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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 No. 72828-8-1 DIVISION ONE UNPUBLISHED OPINION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 ofthe 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. Lesacatold 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 threatenedto 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 reportthe 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 ofLesaca's neck and attempted to strangle him. 

### Lesaca had to push hard on the bat to keep it from making contactwith 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 bailjumping. By 

### pleading guilty, Lee agreed to pay "restitution TBD [(to be decided)]." The trial court scheduled a restitution hearing for November4, 2014. 

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

### voluminouspaperworkdocumentingtherestitutionclaim. The State soughtnearly $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 billsto bepaid directlyto Lesaca. Lee argued that the trial courtshould not award any restitution, because therewas no causation—Lesacawas not injured during the strugglewith Lee. Lee 

### pointed out that the batdid nottouch Lesaca and that he stated that he was not 

### injured by the bat strike. He stated that the restitution request constitutedNo. 72828-8-1/3
insurancefraud. Inthe alternative, Lee asserted thatthe courtshould continuethe matterfor an evidentiary hearing. The State countered that Lesaca's injuries occurred when Lesaca was 

### strugglingwith Lee to prevent Leefrom 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. Itasserted 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 courtdeterminedthat 

### it was still not prepared to decide whether it needed to hold any furtherhearing. 

### Thenextday, withoutholding anadditional hearing, thetrialcourtentered 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 mustbe 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 

### ajurydetermination 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). Duringthe restitution hearing, Lee argued thatthe 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 November4, 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 itwas not prepared to determine whether itneeded to 

### hold any further hearing, because it had not yet read Kinneman. The trial court entered an orderofrestitution 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 notto allow confrontation. |g\ at489. 

### Lee cites to several Washington cases in whichthe 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 modificationhearings); Statev. Dahl, 139 Wn.2d 678, 688, 990 P.2d 396 (1999) (the revocation of a Special Sex Offender Sentencing Alternative); Statev. 1 Lee ostensibly raises this argument now, on appeal, because the State 

### argued below that while Kinneman requires an evidentiary hearing, itdoes not require thatthe State provide livetestimony from its witnesses. 

### 2The State does not appearto contest Lee's assertion that he is entitled to call his ownwitnessesto refutethe State'sevidenceduring the evidentiaryhearing. 

### Therefore, we focus on Lee's argumentthatdue 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 outadditional due process protections inthe contextofrestitution hearings. Infact, atleastoneWashington courthas rejected Lee's argument. InState


### 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 scooteratthe restitution hearing. In rejecting this argument, the Fambrough court specifically noted that restitution involves no potential loss of liberty, and thatdue process is "substantially relaxed" atrestitution hearings. 10^226-27. The rules ofevidence 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 thatthe 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 rejectthis 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 juvenilejustice context. See id at 226.

6No. 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. Thatthe 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 stillgood law inWashington. Adecision bytheWashington Supreme 

### Court is binding on all lowercourts inthe state. Statev. Pedro, 148 Wn. App. 932, 950, 201 P.3d 398 (2009). Unless and until theWashington Supreme Court orthe United States Supreme Court rule otherwise, Kinneman dictates that Lee's 

### argument is withoutmerit.4 Next, Lee categorizes restitution as "damages" and argues that article I, section 21's mandate thatthe right of trial by juryremains inviolate,requires a jury 

### determination ofdamages. Lee cites to Sofiev. Fibreboard Corp., 112Wn.2d 636, 648, 771 P.2d 711, 780 P.2d 260 (1989) to support his assertion. InSofie, a civil case, the court concluded that a statute placing a limit on noneconomic damages 

### 4Lee categorizes restitution as a punishment and cites to a line ofUnited States Supreme Courtcases—Apprendi v. NewJersey, 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 thatthese cases do not extend to restitution. See United States v. Green, 722 F.3d 1146, 1150-51 (9thCir. 2013); And, the court inGreen noted that 

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

### casesapplies torestitution, ithas stated in dictumthatapplyingthecasesto orders of restitution would " 'cutthe ruleloosefrom itsmoorings.'" \_± 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 authorityto supporthis 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 ofrestitution on remand.
We reverse and remand.

WE CONCUR:

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