Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR501752
Jenkins, J.
Defendant Tishannon Elizabeth Wilder appeals from an order of restitution following her guilty plea to charges of drug possession and child endangerment. The trial court ordered defendant to pay restitution in the amount of $8,737 to the Victim Compensation and Government Claims Board for counseling services provided to her minor children after her arrest and conviction. Defendant contends the trial court abused its discretion and violated her federal due process rights by excluding a statement at the restitution hearing from her children’s psychologist relating to the counseling services provided to the minor children. We affirm the order of restitution.
Facts and Procedural Background
On February 15, 2007, the Sonoma County District Attorney (DA) filed an information charging defendant and co-defendant Richard Patton in count I with felony possession for sale of methamphetamine, in violation of Health and Safety Code section 11378. As to defendant, the information also charged her in count II with felony endangerment of her four minor children (ranging in age from three months to 11 years old at the time of the offense), in violation of Penal Code Section 273a, subdivision (a).
The charges arose from events of December 7, 2006, when police officers arrived at defendant’s residence about 7:00 a.m. to conduct a probation search. Police conducted a protective sweep of the residence and all occupants were detained. Defendant told police she lived at the residence with her four children and her boyfriend Richard Patton. Patton was dressed only in boxer shorts and asked if he could get his pants from the bedroom. Police retrieved and searched Patton’s pants. In his pants, police found a small bag containing 1.9 grams of methamphetamine. Police then deployed a narcotics dog to search defendant’s and Patton’s bedroom. A sock was located inside the toilet bowl. The sock contained three bags of methamphetamine weighing a total of 54.80 grams (1.92 ounces). After the drugs were discovered, defendant and Patton were booked into county jail and the children were taken to Valley of the Moon Children’s Center.
At a hearing on April 4, 2007, the trial court granted the deputy DA’s motion to orally amend the information to add count V-that on or about December 7, 2006, defendant committed misdemeanor child endangerment, in violation of Penal Code section 273a, subdivision (b). Defense counsel stated defendant wished to enter a no contest plea to count I (possession of methamphetamine for sale) and count V (misdemeanor child endangerment) in return for probation and suspended imposition of sentence. Upon advising defendant of her constitutional rights and finding that she knowingly and voluntarily waived such rights, the trial court accepted defendant’s plea and found her guilty of felony possession for sale of methamphetamine and misdemeanor child endangerment.
A sentencing hearing was held on May 2, 2007. The court ordered imposition of judgment suspended and placed defendant on probation for a period of 48 months. The court further ordered that as a condition of probation defendant serve 12 months in county jail subject to early release to a residential treatment program should a place become available. The court also imposed applicable fines and fees, and ordered restitution in an amount to be determined by probation. At a hearing on November 13, 2008, the trial court continued the restitution hearing and indicated it had received the certified documents regarding restitution submitted by the DA.
The documents submitted to the trial court by the DA were compiled by a duly authorized custodian of records on behalf of the Victim Compensation and Government Claims Board (Board). In a “Certification of Records for Restitution Hearing” submitted under penalty of perjury, the custodian of records for the Board certified that “the records are an accurate summary of expenses that were submitted to and paid by the Board in the amounts indicated, by or on behalf of the above victims.” Attached to the custodian’s certification of records are Provider Remittance Notifications approving payment to a marriage and family therapist (MFT) for services provided to Minor Victims # 2 and # 3. The remittances show the amount billed by the MFT provider, the amount allowed (based upon a maximum allowable hourly rate of $90 for MFT), and the amount payable to the provider. On the remittances, the provider’s name and identification number is redacted, the claimant is identified as Minor Victim #2 (or #3), and the claimant’s date of birth is redacted. The custodian’s certification of records states that the remittances were for mental health services provided between April 2007 and August 2008, billed in the amount of $9,270 and paid in the amount of $8,017. Regarding the mental health services provided, the certification states: “Government Code section 13957 (a)(2) allows for outpatient psychiatric, psychological, or other mental health counseling related expenses, which became necessary as a direct result of the crime. The treating therapists provided verification to the Program that the treatment rendered to the above victims is necessary as a direct result of the crime and 100% related to the crime committed by the above defendant.” (Italics added.)
At a continued restitution hearing on January 21, 2009, defense counsel stated that he had previously filed with the court a declaration of Robin Page, MFT (Page). Defense counsel asserted that defendant wished to waive the psychotherapist-patient privilege (“privilege”) on behalf of her minor children in order to present testimony by Page regarding the extent to which the counseling services she provided to defendant’s minor children were directly related to the crime. The trial continued the matter further and ordered briefing on the issue of whether defendant could waive the privilege on behalf of the minor children for that purpose.
Subsequently, the parties submitted briefs to the trial court on the issue of defendant’s ability to waive the privilege. At a hearing on February 11, 2009, the trial court entertained oral argument on the issue and then ruled as follows: “The Court does not believe that it’s crystal clear nor absolute that the defendant as a parent holds that privilege for all purposes. The right to invoke or waive the psychotherapist-patient privilege for the minor children in... this situation is not absolute. To do so would give the parent the ability to override a very strong privacy right that a child victim has. And in balancing this with the parent defendant’s rights in a restitution hearing it’s the Court’s position that such a right on behalf of the parent defendant does not outweigh that of the child victim. So, therefore, the request to allow [defendant] to waive the psychotherapist-patient privilege on behalf of the minor children victims will be denied.” After it issued its ruling, the trial court set a restitution hearing regarding the amount of restitution.
The restitution hearing was held on March 4, 2009. At the hearing, defense counsel returned to the issue of the Page declaration. Counsel objected that he could not present evidence that the counseling services provided to the children were necessitated by the fact that the children had witnessed defendant being subjected to domestic violence under circumstances predating the offenses of conviction. Defense counsel asked that the Page declaration be marked as an exhibit and filed under seal for purposes of appellate review. The DA indicated that the Page declaration was inadmissible hearsay and not subject to cross-examination. At this, defense counsel clarified that he had submitted the Page declaration only as a preliminary matter so that the court could “decide whether or not it was going to allow this type of evidence to come in.” If the court had allowed defendant to waive the privilege on the basis of his proffer of the Page declaration, defense counsel continued, he would then have called Page to testify in person. The trial court ordered the Page declaration filed under seal. With the matter thus submitted, the trial court imposed restitution in the amount of $8,737.
The Page declaration is included in the Confidential Documents filed on appeal.
This amount is taken from an Amended Certification of Records submitted by the Board’s custodian of records on January 20, 2009, for counseling services provided to minor victims #2 and #3 between April 2007 and September 2008, billed in the amount of $9,990 and reimbursed in the amount of $8,737.
The minute order dated March 4, 2009, reflects the trial court’s oral pronouncement and shows restitution in the amount of $8,737 payable to the Board. Defendant filed a timely notice of appeal of the restitution order on March 23, 2009.
Discussion
Defendant contends that the trial court’s decision regarding the minors’ psychotherapist-patient privilege precluded her from presenting evidence from Page to challenge the restitution amount and failed to balance her need for that evidence against her minor children’s privacy rights, in violation of her statutory and due process rights to present evidence in her defense.
Defendant’s contentions are without merit. It is well established that “[t]he 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. Cain (2000) 82 Cal.App.4th 81, 86; People v. Prosser (2007) 157 Cal.App.4th 682.) A defendant’s due process rights at a hearing to determine the amount of restitution are violated only “if the hearing procedures are fundamentally unfair.” (People v. Cain, supra, 82 Cal.App.4th at p. 87.)
In this case, defendant received notice of the amount of restitution claimed. Indeed, defendant acknowledges that the Board’s custodian of records filed certified records claiming $8,737 in restitution for FMT services to two of defendant’s minor children. Whereas defendant received notice of the amount of restitution claimed, she asserts she was denied due process because the trial court would not allow the minor children’s therapist to testify concerning whether the therapy services provided to the minors were wholly related to the crime. Due process, however, requires only that “defendant has an opportunity to challenge” the restitution amount. (People v. Cain, supra, 82 Cal.App.4th at p. 86, italics added.) Although the trial court’s ruling excluded Page’s testimony, it did not preclude defendant from challenging the restitution amount by any other means. In other words, the trial court’s ruling did not foreclose all opportunity for defendant to challenge the restitution amount. For example, in her declaration, Page opined that defendant’s drug abuse was not the sole contributing factor to the minor children’s psychological trauma and that other negative aspects of defendant’s lifestyle also contributed to their condition: Defendant could have presented equivalent evidence by testifying about those other negative aspects of her lifestyle then, based on such testimony, offering independent expert testimony about whether the trauma experienced by the children was caused solely by defendant’s criminal conduct or was caused in part by the other negative aspects of her lifestyle. (Cf. People v. Cain, supra, 82 Cal.App.4th at p. 87 [trial court did not violate defendant’s due process rights by not allowing him to call the victim’s psychotherapist because “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”].)
Defendant acknowledges that, pursuant to the California Code of Regulations governing payments by the Board, in order for Page to receive payment for mental health services she provided to defendant’s minor children, Page was required to submit a statement describing the services provided and certifying that “such services were required as a direct result of the qualifying crime and for no other reason.” (Cal. Admin. Code, tit. 2, § 649.7(a)(5).) We find it troubling that the same therapist who attested that the services she provided were required as a direct result of the crime for purposes of receiving payment from the Board was apparently prepared to testify at the restitution hearing that the services were not required as a direct result of the qualifying crime for purposes of restitution to the Board. Patently, such a glaring inconsistency would have provided the prosecutor with powerful impeachment material had the therapist testified.
As noted above, the Page declaration was included in the confidential documents submitted under seal for our review. We have carefully refrained from disclosing any of the details of Page’s analysis of the children’s psychological condition.
In sum, the trial court’s ruling excluding testimony by the minor victim’s psychotherapist did not deprive defendant of the opportunity to present evidence challenging the amount of restitution claimed. Thus, the trial court’s ruling did not render the restitution hearing fundamentally unfair and did not amount to a violation of due process. (People v. Cain, supra, 82 Cal.App.4th at p. 87 [stating that defendant’s due process rights at a restitution hearing are violated only “if the hearing procedures are fundamentally unfair”].) Accordingly, we affirm the order of restitution.
Furthermore, based on the minors’ right to the protection of the psychotherapist-patient privilege and defendant’s lack of an absolute right to waive that privilege, we reject defendant’s secondary contention of error based on the trial court’s alleged failure to balance the minors’ psychotherapist-patient privilege against her interest in presenting evidence on her behalf from the minors’ therapist. (See In re Daniel C. H. (1990) 220 Cal.App.3d 814, 826-827 [stating that a minor child has a right “to the privacy guaranteed by the [psychotherapist-patient] privilege” and a parent has no absolute right to waive the minor’s privacy interest]; see also People v. Superior Court (2008) 43 Cal.4th 737, 753 [stating that “parental conflicts of interest may... disqualify parents from waiving... privileges on behalf of their children”].)
Disposition
The trial court’s order of restitution is affirmed.
We concur: McGuiness, P. J., Pollak, J.