People v. Lopez CA1/1

Filed 10/5/16 P. v. Lopez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A143879 v. DANIEL LOPEZ, (Solano County Super. Ct. No. FCR303685) Defendant and Appellant.

Defendant Daniel Lopez appeals from a restitution order, claiming he had a constitutional due process right to cross-examine his stalking victim during the restitution hearing. There is no constitutional right to cross-examine at a restitution hearing. Accordingly, we affirm the restitution order. BACKGROUND Defendant pleaded guilty to stalking under Penal Code section 646.9, subdivision (b). At sentencing, the People presented a report documenting that the California Victim Compensation Board had paid the victim $5,913. Defendant had not seen the report previously and asked to address restitution at a future hearing. The trial court ordered defendant to pay $5,913, but set a hearing and retained jurisdiction, pursuant to Penal Code section 1202.4 and 1202.46, to consider adjustments and future restitution requests. In connection with the restitution hearing, the People sought an additional $8,417.11 in restitution, which included about $6,500 for mental health counseling

1

services. Preparing to challenge the amount spent on counseling services, the defendant served the victim with a subpoena. Defendant wanted to probe the nature, frequency, and fair market value of the counseling services the victim had received, and believed that redacted medical records did not sufficiently provide this information and that he should be permitted to question the victim. The People objected to having the victim “re- victimized” in court, and noted that the Victim Compensation Board had paid the counseling professionals directly. The People also asserted that the redacted records adequately informed defendant of the number, dates, and costs of the counseling sessions provided. The trial court gave defendant several days to make an offer of proof as to the victim’s testimony, but ultimately defendant could only say he hoped the victim’s examination would provide further information about the nature of the mental health treatment. The trial court found the written records—which consisted of health insurance claim forms with dates of sessions and costs, but not notations about session duration— sufficiently detailed, and it ruled that the victim would not be required to comply with defendant’s subpoena. It nevertheless continued the restitution hearing to accommodate defendant’s desire to subpoena a witness from the Victim Compensation Board. At the final hearing, defendant “in looking at it further” told the trial court a Victim Compensation Board witness would be unable to provide information beyond what was in the written record, and so such a witness would not appear. Defendant then argued that his inability to confront the victim herself about restitution deprived him of due process, and he asked the trial court to deny restitution on that basis. The court granted the full restitution requested, $8,417.11. DISCUSSION Defendant does not challenge the trial court’s restitution order as an abuse of discretion or as not based on sufficient evidence. Defendant concedes he would be required to pay the full amount of any mental health counseling services resulting from