                                                                                                                             FILED
                                                                                                                 C,02, 0F APPEALS
                                                                                                                     j
                                                                                                                     LWYIISION, 11
      IN THE COURT OF APPEALS OF THE STATE OF WASHING, !Q
                                                                                                                         C             9:
                                                        DIVISION II
                                                                                                                 NM V' 4,S11 I I C T0N
STATE OF WASHINGTON,                                                                  No. 43308 -7 -I1_
                                                                                                                         OEF      Y_
                                             Respondent,


            0



RYAN JOSEPH McCARTHY,


                                             0
                                1—
            FEARING, J.              Ryan Joseph McCarthy appeals the trial court' s sentence imposing, as

part of restitution,            the burial   and   funeral   costs of victims shot   by his   accomplice   in   crime.       He


argues that the State was required but failed to show a causal relationship between these costs

and   the   crimes        for   which   he   was convicted.     Because RCW 9. 94A.753( 7) requires that the trial


court   order         a   convicted     defendant to pay,        as restitution, costs paid by the crime victim' s

compensation fund under the name of the defendant, and the trial court need not, under such


circumstances, independently find a causal relationship between these costs and the convictions,

we affirm.



                                                               FACTS


            During the early morning of August 21, 2010, John Booth and McCarthy entered a home

then    occupied          by     David West Sr., David            West Jr.,   Tony   Williams,    and John Lindberg.

McCarthy and Booth sought to extort money from West Sr. because of West Sr.' s agreeing to

testify in      an unrelated case.           West Sr. and Booth spoke outside the house, while McCarthy sat at

the   kitchen table.             West Sr. and Booth returned inside, after which West Sr. walked to his

bedroom          and      grabbed    his     shotgun.   West Sr. then told Booth and McCarthy to leave the
1
    Judge Fearing is a Division Three judge serving with Court of Appeals, Division Two, under
CAR 21(         a).
    No. 43308 -7 -II



    residence.      Booth instead         shot      West Sr., West Jr.,         and       Williams.      Denise Salts entered the


    residence after       hearing     gunshots.       Booth    greeted       Salts   by    asking, " How      you    doing ?"   Clerk' s


    Papers   at   10. He then      shot   Salts in the head.        Salts survived her wounds, but the remaining three

    shooting victims perished. Lindberg, who hid in a bathroom, escaped physically unharmed.

             McCarthy argued below that he passed polygraph tests indicating he was not present in

    the house      when    Booth killed the Wests              and shot      Williams.          Eyewitness Salts disagrees.           She


    reported that       McCarthy      sat at   the table   when      Salts    was shot.      As she lay wounded on the floor,

    she   heard   McCarthy       say, " I don' t think he'     s   dead. Let'    s get out of       here."   CP at 10.


             The State initially charged McCarthy. with three counts of first degree felony murder and

    one   count    of    first degree     extortion.     The State later amended the information to include two


    counts of first degree felony murder, one count of first degree murder, and one count of first

    degree    attempted         extortion.       McCarthy       pleaded       guilty to         first degree robbery,        residential




    burglary,     and attempted       first degree      extortion.     In turn, the State dismissed the murder charges.


    The extortion charge included language that McCarthy or an accomplice threatened West Sr. in

    order    to   gain    his property.          The robbery charge included language that McCarthy or an

1   accomplice,_with intent to commit theft, did unlawfully take personal property from West Sr.

    against his will and that McCarthy or an accomplice was armed with a deadly weapon and did

    inflict injury on West Sr. For the residential burglary charge, the State alleged that McCarthy, or

    an accomplice entered or remained unlawfully in West Sr.' s dwelling with the intent to commit a

    crime.




              As   part    of   the   plea,    McCarthy        acknowledged          the    State   would     seek   restitution.     The


    agreement      did    not   identify      the   specific   costs   McCarthy           was   to pay.      The trial court ordered


                   to pay, in                         5, 750 for the funeral          and       burial   expenses    of   West Jr.,   and
    McCarthy                       restitution, $




                                                                       2
No. 43308 -7 -II


                                                                                                                               2
 819. 25 for the funeral           expenses   of     Williams   paid    by   the    crime victim' s     compensation   fund.


The invoices from the crime victim' s compensation fund listed both McCarthy and Booth as

 offenders"        responsible    for the   costs.    Supplemental Clerk' s Papers           at   94, 102.   The trial court


did not address whether the death expenses were related to McCarthy' s convictions, and thus did

not   determine      whether restitution was appropriate               under    RCW 9. 94A.753( 5).          The trial court


ruled   that   restitution was       appropriate      under   RCW 9. 94A.753( 7), because of the crime victim


fund payment.


         The issue before us is whether a convicted defendant is obligated to pay restitution,

regardless of whether the trial court finds a direct causal relationship between the costs and the

defendant'     s   convictions,     when     costs     were   paid     by    the Department        of   Labor &   Industries


  Department ")        crime victim' s compensation             fund   with   the   defendant'    s name as offender.    We


answer in the affirmative.


                                                         ANALYSIS


          The authority to impose restitution is not an inherent power of the court, but is derived

from    statutes.    State   v.   Gray,   174 Wn.2d 920, 924, 280 P. 3d 1110 ( 2012); State v. Davison, 116


Wn.2d     917,     919, 809 P. 2d 1374 ( 1991)._ A number of statutes address restitution under varying


circumstances.         The controlling       statute   here is RCW 9. 94A. 753.            The statute reads, in relevant


part:




                      3) Except as provided in subsection ( 6) of this section, restitution ordered
          by a court pursuant to a criminal conviction shall be based on easily ascertainable
          damages for injury to or loss of property, actual expenses incurred for treatment
          for injury to persons, and lost wages resulting from injury.

                      5) Restitution 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 or
          as provided in subsection ( 6) of this section unless extraordinary circumstances

2 The State did not seek restitution for any costs incurred with respect to the death of West Sr.,
nor the injuries to Salts.



                                                                 3
No. 43308 -7 -II



          exist which make restitution inappropriate in the court' s judgment and the court
          sets forth such circumstances in the record. In addition, restitution shall be
          ordered to pay for an injury, loss, or damage if the offender, pleads guilty to a
          lesser offense or fewer offenses and agrees with the prosecutor' s recommendation
          that the offender be required to pay restitution to a victim of an offense or
          offenses which are not prosecuted pursuant to a plea agreement.


                       7) Regardless       of   the    provisions     of subsections (    1)   through ( 6)       of this

          section, the court shall order restitution in all cases where the victim is entitled to
          benefits     under    the   crime victims'       compensation       act,   chapter   7. 68 RCW.          If the
          court does not order restitution and the victim of the crime has been determined to
          be entitled to benefits under the crime victims' compensation act, the department
          of   labor     and    industries,     as    administrator    of   the   crime   victims'     compensation


          program, may petition the court within one year of entry of the judgment and
          sentence      for entry     of a restitution      order.      Upon receipt of a petition from the
          department of labor and industries, the court shall hold a restitution hearing and
          shall enter a restitution order.



                       9) ...   The court shall identify in the judgment and sentence the victim or
          victims entitled to restitution and what amount is due each victim.

RCW 9. 94A.753.


          RCW 9. 94A.753( 5) requires that the trial court order restitution whenever the offender is


convicted of an offense that results in injury to any person or damage to or loss of property.

State v. Blanchfield, 126 Wn. App. 235; 240, 108 P. 3d 173, review denied, 155 Wn.2d 1020

 2005).    Under       subsection (    3), the   amount of restitution must          be based     on "`   easily ascertainable


damages for injury to or loss of property, actual expenses incurred for treatment to persons, and

lost   wages      resulting      from     injury. "'      Blanchfield,      126    Wn.    App.    at     240 (    quoting RCW

9. 94A.753( 3)).


          One goal of restitution is to require the defendant to face the consequences of his

conduct.       State   v.   Enstone, 137 Wn.2d 675, 680, 974 P. 2d 828 ( 1999); State v. Dauenhauer, 103


Wn.    App.    373, 378, 12 P. 3d 661 ( 2000),            review    denied, 143 Wn.2d 1011 ( 2001).                The statute is


designed to       promote       respect   for the law       by   providing    punishment       that is    just.    Davison, 116




                                                                  M
         No. 43308 -7 -II



         Wn.2d    at    922. Restitution is both            punitive and      compensatory in          nature.    State v. Kinneman, 155


         Wn.2d 272, 279 -80, 119 P. 3d 350 ( 2005).


                  The Supreme Court twice has impliedly rejected an argument that the restitution statute

         must    be   construed   in favor      of   the defendant because the               statute   is   punitive   in   nature.   Gray, 174

         Wn.2d     at   927; Davison, 116 Wn.2d                  at   919 -20.       Instead, in Davison, the court mentioned that


           t]he very language of the restitution statutes indicates legislative intent to grant broad powers

         of restitution."      116 Wn.2d        at   920.      We will not give the statute an overly technical construction

         that would permit the defendant to escape from just punishment. State v. Tobin, 161 Wn.2d 517,

         524, 166 P. 3d 1167 ( 2007); Davison, 116 Wn.2d at 922; State v. Cosgaya -
                                                                                  Alvarez, 172 Wn.


         App. 785, 791, 291 P. 3d 939, review denied, 177 Wn.2d 1017 ( 2013).

                   McCarthy contends the trial court committed error when failing to address whether the

         death   expenses      were   caused         by   the    conduct    leading        to his   convictions.       When the defendant

         challenges the legal basis for an award of restitution, we do not defer to the trial court.


         According to one decision, when the defendant questions the trial court' s authority to award a

         category       of restitution,   the reviewing court addresses the issue                       de   novo.     State v. Oakley, 158

I __ _   Wn.    App. 544,     552, 242 P. 3d 886 ( 2010),_review denied, 171 Wn.2d 1021 ( 2011).                                 According to :

         another      decision, applying        an   incorrect legal        analysis constitutes an abuse of                discretion. Tobin,


         161 Wn.2d at 523.


                             I. RCW 9. 94A.753( 5) -                  CAUSAL CONNECTION WITH CONVICTIONS


                   A trial    court   typically imposes               restitution     under    RCW 9. 94A. 753( 5).            This subsection


         mandates restitution " whenever the offender is convicted of an offense which results in injury to

         any   person or     damage to     or   loss      of   property."    RCW 9. 94A.753( 5) (            emphasis added).         We do not


         address whether restitution            from      McCarthy        would       be   proper under subsection (         5), since we hold.




                                                                                 5
No. 43308 -7 -II



restitution was proper under subsection (                       7). Nevertheless, we outline subsection ( 5)' s causation


requirement, because McCarthy seeks to attach the same requirement to restitution under

subsection ( 7)..


          Under RCW 9. 94A.753( 5),                     a restitution order must be grounded on the existence of a


causal    relationship between the                crime        charged   and proven and    the     victim' s   damages.     State v.


Griffith,      164 Wn.2d 960,              965,    195 P. 3d 506 ( 2008);           Blanchfield,      126 Wn. App. at 240;

Dauenhauer, 103 Wn.                App.    at   378;    see also    Davison, 116 Wn. 2d       at   919.   Some decisions state


the   rule    that losses   are    causally       connected           but for" the charged crime, the victim would not
                                                                  if, "


have incurred the loss.             Griffith, 164 Wn.2d at 966; Tobin, 161 Wn.2d at 524; Oakley, 158 Wn.

App.     at   552.      Under      subsection (        5), "    restitution cannot be imposed based on a defendant' s


    general scheme' or acts ` connected with' the crime charged, when those acts are not part of the


charge."       Dauenhauer, 103 Wn. App. at 378 ( citing State v. Woods, 90 Wn. App. 904, 907, 953

P. 2d 834,     review     denied, 136 Wn.2d 1021 ( 1998)).                   The losses must be the result of the " precise


offense charged."           Woods, 90 Wn. App. at 907 ( quoting State v. Miszak, 69 Wn. App. 426, 428,

848 P. 2d 1329 ( 1993)).


             Appellate courts repeatedly have reversed trial courts when the costs imposed on the

defendant       were not        directly   related     to the     crime of conviction.     One of our decisions, Oakley, is

illustrative.        158 Wn.      App.     at   544.      Augustus Oakley was convicted of three counts of second

degree       assault and one count of attempted                   drive -by shooting.    Oakley,     158 Wn.    App.   at   549. On


appeal, Oakley argued, among other contentions, that restitution ordered was unrelated to his

convictions. Oakley, 158 Wn. App. at 551.



3
     Although     the    rule    often refers      to the       crime " charged,"   our rulings require that the injury or
damage be the           result of   the    crime   for     which    the defendant is "   convicted."      The initial charges are
immaterial.



                                                                         G
No. 43308 -7 -II



             Oakley called Stephen Lynn and expressed anger at Lynn for snitching. Oakley, 158 Wn.

App.    at   547.    Lynn invited          Oakley      to    a   fight.    Oakley,     158 Wn.       App.    at    547.   Fifteen minutes


later, Richard Taylor and Oakley parked in Oakley' s loud car a block from Lynn' s home.

Oakley,       158 Wn.      App.     at    547.      Lynn and his two older brothers walked to the car and Lynn

encouraged        Oakley     to   exit   the   car and      fight.    Oakley,    158 Wn.      App.     at   547.    Oakley stepped from

the   car and pulled a gun on             Lynn.       Oakley,      158 Wn.      App.   at   547.     The gun misfired. Oakley, 158

Wn. App. at 547. The three Lynn brothers fled home. Oakley, 158 Wn. App. at 548. Taylor and

Oakley       pursued      the Lynn brothers           and    the five      engaged     in fisticuffs in the Lynn           yard.   Oakley,

158 Wn.       App.    at   548.   Afterward, Taylor and Oakley returned to Oakley' s car and drove the car

the block to the Lynn             residence.          Oakley,        158 Wn.     App.   at    548.    As the car passed the home,


Oakley fired        the    gun again,      but the     gun misfired a second                time.    Oakley, 158 Wn. App. at 548.

Cartridges jammed in the                 rifle' s chamber.         Oakley,      158 Wn.      App.    at   548.     Oakley then drove the

loud car into Ross Dejong' s driveway, through an open gate, and struck Dejong' s car and garage

door.    Oakley,      158 Wn.       App.       at   548.    The trial court ordered Oakley to pay $ 3, 872 in restitution

for damage to Dejong' s vehicle and garage. Oakley, 158 Wn. App. at 549.

             We   reversed    the trial     court     in   Oakley.        158 Wn.     App.   at   547. We concluded there was no


causal       connection       between the            crimes —assault            and   attempted        drive -by shooting —and the


damage to         Dejong' s       car    and     garage.         Oakley,       158 Wn.       App.    at   553.      Oakley inflicted the

damages while fleeing the scene of his crimes, but the damage to the garage was not the result of

the    precise      charges   filed.       Oakley,         158 Wn.        App.   at   553.     If Oakley had been convicted of

trespass onto Dejong' s property or reckless driving, he could have been assessed with the costs

to    restore   Dejong' s     property.          Other decisions which require a direct relationship, under RCW

9. 94A. 753( 5), between the convictions and the restitution imposed include Griffith, 164 Wn.2d




                                                                           7
No. 43308 -7 -II



at 967; Dauenhauer, 103 Wn. App. at 378 -79; Woods, 90 Wn. App. at 908 -09; and State v.

Tetters, 81 Wn. App. 478, 481, 914 P.2d 784 ( 1996).

            McCarthy claims that Booth' s shooting of West Jr. and Wiliams was not causally related

to   the    crimes   for    which        he   was    convicted —     first degree robbery, residential burglary, and

attempted extortion.             McCarthy argues that the trial court instead imposed restitution upon some

 loose     sense of general scheme."                Brief   of   Appellant     at     10.    Contrary to McCarthy' s contention,

the trial court did not address whether restitution should be imposed under RCW 9. 94A.753( 5).


The trial court did not address whether the death expenses were causally related to McCarthy' s

convictions. We need not address the applicability of subsection ( 5) either.

                           11.    RCW 9. 94A.753( 7) -             CRIME VICTIMS COMPENSATION


            McCarthy contends that the trial court could not impose restitution upon him, under

RCW 9. 94A.753( 7),              without finding the same causal connection between the death expenses

and   his    convictions         that   is demanded     under subsection (              5)    of   the   statute.   In other words, he


wishes to affix the same causation principles on subsection ( 7) that we impose on subsection ( 5).


We disagree.


            RCW 9.94A.753( 7) reads, in pertinent part:

            Regardless of the provisions of subsections ( 1) through (6) of this section, the
            court shall order restitution in all cases where the victim is entitled to benefits
            under the crime victims' compensation act, chapter 7. 68 RCW.


            A   short review of          the " Crime Victims'         Compensation Act" ( Act) is helpful.                    The Act


provides "      benefits to innocent           victims       of criminal           acts."     Former RCW 7. 68. 030( 1) (       2009).


 Any payment of benefits to or on behalf of a victim under this [ Act] creates a debt due and

owing to the department by any person found to have committed the criminal act in either a civil

or criminal court          proceeding in       which        he   or she   is   a    party."    RCW 7. 68. 120( 1). "      Each victim




                                                                      3
No. 43308 -7 -II


injured      as a result of a criminal act ...                        or the victim' s family or beneficiary in case of death of

the   victim,         are     eligible       for benefits."           Former RCW 7. 68. 070( 1) (              2010).          The Act defines a


  v] ictim" as one " who suffers bodily injury or death as a proximate result of a criminal act of

another person."                RCW 7. 68. 020( 15).                In turn,     a "[ c] riminal act"     includes "      an act committed or




attempted         in this      state which          is:...    punishable as a felony or gross misdemeanor under the laws

of   this   state."      RCW 7. 68. 020( 5).                 The Department administers the crime victim' s compensation


fund. RCW 7. 68. 015.


             McCarthy            cites       State      v.   Thomas,      138 Wn.         App.     78,   155 P. 3d 998 ( 2007), for the


proposition that RCW 9. 94A.753( 7) allows imposition of restitution for payment by the crime

victim fund only upon a finding of a causal connection between the conviction and the victim' s

injury.      But Thomas does                  not support       the    argument.         Sharon Thomas drove her car at a fast pace,


while under             the influence             of alcohol.         Thomas, 138 Wn.              App.   at   80.       A single car accident


injured her           passenger         Jennifer Wohlgemuth.                     Thomas, 138 Wn.          App.      at   80.    A jury convicted

Thomas           of   DUI ( driving           under      the influence),         but acquitted her on charges of vehicular assault.


Thomas, 138 Wn.                  App.        at   81.   The crime victim' s compensation fund paid for the medical bills


Wohlgemuth incurred                     as a result of          the injuries.          The trial court ordered Thomas to pay, under

former RCW 9. 92. 060( 2) ( 2005)                             and     9. 95. 210( 2) ( 2005), the bills as part of her restitution


obligation.             Thomas, 138 Wn.                  App.    at   81 - 82.    Each statute contains a provision allowing the

court       to   require       the defendant to pay "`                  restitution to any person or persons' who may have

suffered         loss   or    damage         by    reason of     the    commission of         the   crime      in   question. "'    Thomas, 138


Wn.    App.       at    82,   n. 1,   n. 2   ( quoting former RCW 9. 92. 060; former RCW 9. 95. 210). The trial court


specifically found that                  alcohol was a cause of                  the   accident.    Thomas, 138 Wn.               App.   at   83.   On




                                                                                  6
No. 43308 -7 -II



appeal, we held there was substantial evidence to support the trial court' s finding of causation.

Thomas, 138 Wn. App. at 83 -85.

        The language             of   RCW 9. 94A. 753( 7)             does not support McCarthy' s argument that the

same causation requirement imposed for purposes of subsection ( 5) must be imposed when the

crime victims'      fund    pays expenses..               Subsection ( 7) demands that the trial court " order restitution


in all cases where the victim is entitled to benefits under the crime victims' compensation act."

RCW 9. 94A.753( 7) (         emphasis added).                 The section does not expressly identify what losses the

court may impose on the accused, but the language urges that any benefits paid by the
compensation        fund be imposed               upon       the defendant. "          The very language of the restitution

statutes   indicates legislative intent to                 grant   broad   powers of restitution."          Davison, 116 Wn.2d at


920.   The defendant' s reimbursement of the crime victims' fund, under a loose rather than strict


standard of causation, furthers the goal of the defendant facing the consequences of his conduct.

See Enstone, 137 Wn. 2d                 at    680.        To a limited extent, restitution also promotes the worthy

objective of       protecting the        public purse.             See Dick Enters.,      Inc. v. King County, 83 Wn. App.

566, 569, 922 P. 2d 184 ( 1996).


           If   McCarthy         were     correct,         subsection (     7)   would not extend restitution beyond the


circumstances        under       which        restitution      is   available     in   subsection (   5).      But   subsection (   7)


specifically directs the          court      to disregard the terms          of subsection (   5).   McCarthy' s reading of the

statute would render subsection (                    7)    superfluous.      We interpret statutes to give effect to all the


language        used so   that   no portion      is       rendered meaningless or        unnecessary.        Cornu -
                                                                                                                   Labat v. Hosp.

Dist. No. 2 of Grant         County,         177 Wn.2d 221, 231, 298 P. 3d 741 ( 2013) ( citing State                   v.   J.
                                                                                                                              P., 149


Wn.2d 444, 450, 69 P. 3d 318 ( 2003)).




                                                                       10
No. 43308 -7 -II


        The Department determined that West Jr. and Williams were victims of the crimes


McCarthy      committed.        Such a determination is not surprising considering that the burglary,

robbery,   and   extortion     led to the deaths.           Department records, list McCarthy as one of the

 offenders"    responsible      for the       costs   incurred.        Suppl. CP    at   94, 102.   Thus, the Department


concluded   that   McCarthy' s        crimes were a proximate cause of               the death   expenses.      McCarthy did

not seek review of the Department' s determination. Under subsection ( 7) of the statute, the trial


court did not need to independently find a direct causal relationship between the conviction and

the restitution ordered.



        The dissent raises concern about a criminal defendant ,being ordered to pay restitution

based upon a Department finding without the defendant having an opportunity to challenge the

Department' s determination. Nevertheless, RCW 7. 68. 120( 2) affords one charged with a crime

an   opportunity to    object        to   a   determination   made       by   the   crime   victim' s   fund.    In any case,

McCarthy has not argued on appeal, or before the trial court, any injustice from or invalidity of

the Department' s determination against                him. We do not address arguments not raised below nor


briefed here.      RAP 2. 5(   a);   Postema v. Snohomish County, 83 Wn. App. 574, 587, 922 P. 2d 176

 1996),_review denied,_131 Wn.2d 1019 ( 1997). _


         We affirm.


                                                                                             FEARING, J.




                                                                  11
No. 43308 -7 -II



            JOHANSON, A. C. J. (       dissenting) — This is a case of first impression where we must decide

whether      RCW 9. 94A. 753( 7)             requires the superior court to find that the criminal acts the


defendant is found to have                committed    proximately     caused       the   victims'     injuries before the


superior court orders           the defendant to pay    restitution   for   those   injuries.    The majority concludes

that Ryan McCarthy must pay restitution under RCW 9. 94A.753( 7) without the superior court

first deterniining whether the criminal act McCarthy committed proximately caused the victims'

injuries.       Majority   at   11.   Here, the defendant pleaded guilty to crimes involving David West Sr.,

yet the court ordered him to pay restitution for David West ,Jr. and Tony Williams without any

determination, in either a civil or criminal proceeding to which he was a party, that the criminal

acts   he   committed against           West Sr. proximately       caused   West Jr.'     s   and.   Williams'   s   injuries.   I


respectfully dissent because, in my view, the majority' s holding is contrary to the law as it

ignores the plain language of RCW 9. 94A.753( 7) and RCW 7. 68. 120( 1).

                                                         FACTS


            In August 2010, John Booth and McCarthy confronted West Sr. in a residence to extort

money. Booth           shot     four individuals inside the   residence,     killing   three    of   them:. West Sr., West



Jr.,       Williams. _In
       and _                      September_2010, the State filed_initial charges, charging McCarthy_with

three counts of first degree felony murder, as an accomplice, and one count of first degree

extortion.       The Department         of   Labor & Industries ( the Department) paid funeral costs for West


Jr. on September 13 and 17, 2010, and funeral costs for Williams on October 6, 2010.

                                                                             Alford4

            A   year   later, in September 2011,      McCarthy     entered                and   Barry pleas to first degree


robbery, residential burglary, and attempted extortion, with only West Sr. listed as a victim; and

the State dismissed the murder charges.




 North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 ( 1970).



                                                              12
No. 43308 -7 -II



              In March 2012, the State moved for restitution and supported its motion with receipts


showing amounts that the Department paid for West Jr.' s and Williams' s funeral and burial costs

from the            crime      victims'     compensation       fund.        These   receipts (     1)   showed the   amounts the


Department paid for West Jr.' s and Williams' s funeral costs in 2010, and ( 2) listed Booth and


McCarthy            as "[   o]   ffender /
                                         s."     See Suppl. Clerk'      s    Papers ( CP)     at    94, 102.    At the restitution


hearing, both the State and McCarthy argued that the superior court must find a causal

connection between McCarthy' s convictions and the victim' s injuries before the superior court

could order restitution. But, the superior court disagreed and concluded that it need not establish

a causal connection. The court also noted that superior courts needed appellate guidance on this


issue     since      there were no         published cases      interpreting RCW 9. 94A. 753( 7).              The superior court


then     ordered restitution against              McCarthy because it found           that   under      RCW 9. 94A.753( 7), it was


obligated to enter a restitution order that matched what the Department paid. McCarthy appeals

the restitution order.


                                                               ANALYSIS


              McCarthy argues that the superior court improperly imposed restitution for injuries

unrelated           to   the     crimes    to   which   he   pleaded.       The State argues that we should affirm the


restitution order because there is a causal connection between McCarthy' s convictions and the

restitution.             Notably, the State did not argue at the restitution hearing and does not argue on

appeal        the    position      taken   by   the majority here —that the superior court need not make a causal



connection finding.




5
    In   re   Pers. Restraint of Barr, 102 Wn.2d 265, 684 P. 2d 712 ( 1984).                                In Barr, our Supreme
Court held that a " plea does not become invalid because an accused chooses to plead to a related
lesser charge that was not committed in order to avoid certain conviction for a greater offense."
102 Wn.2d at 269 -70.



                                                                       13
No. 43308 -7 -II



            McCarthy is correct that the superior court erred when it ordered McCarthy to pay

restitution to the Department without first determining whether there is a causal connection

between the      criminal acts      that he    was    found to have      committed and    the    victims'   injuries. Thus,


we should remand for the superior court to determine whether McCarthy' s criminal acts

proximately      caused   the   victims'      injuries for     which    the Department    paid   benefits.    The majority

errs by considering only RCW 9. 94A.753( 7) and by not also considering RCW 7. 68. 120( 1).

            RCW 9. 94A.753( 7)        states   that, " Regardless of the provisions of subsections ( 1) through


 6) of this section, the court shall order restitution in all cases where the victim is entitled to

benefits     under   the crime victims'            compensation        act, chapter   7. 68 RCW." ( Emphasis added).


Thus, the analysis turns to chapter 7. 68 RCW to determine when a court must order restitution.


Under chapter 7.68 RCW, a victim is one " who suffers bodily injury or death as a proximate

result of a criminal act of another person."                  RCW 7. 68. 020( 15) (   emphasis added).       A criminal act


is "   an   act committed or        attempted       in this   state which    is ...   punishable as a felony or gross

misdemeanor under         the laws     of   this   state.   RCW 7. 68. 020( 5)( b). Further,


            Any payment of benefits to or on behalf of a victim under this chapter creates a
            debt due and owing to the department by any person. found to have committed the
            criminal actin either a civil_ criminal court proceeding in which he or she is a
                                          or
            party.


RCW 7. 68. 120( 1) (      emphasis added).



            Thus, the plain language of RCW 7. 68. 120( 1) requires that in order for a court to order

restitution    to the Department            under     chapter     7. 68 RCW, three things          must     occur: (   1)   the



Department must pay benefits to or on behalf of a " victim" who suffered bodily injury or death

as a proximate result       of' a   criminal act; (     2) the person owing the debt to the Department must be

found to have committed the criminal act; and ( 3) the finding must occur in either a criminal or




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civil   proceeding to      which    the person    owing the debt     was a       party. See RCW 7. 68. 120( 1),      RCW


7. 68. 020( 15).


          These three requirements are easily met in a restitution hearing because restitution

hearings occur after a defendant is either found guilty or pleads guilty to certain criminal acts and

the defendant is      a   party to the proceeding.         RCW 9. 94A.750( 1), (            5).   The only remaining fact a

superior court must determine is whether the criminal acts the defendant was found to have

committed proximately caused the victim' s injuries. Here, because the superior court declined to

decide whether the criminal act the defendant committed proximately caused the victims'

injuries, the superior court erred in entering the restitution order against McCarthy.

          Problematically, the majority opinion cites to the controlling statute, RCW 7. 68. 120( 1),

only    one   time   and   does    so without     any   analysis.   Majority      at   8.     The majority wholly ignores

RCW 7. 68. 120( 1)'        s requirements.      Instead, the majority deems it sufficient that the Department

 determined" that West Jr. and Williams were victims of the crimes McCarthy committed, and

thus the superior court does not need " to independently find a direct causal relationship between

the   conviction and       the   restitution ordered."     Majority   at   11.    But, the majority fails to cite to the

record to support that the           Department ( 1_)      made any causal connection determination ( 2) in a

criminal or civil proceeding ( 3) in which McCarthy was a party.

          Instead, the record shows that the Department paid benefits to the fiineral homes less than

one month after the State initially charged McCarthy with murder and roughly one year before

McCarthy       pleaded     to lesser   charges.    The only reasonable inference to be made from this record

is that the Department paid benefits based on the State' s initial charges, not based on a finding

that McCarthy committed the criminal act that caused the victims' injuries in a civil or criminal

proceeding to        which   McCarthy     was a    party. Thus, from our record, there was no detennination,




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with or without McCarthy as a party, that McCarthy committed the criminal acts that caused the

victims' injuries.


          Further, I disagree with the majority' s contention that including a causation requirement

in   subsection (     7)   makes   it   superfluous.   Subsection ( 7) is not superfluous because it gives victims


a    different, faster      mechanism        for obtaining benefits than     subsections (      1)    through ( 6)   do.   And


although subsection ( 7)           directs   courts   to disregard the terms   of subsection ( 5),         it also specifically

directs courts to order restitution only " where the victim is entitled to benefits under the crime

victims'    compensation act, chapter             7. 68 RCW,"        a chapter the majority ignores in its analysis.

RCW 9. 94A.753( 7).                That language       cross -
                                                             referencing    the    crime   victims'        compensation     act




shows subsection ( 7)' s purpose: it allows crime victims to quickly obtain compensation from the

Department rather than waiting to obtain compensation from convicted defendants under

subsection (    5).        See RCW 7. 68. 120( 1),       RCW 7. 68. 015,     and   RCW 9. 94A. 753( 7).           Indeed, the


victims here obtained benefits from the Department one month after McCarthy was initially

charged with      the      crimes, and a year     before he   pleaded    to lesser   charges.        But that does not mean


that McCarthy is automatically responsible for those restitution amounts without a proximate

cause     analysis. _      Contrary to the majority' s conclusion, merely enforcing RCW 7. 68. 020( 15)' s

proximate cause requirement does not make subsection ( 7) superfluous.


           The majority' s holding is also contrary to precedent because it improperly subjects

McCarthy       to pay       restitution    to the Department for       uncharged offenses.           Division Three of this


court has held that defendants are not required to reimburse the Department when the

Department      pays        benefits to   victims of uncharged offenses.          State v. Osborne, 140 Wn. App. 38,

42, 163 P. 3d 799 ( 2007).                 In that case, Brandon Osborne seized Steve Paschell' s truck at


gunpoint,     and      Paschell injured his back in the          process.      140 Wn.     App.       at   40.   Osborne took




                                                                16
No. 43308 -7 -II


Paschell'   s   truck to   a   third party' s   residence and shot        two   people    there.   Osborne, 140 Wn. App.

at   40.   The State charged Osborne with eight felony counts, including first degree kidnapping

and first degree robbery of Paschell, and the Department compensated Paschell for his back

injury.     See Osborne, 140 Wn.            App.      at   40.    Pursuant to a plea deal, the State dismissed the


kidnapping and robbery counts, yet the superior court still ordered Osborne to pay restitution to

the Department for Paschell' s back injury. Osborne, 140 Wn. App. at 40.

           Division Three reversed, holding that Paschell was an uncharged victim and there was no

 causal    relationship" between Osborne'              s crime and      Paschell'   s   damages.   Osborne, 140 Wn. App.

at   42.   Although Division Three'             s   analysis     was   tied to RCW 9. 94A. 753( 5),      which requires   a




direct causal relationship between crime and damages, its analysis is functionally equivalent to

the analysis required tinder RCW 9. 94A.753( 7) because, as explained, RCW 9. 94A.753( 7) cross -

references      RCW 7. 68. 120( 1).         And RCW 7. 68. 120( l)              requires a finding that the defendant

committed the criminal act that proximately caused the victim' s injuries.

           Here, the Department paid West Jr.' s and Williams' s funeral expenses arguably based on

McCarthy' s initially          charged   crimes.      After the State dismissed McCarthy' s initial charges and

he pleaded guilty to lesser charges that listed West Sr. as the only victim, the superior court

ordered McCarthy to reimburse the Department for the funeral expenses of West Jr. and

Williams without finding that the criminal acts to which McCarthy pleaded guilty proximately

caused     their deaths.       Thus, like Osborne, McCarthy was improperly ordered to pay restitution to

the Department for uncharged offenses without a finding that there was a " causal relationship"

between his crime and the victims' damages. See Osborne, 140 Wn. App. at 42.




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         Without requiring the superior court to find that McCarthy' s criminal acts proximately

caused   the   victims'   injuries,   the majority decision violates the plain language of RCW

94A.753( 7) and RCW 7. 68. 120( 1) and I respectfully dissent.




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