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Name: People v. Cain
Case #: E025274
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 07/11/2000
Subsequent History: Modification of opinion 82 Cal.App.4th 1041c; review denied 10/25/00

At a hearing held pursuant to Penal Code section 273.5, subdivision (h)(2), to determine the amount of restitution to be made by the defendant to the victim, the defendant does not have a state or federal constitutional right to call the victim’s psychotherapist as a witness and to cross-examine him or her. Here, the trial court had a sworn statement from the therapist establishing that the victims’ counseling was directly related to the crime the defendant committed against her and their son, and the probation report contained the amount of payments that had already been made by the Board of Control for the victims’ counseling. The Court of Appeal found that a defendant’s due process rights at a hearing to determine the amount of restitution include the right to notice and an opportunity to challenge the figures in the report, which he had here. While there are no cases directly on point, California courts have repeatedly held that a defendant does not have a Sixth Amendment right of confrontation at the sentencing stage of a criminal prosecution. The restitution hearing is part of the sentencing process, and a defendant is entitled to no more due process at a restitution hearing than at a sentencing hearing. Here the hearing was not fundamentally unfair because the documents prepared by the Board of Control and the probation department were prepared in the course of official state business, and are inherently reliable. Moreover, because these documents constituted substantial evidence in support of the restitution order, the trial court did not abuse its discretion in ordering restitution in the amount of $1,890.