A crime victim does not waive the psychotherapist-patient privilege by requesting restitution for the costs of therapy. Appellant pled to an offense that stemmed from his act of raping his ex-girlfriend while she was passed out. At the restitution hearing at which the victim sought to be reimbursed for therapy costs, appellant sought to ask her therapist about the contents of the therapy session to make sure they actually related to the crime. The trial court disallowed the questioning based on the psychotherapist-patient privilege. The appellate court rejected appellant’s argument that the victim waived the privilege by seeking reimbursement for the costs of restitution. The court found appellant’s reliance on In re Lifschutz (1970) 2 Cal.3d 415 unavailing, because the victim did not put her emotional or mental condition at issue by seeking civil damages for emotional distress. This was a criminal proceeding in which the trial court was statutorily required to order the defendant to pay restitution for his crime. To that end, the victim informed the court of her monetary losses. Further, the therapist testified that the session began shortly after the crime and provided billing with the dates of therapy. The details of the sessions were not necessary to order restitution.
A probationary defendant can be ordered to pay restitution for bills partially covered by insurance. Appellant argued he should not have to pay for therapy costs covered by PacifiCare because the victim did not suffer an economic loss with respect to these costs. Appellant urged the order be limited to the insurance copayment. Citing People v. Birkett (1999) 21 Cal.4th 226, the appellate court noted a defendant granted probation is supposed to make full restitution for all losses caused by his crimes, regardless of the victim’s reimbursement from other sources. The restitution order should be for the full amount of services charged by the therapist.
The argument that the therapist’s witness fee for attending a restitution hearing should not have been made part of the restitution order was forfeited. Appellant argued the $500 witness fee charged by the therapist for attending the restitution hearing pursuant to a subpoena duces tecum was excessive. Appellant relied on Penal Code section 1329 which allows payment of $12 a day for a witness appearing pursuant to a subpoena. The court found the argument was forfeited because it was not made below.