State v. Bilbao ( 2024 )

No. 264 April 24, 2024 231
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALEJANDRO JEAN BILBAO,
Defendant-Appellant.
Washington County Circuit Court
22CR16253; A178836
Chris C. Colburn, Judge.
Argued and submitted January 24, 2024.
James Brewer, Deputy Public Defender, argued the
cause for appellant. On the brief were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Nora Coon,
Deputy Public Defender, Office of Public Defense Services.
Colm Moore, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
JACQUOT, J.
Reversed and remanded.
232 State v. Bilbao
JACQUOT, J.
Defendant was convicted of one count of second-
degree theft, ORS 164.045, after an incident in which he
stole merchandise from a Macy’s. In his only assignment
of error, he argues that the trial court erred by denying his
motion to dismiss the charge pursuant to a civil compro-
mise under ORS 135.703 and ORS 135.705. We reverse and
remand for further proceedings consistent with this opinion.
Defendant stole merchandise worth $336.68 from
Macy’s. The items were immediately recovered, and Macy’s
issued a “Civil Demand Notice” for $586.68, representing a
$336.68 penalty based on the value of the merchandise and
the maximum allowable additional penalty of $250 pursu-
ant to ORS 30.875. The Civil Demand notice stated:
“This state has passed a Civil Recovery (Civil Demand) law
permitting retailers to recover a monetary penalty and/or
damages from you as a result of this incident. The Civil
Demand fee may take into consideration the retail value
of the merchandise, whether or not it was recovered, dam-
aged, or non-saleable, and an additional amount as a pen-
alty permitted by law.”
Macy’s then sent defendant a letter titled “RELEASE OF
CIVIL LIABILITY” that stated:
“Dear [defendant,] This letter will confirm that MACYS
has received full payment of the civil demand claims aris-
ing out of the incident that occurred at MACYS on 3/13/22
involving you. This release is expressly limited to the civil
liability claim, and does not alter or affect any liability,
penalty, or punishment which may arise under Criminal
Statutes. Further, this release is void if payment received
for settlement is non-negotiable.”
Defendant moved to dismiss the charge pursuant
to civil compromise under ORS 135.703 and ORS 135.705.
Defendant argued that because Macy’s had acknowledged
his payment of the full civil penalty amount allowed under
ORS 30.875, and released him from civil liability, it had
acknowledged full satisfaction as required for a civil com-
promise. The state opposed the motion.
Cite as 332 Or App 231 (2024) 233
At a hearing on the motion, the court rejected defen-
dant’s argument, reasoning:
“One, the first case you cited, the Supreme Court said,
‘Look—if the legislature wanted to leave the civil compro-
mise up to the victim, they could write that into the law.’
And then the legislature turned around and wrote it into
the law. And that’s what that amendment to that statute is.
“The second way I think your argument fails is, under
ORS 30.875, the penalties available to the retailer are
actual damages in an amount less than $500, up to an
amount of less than $500 as a penalty. And an additional
penalty of more than $100 but not greater than $250.
“So, if your argument is the $338 [sic] is evidence of
the satisfaction, that’s evidence of the penalty under ORS
30.875, and the civil compromise statute says you can’t look
at evidence of the civil penalty.”
On appeal, the parties dispute whether Macy’s
written acknowledgment of receiving the full payment of
the civil demand and releasing him from further civil liabil-
ity satisfies ORS 135.705.
When determining whether to accept a proposed
civil compromise, the trial court engages in a two-step pro-
cess. State v. Bayliss, 331 Or App 492, 496, ___ P3d ___
(2024). First, it must determine whether it has the statutory
authority to accept the compromise. Id. Second, if it does
have the statutory authority, it exercises its discretion to
decide whether to accept the compromise and dismiss the
charges. Id. Here, at step one, the trial court determined
that it did not have the statutory authority and did not pro-
ceed to step two.
Under ORS 135.703 and ORS 135.705(1)(a), a trial
court has statutory authority to dismiss a charge pursuant
to a civil compromise only if four conditions are met:
“(1) the defendant is charged with a crime punishable as
a misdemeanor, (2) the person injured by the act consti-
tuting the crime has a remedy by civil action, (3) the per-
son injured acknowledges in writing before trial that the
person has received satisfaction for the injury, and (4) the
defendant pays costs and expenses incurred.”
234 State v. Bilbao
State v. Ferguson, 261 Or App 497, 500, 323 P3d 496 (2014)
(summarizing requirements of ORS 135.703 and 135.705(1)
(a)). Here, the parties’ dispute concerns only the third condi-
tion—specifically, what is required from a retailer to show that
it has “received satisfaction for the injury,” ORS 135.705(1)(a),
with regard to a shoplifter, in light of the legislative addi-
tion of ORS 135.705(1)(b). ORS 135.705(1)(b) provides that
“a written acknowledgment that a civil penalty under ORS
30.875 has been paid is not evidence that the person injured
has received full satisfaction for the injury and is not a com-
promise under this section.” ORS 30.875(1) gives retailers a
civil cause of action against shoplifters for two civil penalties:
a penalty in the amount of the merchandise up to $500, and
an additional penalty of up to $250.1 The shoplifter is also
required to pay actual damages. ORS 30.875(1).
The parties disagree about whether an acknowledg-
ment from a merchant that a defendant has resolved their
full obligations under ORS 30.875 is sufficient evidence to
allow a trial court the statutory authority to proceed to step
two and exercise its discretion, or whether ORS 135.705(1)
(b) requires something more. Here, the trial court concluded
that something more was needed under the statute and,
therefore, it did not have the statutory authority to consider
the purported compromise.
The parties agree that the outcome in this case
turns on the intent of the legislature when it added para-
graph (1)(b) to ORS 135.705. The state argues that by enact-
ing ORS 135.705(1)(b), the legislature intended to maintain
a separation between civil compromises and a defendant’s
liability under ORS 30.875; repudiate a Supreme Court deci-
sion; and allow courts to process civil compromises under
the previous understanding of that body of law. Defendant
argues that the legislature intended to ensure that retailers
1
ORS 30.875(1) provides, in relevant part,
“An adult * * * who takes possession of any merchandise displayed or
offered for sale by any mercantile establishment * * * without the consent of
the owner and with the intention of converting such merchandise or produce
to the individual’s own use without having paid the purchase price thereof
* * * shall be civilly liable to the owner for actual damages, for a penalty to the
owner in the amount of the retail value of the merchandise * * * not to exceed
$500, and for an additional penalty to the owner of not less than $100 nor
more than $250.”
Cite as 332 Or App 231 (2024) 235
were paid the full amount owed to them rather than only
the penalties allowed by ORS 30.875.
Questions of statutory construction are “questions
of law that we review for legal error.” State ex rel Rosenblum
v. Living Essentials, LLC, 371 Or 23, 33, 529 P3d 939 (2023).
Our goal is to determine the legislature’s intent. ORS
174.020; State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042
(2009). We begin by considering the text and context of ORS
135.705(1)(b). Gaines, 346 Or at 171-72. A statute’s context
“includes other provisions of the same or related statutes,
the pre-existing statutory framework within which the stat-
ute was enacted,” and prior decisions that have interpreted
it. Ogle v. Nooth, 355 Or 570, 584, 330 P3d 572 (2014). In
addition to text and context, we consider the legislative his-
tory of the statute and accord it the weight that we consider
to be appropriate. ORS 174.020(3); Gaines, 346 Or at 171-72.
Importantly, “this court is responsible for identifying the
correct interpretation, whether or not asserted by the par-
ties.” Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).
“Because there is no more persuasive evidence of
the intent of the legislature than the words by which the
legislature undertook to give expression to its wishes, we
begin with the text of the statute.” Alfieri v. Solomon, 358
Or 383, 392, 365 P3d 99 (2015) (internal quotation marks
omitted). ORS 135.705(1) provides:
“(a) If the person injured acknowledges in writing,
at any time before trial on an accusatory instrument for
the crime, that the person has received satisfaction for the
injury, the court may, in its discretion, on payment of the
costs and expenses incurred, enter a judgment dismissing
the accusatory instrument.
“(b) For purposes of paragraph (a) of this subsection,
a written acknowledgment that a civil penalty under ORS
30.875 has been paid is not evidence that the person injured
has received full satisfaction for the injury and is not a com-
promise under this section.”
(Emphases added.)
ORS 135.705(1)(b) expressly references ORS 30.875.
As noted above, ORS 30.875(1) requires shoplifters to pay
236 State v. Bilbao
three amounts: (1) “actual damages,” (2) “a penalty to the
owner in the amount of the retail value of the merchandise
* * * not to exceed $500,” and (3) “an additional penalty to
the owner of not less than $100 nor more than $250.” The
second and third amounts are “penalties,” while the first is
not. See State v. Reetz, 142 Or App 421, 425 n 6, 920 P2d
568 (1996) (“ORS 30.875 permits recovery of actual dam-
ages, if any, and penalties.”). Defendant’s argument, as we
understand it, is that because ORS 135.705(1)(b) excludes
“a written acknowledgment that a civil penalty under ORS
30.875 has been paid” (emphasis added) from being evidence
of a civil compromise, the legislature must have intended to
limit the trial court’s authority to accept a civil compromise
where the only evidence of satisfaction is an acknowledg-
ment that the second and third amounts have been paid. In
defendant’s view, had the legislature intended to bar civil
compromises even when the writing acknowledges that the
defendant has paid everything owed under ORS 30.875 and
has been released from further civil liability, it would not
have specifically referenced a civil “penalty.”
A recitation of the progression of the law interpret-
ing ORS 135.703 and ORS 135.705 in the context of ORS
30.875 and leading to the enactment of ORS 135.705(1)(b)
provides important context for our interpretation. Ogle, 355
Or at 584. Three cases decided prior to the enactment of
ORS 135.705(1)(b) provide the necessary context.
In 1974, in State v. Dumond, the defendant was
charged with first-degree theft for obtaining $534 in unem-
ployment benefits while he was employed and earning wages.
270 Or 854, 855, 530 P2d 32 (1974). After the defendant repaid
the amount, the Employment Division acknowledged that it
had received payment “in full in the amount of $534,” but
advised that by accepting the payment it was not consenting
to a civil compromise. Id. at 855-56. The trial court ordered
the indictment dismissed pursuant to a civil compromise over
the objections of the district attorney and the Employment
Division. Id. at 856. On review, the Supreme Court considered
whether the term “satisfaction” in ORS 135.705 requires that
the victim consent to the compromise and determined that it
does not. Id. at 857-58. It concluded that “the legislature did
Cite as 332 Or App 231 (2024) 237
not intend to make compromise subject to the whim or caprice
of the injured party” because if it had, it would have made
that consent a requirement in the statute. Id. at 858. Looking
to the common legal definition of “satisfaction,” being either
“the discharge of an obligation by paying a party what is due
to him or what is awarded to him by the judgment of a court
of otherwise” or, more simply, “the payment of a debt,” it deter-
mined that the trial court has discretion to compromise the
charge “if the injured party acknowledges in writing that he
has received full payment of the amount stolen from him.” Id.
at 858-59 (internal quotation marks and citations omitted).
In 1979, the legislature enacted ORS 30.875, giv-
ing retailers a private cause of action against shoplifters for
civil penalties. Or Laws 1979, ch 592, § 2.
In 1986, in State v. Ha, we addressed the relation-
ship between ORS 30.875 and the civil compromise statutes.
82 Or App 570, 572, 728 P2d 932 (1986), rev den, 302 Or 657(1987). In Ha, the defendant was charged with second-degree
theft after shoplifting at a department store. Id. The store
demanded and received payment from her pursuant to ORS
30.875, and the defendant moved to dismiss the charge, argu-
ing that her payment “represents a civil compromise.” Id. The
trial court dismissed the charge. Id. On the state’s appeal,
the defendant argued that payment under ORS 30.875 was
the “functional and legal equivalent of an injured person’s
receiving satisfaction under the civil compromise statutes.”
Id. at 573. We reversed, concluding that although ORS 30.875
was aimed at providing civil redress for the victim, it was
also aimed at penalizing the offender. Id. Ultimately,
“ORS 30.875 and ORS 135.703 to 135.709 are separate stat-
utes with separate purposes. The former has the principal
purpose of establishing civil penalties to supplement the
penalties of the criminal law as a deterrent to shoplifting.
The latter allows the offender to tender satisfaction and the
victim to accept it as an alternative to criminal prosecu-
tion. The fact that the two statutes are not inconsistent in
the way that they affect the victim does not mean that the
other effects of the civil compromise statutes arise when
ORS 30.875 is pursued.”
Id. at 574.
238 State v. Bilbao
We concluded that Dumond’s holding that victim
consent is not required had no bearing on the case for the
same reasons that the civil compromise statutes had no
bearing: It was wholly unrelated. Id. at 575. Importantly,
we noted that a retailer who received payment under ORS
30.875 may choose to treat the payment as “satisfaction for
the injury” under ORS 135.705, but to do so, “the victim
must acknowledge in writing that he has received ‘satis-
faction for the injury.’ Indeed, ORS 135.705 does not define
what an injured person may regard as ‘satisfaction,’ ” but the
statutes do not overlap, and “the civil compromise statutes
do not automatically come into operation by virtue of a pay-
ment required by ORS 30.875.” Id. at 575 n 1 (emphases in
original).
In 1997, in State v. Johnsen, we again faced facts
like those in Ha. 149 Or App 711, 945 P2d 1064 (1997)
(Johnsen I), rev’d, 327 Or 415, 962 P2d 689 (1998) (Johnsen
II). The defendant was charged with second-degree theft
after stealing merchandise from a Fred Meyer. Id. at 713.
The defendant moved to dismiss on the grounds of a civil
compromise, providing as evidence a receipt signed by a
Fred Meyer employee stating, “Civil penalty of $252.98 was
paid in Full as of 10/2/96. Thank you.” Id. The trial court
granted the motion, and on appeal, we reversed, relying on
Ha and stating,
“In Ha, we held that evidence of payment of a civil penalty,
pursuant to ORS 30.875, is not, by itself, sufficient evidence
of a civil compromise. Rather, the defendant, in seeking
dismissal, must adduce evidence that the complainant, in
accepting payment of the civil penalty, explicitly acknowl-
edged that that payment constituted full ‘satisfaction for
the injury’ incurred.
“* * * As in Ha, the receipt here showed only that defen-
dant had paid her civil penalty. Fred Meyer did not specifi-
cally acknowledge that the civil penalty payment also rep-
resented, or effected, ‘satisfaction for the alleged injury.’ ”
Id. at 715 (emphases in original; citations omitted).
In Johnsen II, the Supreme Court disagreed. 327 Or
at 415. The court focused on the definition of “satisfaction”
provided in Dumond and noted that, although ORS 30.875
Cite as 332 Or App 231 (2024) 239
was enacted five years after that decision, the legislature
did not refer to the phrase “satisfaction for the injury” nor
give any indication that by enacting the statute, “it intended
to modify this court’s interpretation of ‘satisfaction’ ” in
Dumond and ORS 135.705. Id. at 420. The court reversed
our decision, holding that,
“for the purpose of civil compromise, ‘satisfaction for the
injury’ consists of written acknowledgment from the vic-
tim of receipt of full payment of the amount stolen. The
state concedes that payment of a civil penalty under ORS
30.875 necessarily includes full payment of the retail value
of the stolen merchandise. It follows that written acknowl-
edgment from the merchant that a shoplifter paid the civil
penalty provided by ORS 30.875 is ‘satisfaction for the
injury’ for the purpose of the civil compromise statutes.”
Id. at 420-21.
The next year, the legislature enacted the para-
graph at issue in this case. Or Laws 1999, ch 925, § 1.
With that background in mind, as an initial mat-
ter, we believe it necessary to address whether Ha is still
good law in light of the Supreme Court’s subsequent deci-
sion in Johnsen II. “Whether one of our cases remains good
law in light of a subsequent Supreme Court decision turns
on whether the Supreme Court’s decision overrules our
prior holding and, if it does not, whether the court’s analysis
demonstrates that our prior decision is plainly wrong, such
that we should overrule it ourselves.” State v. Stevens, 329
Or App 118, 125, 540 P3d 50 (2023) (internal quotation
marks omitted). A subsequent Supreme Court decision over-
rules our decision if it addresses the same question resolved
in our case. State v. McKnight, 293 Or App 274, 278, 426 P3d
669, rev den, 363 Or 817 (2018).
We concluded in Ha that ORS 135.703 to 135.709
and Dumond had no bearing in the context of ORS 30.875,
and that an acknowledgment that a defendant has paid what
is required under ORS 30.875 is not sufficient to satisfy ORS
135.705(1)(a) without an acknowledgment from the victim
that it has specifically received “satisfaction for the injury.”
Ha, 82 Or App at 574-75. In Johnsen I, the state argued,
and we agreed, that we should reverse the trial court’s order
240 State v. Bilbao
because it was “irreconcilable with Ha,” and our reasoning
in the case relied entirely on Ha. Johnsen I, 149 Or App at
714-16.
The Supreme Court reversed our decision in
Johnsen I, applied ORS 135.703 to 135.709 and Dumond in
the context of ORS 30.875, and determined that a “written
acknowledgment from the merchant that a shoplifter paid
the civil penalty provided by ORS 30.875 is ‘satisfaction for
the injury’ for the purpose of the civil compromise statutes.”
Johnsen II, 327 Or at 420-21. Johnsen II addressed the same
question presented in Ha, and the court ruled in the oppo-
site way. Therefore, the Supreme Court’s decision in Johnsen
II implicitly overruled Ha.
Returning to the case at hand, the parties base
their arguments primarily on the legislative history of
ORS 135.705(1)(b). Defendant contends that the legisla-
ture intended to repudiate the Supreme Court’s decision in
Johnsen II because the decision incorrectly relied on the belief
that payment of the civil penalties under ORS 30.875 neces-
sarily also included actual damages. Defendant argues that
because the acknowledgment from Fred Meyer in Johnsen
did not include information regarding whether the store
recovered the merchandise undamaged or the defendant
paid actual damages under ORS 30.875, nor did it release
the defendant from civil liability, it is unclear whether Fred
Meyer actually received in full what it was due. According
to defendant, the legislature’s concern with Johnsen II was
that it set a standard where a defendant can take advan-
tage of the civil compromise process after paying only the
civil penalties due under ORS 30.875, even if the retailer
has not received actual damages and truly recovered what
it is owed. Therefore, defendant argues, his case is not one
that the legislature intended to exclude from civil compro-
mise when it enacted ORS 135.705(1)(b) because the letter
he received from Macy’s acknowledged that it had received
“full payment of the civil demand claims” and released him
from further civil liability, meaning it had received all that
it considered due and, therefore, “full satisfaction.”
The state, on the other hand, argues that the legis-
lature intended to return the law to what it was under our
Cite as 332 Or App 231 (2024) 241
decisions in Ha and Johnsen I—namely, that an acknowl-
edgment of payment of a civil demand under ORS 30.875,
with or without actual damages, is an insufficient acknowl-
edgment from the victim to allow the trial court to exer-
cise its discretion to consider the compromise. According to
the state, the legislature’s goal was to ensure that the civil
demand process under ORS 30.875 was kept entirely sepa-
rate from the civil compromise process under ORS 135.705
and 135.703, and to ensure that a retailer exercising its
rights under ORS 30.875 was not unknowingly and invol-
untarily providing an acknowledgment of payment that the
defendant could then use to seek a civil compromise.
Both parties point us to legislative history to sup-
port their positions. However, overall, the legislative history
is at best ambiguous.2 We do not find it helpful and, accord-
ingly, interpret the statute based on its plain text. See Dept.
of Human Services v. J. C., 365 Or 223, 231 n 2, 444 P3d 1098
(2019) (“We base our interpretation of [the statute] on its text.
Both [parties] have provided some legislative history of the
provision in support of their competing arguments. But the
legislative history is ambiguous at best, and it does not lead
us to a conclusion other than the one that we reach based on
the text of [the statute].”); see also Suchi v. SAIF, 238 Or App
48, 55, 241 P3d 1174 (2010), rev den, 350 Or 231 (2011) (“Even
assuming that the legislative history supported claimant’s
interpretation, we are required not to construe a statute in a
way that is inconsistent with its plain text.”).
ORS 30.875(1) establishes that shoplifters are
required to pay three amounts to satisfy their civil liability
to owners of merchandise: actual damages and two penal-
ties. The legislature enacted ORS 30.875(1) as a deterrent
2
There are pieces of the legislative history to support each party’s argu-
ment. However, it is unclear to what extent the legislature understood the
Supreme Court’s holding in Johnsen II; the difference between a civil penalty,
a civil demand under ORS 30.875, and a civil compromise; and the legal frame-
work under which each operates. Tape Recording, Senate Judiciary Committee,
HB 2462, June 10, 1999, Tape 227, Side B (statement of Legislative Counsel
John Horton) (“When this bill came before the House Judiciary Committee on
Criminal Law, it was one of the more confusing bills. I would emphasize that
this is two statutes: one is the civil compromise statute, which is a criminal stat-
ute. And the other one is the civil action statute.”). Given the confusion, much of
the legislative history is nonspecific and internally contradictory, and it does not
assist us.
242 State v. Bilbao
to shoplifting and because, under general civil recovery law,
if the retailer does not suffer actual damages—for example,
if the merchandise is recovered—punitive damages cannot
be recovered. Payless Drug Stores v. Brown, 80 Or App 255,
258, 722 P2d 31, rev den, 302 Or 159 (1986) (“The legislature
recognized that, although shoplifting may involve a techni-
cal conversion, in a conversion action the merchant may not
be able to prove damages if the merchandise is recovered
and punitive damages could not, therefore, be recovered.”);
Reetz, 142 Or App at 425 (“The statutory penalty provided
in ORS 30.875 is a private remedy: A statutory penalty per-
mits an individual to recover against a wrongdoer, as a sat-
isfaction for the wrong or injury suffered, without reference
to the actual damage sustained.” (Emphasis and internal
citation omitted.)). Thus, the two penalty amounts specified
in ORS 30.875(1) stand in for punitive damages that may
not otherwise be recoverable in a shoplifting scenario.
The plain text of ORS 135.705(1)(b) specifies that
“a written acknowledgment that a civil penalty under ORS
30.875 has been paid is not evidence that the person injured
has received full satisfaction for the injury and is not a com-
promise under this section.” (Emphasis added.) Therefore,
the statute only restrains the trial court’s discretion to
consider the proposed compromise if the acknowledgment
shows no more than that the statutory penalties have been
paid. If the acknowledgment shows something more, such as
that the defendant has satisfied their obligations under ORS
30.875 in full—including actual damages—and is released
from further civil liability, ORS 135.705(1)(b) does not apply
and, barring any other statutory constraint, the trial court
has discretion to consider the proposed compromise.
Our analysis of the plain text of ORS 135.705(1)
(b) reveals that it does not apply to defendant’s case, and
the trial court had discretion to decide whether to accept or
deny the proposed compromise. It is undisputed that Macy’s
civil demand letter was based on ORS 30.875, and that (1) it
recovered the merchandise and (2) defendant paid the appli-
cable penalties. Macy’s subsequent letter acknowledged that
it had “received full payment of the civil demand claims aris-
ing out of the incident that occurred at MACYS on 3/13/22
Cite as 332 Or App 231 (2024) 243
involving [defendant]” and released him from further civil
liability. (Emphasis added.) Accordingly, the letter acknowl-
edged more than that defendant had paid the penalties that
he owed under ORS 30.875 and, therefore, is not precluded
from being offered as evidence of a civil compromise by ORS
135.705(1)(b). To be sure, the state may argue to the trial
court why it should not exercise its discretion to dismiss the
charge, but that is a separate question from whether the
court has authority to dismiss it. The trial court did have
the authority and, upon remand, must decide whether to do
so as a discretionary matter.
Reversed and remanded.