State Of Washington, Respondent V. Young Keun Lee, Appellant

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IN 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UNPUBLISHED OPINION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 left the 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. At the 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.
If the 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 if an evidentiary hearing
was necessary. 	The trial court specifically noted that it was 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 cross-
examine 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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