People v. Cain
| Decision Date | 11 July 2000 |
| Docket Number | No. E025274.,E025274. |
| Citation | 82 Cal.App.4th 81,97 Cal.Rptr.2d 836 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Randy Lee CAIN, Defendant and Appellant. |
At issue in this case is the scope of a criminal defendant's due process rights at a hearing to determine the amount of restitution to be made to the victim by the defendant pursuant to Penal Code 1 section 273.5, subdivision (h)(2). More specifically, does a criminal defendant have a constitutional right to call and cross-examine the psychotherapist who provides counseling to the victim of the defendant's crime? We answer this question in the negative.
Defendant Randy Lee Cain pled no contest to a single count of violation of section 273.5 () and was placed on probation. As one of the conditions of his probation, defendant was ordered to pay $1,890.75 to the State Board of Control (hereafter, "the Board") to reimburse the Board for payment of counseling fees on behalf of defendant's wife (hereafter, "the victim"). On appeal, defendant challenges the court's restitution order on the grounds that (1) defendant was denied his constitutional rights at the hearing to determine the amount of restitution, and (2) the prosecution failed to present any evidence that counseling received by the victim was directly related to defendant's criminal conduct.
As we shall explain more fully below, we conclude that a criminal defendant does not have a state or a federal constitutional right at a hearing to determine the amount of restitution to call as a witness and cross-examine the psychotherapist who provided counseling to the victim. We also conclude that the trial court's restitution order was supported by substantial evidence.
The facts of the underlying offense are not in dispute and we will recite them very briefly. On March 18, 1998, defendant was staying at his wife's apartment. Defendant and his wife had been separated for about two years and slept in separate rooms. That day, defendant came home intoxicated and had an argument with his wife. In the course of the argument, defendant struck his wife on the side of the head with his fist.
Subsequently, defendant was arrested and charged with a violation of section 273.5. Although defendant initially pled not guilty, he later entered into a plea bargain with the prosecution, changed his plea to nolo contendere, and was placed on formal felony probation. One of the conditions of defendant's probation was to make restitution to the victim in the amount to be determined by the probation officer. In memoranda dated April 23, 1999 and May 12, 1999, the probation officer requested that the probation condition concerning restitution to the victim be modified to require defendant to pay $3,500 to the Board. According to the memoranda, the Board had already paid this amount for the victim's and her son's counseling.
During the June 17, 1999, hearing to determine the amount of restitution, defendant objected to the restitution order on the ground that the prosecution had not presented any evidence that counseling provided to the victim was related to defendant's criminal conduct. Defendant wanted to call as a witness and cross-examine the psychotherapist who provided counseling to the victim.
The trial court ruled that although defendant was entitled to a hearing on the issue of restitution to be made to the victim, he did not have a constitutional right to call and cross-examine the psychotherapist. In the court's opinion, any documentary evidence, even if hearsay, from the psychotherapist establishing the link between counseling and defendant's criminal conduct would have been sufficient to support a restitution order. The prosecution stated that it had a sworn statement from the psychotherapist that the counseling was directly related to the crime. Plaintiff did not object. The court then ordered defendant to pay $1,890.75 to the Board at the rate of $75 per month, commencing 30 days from the date of the hearing.
Defendant argues that he has a constitutional right, embodied in the Sixth Amendment of the federal Constitution and article I, section 15, of the California Constitution, to call and cross-examine adverse witnesses at a hearing to determine the amount of restitution to be made to the victim pursuant to section 273.5, subdivision (h)(2). Defendant contends that the trial court's (1) refusal to allow him to call and cross-examine the psychotherapist, and (2) reliance on hearsay information contained in the probation officer's memoranda and the itemized statement of claims paid by the Board on the victim's behalf violated his state and federal constitutional confrontation rights. Defendant further contends that the trial court's denial of his confrontation rights resulted in the hearing being fundamentally unfair in violation of the due process clause.
As to the confrontation clause argument, the People contend defendant was not denied his confrontation rights because he could have called as witnesses staff members from the Board. The People also contend that defendant's right to call and cross-examine adverse witnesses is outweighed by the victim's constitutional right to privacy and the statutory psychotherapist-patient privilege.
With respect to defendant's due process argument, the People respond that in the context of a restitution hearing, a criminal defendant is entitled to no more than prior notice of the amount of restitution sought and a hearing to contest that amount. The People argue that the due process clause does not prohibit determination of the amount of restitution based upon hearsay evidence contained in the probation report.
We have not found any published California decisions dealing with a criminal defendant's state or federal due process rights at a hearing to determine the amount of restitution to be made to the victim pursuant to section 273.5, subdivision (h)(2). However, we have found several decisions discussing the defendant's rights at a hearing to determine the amount of restitution to be paid to the victim pursuant to other statutes.2 The scope of a criminal defendant's due process rights at a hearing to determine the amount of restitution is very limited: "A defendant's due process rights are protected when the probation report gives notice of the amount of restitution claimed ..., and the defendant has an opportunity to challenge the figures in the probation report at the sentencing hearing." (People v. Resendez (1993) 12 Cal.App.4th 98, 113, 15 Cal.Rptr.2d 575 [former Government Code section 13967]; see also People v. Baumann (1985) 176 Cal.App.3d 67, 79-80, 222 Cal.Rptr. 32 [].)
While we have not been able to find any cases dealing specifically with the defendant's right of confrontation at a hearing to determine the amount of restitution, California courts have repeatedly held that the defendant does not have a Sixth Amendment right of confrontation at the sentencing stage of a criminal prosecution. (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220 (hereafter, "Arbuckle"); People v. Birmingham (1990) 217 Cal.App.3d 180, 184, 265 Cal. Rptr. 780.) In Arbuckle, the California Supreme Court concluded that a criminal defendant does not have a constitutional right at a sentencing hearing to confront and cross-examine an employee of the Department of Corrections who prepares the probation report prior to sentencing.3 (Arbuckle, at p. 754, 150 Cal.Rptr. 778, 587 P.2d 220.)
In our view, a hearing on an amount of restitution to be made to the victim pursuant to section 273.5 is part and parcel of the sentencing process. We find no persuasive justification for granting the defendant more due process protection at this hearing than at a sentencing hearing. Therefore, we conclude that the defendant does not have a state or a federal constitutional right to cross-examine the psychotherapist who provides counseling to the victim of the defendant's crime.4
We disagree with defendant's assertion that the trial court's denial of his right to confront and cross-examine the psychotherapist resulted in a violation of his due process rights. The trial court violates the defendant's due process right at a hearing to determine the amount of restitution if the hearing procedures are fundamentally unfair. (Arbuckle, supra, 22 Cal.3d at p. 754, 150 Cal.Rptr. 778, 587 P.2d 220.) In this case, defendant had full and fair opportunity to present affirmative evidence that counseling received by the victim was not directly related to the crime. For example, defendant could have called an expert to show that in light of the length of the counseling sessions and/or the time gap between the crime and the counseling, the counseling could not have been related only to the crime.5 Defendant could have also introduced evidence of the victim's preexisting mental or psychological ailment or evidence that the victim was previously treated by a mental health professional.
Furthermore, the hearing was not fundamentally unfair due to the trial court's consideration of hearsay information contained in the probation officer's memoranda and in the Board's statement of claims paid on the victim's behalf. In Arbuckle, our Supreme Court found that a sentencing court could consider a probation report containing hearsay statements because the report was inherently...
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...Ch. 5-E, §3.2.1(3)(d) People v. Cahill, 5 Cal. 4th 478, 20 Cal. Rptr. 2d 582, 853 P.2d 1037 (1993)—Ch. 5-B, §2.2.2(2) People v. Cain, 82 Cal. App. 4th 81, 97 Cal. Rptr. 2d 836 (4th Dist. 2000)—Ch. 5-E, §2 People v. Cajina, 127 Cal. App. 4th 929, 26 Cal. Rptr. 3d 171 (1st Dist. 2005)—Ch. 1, ......