Opinion
No. 60921-1-I.
March 16, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-00218-3, David A. Kurtz, J., entered October 22, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
In violation of a protection order, John Foreman entered Jennifer Lynch's apartment and took $850 and Lynch's bank card, which he used to purchase $367 worth of video games. Foreman pled guilty to extortion and violating a protection order and agreed to pay restitution for losses caused by those crimes. After a hearing, the trial court found that Foreman's protection order violation caused Lynch $1,217.23 in damages and ordered Foreman to pay that amount. Because the trial court ordered restitution for losses causally connected to the crimes charged, we affirm.
FACTS
On October 24, 2007, Jennifer Lynch reported that John Foreman, her live-in boyfriend, was violent, abusive, and tried to make her swallow cleaning products. Lynch got a domestic violence protection order against Foreman, which the police served on October 25, 2007. On October 27, 2007, Foreman called Lynch and told her he would kill her unless she gave him the personal identification number for her bank card. She did not give him the number. Soon after, her bank called to notify her that she had unusual activity on her account. After driving to her bank branch with her father, she learned that someone had used her card to purchase $367.23 worth of Microsoft X-box games. A police investigation showed that Foreman had purchased the games. Lynch returned to her apartment with her father, where she discovered that she was missing her bank card and $850 in cash. Foreman was the only other person who had a key to her apartment.
The State charged Foreman with extortion and a domestic violence court order violation. The State alleged that he violated the protection order by having prohibited contract with Lynch and being at a residence from which he was excluded. In February 2007, the court entered an agreed omnibus order under CrR 4.5 setting a date to arraign on amended information. The order noted that the State notified Foreman that it would add "ID Theft/Theft/PSP/Forgery" at trial if he did not accept its plea offer.
Foreman pled guilty as charged and agreed to pay restitution for the charged counts as part of the plea arrangement. During the sentencing hearing, Foreman's lawyer said that "[h]e will be agreeing to pay restitution . . . and the prosecutor has just refreshed my memory that the amount of money [at] issue here is about $850."
At the October 19, 2007 restitution hearing, the State asked for $1,291.22 in restitution. Foreman's counsel stated, "I don't believe that the loss the State is asking for restitution for [is] a direct result of the charge that Mr. Foreman pled guilty to." The State put a police narrative into evidence and called Lynch, who testified about her losses. The trial court found: "It is reasonable to infer that at some time after the protection order is obtained he goes into the apartment, which he had a key for, in violation of that protection order, and obtains from one book the debit card and from another book the $850 cash." The court also found that "pursuant to his violation of the no-contact order and subsequent to that, the defendant did obtain both from books in her apartment $850 cash along with the debit card, which he ultimately was able to use to access $367.23 worth of services." Accordingly, the court ordered $1,217.23 in restitution. The trial court found that Lynch did not suffer any losses as a result of the extortion count.
The court did not include charges to the bank card that were made before the protection order went into effect.
DISCUSSION
Foreman claims that the trial court abused its discretion by ordering restitution for theft-based losses when he pled guilty only to extortion and violating a protection order. The State argues that the trial court was authorized to order restitution for the losses it found were a result of the protection order violation. The authority to order restitution is derived from statute. "When the particular type of restitution in question is authorized by statute, imposition of restitution is generally within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion."
State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).
State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).
Violation of a domestic violence protection order is a gross misdemeanor. RCW 9.92.060(2) and RCW 9.95.210(2) authorize restitution awards for misdemeanor offenses. RCW 9.92.060(2) allows the superior court to require "restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question" as a condition to suspension of a sentence. RCW 9.95.210(2) allows the superior court to require "restitution to any person or persons who may have suffered loss or damage by reason of the commission of the crime in question" as a condition of probation.
RCW 26.50.110(1).
State v. Soderholm, 68 Wn. App. 363, 377, 842 P.2d 1039 (1993). Foreman cites to RCW 9.94A.753 as the statute authorizing restitution. But the Sentencing Reform Act of 1981, chapter 9.94A RCW, only applies to felonies. State v. Marks, 95 Wn. App. 537, 539, 977 P.2d 606 (1999). RCW 9.94A does not apply here because the trial court imposed restitution based on a misdemeanor only — Foreman's domestic violence protection order violation.
Restitution is allowed only for losses that are "causally connected" to the crimes charged. Losses are causally connected to the crimes charged when the loss would not have occurred but for the crime. "In determining whether a causal connection exists, we look to the underlying facts of the charged offense, not the name of the crime to which the defendant entered a plea." Here, the trial court found that Foreman obtained Lynch's $850 and bank card "pursuant to his violation of the no-contact order." Foreman does not assign error to this finding, and unchallenged findings of fact are verities on appeal. Accordingly, the trial court did not abuse its discretion by ordering restitution for losses that the trial court found were causally connected to the crime to which Foreman pled guilty.
State v. Kinneman, 155 Wn.2d 272, 286-88, 119 P.3d (2005); see also RCW 9.92.060(2) (authorizing restitution for loss suffered by reason of commission of crime) and RCW 9.95.210(2) (same).
Kinneman, 155 Wn.2d at 287 (approving application of "but for" inquiry to determine causation) (citing State v. Wilson, 100 Wn. App. 44, 50, 995 P.2d 1260 (2000)).
State v. Landrum, 66 Wn. App. 791, 799, 832 P.2d 1359 (1992).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Even if Foreman had challenged the trial court's findings, those findings are supported by substantial evidence. See State v. Pollard, 66 Wn. App. 779, 785, 834 P.2d 51, review denied, 120 Wn.2d 1015 (1992) (amount of restitution must be supported by substantial credible evidence). Here, the police narrative and Lynch's testimony support the court's findings that Foreman entered Lynch's apartment while the protection order was in effect.
Foreman argues that the trial court improperly imposed restitution for acts connected with a crime, when those acts were not part of the charge. But here the State alleged that Foreman violated the protection order by calling Lynch and entering her apartment. While he was in her apartment in violation of the protection order, the trial court found that Foreman took $850 and the bank card with which he bought the video games. Thus, the trial court properly ordered restitution for losses caused by acts that were part of the charge. That the acts also could have formed the basis for additional charges does not invalidate the restitution order.
See State v. Johnson, 69 Wn. App. 189, 191, 847 P.2d 960 (1993) ("[a] defendant may not be required to pay restitution beyond the crime charged or for other uncharged offenses."); State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993) ("[r]estitution cannot be imposed based on the defendant's `general scheme' or acts `connected with' the crime charged, when those acts are not part of the charge.") (quoting State v. Harrington, 56 Wn. App. 176, 179, 782 P.2d 1101 (1989)).
As additional grounds for upholding the trial court's order, the State argues that Foreman agreed to pay restitution. A defendant may be required to pay restitution for losses caused by uncharged crimes if the defendant expressly agrees to pay as part of a plea agreement. Here, Foreman expressly agreed to pay restitution for the charged counts, and he agreed at the sentencing hearing to pay about $850 in restitution. Thus, even if the trial court had not found that Lynch lost $850 because Foreman entered her apartment in violation of the protection order, the portion of the order awarding restitution for that loss would be supported by Foreman's sentencing hearing agreement. Because the record does not show that Foreman agreed to pay the additional $367, we would still have to determine whether Lynch lost $367 because Foreman violated the protection order to affirm the trial court's order. Accordingly, we affirm the trial court's order on the ground that Foreman's crime was causally connected to Lynch's loss and not on the ground that Foreman agreed to pay.
Johnson, 69 Wn. App. at 191.
We affirm.