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-rIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

YOUNGKEUN K. LEE

Appellant.

No. 72828-8-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: January 19, 2016

Appelwick, J. — Lee appeals the trial court's refusal to conduct an

evidentiary hearing before entering the order of restitution. The State correctly

concedes this was error. Lee argues that he is entitled to confront the State's

witnesses on remand and is entitled to a jury determination of the facts necessary

to set a restitution amount. We reverse and remand for an evidentiary hearing.

FACTS

On July 6, 2012, Jose Lesaca, a Marymoor Park employee, confronted

Youngkeun Lee when he saw Lee sleeping in a van in the park. Lesaca told Lee

that he could not sleep in the park. Lee was agitated when Lesaca told him he

had to leave. Lee eventually leftthe park after Lesaca threatened to call the police.

On July 10, 2012, Lesaca was working in the park. Lee approached him

with a baseball bat, and hit Lesaca on the left shoulder. Lesaca was not injured.
No. 72828-8-1/2

Lesaca drove away so that he could report the incident. Lee followed Lesaca and

parked next to him. Lee got out of his van, and threw a can filled with a liquid at

Lesaca. The can and liquid hit Lesaca's car and his arm. Lee again grabbed his

bat and approached Lesaca. Lesaca exited his vehicle and attempted to grab the

bat. Lesaca was twisted around so that he ended up facing away from Lee. Lee

then held the bat around the front of Lesaca's neck and attempted to strangle him.

Lesaca had to push hard on the bat to keep it from making contact with his neck.

The bat never made contact with Lesaca's neck. Lesaca's coworkers arrived and

pulled Lee off of Lesaca.

Lee stipulated to the facts set forth in the certification for probable cause.

He pleaded guilty to assault in the fourth degree and attempted bail jumping. By

pleading guilty, Lee agreed to pay "restitution TBD [(to be decided)]." The trial

court scheduled a restitution hearing for November 4, 2014.

At the November 4 hearing, the trial court noted that the State provided

voluminous paperwork documenting the restitution claim. The State sought nearly

$52,000 to be paid to King County Risk Management representing worker's

compensation, because Lesaca took time off work allegedly connected to the

injury. The State also sought $144.69 in medical bills to be paid directly to Lesaca.

Lee argued that the trial court should not award any restitution, because

there was no causation—Lesaca was not injured during the struggle with Lee. Lee

pointed out that the bat did not touch Lesaca and that he stated that he was not

injured by the bat strike. He stated that the restitution request constituted
No. 72828-8-1/3

insurance fraud. In the alternative, Lee asserted that the court should continue the

matter for an evidentiary hearing.

The State countered that Lesaca's injuries occurred when Lesaca was

struggling with Lee to prevent Lee from choking him. Lesaca suffered from back

pain, among other things, and eventually had surgery. The State claimed that

there was a great deal of evidence that a causal connection existed between what

happened and the documented injuries—medical reports and the self-reporting of

the victim. It asserted that an evidentiary hearing was unnecessary.

The trial court ultimately decided to continue the matter so that it could

review the materials more carefully. The restitution hearing was continued until

November 18, 2014. Atthe November 18th hearing, the trial court determined that

it was still not prepared to decide whether it needed to hold any further hearing.

The next day, without holding an additional hearing, the trial courtentered an order

of restitution. The trial court awarded Lesaca $144.69 and awarded King County

Risk Management $51,850.32. Lee appeals.

DISCUSSION

Lee argues that the trial court denied him due process when it did not

conduct an evidentiary hearing after he disputed facts material to the restitution

demand. He further asserts that, on remand, he must be afforded the opportunity

to confront the State's witnesses and have a meaningful opportunity to refute the

State's evidence with his own witnesses. Finally, he contends that the Sixth

Amendment and article I, section 21 of the Washington State Constitution require

a jury determination ofthe facts necessary to set a restitution amount.
No. 72828-8-1/4

I. Evidentiary Hearing

Lee argues that the trial court erred when it failed to hold an evidentiary

hearing, because he disputed material facts supporting the State's restitution

claim. The State concedes that the trial court did not hold a proper evidentiary

hearing and that this court should remand the case for an evidentiary hearing on

restitution.

Ifthe defendant disputes facts relevant to determining restitution, the State

must prove the damages at an evidentiary hearing by a preponderance of the

evidence. State v. Kinneman. 155 Wn.2d 272, 285, 119 P.3d 350 (2005).

During the restitution hearing, Lee argued that the State could not prove by

a preponderance of the evidence that the assault caused Lesaca's injuries. Lee

requested an evidentiary hearing. The trial court continued the first restitution

hearing on November 4, 2014 so that it could determine ifan evidentiary hearing

was necessary. The trial court specifically noted that itwas not setting the matter

for an evidentiary hearing. At the continued hearing on November 18, 2014, the

trial court determined that it was not prepared to determine whether it needed to

hold any further hearing, because it had not yet read Kinneman. The trial court

entered an order of restitution without holding an additional hearing.

In light of Kinneman, and the fact that the trial court never held a proper

evidentiary hearing, we accept the State's concession. We reverse the order

setting restitution and remand for an evidentiary hearing.
No. 72828-8-1/5

II. Right to Confrontation at Evidentiary Hearing

Lee argues that, on remand, due process requires that he have the

opportunity to confront the State's evidence1 and call witnesses.2 He cites to

Morrissev v. Brewer. 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L Ed. 2d 484 (1972)

to support his assertion. In Morrissev, the United States Supreme Court

considered whether the requirements of due process in general apply to parole

revocations. Morrissev, 408 U.S. at 481. The Morrissev court held that, among

other requirements, due process requires that the defendant be allowed to crossexamine adverse witnesses at a parole revocation hearing unless good cause is

shown not to allow confrontation. |g\ at 489.

Lee cites to several Washington cases in which the courts have applied the

holding in Morrissev to create due process requirements for postsentencing

hearings. But, Morrissev and the cases cited by Lee are distinguishable. Unlike

in a restitution context, those cases involved the termination of the defendant's

liberty interest. See State v. Dang. 178 Wn.2d 868, 883, 312 P.3d 30 (2013)

(revocation of an insanity acquittee's conditional release); State v. Abd-Rahmaan,

154 Wn.2d 280, 291, 111 P.3d 1157 (2005) (right to confront witnesses at

sentence modification hearings); State v. Dahl, 139 Wn.2d 678, 688, 990 P.2d 396

(1999) (the revocation of a Special Sex Offender Sentencing Alternative); State v.

1 Lee ostensibly raises this argument now, on appeal, because the State

argued below that while Kinneman requires an evidentiary hearing, it does not

require that the State provide live testimony from its witnesses.

2The State does not appear to contest Lee's assertion that he is entitled to

call his own witnesses to refute the State's evidence during the evidentiary hearing.

Therefore, we focus on Lee's argument that due process dictates he has the right

to confront the State's witnesses.
No. 72828-8-1/6

Nelson. 103 Wn.2d 760, 762-63, 697 P.2d 579 (1985) (revocation of a conditional

suspended sentence). Neither Morrissev nor any of the Washington state cases

carved out additional due process protections in the context of restitution hearings.

In fact, at least one Washington court has rejected Lee's argument. In State

v. Fambrough. 66 Wn. App. 223, 224, 226, 831 P.2d 789 (1992),3 the defendant

argued that he had the right to cross-examine and confront the preparer of a

professional estimate to repair a scooter at the restitution hearing. In rejecting this

argument, the Fambrough court specifically noted that restitution involves no

potential loss of liberty, and that due process is "substantially relaxed" at restitution

hearings. 10^226-27.

The rules of evidence do not apply at restitution hearings. State v. Pollard.

66 Wn. App. 779, 784, 838 P.2d 51 (1992). But, the evidence presented to the

trial court must still meet due process requirements such as providing the

defendant an opportunity to refute the evidence presented, and requiring that the

evidence be reliable. Id. at 784-85. Lee has cited to no authority stating that due

process dictates the State must present live witnesses so that he may refute that

evidence by confronting those witnesses. Therefore, we reject this argument.

3 Fambrough was a juvenile case. 66 Wn. App. at 224-25. Although the

defendant in Fambrough based his argument on a statute under the Juvenile

Justice Act, RCW 13.40.150(1), the court's reasoning was not limited to the

juvenile justice context. See id at 226.

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No. 72828-8-1/7

III. Jury Determination

Lastly, Lee argues that both the Sixth Amendment and article I, section 21

of the Washington State Constitution require a jury determination of the facts

necessary to set a restitution amount.

That the Sixth Amendment requires a jury determination for restitution was

already squarely rejected by the Washington Supreme Court in Kinneman. See

155 Wn.2d. at 282. Although Lee rejects the Kinneman court's reasoning,

Kinneman is still good law in Washington. A decision by the Washington Supreme

Court is binding on all lower courts in the state. State v. Pedro, 148 Wn. App. 932,

950, 201 P.3d 398 (2009). Unless and until the Washington Supreme Court or the

United States Supreme Court rule otherwise, Kinneman dictates that Lee's

argument is without merit.4

Next, Lee categorizes restitution as "damages" and argues that article I,

section 21's mandate that the right of trial by jury remains inviolate, requires a jury

determination of damages. Lee cites to Sofiev. Fibreboard Corp., 112 Wn.2d 636,

648, 771 P.2d 711, 780 P.2d 260 (1989) to support his assertion. In Sofie, a civil

case, the court concluded that a statute placing a limit on noneconomic damages

4 Lee categorizes restitution as a punishment and cites to a line of United

States Supreme Court cases—Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000) and S. Union Co. v. United States. __U.S._, 132

S. Ct. 2344, 183 L. Ed. 2d 318 (2012)—for the assertion that the jury should

determine facts that warrant punishment. But, the Ninth Circuit has already

explicitly held that these cases do not extend to restitution. See United States v.

Green, 722 F.3d 1146, 1150-51 (9th Cir. 2013); And, the court in Green noted that

while the United States Supreme Court has not yet decided whether that line of

cases applies to restitution, ithas stated in dictum that applying the cases to orders

of restitution would " 'cut the rule loose from its moorings.'" \_± at 1149-50 (quoting

Oregon v. Ice, 555 U.S. 160, 171-72, 129 S. Ct. 711, 172 L Ed., 2d 517 (2009)).
No. 72828-8-1/8

was unconstitutional, because it interfered with the jury's traditional function to

determine damages. Id. at 638. Lee provides no authority to support his assertion

that the article I, section 21 analysis in Sofie applies in a criminal setting to the

determination of restitution. Thus, we reject his argument that he is entitled to a

jury determination of restitution on remand.

We reverse and remand.

WE CONCUR:

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