                                                                                                       FIL
                                                                                            COLI T OF APP
                                                                                                 1fO lI
                                                                                                 Cii` .




     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II

STATE OF WASHINGTON,                                         I              No. 42614 5 II
                                                                                      - -


                                        Appellant,

          vFA




P.,
R. .
 G                                                       I
                                                             I         PUBLISHED OPINION




              BRINTNALL J. — As part of a deferred disposition for his third degree assault
          QuwN-

conviction, RGP, a juvenile, agreed to pay restitution to assault victim Nathan Martinez. The

State requested $
                64 in-
                     -
                     restitution mostly -for Nathan's' - - tay. In light of RGP's - - -
                                                      hospital s
likely inability to pay this amount, the trial court ordered restitution in the amount of 7,
                                                                                          73.
                                                                                          $ 187.

The State appeals this restitution award, arguing that the trial court abused its discretion in

considering RGP's ability to pay in setting a restitution amount insufficient to reimburse the

victim of his crime. RGP argues that the evidence does not support awarding full restitution.

Because the trial court abused its discretion in considering RGP's ability to pay, we reverse and

remand to the trial court to reconsider the restitution award without consideration of RGP's

ability to pay.


1
    We   use    the first   names   of Nathan Martinez and his father, Juan Martinez, for   clarity.
     No. 42614 5 II
               - -


                                                             FACTS


              On May 30, 2010, 17-
                                 year old RGP stabbed 19-
                                      -                 year old Nathan during a physical
                                                             -

     altercation that began over two stolen cases of beer. Witnesses confirmed the basic details of the

     incident.    Nathan's spleen was damaged by the stabbing and had to be surgically removed.

     Neither Nathan nor his father, Juan Martinez, had medical insurance to cover the operation and

     resulting hospital stay.

              The State        initially charged     RGP with two counts of second           degree   assault.   RCW


     a); 6. On January 11, 2011, RGP entered a guilty plea in
     021(
     9A. 6.
        1)(
        3  RCW 9A.
               c).
               021(
                  1)(
                  3
                        2
     juvenile   court       to one count of third degree assault. As part of the plea agreement, RGP agreed

     to pay "full restitution" although, at the time the,plea was entered, restitution costs remained

     unknown. After accepting RGP's plea, the trial court heard argument on whether RGP should be

     granted a deferred disposition pursuant to RCW 13. 0.
                                                    127.
                                                      4
              The Pierce County Juvenile Probation Department argued against a deferred disposition

     in light of the seriousness of this offense." Report of Proceedings (RP)Jan. 11, 2011) at 11.
                 "                                                            (

I-   RGP argued that a deferred disposition should be granted because

              this   case     is   one   of self defense.   There   was never a   question   about that. The
              government understands that. We understand that. [Nathan],  who is the victim in
              this case, was the aggressor. [ Nathan],
                                                     who  is the victim in this case, knocked
              RGP] to the ground with a punch,jumped on top of him and was pummeling him
              in the head.



     2
         On July 13, 2010, the State moved to waive a declination hearing and requested that the
     juvenile court retain jurisdiction over RGP's case.
     3
         The Juvenile. Justice Act of 1977, codified at ch. 13. 0 RCW, allows certain first time juvenile
                                                              4        "
     offenders to receive a single deferred disposition."State v. D. .169 Wn. App. 396, 399, 280
                                                                   G., P
     P. d 1139 (2012).When a deferred disposition is granted, the respondent is found guilty upon
        3                  "
     stipulated facts, and disposition is deferred pending satisfaction of conditions of supervision that
     the court   specifies."State          v.   H.,Wn. App. 591, 593 n. , P. d 660 (
                                                 R 107
                                                C. .                  l 27 3       2001).
No. 42614 5 II
          - -




                 The question is whether or not [RGP's] of the knife in stabbing the
                                                       use
        victim here   was   reasonable.   That has been the issue in this case from the
        beginning. And the reduction of the charge and subsequent plea by [ RGP]
        reflects truly a compromise.

RP (Jan.   11, 2011) at 11 - 2. RGP also argued that he had no prior criminal history and that
                           1


following the incident, he spent 30 days in detention without incident, spent 120 days on

electronic home monitoring without any violations, and had been performing well at school.

        The trial court granted the deferred disposition, and the parties agreed to have a later

hearing concerning restitution. Victim advocate Stacia Adams submitted restitution information

on behalf of Nathan and his father on June 9, 2011. Evidence submitted involved, among other

things, a $ 124 hospital bill addressed to Juan for Nathan's May 30 to June 3, 2010 hospital
          61,

stay.
         The trial court held the restitution hearing on July 11, 2011. At the hearing, RGP argued

that " egarding restitution, the Court is to take into consideration the offender's present, past, and
     r

future ability to pay"and that RGP could not afford to pay the $ 124 requested. RP (July 11,
                                                               64,

2011) at 7. RGP requested that restitution be set at $
            _                                        73 =
                                                     2, the amount of " ut of pocket
                                                       187:           o

expenses incurred by Nathanand leave out the $ 1, 21.hospital bill addressed to Juan. The
                           —                 33
                                             6 1

State argued that RGP "has been found guilty of the charge of felony assault related to the

injuries here"and, in result, should be liable for the full amount of Nathan's medical expenses.




4
    The record reflects that the Martinezes attempted to have some of this amount compensated
through the crime victim's compensation fund but the claim was rejected because Nathan has a
felony history.

                                                  3
No. 42614 5 II
          - -



RP (July 11, 2011) at 10. The State further argued that the evidence was insufficient to support

RGP's no ability to pay in the future"argument.' RP (July 11, 2011)at 10.
       "
       The trial court sought compromise between the two positions and awarded a total of

73
7, in restitution:
 187.

       I think $ 1, 00 is an awful lot of money for anybody, and I also think it' weird
               6 0                                                                 s
       that Mr. Juan Martinez is in it for $ 000. So, I am going to order the total of
                                             61,
       2, to Nathan, and then I' reducing the $ 000 to $
           187                        m                61,        5,    000.... I will order
       that be payable at $ a month. Of course, more would be better, but it' an awful
                          50                                                     s
       lot of money. In fairness, I just don't think he's ever going to get out from under
       60, 00.
            0

RP (July 11, 2011)at 11 12.
                        -

       The next day,the State filed a motion for reconsideration of the restitution order, arguing

that the trial court lacked the statutory authority to waive restitution costs related to medical

expenses. The trial court denied the motion stating,

       This was a deferred disposition, and I didn't want to set [RGP] up for failure. I
       was trying to get a realistic amount that I thought he could pay, given the fact that
       he doesn't have the ability to pay and that the victim, himself, was fully



  RGP's attorney argues on appeal that " he judge did not need `evidence' to know that an order
                                          t
requiring payment within six months of more than $ 000 would be very difficult for almost
                                                       60,
anyone, let alone a 19 year old youth."Br. of Resp't at 26 27. While it is correct that, generally,.
                        -                                     -
the terms of a juvenile's deferred disposition are to be completed within one year, RCW
 a)(
 127(
 13. 0. provides that dismissal of the deferred disposition is appropriate when
           iv)
           9)(
           4         now
t] juvenile has either paid the full amount of restitution, or, made a good faith effort to pay
   he
the full amount of restitution during the period of supervision." And RCW 13. 0. b)
                                                                                 127(   9)(
                                                                                        4        now.
provides that "[
               w]    henever a case is dismissed with restitution still owing, the court shall enter a
restitution order pursuant to RCW 13. 0.for any unpaid restitution. Jurisdiction to enforce
                                      190   4
payment and modify terms of the restitution shall be the same as those set forth in RCW
 190."
 13. 0. RCW 13. 0.
       4             d) the court may retain jurisdiction over a juvenile
                     190(     1 states that
                              4 )(
offender for up to 20 years after an offender's eighteenth birthday for purposes of ensuring the
payment of restitution. Thus, here, the juvenile court may dismiss RGP's felony conviction —
assuming    all   other   requirements   of   the   deferred   disposition have   been   metwhile
                                                                                            —

simultaneously entering a restitution order requiring him to pay the remaining amount of
restitution owed over a 20 year period ( ubject to later modification).
                           -           s

                                                    0
No. 42614 5 II
          - -



       compensated by the decision that I made. I do believe that it' within the Court's
                                                                    s
       discretion. I may be wrong, but somebody else can tell me that.

RP.( 26, 2011)at 4. The State timely appeals the trial court's restitution order.
  Sept.

                                           DISCUSSION


       The State argues that the trial court abused its discretion in considering RCP's ability to

pay when it ordered restitution. Specifically, the State contends that statutorily the "court had no

authority to base its ruling on respondent's ability to pay."Br. of Appellant at 10. Because the

Juvenile Justice Act of 1977 no longer allows a trial court discretion to consider a juvenile

offender's ability to pay restitution, we agree.

       The imposition of restitution generally lies within the trial court's discretion." State v.

E.,
C. .148 Wn. App. 720, 724, 201 P. d 361, review denied, 166 Wn. d 1013 (2009).We will
 A                              3                             2

not disturb a trial court's restitution award absent an abuse of discretion. State v. Griffith, 164

Wn. d 960, 965, 195 P. d 506 ( 2008). A trial court abuses its discretion when it bases its
  2                  3


decision on untenable or unreasonable grounds. State v. Cunningham, 96 Wn. d 31, 34, 633
                                                                         2

P. d 886 (1981).To the extent that a court bases its ruling on an incorrect interpretation of the
 2               "

law, it bases it 'on untenable grounds." C. . 148 Wn. App. at 724 25 (citing State v.
                                         E.,
                                          A                       -

Quismundo,    164 Wn. d 499, 504, 192 P. d 342 ( 2008)).We
                    2                  3                                  review issues of statutory

interpretation and alleged errors of law de novo. State v. Bunker, 169 Wn. d 571, 577 78, 238
                                                                         2            -

P. d 487 (2010);
 3             State v. Haney, 125 Wn. App. 118, 123, 104 P. d 36 (2005).
                                                           3

        RCW 13. 0. provides for
            127
              4                          juvenile   deferred   dispositions. Pursuant to this statute,

p] of restitution under RCW 13. 0.shall be a condition of community supervision
 ayment                     190
                              4

under this section."RCW 13. 0.
                        127(
                           5 emphasis
                           4 ) ( added).RCW 13. 0.
                                            190(
                                               1 states,
                                               4 )


                                                                                                    r




                                                    E
No. 42614 5 II
          - -



       a)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....

                  d)The court may determine the amount, terms, and conditions of the
       restitution including a payment plan extending up to ten years if the court
       determines that the respondent does not have the means to make full restitution
       over a shorter period.   For the purposes of this section, the respondent shall
       remain under the court's jurisdiction for a maximum term of ten years after
       respondent's eighteenth birthday and, during this period, the restitution portion of
       the dispositional order may be modified as to amount, terms, and conditions at
       any time.

       Although it is clear that the trial court must order restitution ( hen applicable)in deferred
                                                                        w

disposition cases, RCW 13. 0.is ambiguous concerning how a trial court may use its
                       190(
                          1
                          4 )
discretion in    determining the      amount   of restitution   a   juvenile offender   owes.   But the


Washington Supreme Court definitively settled this issue in State v. A. .147 Wn. d 91, 96,
                                                                     R., 2
                                                                      M

51 P. d 790 (2002)
    3

       Restitution is mandatory for juvenile offenses:
               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....
       RCW 13. 0. The statute uses the mandatory term "shall"to direct the
               190(   1
                      4 ).
       court to order restitution. In 1997 the legislature deleted language from this

       statute that gave the court the sort of discretion it 'purported to exercise in this
       case:

                 The court may not require the respondent to pay full or partial
                 restitution if the respondent reasonably satisfies the court that he or
                 she does not have the means to make full or partial restitution and
                 could not reasonably acquire the means to pay such restitution over
                 a ten year period.

6
  RGP cites State v. Hunotte, 69 Wn. App. 670, 674, 851 P. d 694 (1993), the proposition
                                                             2              for
that in juvenile cases, t] decision to impose restitution and the amount thereof are within the
                        "[ he
trial court's discretion."  This proposition also found in other cases prior to the A. .
                                             —                                      R.M
decision, such as State v. Landrum, 66 Wn. App. 791, 795 n. , 832 P. d 1359 (1992) — no
                                                            4        2              is
longer tenable in light of the clear mandate supplied by the A. .court. And if the legislature
                                                             R.
                                                              M
is of the opinion that in A. . the Supreme Court misinterpreted amended RCW 13. 0.
                          R. M                                                  190(   1
                                                                                       4 ),
then this is an issue for the legislature to address.

                                                     2
No. 42614 5 II
          - -



         Laws of 1997, ch. 338, § 29( ).
                                    1 This       sentence, used the discretionary term "
                                                                                       may."
         See State v. Martin, 137 Wn. d 149, 154, 969 P. d 450 (1999) ( "
                                       2                     2              shall"and " ay"
                                                                                         m
         in same statute).Deleting this sentence removed the juvenile court's discretion to
         order only partial restitution based on ability to pay.

         RGP argues that A. . should be distinguished because his case involves a deferred
                         R.
                          M

disposition whereas the A. . case did not. But the language of the deferred disposition statute,
                        R.
                         M

RCW 13. 0.is unambiguous and provides that "[
    127(
       5
       4 ),                                 payment of restitution under RCW
                                              ]

13. 0. shall be
190
  4                       a   condition of   community supervision   under this section." " here the
                                                                                          W


language of a statute is plain, unambiguous, and well understood according to its natural and

ordinary sense and meaning, the statute itself furnishes a rule of construction beyond which the
court   cannot    go." City of Seattle v. Ross, 54 Wn. d 655, 658, 344 P. d . 216 ( 1959).
                                                     2                  2

Accordingly, we refrain from adopting RGP's argument that for purposes of restitution, deferred

dispositions should be treated differently than ordinary juvenile dispositions.

         Following A. .the,law on this matter is settled. In basing its decision to reduce the
                   R.,
                    M

amount of restitution awarded to the Martinezes solely on RGP's ability to pay, the trial court

abused its discretion. The legislature clearly intended to divest courts of the discretion to reduce

restitution based on a juvenile defendant's ability to pay when it amended the Juvenile Justice

Act of 1977 in 1997. Accordingly, we agree with the State, vacate the restitution award, and



7 RGP also argues that under State v. J. ., Wn. App. 879, 20 P. d 487 (2001), State v.
                                       A 105                  3             and
Lown, 116 Wn. App. 402, 66 P. d 660, review denied, 150 Wn. d 1024 (2003), juvenile court
                                3                             2                  a
has a broad grant of authority "to use its discretion in any deferred disposition case." Br. of
Resp't   at 33.       But J. . addressed whether a "court has discretion under RCW 13. 0.to
                           A                                                       127
                                                                                     4
dismiss a case despite a juvenile's technical failure to comply with a condition of a deferred
disposition order," 105 Wn. App. at 883; similarly, Lown addressed whether a court
commissioner properly applied " he judicially created exception for a `de minimis' violation"of
                                  t
conditions of     a   deferred   disposition. 116 Wn. App. at 409. Neither case touches on the issue
before this court:    whether a trial court may consider a juvenile offender's ability to pay
restitution when setting the terms of a deferred disposition.

                                                       7
No. 42614 5 II
          - -



remand this matter to the trial court to consider the restitution award without regard for RGP's

ability   to pay.   And, on remand, we direct the trial court to award restitution for medical

expenses   sufficiently proven to have   a   causal connection   to the assault   on   Nathan.




We concur:




HUNT, J. /
                    U
                               t
                                   A
    HANSON, A. .
            J.
             C




8
  RGP argues that insufficient evidence supports a full restitution award and that a juvenile court
judge is more than "a `ubber stamp'...
                         r                   required to order restitution in whatever amount the
prosecution asks, regardless of the context or facts."Br. of Resp't at 1. While we do not address
this argument in detail in light of our order for remand, we note that when " defendant disputes
                                                                              a
the restitution amount, the State must prove the damages by a preponderance of the evidence."
Griffith, 164 Wn. d at 965.
                 2
                                                      8
