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Name: People v. Anderson
Case #: B197737
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 07/26/2012

Hearsay statements were not admissible to establish state-of-mind, as part of adoptive admissions, or to impeach adoptive admissions and the evidence was properly excluded under Evidence Code section 352. A jury convicted appellant of continuous sexual abuse of a child (Pen. Code, § 288.5) and three counts of lewd acts with a child under age 14 (Pen. Code, § 288, subd. (a)). Appellant, a medical doctor, molested the daughter of a colleague who worked for the same laboratory for several years. Appellant asserted the trial court erred in excluding evidence of a letter he wrote to a police chief after the victim confronted him, in which he denied the accusations and said the victim may be attempting extortion. Affirmed. The letter was meaningless unless considered for its truth and, thus, constituted inadmissable hearsay because of lack of reliability. Appellant’s fear of extortion (i.e., state of mind) days after the encounter was marginally relevant and the trial court did not prevent appellant from testifying as to his perception of the victim’s behavior when she confronted him. While appellant’s statements to the victim were admitted as adoptive admissions (Evid. Code, § 1221), his letter and conduct following the encounter were not admissible as part of his response to the victim’s accusations because they were not proximate in time to the confrontation and were not admissions, but denials. The court also rejected appellant’s claim that the letter should have been admitted as an inconsistent statement to impeach his adoptive admissions. (Evid. Code, § 1202 [credibility of hearsay declarant].) Section 1202 is subject to section 352 and the court did not abuse its discretion by excluding the evidence under section 352.

The People may charge continuous sexual abuse (Pen. Code, § 288.5) and separate and discrete violations of Penal Code section 288, subdivision (a) that occurred outside the period of the alleged continuous abuse. Appellant was convicted of continuous sexual abuse during a seven-month period (Pen. Code, § 288.5) and three counts of lewd acts (Pen. Code, § 288, subd. (a)) that were committed outside the seven-month period. He challenged the division of a single course of conduct against a single victim into several counts. (See Pen. Code, § 288.5, subd. (c) [prohibition against charging individual crimes committed during the period of continuous abuse].) Affirmed. Violations of section 288, subdivision (a) based on generic testimony may be charged in addition to a violation of section 288.5, where the section 288, subdivision (a) abuse occurs outside the three-month period required for section 288.5. (People v. Johnson (2002) 28 Cal.4th 240, 248; People v. Cortes (1999) 71 Cal.App.4th 62.)

The preponderance standard applied to uncharged offenses admitted to prove propensity did not lower the People’s burden of proof on the charged offenses. It was not error for the court to instruct the jury that uncharged acts must be proved by a preponderance of evidence. Appellant argued that this standard impermissibly reduced the People’s burden of proof on the charged offenses. He reasoned that because one of the uncharged acts was the commencement of the continuous sexual conduct it had to be proved beyond a reasonable doubt. However, nothing in the instruction authorized the jury to use a preponderance standard for anything other than the determination of whether defendant committed the uncharged act. The instructions adequately explained that the People have the burden of proving defendant guilty “beyond a reasonable doubt.” (People v. Reliford (2003) 29 Cal.4th 1007.) Further, the uncharged offenses were not in the “direct chain of proof.” Appellant’s propensity to commit a lewd act was a type of collateral fact that the People were not required to prove beyond a reasonable doubt even though one of the uncharged offenses marked the start of appellant’s continuous course of conduct.