cases is governed by RCW 9.94A.753(5), which provides that
[r]estitution shall be ordered whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property . . . unless extraordinary circumstances exist which make restitution inappropriate in the court's judgment and the court sets forth such circumstances in the record.
This statute "allows the judge considerable discretion in determining restitution, which ranges from none (in some extraordinary circumstances) up to double the offender's gain or the victim's loss." Before ordering restitution, a trial court must find that a victim's injuries were causally connected to the defendant's crime.
State v. Kinneman, 155 Wn.2d 272, 282, 119 P.3d 350 (2005) (citing State v. Hughes, 154 Wn.2d 118, 153, 110 P.3d 192 (2005), overruled on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006)).
Enstone, 137 Wn.2d at 682.
McNulty was convicted of taking a motor vehicle without permission in the second degree contrary to RCW 9A.56.075. A person may commit that crime either by unlawfully taking a motor vehicle or by voluntarily riding in the vehicle with knowledge that it was unlawfully taken. A passenger convicted of taking a motor vehicle without permission is as liable for the damages as a driver convicted of the same crime.
State v. Keigan C., 120 Wn. App. 604, 607, 86 P.3d 798 (2004).
In State v. Hiett, two passengers who had been convicted of taking a motor vehicle challenged the trial court's restitution order holding them jointly and severally liable for all damages incurred as a result of the crime. They argued that they were liable only for the damage they actually caused while committing the crime. Our Supreme Court held that the relevant causal connection was between the damage and the committed offense, not merely between the damage and each participant's individual conduct while committing the offense. Thus, all defendants convicted of the crime were jointly and severally responsible for the restitution. Hiett is dispositive here because McNulty was convicted of the crime and is therefore jointly and severally liable for the damages, even if his role in the crime was as minor as he claims it was. Therefore, holding McNulty liable for the entire amount of restitution was well within the trial court's discretion.
154 Wn.2d 560, 115 P.3d 274 (2005).
Hiett, 154 Wn.2d at 562.
Hiett, 154 Wn.2d at 564.
Hiett, 154 Wn.2d at 564.
In State v. Keigan C., a consolidated appeal of three juvenile joyriding convictions, this court held convicted passengers jointly and severally liable with the drivers for all the damages caused by the crime. Without distinguishing Keigan C., McNulty urges a different result in his case. He argues that the sentencing judge was unaware of the following statement made by this court in Keigan C.: "A trial judge conceivably might, depending on the facts of a joyriding case, decide that the damage incurred is so remote from the participation of a passenger that it is not causally connected to the crime charged against the passenger." Because the trial court was unfamiliar with this dicta statement from this court, McNulty argues, the trial court did not know it had discretion to order him to pay less than the entire amount of damages in restitution. We disagree.
120 Wn. App. 604, 86 P.3d 798 (2004).
Keigan C., 120 Wn. App. at 609.
At the restitution hearing, McNulty argued that the court has broad discretion in setting the amount of the restitution and that he should not have to pay any restitution because there was no causal connection between his conduct and the damage to the car. The court responded,
Under the law I believe that a person who does make the decision to involve himself in what is a criminal act does take responsibility for the damage to the vehicle. The only thing that causes me pause is, but not enough to change my mind, is that I'm sometimes reluctant to put any more pressures or difficulties on a person who is already working pretty hard to get himself straightened out as I hope Mr. McNulty is.
I guess if the damages were a lot more I might have more pause, but this would be probably a good reminder, a continuing reminder of the importance of not getting in stolen cars or taking cars and I hope Mr. McNulty takes it to heart.
The trial court's response demonstrates that he found a causal connection between the crime of which McNulty was convicted and the damages. It also demonstrates that the trial court would have considered ordering a lesser amount if the amount of damages was much greater, indicating that the trial court was aware that it had discretion in setting the amount of restitution.
McNulty makes much of the trial court's attempt to clarify defense counsel's position. The trial court asked:
Do you think that's actually a legal basis for the Court not ordering restitution if a codefendant in this case didn't actually — if I make the finding that he didn't do the damage that I have discretion to say that a person who is charged with riding in that vehicle need not be responsible for restitution?
McNulty argues that this question shows that the trial court did not believe it had discretion not to order restitution. However, the question was posed in the context of clarifying the defendant's position and does not demonstrate that the trial court made an error of law.
Furthermore, the trial court's discretion not to order restitution is limited. RCW 9.94A.753(5) provides that "[r]estitution shall be ordered . . . unless extraordinary circumstances exist which make restitution inappropriate in the court's judgment and the court sets forth such circumstances in the record." (Emphasis added.) This court in Keigan C. stated that restitution may not be ordered only when "the damage incurred is so remote from the participation of a passenger that it is not causally connected to the crime charged against the passenger." Here, there are no extraordinary circumstances, and the damage incurred is causally related to the crime McNulty was convicted of. The trial court appropriately ordered McNulty jointly and severally liable for the full amount of restitution.
Keigan C, 120 Wn. App. at 609.
Affirmed.
WE CONCUR.