State v. Cosgaya–Alvarez

• Decision Date: 14 January 2013
• Docket Number: No. 66978–8–I.,66978–8–I.
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Luis F. COSGAYA–ALVAREZ, Appellant.

291 P.3d 939

The STATE of Washington, Respondent,

v.Luis F. COSGAYA–ALVAREZ, Appellant.

No. 66978–8–I.

Court of Appeals of Washington,

Division 1.

Jan. 14, 2013.

Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Appellant.

Brian Martin McDonald, King County Prosecuting Attorney, Seattle, WA, for Respondent.

SCHINDLER, J.

¶ 1 Luis F. Cosgaya–Alvarez pleaded guilty to murder in the second degree of Omero Mendez, and agreed to pay restitution “in full” to the victims of the crime. On appeal, Cosgaya–Alvarez claims the court did not have the statutory authority to impose restitution for court-ordered child support. In the alternative, he contends the court abused its discretion in determining the amount of restitution. We agree with the analysis in State v. Young, 63 Wash.App. 324, 818 P.2d 1375 (1991), and hold the court has the authority to impose restitution to the victims of a crime for court-ordered child support. We also conclude the court did not abuse its discretion in determining the amount of restitution, and affirm.

FACTS

¶ 2 As part of the plea agreement, Luis F. Cosgaya–Alvarez stipulated to the facts set forth in the affidavit of probable cause. According to the affidavit of probable cause, on August 14, 2008, Omero Mendez drove to Lakota Junior High School to pick up his girlfriend's son. After he arrived, a black Lincoln Navigator drove into the school parking lot. Cesar H. Moreno was driving the Navigator, Julio C. Colin–Serrano was in the front seat, and Cosgaya–Alvarez was in the back seat of the car “flashing gang signs.” Moreno parked the Navigator in front of Mendez's car to prevent him from leaving. After a brief argument, Cosgaya–Alvarez pulled a bandana over his face, pulled out a gun, and shot Mendez. Mendez died of a single gunshot to the head.

¶ 3 The State charged Cosgaya–Alvarez with murder in the second degree while armed with a firearm. On September 8, the State filed an amended information also charging Moreno and Colin–Serrano with drive-by shooting and unlawful possession of a stolen firearm. Before trial, Cosgaya–Alvarez pleaded guilty to murder in the second degree and the mandatory deadly weapon enhancement. As part of the plea agreement, Cosgaya–Alvarez stipulated to the facts set forth in the certification for determination of probable cause and agreed to pay restitution “in full to the victim(s) on charged counts.” The court imposed a standard-range sentence of 156 months with a 60–month deadly weapon enhancement, and scheduled a hearing on restitution.

¶ 4 The State submitted a proposed order of restitution for $4,743.19 to Lorena Mendez for funeral and burial expenses; $13,761.61 to the Crime Victims Compensation Program for medical expenses, funeral expenses, and pension payments; and $100,200.00 to Crystal Morgan for court-ordered child support of the crime victim's two children. The State submitted the court order that required Mendez to pay child support of $300 per month to Crystal Morgan for O.M., born January 10, 2004, and $300 per month for E.M., born March 8, 2005.

¶ 5 At the restitution hearing, the defense attorney conceded the court had the authority to order restitution for the child support obligation.

As an initial matter, in concept we do not object to any of these. And with respect to the amounts, the proposed restitution to Lorena Mendez and the proposed restitution to the Crime Victims Compensation Program, we do not have any objection to. So, those amounts I think we can just basically take off the table; I'm happy to sign an order.

With respect to the amount for Crystal Morgan, what that reflects is child support obligations that the decedent was required to pay for the two children until their 18th birthday.

THE COURT: Okay. And there was a ... judgment?

[DEFENSE COUNSEL]: There was a judgment.

THE COURT: Okay.

[DEFENSE COUNSEL]: Right. And initially, I ... thought that that was something that wouldn't fit within the purview of the statute for restitution, but ... State's counsel provided us with a—a case that seemed to suggest that that's actually is something that is properly sought.... I'm not going to be contesting that piece. The issue that I think is now before the Court is the proper amount.

The defense attorney argued that based on an annuity calculation, the court should only order Cosgaya–Alvarez to pay $67,687.33. The court rejected the defense request to reduce the court-ordered amount owed for future child support.

¶ 6 The “Order Setting Restitution” requires Cosgaya–Alvarez to pay $100,200.00 to Crystal Morgan for the child support obligation for the two children; to pay Lorena Mendez $4,743.19 for funeral and burial expenses; and to pay the Crime Victims Compensation Program $13,761.61 for medical expenses, funeral expenses, and pension payments.¹

ANALYSIS

¶ 7 Cosgaya–Alvarez contends the court did not have statutory authority to require him to pay restitution for the court-ordered child support. The State asserts that because Cosgaya–Alvarez conceded below that the court had the authority to order restitution for the child support obligation, he waived his right to challenge the court's authority for the first time on appeal.

¶ 8 Under the Sentencing Reform Act of 1981(SRA), chapter 9.94A RCW, restitution is “ ‘part of an offender's sentence.’ ” State v. Hughes, 154 Wash.2d 118, 155, 110 P.3d 192 (2005) (quoting State v. Edelman, 97 Wash.App. 161, 166, 984 P.2d 421 (1999)).² A defendant waives the right to challenge an alleged sentencing error for the first time on appeal if the error involves agreement to facts, or the exercise of discretion. In re Pers. Restraint of Goodwin, 146 Wash.2d 861, 874, 50 P.3d 618 (2002). But a defendant can challenge a legal error in a sentence for the first time on appeal. Goodwin, 146 Wash.2d at 873–74, 50 P.3d 618.See also State v. Bahl, 164 Wash.2d 739, 750, 193 P.3d 678 (2008) (defendant always has standing to challenge illegality of sentence). Accordingly, Cosgaya–Alvarez may challenge the court's authority to impose restitution for court-ordered child support for the first time on appeal.

¶ 9 The authority to impose restitution is entirely statutory. State v. Tobin, 161 Wash.2d 517, 524, 166 P.3d 1167 (2007). The “language of the restitution statute[ ] indicates legislative intent to grant broad powers of restitution.” State v. Davison, 116 Wash.2d 917, 920, 809 P.2d 1374 (1991). Restitution is both punitive and compensatory. State v. Kinneman, 155 Wash.2d 272, 279–80, 119 P.3d 350 (2005). The restitution statute requires the defendant “to face the consequences of his or her criminal conduct.” Tobin, 161 Wash.2d at 524, 166 P.3d 1167. Because the restitution statute is interpreted to carry out the statutory goals, the court “does not engage in overly technical construction that would permit the defendant to escape from just punishment.” Tobin, 161 Wash.2d at 524, 166 P.3d 1167.

¶ 10 Under RCW 9.94A.753(5), the court shall order restitution “whenever the offender is convicted of an offense which results in injury to any person or damage to or loss of property” unless extraordinary circumstances make restitution inappropriate. Restitution for injury or loss of property must also be “easily ascertainable.” RCW 9.94A.753(3). RCW 9.94A.753(3) gives the court the discretion to order restitution up to double the amount of the victim's loss.³

¶ 11 Cosgaya–Alvarez argues that the court does not have the authority under RCW 9.94A.753(3) to order restitution for the victim's child support obligation because (1) the crime did not result in a “loss of property” and (2) the amount of restitution is not “easily ascertainable.” ⁴ Division Two of this court considered and rejected the same argument in State v. Young, 63 Wash.App. 324, 818 P.2d 1375 (1991). We agree with the analysis in Young.

¶ 12 In Young, the defendant was convicted of vehicular homicide. Young, 63 Wash.App. at 326, 818 P.2d 1375. The court ordered the defendant to pay restitution for the victim's court-ordered child support obligation. Young, 63 Wash.App. at 329, 818 P.2d 1375. On appeal, the defendant argued the court did not have the authority under former RCW 9.94A.140 (1982) to order him to pay future child support.⁵Young, 63 Wash.App. at 329, 818 P.2d 1375. The court identified the issue as whether a child support order is “loss of property” under the restitution statute.

The issue, however, is not whether the [the victim's] duty to pay child support is “property”; rather, it is whether his children's corresponding right to receive support is “property”. More importantly, the issue is not whether a child's right to receive support from a parent is “property” before that right is reduced to judgment. Because the right here had merged in a judgment requiring payments of $250 per month, the issue is whether a judgment requiring monthly child support payments is “property” for purposes of the restitution provisions of the SRA.

Young, 63 Wash.App. at 331, 818 P.2d 1375.

¶ 13 The court held that because a child support order constitutes loss of property under the restitution statute, the court has the authority to order the defendant to pay restitution for future child support payments. Young, 63 Wash.App. at 330–31, 818 P.2d 1375.

This statute vests trial courts with the authority to order that the defendant in a vehicular homicide case pay as restitution the victim's future child support payments that were reduced to judgment before the victim's death.

Young, 63 Wash.App. at 330, 818 P.2d 1375.

¶ 14 In reaching the conclusion that the court has statutory authority to order restitution for future child support payments, the court in Young relied on a pre-SRA case, State v. Barr, 99 Wash.2d 75, 658 P.2d 1247 (1983). Young, 63 Wash.App. at 332, 818 P.2d 1375. In Barr, the deceased victim of a negligent homicide had a court-ordered obligation to pay child support under the terms of a decree of dissolution. Barr, ...