P. v. Cooper

Filed 2/15/07  P. v. Cooper CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

            APPEAL from an order of the Superior Court of Los Angeles County.  Janice  Claire Croft, Judge.  Reversed and remanded.

            Steve Cooley, District Attorney, Lael Rubin and Tracey Lopez, Deputy District Attorneys for Plaintiff and Appellant.

            Robert W. Walters for Defendant and Respondent.

            The People appeal from the order dismissing the information charging Michael Arthur Cooper with one count of theft from an elder or dependent adult (Pen. Code, §  368, subd. (e)).[1]  It was also alleged that he misappropriated in excess of $50,000 within the meaning of section 12022.6, subdivision (a)(1).  The People contend that the trial court erred (1) in excluding in their entirety, two videotaped interviews of the victim on the ground that they violated defendant's right to confront the witnesses against him, as described in Crawford v. Washington (2004) 541 U.S. 36 (Crawford); (2) in excluding the portion of one of the videotapes depicting a tour of the victim's home to document its condition; and (3) in excluding the testimony of the People's expert psychologist who was going to render an opinion on the victim's mental capacity, because the opinion relied, in part, upon the videotapes that were inadmissible under Crawford.

            We reverse.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On August 30, 2004, the district attorney filed an information against defendant, alleging one count of theft from an elder or dependent person, between April 1, 2001 and March 26, 2003, and including an allegation that more than $50,000 was misappropriated.  The facts on which the information was based are as follows.

Mathilda Nelson (Nelson) was born in 1910 and resided alone in the home that she owned in Monrovia.  She was an only child and had no family.  At all relevant times, she was unable to drive.  Nelson had numerous medical ailments, including high blood pressure, arthritis, renal disease, anemia, and a hypothyroid condition.

            Defendant, Nelson's neighbor, knew her since the late 1980's.  In the relevant time period he assisted with her errands, grocery shopping, meal preparation, and bill paying.  As time passed, defendant became more involved in Nelson's affairs.  On April 2, 2001, she executed a durable power of attorney form in his favor.  Seven months later, he took her to an attorney to discuss her establishing a trust.  On August 13, 2002, Nelson executed a Wells Fargo power of attorney allowing defendant to draw on her accounts at that bank.  On October 15, 2002, she executed a will leaving defendant her house and a revocable trust of which he was sole beneficiary.

            Beginning in 2001, police received anonymous reports that Nelson might be a victim of elder abuse.  Detectives visited her home to check on her welfare on multiple occasions.  On each, they concluded that the reports were unfounded.  At one visit, on April 10, 2001, the investigating detective noted that Nelson misstated her age by 10 years, though he nonetheless concluded that she had no problem caring for herself and communicating.  During a subsequent investigation, on October 19, 2001, another detective found that Nelson engaged in repetitive questioning, though he saw no evidence of abuse.  An attorney, consulted in November 2001 to prepare a trust for Nelson, concluded that she lacked contractual and testamentary capacity due to short and long term memory loss and that the attorney could not therefore prepare a trust for her.

            Among other evidence, the prosecution intended to introduce at trial (1) two videotaped interviews of Nelson, (2) a videotaped tour of Nelson's home, and (3) the testimony of an expert psychologist on Nelson's mental capacity, which evidence is as follows.

Nelson's first videotaped interview

            On February 26, 2003, Detective Dorothy Percy, an elder abuse detective, visited Nelson's home with a multidisciplinary team from Genesis and Adult Protective Services, which included a social worker and a nurse.  They conducted a videotaped interview with Nelson (February interview) and a tour of her residence.

            Nelson reported that she was an only child, born in Chicago in 1910.  Her husband, also an only child, died 20 years earlier.  Nelson repeated numerous times during the interview that she trusted defendant implicitly, that he was her friend, took her grocery shopping and to doctors, helped her with banking, and paid her bills.[3]  She said that when she died she wanted him to have her home.  Nelson acknowledged giving defendant money to pay her bills, but not for himself.  She said she did not pay him to run errands.  She did not know if she had given him legal authority to do things for her in an emergency and did not believe defendant took money from her accounts.

            During the interview, Nelson showed signs of memory loss.  For example, she did not remember what the team was doing at her house; that she lived in Monrovia; how long she lived in the house that she owned; the last time she had seen a doctor; who her doctor was; who the beneficiary of her insurance was; if she had given legal authority to defendant regarding her finances, although she knew she had accounts at Wells Fargo Bank; consulting with any attorney; the year (without looking at a newspaper for reference); her social security number; that she had high blood pressure for which she took medication; or the number to call in case of fire.  She did not know how much income she had every month because â€