Does the best evidence rule apply when a tape recording of a conversation is available at trial?

Applying the best evidence rule to this case, "[i]t is well settled that where both a tape recording of a conversation and a witness to the conversation are available at trial, the testimony of the witness is not barred by the best evidence rule. [Citations.]" (People v. Patton (1976) 63 Cal.App.3d 211, 220, 133 Cal.Rptr. 533.) We have stated, "The so-called best evidence rule is inapplicable under such circumstances. Since the officer was testifying

[30 Cal.Rptr.3d 132]

to what he had seen and heard, his testimony was `primary evidence' whether or not `part of the same matter was incorporated into a sound recording.' [Citation.] In other words, he was not testifying as to what the recording contained but `as to what he observed and knew because he heard it.... [His] testimony ... is not rendered incompetent by the fact of the existence of the [recording].' [Citations.]" (People v. Sweeney (1960) 55 Cal.2d 27, 38, 9 Cal.Rptr. 793, 357 P.2d 1049.)

[30 Cal.Rptr.3d 132]

Assuming defendant's constitutional claim was properly preserved on appeal (see People v. Yeoman, supra, 31 Cal.4th at pp. 117, 133, 2 Cal.Rptr.3d 186, 72 P.3d 1166), it fails on the merits.