No. 48874-1-I.The Court of Appeals of Washington, Division One.
Filed: May 20, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 018014333, Hon. James D. Cayce, June 22, 2001, Judgment or order under review.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
David B. Koch, Nielsen Broman Koch Pllc, 810 3rd Ave Ste 320, Seattle, WA 98104.
Jennifer K. Gilman, 1000 2nd Ave Ste 3500, Seattle, WA 98104.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Barbara A. Flemming, W 554 King Co Crthouse, 516 Third Avenue, Seattle, WA 98104.
PER CURIAM.
D.G. appeals the juvenile court’s order that he pay restitution to his assault victim’s mother for wages lost when she transported the victim to his medical appointments. Because the wages at issue were not lost as a result of physical injury, the sentencing court exceeded its statutory authority and we reverse.
FACTS
While walking down the hall at Kentwood High School, Michael Kertzman bumped into David Gilmore. Gilmore grabbed Kertzman and punched him in the face, causing substantial injury. The State charged Gilmore with assault in the third degree. As a condition of his deferred disposition, the trial court ordered Gilmore to pay restitution of $917.30 for wages lost by the victim’s mother, Katherine Kertzman, when she accompanied her son to medical appointments following the assault.[1]
The court based the lost wages award on the State’s representation at the restitution hearing that the Juvenile Justice Act (JJA) defines `victim’ to include a parent or guardian of a victim who is a minor child. Gilmore objected. On appeal, Gilmore argues that Mrs. Kertzman lost wages as a result of her decision to transport her son, not as a result of a physical injury, and was therefore not entitled to restitution for lost wages. Gilmore also argues that the court erred by relying on the State’s definition of `victim’ at the restitution hearing. Abandoning its earlier argument, the State contends that restitution is appropriate because Mrs. Kertzman lost wages as a direct result of an offense involving physical injury to her minor child.
DECISION.
We review a restitution order entered in juvenile court to determine whether the restitution imposed was authorized by statute.[2] In general, the juvenile court must order juvenile offenders `to make restitution to any persons who have suffered loss or damage as a result of the offense committed.’[3] The term `restitution’ is defined in RCW 13.40.020(22):
`Restitution’ means financial reimbursement by the offender to the victim, and shall be limited to easily ascertainable damages for injury or loss of property, actual expenses incurred for medical treatment for physical injury to persons, lost wages resulting from physical injury, and costs of the victim’s counseling reasonably related to the offense if the offense is a sex offense. Restitution shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses. Nothing in this chapter shall limit or replace civil remedies or defenses available to the victim or offender. . .[emphasis added]
Relying on State v. Hefa, Gilmore contends restitution for lost wages may only be ordered when the victim loses wages as a direct result of a physical injury. We agree. In Hefa, the trial court ordered restitution for lost wages for a burglary victim who missed work to recover lost property and repair his home.[4] This court reversed the restitution for lost wages, holding that the only kind of lost wages that may be the proper object of restitution are those resulting from physical injury.[5] We stated:
The statute clearly states that restitution “shall be limited to”, among other things, “lost wages resulting from physical injury. . .”. The statute’s list of allowable items of restitution thus purports to be exclusive. In addition, the fact that the Legislature singled out only one type of lost wages as a proper object of restitution evidences an intent to exclude all other types of lost wages.[6]
Because the burglary victim’s losses were not caused by a physical injury, but resulted from his decision to miss work in order to assess and repair the damage, he was not entitled to lost wages.[7]
We reject the State’s argument that Hefa simply limits lost wages restitution to cases involving physical injury. The State’s reliance o State v. Barr[8] and State v. Forbes[9] is also misplaced, as neither case included restitution for lost wages. Here, Mrs. Kertzman did not lose wages as a result of a physical injury. She was not injured. Her decision to take her son to his medical appointments, while laudable, does not establish lost wages resulting from physical injury. The juvenile court lacked authority to order restitution for lost wages in this case. Although it is not necessary for us to reach the issue, we agree with Gilmore’s contention that the definition of “victim” identified by the State at the restitution hearing and relied upon by the trial court is limited to the Special Sex Offender Disposition Alternative (SSODA) and does not apply in this case. RCW 13.40.160
prescribes juvenile sentencing options including the SSODA. RCW 13.40.160(3) provides for treatment for juvenile sex offenders and includes the following language:
For purposes of this section, “victim” means any person who has sustained emotional, psychological, physical, or financial injury to person or property as a direct result of the crime charged. “Victim” may also include a known parent or guardian of a victim who is a minor child unless the parent or guardian is the perpetrator of the offense.
The phrase “for purposes of this section” clearly limits the use of this expanded definition of victim to sex offenses treated under the SSODA. To the extent it was necessary to determine whether Mrs. Kertzman was a victim, the court should have considered whether she “suffered loss or damage as a result of the offense committed,” as provided by RCW 13.40.190..
We reverse the portion of the order of restitution relating to lost wages and remand for a reduction of the restitution amount consistent with this opinion.