Opinion
No. 26373-4-II.
Filed: December 21, 2001. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County, No. 008011391, Hon. Paul M. Boyle, August 7, 2000, Judgment or order under review.
Counsel for Appellant(s), Mary K. High, Attorney At Law, 109 Tacoma Ave N, Tacoma, WA 98403.
Patricia A. Pethick, Attorney At Law, P.O. Box 111952, Tacoma, WA 98411-1952.
Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Dep Pros Atty, Rm 946, 930 Tacoma Ave, Tacoma, WA 98402-2171.
Heaven Dametria Kelly and Rose Marie Lloyd, both juveniles, challenge restitution orders imposed following entry of deferred dispositions to the charge of taking a motor vehicle without permission.
The trial court ordered them to pay restitution for damage caused by the car in which they were riding as passengers. On appeal, they argue that there was no causal relationship between their offense and the victim's loss, and (2) there was insufficient proof to establish the restitution amount. We affirm.
Facts
On May 9, 2000, 13-year-old Tierra Young took her mother's car without permission and drove it to a Texaco gas station. Three other juveniles were in the car, including then 13-year-old Heaven Kelly and 11-year-old Rose Marie Lloyd.1 Young hit a gas pump with the car when she was backing up.
The State charged Heaven Kelly and Rose Marie Lloyd with taking a motor vehicle without permission. The declaration of probable cause included an estimate from the manager of the Texaco gas station that "the pump handle [may] cost $129.90 to repair and the sheet metal damage to the pump may cost between $200 to $300 if they cannot straighten out the damaged panels." Clerk's Papers at 2; Clerk's Papers at 4.2 Kelly and Lloyd each pleaded guilty to the charge and moved for deferred disposition. At separate hearings, the juvenile court granted their deferred disposition motions.
Kelly was born February 13, 1986; Lloyd was born January 23, 1988.
"1CP" refers to the clerk's papers in Kelly's case; "2CP" refers to the clerk's papers in Lloyd's case.
At Kelly's dispositional hearing held July 7, 2000, the State requested $498.78 in restitution for damage caused to the gas pump. Kelly objected and argued that, as a passenger, she was not liable for damage caused by the driver. Though she challenged the imposition of restitution, she did not object to the amount and her counsel stated: "the actual amount is not being disputed. I don't believe [Kelly's] family believes it is unreasonable, as far as the amount. So that issue is not an issue." Report of Proceedings (Jul. 7, 2000) at 15. The court did not decide restitution at that time but set the matter for a later hearing.
At Lloyd's dispositional hearing held July 18, 2000, the State requested restitution in the amount of $490.78 for damage to the gas pump. The court asked Lloyd about her ability to pay restitution if it were imposed and she responded that she could earn money working around the neighborhood to make the payments. Lloyd did not object to restitution at this hearing.
The slight variance between the amounts requested by the State at the dispositional hearings is immaterial to the issues before this court and the juvenile court imposed the lower amount of $490.78.
At the joint restitution hearing held August 7, 2000, Kelly and Lloyd both objected to restitution. They argued that because they were passengers, there was no causal connection between the offense of taking a motor vehicle without permission and the damage to the gas pump. The court rejected their argument and ordered $490.78 in restitution "to be made joint and several" with the other two juvenile respondents, the driver (Young) and the third passenger. 1 Clerk's Papers at 41; 2 Clerk's Papers at 23 (capitals omitted). Kelly and Lloyd appeal.
Analysis
The power to impose restitution derives entirely from statute. RCW 13.40.190; State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991). The juvenile restitution statute, RCW 13.40.190, states in pertinent part that:
In its dispositional order the court shall require the respondent to make restitution to any persons who have suffered loss or damage as a result of the offense committed by the respondent. . . . If the respondent participated in the crime with another person or other persons, all such participants shall be jointly and severally responsible for the payment of restitution.
A sentencing court must find that the victim's loss was causally connected to the crime before ordering restitution. State v. Enstone, 137 Wn.2d 675, 682, 974 P.2d 828 (1999); see also State v. Hunotte, 69 Wn. App. 670, 674, 851 P.2d 694 (1993). In Hunotte, we adopted Division One's approach in deciding whether the restitution order is within the court's authority. Hunotte, 69 Wn. App. at 676 (citing State v. Blair, 56 Wn. App. 209, 214-15, 783 P.2d 102 (1989)). We use a "but for" factual test to determine whether a causal link exists between the crime and the victim's loss. Hunotte, 69 Wn. App. at 676.
Kelly and Lloyd contend that there was no causal link between Texaco's loss and their "precise offense" of taking a motor vehicle without permission, and they rely on our decision in State v. Woods, 90 Wn. App. 904, 953 P.2d 834, review denied, 136 Wn.2d 1021 (1998). Br. of Appellants at 4. In Woods, the loss in dispute occurred before the defendant's crime. Woods, 90 Wn. App. at 908. Woods pleaded guilty to possession of stolen property, a car, which had been stolen one month before he took possession. Woods, 90 Wn. App. at 908. The court ordered restitution for the victim's loss of personal property located inside the vehicle at the time it was stolen. Woods, 90 Wn. App. at 906. Under those facts, we held that the link between the victim's loss of personality one month before Woods' possession of the car was too tenuous to establish the causal relationship between the charged crime and the victim's loss. Woods, 90 Wn. App. at 909-10. In contrast, here, there is no temporal gap between the offense and the damage; undisputedly, Kelly and Lloyd were riding in the car when it hit the gas pump. Because of this factual distinction, their reliance on Woods is misplaced. Additionally, that Kelly and Lloyd were passengers does not attenuate the causal link between the damage to the gas pump and their offense. They appear to argue that only the driver is liable for restitution and they, as passengers, are excused because they did not control the car. We reject this argument. Although it is true that as passengers they did not have physical control of the car, by voluntarily riding in an unlawfully taken vehicle, with knowledge that the vehicle was taken without permission, they committed the crime of taking a motor vehicle without permission. RCW 9A.56.070(1); State v. Womble, 93 Wn. App. 599, 604, 969 P.2d 1097, review denied, 138 Wn.2d 1009 (1999). Their culpability was equal to that of the driver by the plain language of the statute which proscribes their conduct.
Similarly, State v. Ashley, 40 Wn. App. 877, 700 P.2d 1207 (1985), is distinguishable for the same reason.
RCW 9A.56.070(1) ("every person voluntarily riding in . . . [the] vehicle with knowledge of the fact that the same was unlawfully taken shall be equally guilty with the person taking or driving").
Further, Division One has rejected the same argument under similar facts. State v. Barrett, 54 Wn. App. 178, 179, 773 P.2d 420 (1989). In Barrett, the juvenile defendant, who pleaded guilty to taking a motor vehicle without permission, argued that the court improperly ordered restitution for damage to the car when he was only a passenger. Barrett, 54 Wn. App. at 179. Division One liberally construed language in RCW 13.40.190(1) which requires restitution to "any persons who have suffered loss . . . as a result of the offense committed" and provides for joint responsibility by all participants in the crime. Barrett, 54 Wn. App. at 179 (quoting RCW 13.40.190(1)). It further noted that, under RCW 9A.56.070(1), a person voluntarily riding in an unlawfully taken vehicle violates the statute "as fully as the driver." Barrett, 54 Wn. App. at 179 (quoting RCW 9A.56.070(1)). Based on the language of these statutory provisions, Division One held that a sufficient nexus existed between taking a motor vehicle without permission and the loss to the car's owner. Barrett, 54 Wn. App. at 179.
We adopt Barrett's reasoning. Its analysis is consistent with statutory principles in construing restitution statutes. Statutes authorizing restitution must be interpreted broadly to allow restitution and, as the Supreme Court noted, "the language of this state's restitution statutes indicates a legislative intent to grant broad powers of restitution." State v. Hennings, 129 Wn.2d 512, 519, 919 P.2d 580 (1996).
The portions of RCW 13.40.190(1) pertinent to our analysis and construed in Barrett have not changed.
Here, Texaco's loss would not have occurred but for Kelly and Lloyd's crime. Their passenger status did not diminish their culpability or render them any less responsible than the driver under the restitution statute. Thus, we hold that there is a causal link between the offense and Texaco's loss and, accordingly, the trial court acted within its authority by ordering Kelly and Lloyd to pay restitution for damage to the gas pump.
The State also asserts that the restitution award is proper because Texaco's loss was a reasonably foreseeable consequence of their offense.
Because we conclude that the causal relationship between the offense and the victim's loss has been established, we need not address this point. See Enstone, 137 Wn.2d at 682 (holding foresee ability is not a necessary element of a restitution award).
Kelly and Lloyd also contend, for the first time on appeal, that there is insufficient evidence to prove the restitution because the State did not submit any documentary evidence to support the $490.78 amount. Evidence of proof of loss is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture. State v. Bush, 34 Wn. App. 121, 123, 659 P.2d 1127, review denied, 99 Wn.2d 1017 (1983). The State argues that Kelly and Lloyd waived their claim by failing to object below. We agree.
Both Kelly and Lloyd had the opportunity to, but did not, object at their dispositional hearings when the matter of restitution was discussed and the State submitted an amount. At Kelly's hearing, her counsel expressly stated that there was no dispute over the amount the State requested. And Lloyd personally told the court that she would be able to make restitution payments if the court ordered $490.98 in restitution.
Their objection at the later restitution hearing was limited to the claim of no causal relationship; they did not contest the amount or the sufficiency of the evidence to establish that amount. Moreover, the probable cause declaration included an estimate of Texaco's loss and, by pleading guilty to the charged offense, they acknowledged the stated amount. See State v. Tindal, 50 Wn. App. 401, 403, 748 P.2d 695 (1988) (amount of loss indicated in the certificate of probable cause "becomes fact" by its incorporation by reference in the plea agreement). Thus, on this record, Kelly and Lloyd waived any claim that the restitution amount was not established by sufficient proof. See State v. Branch, 129 Wn.2d 635, 651, 919 P.2d 1228 (1996) (citing State v. Young, 63 Wn. App. 324, 330, 818 P.2d 1375 (1991), and State v. Harrington, 56 Wn. App. 176, 180-81, 782 P.2d 1101 (1989)).
We note that the restitution orders erroneously cite to the adult statute, RCW 9.94.142, rather than the correct juvenile statute, RCW 13.40.190. We do not however find, nor do Kelly and Lloyd argue, any prejudicial error arising from the incorrect reference to the adult statute.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Morgan J. and Seinfeld, concur.