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Name: People v. Cooper
Case #: B190720
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 02/15/2007
Summary

The confrontation clause did not prevent the admission of a videotaped interview with the victim of theft from an elder where the interview was not testimonial nor admitted for the truth of the matter asserted. The prosecutor appealed from an order dismissing the information charging appellant with one count of theft from an elder or dependent adult. The prosecutor contended that the trial court erred when it excluded two videotaped interviews of the victim on Crawford grounds, in excluding the portion of one of the videotapes depicting a tour of the victim’s home to document its condition, and in excluding the testimony of the People’s expert psychologist who would have rendered an opinion on the victim’s mental capacity, because the opinion relied on the inadmissible videotapes. The appellate court found that the confrontation clause did not preclude the requested evidence. The interview with the victim was not primarily testimonial and therefore not subject to the confrontation clause. Its purpose was to assess the victim’s mental and physical condition and deal with her need for assistance and protection, not to establish that appellant had committed a crime. Even if it was testimonial, substantial portions were not subject to the confrontation clause because they were not sought to be admitted for the truth of the matter asserted, but only as evidence of the victim’s mental status. A second interview with the victim contained questions which pertained to appellant’s conduct. Therefore, remand was required for the trial court to determine which of the statements in the two videotaped interviews were not testimonial hearsay. Those statements would not be subject to the requirements of the confrontation clause, but may be subject to other evidentiary objections under Evidence Code section 352. As to the other issues, the confrontation clause did not preclude the portion of the tour of the residence videotape which depicted the condition of the victim’s residence, because it was neither testimonial nor hearsay. Also, to the extent that the expert’s opinion regarding the victim’s competence was based on the videotaped interviews, the confrontation clause did not prevent her from rendering her opinion and stating the sources of information which she relied on in reaching it. That evidence was not admitted for the truth of the matter asserted. However, the trial court has the discretion under section 352 to prevent the prosecutor from eliciting testimony about every detail of the videotapes through the examination of its expert.