    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE
                                                                                     rs.)
STATE OF WASHINGTON,                       )      No. 75310-0-1
                                           )                                         Zt
                                                                                      1
                       Respondent,         )
                                           )
             v.                            )
                                           )
MICHAEL WILLIAM BIENHOFF,                  )      UNPUBLISHED OPINION
                                           )                                          Cr%
                       Appellant.          )      FILED: November 6, 2017
                                           )

          VERELLEN, C.J. —A jury convicted Michael Bienhoff of murder in the first degree.
He appeals the trial court's order imposing restitution for the victim's burial and funeral

costs. Because readily ascertainable burial and funeral costs were causally connected

to his crime, the court had authority under RCW 9.94A.753(5) to order Bienhoff to pay

the funeral costs as restitution. He cannot escape liability for restitution merely because

the costs did not also qualify for restitution under RCW 9.94A.753(7), with its expanded

criteria for restitution of payments from the crime victims' compensation fund. We

affirm.

                                           FACTS

          Precious Reed was shot and killed while attempting to purchase approximately

two pounds of marijuana from Michael Bienhoff in 2012. The State charged Bienhoff

and an accomplice with felony murder in the first degree, alleging they caused Reed's

death while attempting to commit first degree robbery. Two other codefendants pleaded
No. 75310-0-1/2

guilty to lesser crimes. In 2015, a jury convicted Bienhoff as charged. According to the

evidence presented at trial, when Reed was shot, he was sitting in the driver's seat of

his van and Bienhoff was in the front passenger's seat. The court sentenced Bienhoff

as a persistent offender to life in prison without the possibility of parole.

       The State requested restitution of more than $40,000 from Bienhoff and his

codefendants. Specifically, the State sought restitution of $34,250 as reimbursement

for amounts Reed's surviving spouse received as wage replacement benefits from the

crime victims' compensation fund, administered by the Department of Labor and

Industries. The State also sought restitution of $6,130 in burial and funeral costs. The

department also paid the majority of those costs, $5,750, which is the maximum

allowable benefit under the crime victims' compensation program. The State proposed

that Bienhoff pay, as restitution, the entire amount of Reed's burial and funeral costs,

including the $5,750 paid by the department and the remaining balance of $379.89 paid

by Shirley Noble, a good Samaritan.

       The defendants objected to the restitution proposed by the State. They argued

that Reed's survivors were not eligible for any benefits under the Crime Victims'

Compensation Act, chapter 7.68 RCW,and therefore, the defendants could not be

ordered to reimburse the department as restitution. RCW 7.68.061 provides that "if

injury or death results to a victim ... while the victim is engaged in the attempt to

commit, or the commission of, a felony, neither the victim nor the widow, widower, child,

or dependent of the victim shall receive any benefit under this chapter." The defendants




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claimed that the department erroneously paid benefits for Reed's funeral expenses

because Reed was attempting to commit a felony when he was killed.'

      The court declined to impose restitution for wage replacement benefits but

ordered restitution for the total amount of Reed's burial and funeral expenses. Bienhoff

appeals.2

                                        ANALYSIS

       Bienhoff challenges the restitution order insofar as it requires him to reimburse

funds paid by the department for burial and funeral costs.

      The court's authority to impose restitution derives from statute.3 The Sentencing

Reform Act requires that the trial court order restitution whenever an offender is

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

property.4

       The controlling restitution statute, ROW 9.94A.753, provides:

              (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

       1 See ROW 69.50.4013(possession of over 40 grams of marijuana is a class C
felony except under certain conditions not applicable here).
       2 Bienhoff filed a separate appeal challenging his murder conviction. State v.
Bienhoff, No. 74519-1-1.
       3 State   v. McCarthy, 178 Wn. App. 290, 294, 313 P.3d 1247(2013).
       4   RCW 9.94A.753(5); State v. Blanchfield, 126 Wn. App. 235, 240, 108 P.3d 173
(2005).


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      extraordinary circumstances 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.

      An objective of restitution is to require the defendant to face the consequences of

his conduct.5 The statute is both punitive and compensatory and is designed to

promote respect for the law by requiring punishment that is just.6 Accordingly, our

Supreme Court has impliedly rejected the argument that the restitution statute must be

construed in the defendant's favor.7 `We will not give the statute an overly technical

construction that would permit the defendant to escape from just punishment."9

      `We reverse a sentencing court's restitution determination only for a clear abuse

of discretion or misapplication of law."9 An abuse of discretion occurs when the


      5   McCarthy, 178 Wn. App. at 295.
      6 Id.

            v. Davison, 116 Wn.2d 917, 919-20, 809 P.2d 1374(1991); State v. Gray,
      7 State
174 Wn.2d 920, 927, 280 P.3d 1110 (2012); McCarthy, 178 Wn. App. at 295-96.
      8   McCarthy, 178 Wn. App. at 296.
      9 State   v. Cawyer, 182 Wn. App. 610, 616, 330 P.3d 219 (2014).


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sentencing court's decision is manifestly unreasonable or based on untenable grounds

or when the court applies the wrong legal standard or bases its ruling on an erroneous

view of the law.1°

      The premise of Bienhoff's argument is that a payment made by the Department

is subject to restitution only if the requirements of RCW 9.94.753(7)for crime victim

compensation fund benefits are satisfied. This premise is not persuasive for two

reasons. First, Bienhoff ignores the established distinctions between subsections (5)

and (7). Restitution imposed under subsection (7) is exempt from the timing

requirements of ROW 9.94A.753(1) and has "a loose rather than strict standard of

causation" as compared with subsection (5).11 If the requirements of subsections (5)

and (7) were identical, subsection (7) would not extend restitution beyond what is

already available under subsection (5) and would be superfluous.12

       Second, subsection (5) of the restitution statute applies broadly to compensate

third parties who were the source of the payment, so long as the strict causal standards

are satisfied. For example, costs incurred by indirect victims may be imposed as

restitution.13 This court has held that a trial court does not abuse its discretion in

awarding restitution to an insurance company that paid claims to the victim, whether or

not the insurer retained subrogation rights allowing it to recoup the amounts paid from

the responsible party.14



       10   Id.
       11 McCarthy, 178 Wn. App. at 301.
       12   Id.
       13 State   v. Kinneman, 155 Wn.2d 272, 287, 119 P.3d 350(2005).
       14 State   v. Ewing, 102 Wn. App. 349, 354, 7 P.3d 835 (2000).
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       And our Supreme Court rejected a similar argument in State v. Davison.15 There,

Davison claimed restitution was not awardable to the City of Seattle for wages paid to

an assaulted worker who was unable to work absent proof that the City was legally

obligated to pay those wages. Affirming the order of restitution, the court pointed out

that "had the City not paid the assault victim his wages, it is obvious that [the victim]

would have sustained damages explicitly identified by the statute as the subject of

restitution, lost wages."16 The court further reasoned, "It would not serve the purpose or

policy underlying the statute to permit the offender to escape responsibility for the

consequences of his harmful assault by denying restitution simply because the City

chose,from legal obligation or otherwise, to pay its employee rather than subject that

victim to the hardship and uncertainty of awaiting possible restitution paid directly to the

victim."17

       This reasoning is equally compelling here. If the department had not authorized

payment for Reed's funeral expenses from the crime victims' compensation fund,

Reed's surviving family members would have presumably sustained a loss

encompassed by the restitution statute. Such a loss would have directly resulted from

Bienhoff's crime and is the kind of loss for which restitution is authorized under the

statute. Here, the payment to Shirley Noble of $379.89 toward funeral expenses

qualified for restitution. Just because funeral expenses of $5,750 were paid by the

department does not preclude the application of subsection (5), provided the strict

causal connection required by that provision is satisfied.


       15    116 Wn.2d 917, 809 P.2d 1374 (1991).
       16    Id. at 921.
       17    Id. at 921-22.

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       The restitution order does not designate a specific statutory provision. We may

affirm the trial court's decision under any theory supported by the record and the law.18

Because all of the funeral expenses satisfy the requirements of subsection (5), the trial

court was obligated to award restitution, even if some of the funeral expenses did not

qualify as a benefit under the Crime Victims Compensation Act. Courts may not decline

to impose restitution unless extraordinary circumstances exist.18 Under the

circumstances here, the sentencing court did not abuse its discretion in imposing

restitution for the entire amount of the victim's funeral and burial costs, including the

amount initially paid by the department.

       Bienhoff asks that we not impose appellate costs if we affirm his conviction. The

State has informed the court it does not intend to seek appellate costs. We accept the

State's representation and need not otherwise address appellate costs.

       Affirmed.




WE CONCUR:




      18 Statev. Glenn, 140 Wn. App. 627, 636, 166 P.3d 1235(2007)(quoting State v.
Bradley, 105 Wn. App. 30, 38, 18 P.3d 602 (2001)).
      19   RCW 9.94A.753(5).


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