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Name: People v. Warner
Case #: C038245
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/10/2004
Subsequent History: Rev. granted 9/15/04: S126233

On remand from the California Supreme Court, the Court of Appeal was directed to reconsider whether defendant’s prior conviction from Nebraska constituted a serious felony under Penal Code section 667, subdivisions (a) and (b) through (i). Defendant had been convicted under a Nebraska statute criminalizing intentional touching of a minor aged 14 years or younger. In order to qualify as a serious felony under California law, the defendant’s prior must have involved “a lewd or lascivious act on a child under the age of 14 years.” Noting that it was not limited to consideration of the least-adjudicated elements of the offense, the Court of Appeal held that documents submitted in the lower court conclusively established that the victim of the prior offense was under 14 at the time, and thus the prior could properly be considered a serious felony under California law. The court also held that although a minor’s statement to a child protective services interviewer was testimonial in nature, it was nonetheless admissible under Crawford v. Washington (2004) 158 L.Ed.2d 177 because the child testified about the acts revealed in the interview. The child’s testimony on those matters included an assertion that she could not remember being interviewed or telling anyone about the acts, and defendant argued that he was deprived of the right to cross examine her regarding the contents of her hearsay statements. The appellate court found that the introduction of the interview did not violate the standard outlined in Crawford, because the child was called to the stand and was subject to cross-examination, and she did testify regarding some of the acts included in the hearsay evidence.