No. 47105-8-I.The Court of Appeals of Washington, Division One.
Filed: May 21, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Whatcom County, No. 99-8-00818-7, Hon. Charles R. Snyder, July 28, 2000, Judgment or order under review.
Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.
Oliver R. Davis, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), David S. McEachran, Whatcom County Prosecuting Attorney, 311 Grand Ave, Bellingham, WA 98225-4048.
Royce S. Buckingham, Whatcom Co Prosc Atty Ofc, 311 Grand Ave, Bellingham, WA 98225.
PER CURIAM.
On a summer night at Birch Bay, in Whatcom County, an argument between P.S. and R.A. over a stolen stereo escalated to a fist fight. B.D. was in a crowd of young people watching the incident. While the two boys were on the ground, B.D. began to kick R.A. in the face. P.S. was initially charged with second degree assault, but pled guilty to fourth degree assault. The trial court ordered him to pay restitution for the injuries caused by B.D.’s assault. P.S. appeals, arguing that the State failed to prove a causal connection between P.S.’s assault and R.A.’s injuries, and that P.S. did not agree to pay restitution for injuries caused by uncharged offenses. We agree and vacate the restitution order.
FACTS
R.A. suffered a fractured jaw and two loose teeth when B.D. kicked him in the face. The State initially charged P.S. with one count of second degree assault based on information that P.S. and B.D. arrived at Birch Bay together and acted together during and after the assault. But after further investigation the State amended the charge against P.S. to fourth degree assault. P.S. pled guilty to this charge.
At the plea hearing, defense counsel stated that the investigation revealed P.S. did not arrive with B.D., did not discuss any assault with him, and did not encourage him to kick R.A. The State did not contest these statements: in fact, the prosecutor said that one thing is clear and that’s that whoever threw the first punch, [P.S.] was there in a fist fight. He’s not the one that escalated this to an assault second. It’s pretty clear somebody stepped in and took the opportunity to get some cheap shots in and uh, really vicious ones at that. And so, I believe that an assault fourth is appropriate here.
But the trial court stated that P.S. `initiated that whole thing’, and said, `Would [the injuries] have gotten there without you starting this? No, I don’t think so.’
At the restitution hearing, defense counsel argued that restitution was not required because the evidence showed that P.S. and B.D. did not act together and that R.A.’s injuries were not caused by P.S.’s assault. The prosecutor argued that restitution was appropriate because, but for P.S.’s assault, B.D.’s assault would not have happened. He also argued that B.D.’s assault was foreseeable under the circumstances, since P.S. should have known people standing around might have joined in the fight. The court found that there was a factual basis for imposition of joint and several liability because the injuries were extreme and would not have happened without P.S. starting the argument. The court entered an order of restitution for R.A.’s medical expenses.
DISCUSSION
P.S. argues that R.A.’s injuries were unrelated to P.S.’s assault and the trial court erred in ordering restitution for them. We agree.
A trial court’s authority to impose restitution is limited by statute.[1]
The juvenile restitution statute provides that 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. In addition, restitution may be ordered . . . if the offender agrees [to pay]. . . . If the respondent participated in the crime with another person or persons, all such participants shall be jointly and severally responsible for the payment of restitution.[2]
Where a court is authorized by statute to order restitution, its decision is reversible where it is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.[3]
The reasons for juvenile restitution are to make the offender accountable for his crimes and to compensate victims.[4] Therefore, a juvenile defendant cannot be made to pay restitution for uncharged offenses.[5] Restitution must be based on a causal connection between the precise offense charged and the injuries suffered; foreseeability is not an element.[6] A court cannot impose restitution for a defendant’s general criminal scheme or for acts connected with the crime charged where they are not part of the charge.[7] A restitution order violating these principles is void.[8]
The State relies on several cases in arguing that there was a causal connection between P.S.’s assault and R.A.’s injuries. In State v. Blair[9]
several juveniles stole a car and later abandoned it. When the car was found, some of the owner’s personal property was missing. The court imposed restitution for the property because it was foreseeable that the theft would occur. In State v. Harrington,[10] a juvenile stole a car. The court imposed restitution for damage to the car because it was continuously in the juvenile’s possession and the damage was foreseeable. In State v. Barrett,[11] a juvenile pleaded guilty to taking a motor vehicle without permission. The court imposed restitution for damage to the car because the damage occurred while the defendant was a passenger.
In this case, however, the first assault was completed before the second began. This case is similar to Miszak, where a defendant pleaded guilty to theft. In his plea statement, he admitted taking one item of jewelry. At sentencing, the State introduced evidence that 13 items of jewelry had been taken. The trial court imposed restitution for all 13 items. On appeal, the court reversed the restitution order because the State did not prove all the losses resulted from the offense charged.[12]
The court said that it was significant that Miszak admitted taking only one item and did not agree to pay restitution beyond the scope of the crime charged.
Similarly, in State v. Tindal,[13] a defendant was charged with using a stolen credit card at a particular gas station. The court on appeal held that he could not be required to pay restitution for charges at a different gas station because they were not included in the charged offense. And in State v. Dauenhauer,[14] a defendant was charged with burglary of three storage units. The court held that he could not be required to pay restitution for damages caused when he drove through a fence and hit a truck in his attempt to escape because these damages were not part of the burglary charge. Although the State initially charged P.S. with second degree assault, it amended the charge to fourth degree assault. The State did not charge P.S. with second degree assault as an accomplice. In his plea statement, P.S. admitted only to falling on R.A. The State agreed that P.S. did not inflict R.A.’s injuries and admitted that B.D. intervened in the confrontation, escalating it to second degree assault. P.S. did not agree to pay any restitution; in fact, his attorney vigorously argued that it would be improper to order him to pay restitution under the circumstances.
CONCLUSION
The State failed to establish a causal connection between P.S.’s assault and R.A.’s injuries. As a result, the trial court lacked authority to order P.S. to pay restitution. We therefore vacate the restitution order. For the court: