APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. (Los Angeles County Super. Ct. No. BA255257)
The opinion of the court was delivered by: Klein, P. J.
CERTIFIED FOR PUBLICATION
William French Anderson appeals the judgment entered following his conviction by jury of continuous sexual abuse of a child under the age of 14 years (continuous sexual abuse) and three counts of lewd act with a child under the age of 14 years (lewd act). (Pen. Code, §§ 288.5, 288, subd. (a).)*fn1 We reject Anderson's claims of error and affirm the judgment.
Viewed in accordance with the usual standard on appeal (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294), the evidence demonstrated that Anderson, a medical doctor and the founder and director of a genetic research laboratory, sexually molested the daughter of an employee of the laboratory from the time the child was in the fourth or fifth grade until the ninth grade. Anderson coached the victim in competitive karate; she won national karate competitions when she was in the fourth and fifth grades in 1997 and 1998. He also assisted her academically. However, they frequently were alone together and he regularly committed lewd acts upon her. The victim's testimony was generic in that she testified generally about a continuing course of misconduct. Emails Anderson sent her after the abuse ended but before she decided to report him in April of 2003 corroborated her testimony. Because Anderson indicated in his emails he would apologize to her in person, she agreed to meet him outside a public library while carrying a recording device provided by detectives. On July 1, 2003, she surreptitiously recorded a conversation in which she angrily confronted Anderson and asked why he had molested her. At trial, Anderson claimed the apologies in his emails were for applying excessive pressure on her to succeed and at the library she was on the verge of going out of control and he was willing to say whatever was necessary to calm her.
On appeal, Anderson contends the trial court erroneously excluded evidence of his conduct after the library confrontation, particularly, that he and his wife wrote a four-page letter to Anderson's friend, San Marino Police Chief Arl Farris, in which they reported the victim falsely had accused Anderson of sexual molestation and expressed their fear she had descended into drug abuse and might try to extort money from them.
No reversible error appears in the exclusion of this evidence as hearsay and under Evidence Code section 352. Also unavailing is Anderson's claim application of these rules of evidence infringed upon his constitutional right to testify in his own behalf. Moreover, any error was harmless as Anderson testified fully with respect to all aspects of the case, including the emails and the recorded conversation. Evidence related to Anderson's conduct after the library confrontation was not critical to his defense and admission of the evidence would not have altered the outcome of the case.
Anderson also contends he cannot be convicted of continuous sexual abuse in violation of section 288.5 and lewd act in violation of section 288, subdivision (a) based on generic testimony that establishes a single continuous course of conduct. He notes section 288.5 was enacted in 1989 in response to a line of cases that had held generic testimony was insufficient to support a conviction of a lewd act. Further, section 288.5, subdivision (c) permits only one count of continuous sexual abuse per victim and requires that any additional sex offense be charged in the alternative or be alleged to have been committed outside the time period alleged under section 288.5. He reasons lewd act based on generic testimony constitutes a continuous course of conduct offense. Thus, violations of lewd act charged with continuous sexual abuse must be based on specific, rather than generic, testimony.
This claim fails because a violation of section 288, subdivision (a) is not a continuous course of conduct offense even if it is based on generic testimony. Moreover, People v. Jones (1990) 51 Cal.3d 294, 320-321, disapproved the line of cases that had held generic testimony insufficient to support a violation of section 288, subdivision (a). Thus, the distinction Anderson draws between generic and specific testimony is no longer relevant. Because the instant violations of section 288, subdivision (a) were alleged to have occurred outside the time period charged under section 288.5, section 288.5, subdivision (c) was not offended.
Finally, Anderson contends the instruction that permitted the jury to find he committed uncharged offenses offered to prove propensity by a preponderance of the evidence diluted the People's burden of proof as to the charged offenses. He claims this case is distinguishable from other cases that have rejected this contention because one of the uncharged offenses was the first incident of abuse. However, this circumstance does not warrant a departure from the case law that has upheld the instruction.
In sum, Anderson's claims of error fail. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The People's evidence; Y.'s testimony.
Y., the victim in this case, and her family emigrated from China to South Pasadena, California, when Y. and her twin sister were in kindergarten.*fn2 Y.'s mother, Y.Z., M.D., worked for Anderson, the founder and director of Gene Therapy Laboratories (GTL). Y.Z. admired Anderson and impressed upon Y. that Anderson was "this great man." When Y. was nine years old and in third or fourth grade she became interested in karate. Anderson was accomplished in the martial arts. He offered to coach Y. and she began to practice karate with Anderson at his home. With Y.Z., they went to many karate competitions, including the national championships in Florida which Y. won in successive years when she was in fourth and fifth grade. When Y. stopped participating in karate, Anderson coached her in other sports. He took her to practices and games and bought her equipment. He acted as team physician at some of her games. Anderson also helped her with speech and writing and he took her to a speech pathologist.
At first, Y.Z. accompanied Y. to Anderson's home but she stopped and Y. would be alone with Anderson. Anderson's wife was "very rarely" there. Y.Z. trusted Anderson and encouraged Y.'s relationship with him. Y. also believed the relationship with Anderson was positive. However, he began to touch her inappropriately. The first time this happened, Y. was nine or ten years old and in fourth or fifth grade. Y. was swinging on a punching bag that hung in Anderson's garage. Anderson pushed Y. and his hand "got caught" between her legs "for a pretty long time" and "rubbed [her] vaginal area" over her clothes. Sometime later, Anderson said his hand got caught accidentally but he realized he liked it and he rubbed her.
Y. had difficulty remembering each instance of abuse because she had been trying to forget them. Once, when they were in Florida, Anderson woke Y. by biting her toes, which reminded her that he had advanced to touching her under her clothes. Y. protested but he continued to do it. Y.Z. was present but was "totally oblivious."*fn3 When returning from local karate tournaments, Anderson and Y. would wrestle in the back seat while Y.Z. drove and Anderson "fleetingly" would touch her private areas.
Y. visited Anderson's home approximately once a week from fourth grade to the end of ninth grade. Anderson molested her throughout this five-year period, although not on every visit. When Y. commenced puberty, Anderson said he needed to check her growth and development. On several occasions, he weighed and measured her naked in his bathroom. He also inspected and occasionally licked her vaginal area. Anderson molested her more frequently during the summers preceding seventh and eighth grades because she spent more time with him. Other than Anderson's abuse, Y. had fun at Anderson's house and enjoyed spending time with him. The molestation occurred less frequently as Y. got older because she began to resist.
Initially, the abuse consisted primarily of vaginal rubbing and licking. As Y. began to insist that her underwear remain on, Anderson began sucking her breasts and thrusting his penis against her vaginal area. Y. avoided looking at Anderson's penis but could feel his erection and knew he ejaculated because her underwear would get wet. Y. often read comic books while Anderson touched her to distance herself from what he was doing. Anderson told Y. he loved her and the sex acts would boost her self-esteem. More than once Anderson told Y. if they were ever caught she should say it was the first time, it was all her idea and she had finally convinced him to do it.
The abuse occurred at least once a month except when Y. went to summer school or Anderson took a vacation. These gaps did not occur more than once or twice. Toward the end of the five-year period, the abuse became more scheduled. Y. would say she did not feel well or had her period, but Anderson would become increasing aggressive until "in the end it was just easier just to let him do it, then it would be fine again" for about three weeks.
Y. did not mention the abuse to her father, who was raised in China and was very strict. Y.'s father used physical discipline but Y. did not consider it abuse because it is normal in the Chinese culture.
Anderson frequently took Y. to dinner alone and he once let her drive his car on the freeway. Y. knew Anderson had connections with law enforcement. He had a high level black belt, he helped train police officers to fight and he carried a police badge. During the abuse, Y. did not want to report Anderson because he was well-respected and she thought he did not understand the extent to which he had hurt her. Also, Y. believed her mother would be devastated and Y.'s whole life would be "opened up and torn apart." When Y. was younger, she was confused about the abuse. As she got older, she "increasingly felt like a slut." In middle school, Y. began cutting herself as a coping mechanism. She continued to cut herself in high school.*fn4
Toward the end of her ninth grade school year, Y. had two conversations with Anderson about stopping the abuse, both of which took place in his car. In the first conversation, Y. told Anderson she "just really did not want it . . . ." Anderson was shocked and said "he couldn't be [Y.'s] friend if he didn't know that sometime in the future that could happen again." After this conversation, Anderson asked several times if she were "ready to do it again." Finally, Y. said, "I'm not okay with doing anything, and I won't ever be okay." She also told Anderson it felt like rape. Anderson cried and said he did not know why she felt that way.
Y. testified the secret of the abuse was caused her to become depressed. In the second half of tenth grade, the spring of 2003, she spoke to Janet Waldron, a school counselor, to get help with her depression. Y. did not want the abuse reported and told Waldron a friend of hers had been abused. Eventually, Y. admitted she had been abused by her mother's boss, but she minimized it. Waldron, a mandated reporter, filed a report of Y.'s statements on July 5, 2003. Soon thereafter, City of South Pasadena police officers came to Y.'s home. Y. went outside to speak to the officers because she did not want her parents to hear the conversation. At that point, she had only told her friend, A.L., about the abuse.*fn5 Y. cried during the interview and minimized the abuse even more than she had with Waldron.*fn6
A few days later, Y. and her family went to a meeting at the San Marino Police Department. Y. had not spoken to her parents about the abuse. En route to the meeting, Y. said she did not want to go and did not want the investigation to continue. Y. told the San Marino police officers who interviewed her nothing had happened.
Y. continued to communicate with Anderson and planned a trip for her 16th birthday with him through emails. In July of 2003, Y., her sister, Anderson and his wife went on a kayaking/hot air ballooning trip. Y. and Anderson planned a second similar trip with Y.'s friend. However, Anderson cancelled the second trip because he feared liability if Y.'s friend were injured. Y. was angry because she felt it was hypocritical of Anderson to worry about liability with respect to her friend when he had been doing illegal things to her.
In the summer of 2003, Y. took classes to prepare to take calls for Teen Line, a hotline for teenagers. As part of her training, Y. learned child molesters generally are repeat offenders.
In August and September of 2003, Anderson was still emailing Y., talking about his vacation, offering to buy her sports equipment and declaring his love for her.
If Y. wrote Anderson an email that took effort, she would save a draft before she sent it to avoid having to write the email again. One email she sent to Anderson asked: "Do you even admit that you did hurt me totally with your sexual acts upon me[?] Then why did you say that you wouldn't be able to stand it if you didn't have some sort of hope that I would let you do those things again[?]" "And then when I told you that it felt like rape, why did you again bring up the stupid topic and say that you needed to have hope that I would be able to do it again. What the hell is wrong with you[?] . . . I'm tired of being hesitant and unsure and pliable. . . . I told you it felt like rape and I meant it. [¶] . . . It took almost every ounce of strength in me to say so and you underestimate everything. I don't care how you interpret this as long as I get answers and ones that make sense."*fn7
Anderson replied: "I want to apologize to you from the bottom of my heart for the thoughtless things I did and said. I cannot justify or explain why I behaved so badly. I totally accept that you no longer want to be friends. . . . If you will let me, I would like to apologize to you in person. But if you do not want to ever see me, that is okay."
Y. replied to that email, and Anderson responded: "I have thought a great deal about my actions. . . . I finally came to the sad conclusion that there must be a very bad part of me that, now that I have recognized it, has to be permanently suppressed. I can never allow that part of me to ever surface again. . . . As for the stupid stupid statements about the future: since the day on the road when you made clear to me how badly I treated you, I have never had any intention of behaving that way again. . . . To even hint that the future might have been more of the same revealed a thoughtlessness and insensitivity that boggles the mind. I just cannot understand how I could have been so awful. But that awful aspect was there and I have to deal with it by making certain that nothing like it ever happens again, and doing whatever I can for the rest of my life to help you (and to help you directly if you ever again should want my help). [¶] I have wanted to see you for several months in order to talk with you directly and to acknowledge how badly I treated you, but now that we are communicating I think that I am too ashamed to see you right now. I will if you want, of course, but I think that I need to keep working on making myself into a different person first."
Y. again responded and Anderson replied: "How far am I willing to go to help you? I will do whatever you want, for as long as you want, in any way that you want, so long as no one else is hurt. . . . I believe that I have to earn your trust again before I can ever ask you to accept my apology. Although I am embarrassed to meet you face-to-face, I think I just have to make myself do it."
Y.'s response to that email requested an apology. Anderson replied with an email that started: "Concept for a novel. Plot: Extortion of a famous biotech scientist either for money or to acquire bioterrorism expertise. . . . An exchange." In the email, Anderson indicated he would apologize if they were speaking "face-to-face" but "emails are not safe. . . . And what would someone do with such an . . . explicit email from a famous person confessing to something terrible? Sell it, or extort money for it. . . . The confessions of a world famous scientist would easily bring . . . $100,000 from a tabloid that would publish them on page 1 with lurid headlines and lots of pictures of all parties involved. . . . The result would destroy your life and my life. I have often wondered what could drive anybody to actually take their own life. I have always felt that there is always hope. But if I saw you and your family destroyed, and my whole career down the tubes, and all the thousands of people abandoned who would have been helped by the cures that your mother and I are developing, then I can understand what would drive a person to suicide. For me, a powerful 9 mm bullet through the head would be the way to go. . . . Just in case, I have bought the ammunition."
In response, Y. asked what Anderson would do if she "wanted to report." In a subsequent email, Y. stated Anderson had ruined her life. She indicated she was scared and asked: "Why have I not reported you[?] . . . . Your life is still fine but mine is cracking slowly and perhaps I may fix it but because of your actions[,] I face a hypocritical life or at least one in which I lie a lot. I don't have much to lose by reporting do I[?] It is you who [has] so much to lose. And it is the people who trust in you who have so much to lose. . . . You have not ever proved to me of your true innocence and memories to the contrary flash before me. . . . I suggest you go to therapy. No. I demand it. . . . It will give me a meager feeling of closure but it is better than none."
In an email dated December 9, 2003, Anderson agreed to attend therapy, writing, "Although this is, of course, terribly embarrassing, I am very relieved to finally be getting professional help. Thank you for making me do it."
Y. requested progress reports from Anderson regarding the therapy. On December 21, 2003, Anderson e-mailed Y.: "I am undergoing what is called cognitive behavioral therapy. . . . It will take a while, but I think that the therapy will help me pull myself back to some level of self-worth." On December 22, 2003, Anderson emailed: "The bad part has been permanently buried. I understand that you want nothing to do with me so that if by chance we run into each other, I will respect your feeling[s] and not look at you or try to say anything. . . . My hope . . . is that someday you may forgive me and we can be friends."
In February of 2004, Anderson emailed he was now working on his two "most important goals." The first was to help Y.Z. obtain grants and a tenured position which "would give her and her family long-term financial stability." The email continued: "The other issue is you. In discussions about you (never by name)[,] . . . [t]he only question is what you want and what you feel is best for you. There are two directions that you could decide to go. One is that I never again have any role in your life. . . . The other direction to go, if you wanted, would be to try to reinitiate a relationship. . . . All this is up to you. But I am willing to try to do anything that you might want."
Y. did not want contact with Anderson other than receiving progress reports to prove he was in therapy. When Anderson emailed about other topics, Y. wrote, "Just send me progress reports." Thereafter, on February 18, 2004, Anderson requested permission to attend one of Y.'s sports events as follows: "I know the answer is probably no, but I had to ask. I would park in the back . . . , arrive just at the start, go up into the stands on the far right side and sit by myself, never approach the field or make any contact, and leave right at the end without talking to anybody. I would only come if you specifically say okay. . . . I did not want to miss the opportunity to watch you at least once this year, if you might allow me to be there."
In April of 2004, Y. decided to report the abuse. Because Anderson was respected and had contacts with law enforcement, Y. and her mother found a lawyer to help them. They went to the sheriff's department and, on May 27, 2004, Y. discussed the molestation in as much detail as she could remember with a social worker.
Y. thereafter agreed to confront Anderson while carrying a recording device. In an email, Y. requested a meeting with Anderson at the South Pasadena Library. One of Anderson's responsive emails stated: "Obviously our meeting is very important and I will arrange my Thursday around you. . . . I will be there whenever you say."
On July 1, 2004, sheriff's detectives provided Y. a recorder and, at 1:30 p.m., Y. met Anderson in front of the library with the device in her purse. The following conversation was recorded:
"[Anderson]: Uh . . . can we go somewhere?
"[Anderson]: Because I think I'm going to break down (INAUDIBLE). . . [¶] . . .
"[Anderson]: I'm sorry. I'm sorry.
"Y.: Is that all you have to say?
"[Anderson]: [Y.], I told you, and it's true, that I will love you forever. To hurt somebody, to damage somebody you love is the worst thing you can do. . . [¶] . . . [¶]
"Y.: I don't - why did you do it?
"[Anderson]: I don't know. . . . [¶] . . . [¶]
"Y.: For like how many years?
"Y.: How many years? . . . [¶] . . . [¶]
"[Anderson]: Several. I know. . . . [¶] . . . [¶]
"Y.: When I wanted you to stop, you still kept going.
"[Anderson]: I don't know. It was so unbelievably (INAUDIBLE) -
"Y.: Because you know what?
"[Anderson]: - so stupid. . . . [¶] . . . [¶]
"Y.: (INAUDIBLE). I'm 17 and I still haven't gotten a boyfriend. Why? Why? Did you do it to anybody else?
"[Anderson]: No. That's why I can't comprehend it. I've never done anything like that to anybody ever. I've been -
"Y.: I can't hear you. Why are you - Goddamn, I can't hear you.
"[Anderson]: Okay. I'm sorry. I'll talk louder.
"Y.: Goddamn it, you're like whining.
"[Anderson]: Well, yes, because I'm - I mean, I just - I - I'm sorry and I don't know - I don't know how to - how to say it.
"Y.: What are you sorry for?
"[Anderson]: I'm sorry for damaging you. That's what I'm sorry about.
"Y.: 'Damaging.' That's such a stupid word, 'damaging.'
"[Anderson]: Well, hurt you. Just to have been so thoughtless, to have been so - so - so - I just don't know.
"Y.: Well, I hurt, okay? And it's gotten worse. As I grow older, it's worse. I go to sleepovers and we talk and we're girls and stuff. And you know what? I can't. [A]nd I can't - I don't know what to do. Why did you do it?
"[Anderson]: I don't know.
"Y.: Goddamn it. How the hell do you feel sorry? So much. Okay, look at my arm. Okay? I keep doing this. I just keep fucking doing this. And you have nothing to say. You're not saying anything.
"[Anderson]: I'm sorry, [Y.]
"Y.: That's all you can - all you ever said is 'sorry, for damaging me.' That's it. That's all you can say?
"[Anderson]: I would say anything I could, but I - I don't know - I don't know what to say. I can not explain why I ever did anything. I can't - I just -
"Y.: When I was like in, what, fifth grade? Why did you do it when I was in like fifth grade? That's like elementary school. In fifth fucking grade? Why? And then like - in like middle school and then like - I don't know. I don't know what you fucking did, like - you fucking checked my weight and stuff. I don't get it. Why did you do that, too?
"[Anderson]: Well, what I thought [I] was doing was - was seeing how fast you were growing, how big you were getting -
"Y.: When I was naked? Huh? . . . [¶] . . . [¶]
"[Anderson]: I know it doesn't make sense at all. (INAUDIBLE). It doesn't make any sense at all. I just did it - just something in me was something just evil.
"Y.: . . . You're not saying anything though. It's not making it better or anything.
"[Anderson]: I know, [Y.], I just - what - what - what can I say? I mean - I mean - I mean, I did a horrible thing.
"Y.: You're not talking -
"[Anderson]: I ruined your life. I mean, what can - ...