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People v. Garcia

June 23, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CESAR GARCIA, DEFENDANT AND APPELLANT.



APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. (Super.Ct.No. FVI700950)

The opinion of the court was delivered by: Hollenhorst Acting P.J.

CERTIFIED FOR PUBLICATION

OPINION

Defendant Cesar Garcia appeals from a judgment entered following a no contest plea to a single count of felony false imprisonment by force (Pen. Code, § 236*fn1 ). In exchange for the plea, the court dismissed a rape charge (count 1) and another separate case (No. FVI801212). Defendant was sentenced to three years' felony probation, with the offense reduced to a misdemeanor after one year if defendant did not violate probation. The trial court also ordered defendant to pay $5,264.71 in victim restitution as a condition of probation.

Defendant contends the trial court abused its discretion in ordering him to pay as restitution the victim's counseling costs of $4,764.71, plus an additional $500, which the victim's therapist charged the victim for appearing at the restitution hearing pursuant to defendant's subpoena. Defendant asserts there was insufficient evidence supporting the restitution order. Defendant also contends the trial court erred in excluding testimony by the victim's therapist and in failing to enforce defendant's subpoena of the victim's therapy records based on the psychotherapist-patient privilege (Evid. Code, § 1014).

We conclude there was no reversible error and affirm the judgment.

1. Facts

On May 6, 2007, the day after Jane Doe broke up with defendant, Doe took Vicodin for a hand injury, drank some alcohol, and fell asleep on her couch. Even though defendant did not live with Doe and did not have a key to her home, he entered Doe's home through an unlocked door and had sex with her while she was asleep on the couch. Doe awoke when she heard the sound of defendant's cell phone camera. Defendant had his penis inside Doe's vagina. Doe pushed defendant off her, grabbed defendant's phone, ran into the bathroom, and locked the door. Defendant left Doe's home. Doe found on the cell phone a picture of defendant having sex with Doe. Doe called the police and reported that defendant had had sex with her while she was sleeping, without her consent.

Defendant was arrested and interviewed the following morning. Defendant told Sheriff's Detective Goodell that he was aware Doe was taking medication. He had been exchanging text messages with Doe shortly before the charged crime. Defendant went to her house. The front door was unlocked. He let himself in and found Doe sleeping on the couch. Defendant admitted having intercourse with her while she was sleeping. He also conceded taking a picture with his phone camera of himself having sex with Doe. Defendant left after Doe heard the sound of defendant's phone camera, woke up, and told defendant she was calling the police. Defendant admitted he had used poor judgment.

2. Psychotherapist-Patient Privilege

Defendant contends the trial court abused its discretion in excluding under the psychotherapist-patient privilege (Evid. Code, § 1014) testimony by Doe's therapist, Dr. Covington, regarding the content of her discussions with Doe during therapy.

Pursuant to section 1202.4, subdivision (f), Doe requested recovery of the cost of psychotherapy provided by Dr. Covington. Section 1202.4, subdivision (f) provides that when a crime victim has suffered economic loss as a result of the defendant's conduct, "the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. . . . The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record. . . . [¶] . . . [¶] (3) To the extent possible, the restitution order . . . shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant's criminal conduct, including, but not limited to, all of the following: [¶] . . .[¶] (C) Mental health counseling expenses." (§ 1202.4, subd. (f).) Subdivision (g) of section 1202.4 further states that "The court shall order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record."

The word "loss," within the meaning of section 1202.4, "'must be construed broadly and liberally to uphold the voters' intent.' [Citation.] Because the statute uses the language 'including, but not limited to' these enumerated losses, a trial court may compensate a victim for any economic loss which is proved to be the direct result of the defendant's criminal behavior, even if not specifically enumerated in the statute." [Citation.]' [Citation.] 'The only limitation the Legislature placed on victim restitution is that the loss must be an "economic loss incurred as the result of the defendant's criminal conduct." [Citations.]' [Citation.]" (People v. Moore (2009) 177 Cal.App.4th 1229, 1232 (Moore).)

"'The standard of review of a restitution order is abuse of discretion. "A victim's restitution right is to be broadly and liberally construed." [Citation.] "'When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.'" [Citations.]' [Citation.]" (Moore, supra, 177 Cal.App.4th at p. 1231.)

Giving section 1202.4 the requisite broad and liberal construction, we conclude the trial court did not abuse its discretion in ordering defendant to pay restitution for the cost of Doe's therapy.

A. Background Facts

On November 7, 2008, the trial court granted defendant felony probation pursuant to the terms of defendant's guilty plea and ordered defendant to pay Doe $3,495 in restitution for Dr. Covington's therapy charges. The restitution amount was substantiated by a probation memo, which included Dr. Covington's billing summary. The restitution order was entered without prejudice since defense counsel had not seen the probation memo and sought to contest the amount of the restitution.

Prior to the contested restitution hearing on May 1, 2009, defendant served a subpoena duces tecum on Dr. Covington, requesting Dr. Covington to produce records of Doe's therapy. The prosecutor moved to quash the subpoena duces tecum. The People's motion was heard the day before the restitution hearing. Defense counsel claimed Dr. Covington told him she had not discussed rape with Doe during therapy but had discussed a sex tape Doe made with her boyfriend. The court deferred ruling on the motion to quash until the restitution hearing the next day.

At the restitution hearing on May 1, the trial court vacated its previous restitution order and heard the matter anew for the purpose of determining whether therapy charges were causally related to the charged crimes. The prosecutor provided the court with an updated billing summary of Dr. Covington's therapy charges, which totaled $4,764.71. The prosecutor noted that $3,229.71 had been paid by Doe's insurance carrier, PacifiCare and $1,535 was paid by Doe. Defense counsel ...


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