People v. Anderson (208 Cal. App. 4th 851, 2012)

Opinion

KLEIN, P. J.

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).) We reject Anderson’s claims of error and affirm the judgment.

SUMMARY

Viewed in accordance with the usual standard on appeal (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 [128 Cal.Rptr.3d 417, 256 P.3d 543]), 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. E-mails Anderson sent her after the abuse ended but before she decided to report him in April of 2004 corroborated her testimony. Because Anderson indicated in his e-mails 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, 2004, 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 e-mails 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 e-mails 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 [270 Cal.Rptr. 611, 792 P.2d 643], 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. 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 grades. 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 10 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.” When returning from local karate tournaments, Anderson and Y. would wrestle in the backseat 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 increasingly 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 tom 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.

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 caused her to become depressed. In the second half of 10th 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. Y. cried during the interview and minimized the abuse even more than she had with Waldron.

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 e-mails. 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 e-mailing Y., talking about his vacation, offering to buy her sports equipment and declaring his love for her.

If Y. wrote Anderson an e-mail that took effort, she would save a draft before she sent it to avoid having to write the e-mail again. One e-mail 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. [f] . . . 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.”

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 e-mail, 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 e-mail requested an apology. Anderson replied with an e-mail 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 e-mail, 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 e-mail, 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 e-mail 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 e-mailed: “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 e-mailed 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 e-mail 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 e-mailed 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 . . . , arriveQ 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 e-mail, Y. requested a meeting with Anderson at the South Pasadena Public Library. One of Anderson’s responsive e-mails 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?

“Y: Why?

“[Anderson]: Because I think I’m going to break down (INAUDIBLE) . . . m...

“[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 .... [U ... [U

“Y: I don’t—why did you do it?

“[Anderson]: I don’t know. ... [][].. . [][]

“Y: For like how many years?

“[Anderson]: I know.

“Y: How many years? .. .[][]... [][]

“[Anderson]: Several. I know. ... [][].. . [][]

“Y: When I wanted you to stop, you still kept going.

“[Anderson]: I know.

“Y: Why?

“[Anderson]: I don’t know. It was so unbelievably (INAUDIBLE)—

“Y: Because you know what?

“[Anderson]:—so stupid. ... [][]... ffl

“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—what can I do?

“Y: Why did you hit on somebody else? . . . ffl . . . [f]

“[Anderson]: I didn’t hit on anybody else.

“Y: I heard you did. ... [f] ... [f]

“[Anderson]: I’ve never had a—except for you, I’ve never done anything that wasn’t, you know, perfectly noble. I mean, that’s why it’s so incomprehensible. . . .

“Y: You did something to me.

“[Anderson]: Oh, I certainly did. I certainly did. And I—I just—don’t understand why I did it.

“Y: Why did you molest me? Why? Why me? Why the fuck? Huh?

“[Anderson]: I don’t know. I know initially I had this stupid idea that this would help you. I know it sounds ridiculously stupid, but—

“Y: What, touching would help me?

“[Anderson]: I know.

“Y.: Yeah?

“[Anderson]: I know. I know. But that was—I had this thought that you had low self-esteem and so—and it’s stupid. It’s—it’s—it’s indefensible.

“Y: What?

“[Anderson]: It’s indefensible. I can’t—I can’t explain it. It’s just—it’s just evil.

“Y: I can’t—I hurt.

“[Anderson]: I know.

“Y: And I don’t know how to get fucking rid of it. (INAUDIBLE) and I try cutting myself ... I keep saying . . . and I do . . . and it still hurts. And I hurt so much I can’t even feel the fucking pain. (INAUDIBLE) . . . fucking ... Is that all you’re going to say is you’re sorry? ... [][]•. • HO

“Y: Because I expected more. I expected something.

“[Anderson]: [W]hat—I will say I will do anything you want.

“Y: Anything?

“[Anderson]: Yes____[][]... ffl

“[Anderson]: I don’t know what to do (INAUDIBLE) the guilt I feel, I’m going to have forever. I’m just—I’m going to have it every single day.

“Y: Are you guilty enough to turn yourself in, huh?

“[Anderson]: I—I talked with the therapist about that and basically he said that would damage so many people that it would be—that—

“Y: Why?

“[Anderson]:—that—that—that is not something I could do.

“Y: Who will it damage? Who will it damage?

“[Anderson]: All the people that—well, basically, you know, I would be arrested and go to jail; my lab would shut down; people would lose their jobs; all the people who ironically look up to me as a model of the right way to live, people in Oklahoma—

“Y.: Shouldn’t they know the truth though? Shouldn’t they?

“[Anderson]: If—if that would really help you, for it to be public, then I—then I think I would do it.”

2. Defense evidence.

a. Anderson’s testimony.

Anderson testified he attended Harvard University, and Cambridge University in England where he met his wife. He worked at the National Institutes of Health until 1992 when he moved to Los Angeles and founded GTL. He also is a tenured professor in biochemistry and pediatrics at the University of Southern California. Y.Z. was the third or fourth person Anderson hired at GTL. Y.Z. rose to the top of the management chart at GTL and was director of research.

In 1995, Y.Z. asked Anderson to recommend a karate school for Y. Y.Z. later became concerned that Y. was antisocial and asked Anderson to work with Y. in martial arts. Thereafter, Anderson trained Y. to fight competitively in his home on Saturdays for two years. His wife usually was home. Y.Z. drove them to local competitions and had a key to the Andersons’ home. They went to Florida to compete in tournaments in 1997 and 1998. Y. said it was the happiest time of her life.

During breaks from training, Y. sometimes would swing on the heavy bag and Anderson occasionally would push her. However, the punching bag incident Y. described never occurred.

In February of 1998, social services investigated Y.Z.’s husband. Y.Z. told Anderson the girls were going to be removed from her care because they had been spanked. Anderson attended a meeting at a county office regarding this matter. After the meeting, Y. convinced a counselor any problem had been resolved. Y. was very pleased she had taken care of “the bad home situation.” Y.Z. thereafter asked Anderson to take a broader interest in Y. and “be more of a mentor for her.”

When Y. stopped participating in karate, Anderson practiced other sports with her. He wrote letters of recommendation to Teen Line for Y. and her sister. In 2003, Anderson let Y. drive his car in his driveway but never on the freeway.

Anderson admitted he pressured Y. to succeed. At the end of Y.’s eighth grade school year, she started to become adamant that Anderson was pushing her too hard. In February of 2003, Y. told Anderson, “I don’t want you to take this wrong, but this feels like rape.” Anderson claimed Y. “poured out all these things that she said I was doing to her and pressuring her.” He “determined that with the word rape having been used,” he would never be alone with Y. again at his house.

On March 13, 2003, GTL lost its funding. Many employees had to be laid off and Y.Z.’s pay was cut. In June of 2003, Y.Z. was pressuring Anderson for a raise and a promotion to deputy director of the lab, which would have put her in line to be the director.

When Anderson cancelled the second trip, Y. terminated all contact with him. Anderson denied receiving any of the e-mails Y. assertedly had saved as drafts. He claimed that, on November 20, 2003, Y. sent him a short e-mail, which was not in evidence, in which she said he had ruined her life by pressuring her scholastically and in sports. The last line of the e-mail said, “and you sexually abused me.” Anderson showed the e-mail to his wife, then telephoned Y. and asked why she falsely had accused him. Y. said she wanted to get his attention after not communicating with him for five months. She said she was crashing, she felt bad about letting him down and blamed him for pressuring her.

In subsequent e-mails, also not in evidence, Y. asked Anderson to apologize for his “overzealous pressure causing her to crash and ruin her life.” He claimed another of her e-mails not in evidence stated, “No, you didn’t sexually abuse me, but you certainly emotionally abused me.” Anderson testified the e-mail which mentioned “flashes of memory of sexual abuse,” “set off alarm bells.” In response, Anderson sent Y. the “plot of a novel” e-mail to shock her.

Anderson claimed he agreed to attend therapy to address stress caused by GTL’s loss of funding. He consulted a therapist and learned about cognitive therapy, which he explained to Y. Anderson admitted he wanted Y. to believe he was in ongoing therapy, even though he attended only one session, and he wrote progress reports to placate her. The apologies in his e-mails were for his overzealous pressure.

When Y. asked to meet Anderson at the library, she was happy and Anderson expected a cheerful reunion but she glared at him with “utter hatred,” pointed at him and showed him “fresh cuts.” Anderson testified Y. was on the verge of going out of control and there were many people in the area. Anderson did not know what to say so he kept apologizing. “I was doing whatever I had to do to keep her calm and get out of there . . . .” Anderson testified a 19-second pause in the conversation was uncomfortable but, “I didn’t dare just turn around and leave.”

Anderson claimed he did not respond to Y.’s allegation he had weighed her naked and he was “stunned she would say something like that.” When Y. said he had ruined her life, he thought she was talking about pressuring her in sports and school. Anderson testified he thought to “hit on” meant to ask for money. When Y. accused Anderson of sexual abuse, Anderson did not respond for quite a while, trying to think of a response. Anderson had been saying everything he could, “I’m horrible, this is indefensible, I’m evil,” to calm Y. but she was getting worse.

When Y. asked if Anderson would turn himself in, her demeanor changed from cursing and quivering to cool and calm. At that point, Anderson decided Y. wanted to hear him say he would be arrested and go to jail, so he said it. Anderson also said he would go public, which meant he would talk to her parents or whomever she wanted. “I had to say something to satisfy her, to get out of there. I thought that would satisfy her . . . .”

At the end of the recorded conversation, Anderson offered Y. a ride. Anderson testified this illustrates how confused he was. Anderson stayed at the library for a few minutes trying to comprehend what had just happened, then went home and talked to his wife for quite a long time. Anderson testified, “Somebody I worked very hard to help turned on me and tricked me into saying damaging statements.”

On cross-examination, Anderson testified that when Y. asked, “when I was naked?,” Anderson shook his head no. Anderson acknowledged his response as reflected in the recorded conversation “doesn’t make sense at all,” but claimed he was referring to what he thought the conversation was about, putting pressure on her. Anderson’s statement, “I just did it,” refers to another part of the conversation, not weighing her naked. “I did a horrible thing,” also is not about weighing Y. naked. When Y. asked why he had molested her, there was a pause and he said nothing. Then, Anderson finally said, “I don’t know,” because he did not know what to say. In response to a question from the prosecutor, Anderson indicated his IQ is 178.

b. The testimony of Anderson’s wife.

Kathryn Anderson, M.D., Anderson’s wife, corroborated many aspects of Anderson’s testimony. She testified she usually was home during Y.’s visits, although she did not always interact with her. Y.Z. and her daughters frequently visited and she spent time with Y.Z. at the home on a regular basis.

In March of 2003, Y.Z. was angry after GTL lost its funding. Y.Z. shouted at Anderson during their conversations but Anderson refused to engage in conflicts with anyone. After March of 2003, Y.Z. became much less friendly and Y. was not a frequent visitor to the home.

She encouraged Anderson to meet Y. at the library because they had been trying to get help for her. She testified Y. “was disturbed before we met her. She was very troubled during the period of time that we, [Anderson] particularly, were mentoring her, and she had obviously been very disturbed in the fall around Thanksgiving.” When Anderson returned from the library meeting, he was “ashen, and he was literally shaking.”

c. Other evidence.

Lena Basile shared an office at GTL with Y.Z. When GTL lost its funding, Y.Z. was devastated. Y.Z. began to criticize Anderson’s science and said he had received too much credit for GTL. Y.Z. falsely accused Basile and her partners of many serious things. Basile testified Y.Z. would “lie about anything to suit her own aims.”

Numerous witnesses described Anderson as nonconfrontational and testified he had a professional and social reputation for honesty.

3. Summary of the parties’ argument to the jury.

a. The prosecution.

The prosecutor argued Y.’s testimony was corroborated by Anderson’s e-mails, the recorded conversation and Anderson’s testimony. Also, although Anderson testified he never received the e-mails Y. saved as drafts, his e-mails respond directly to what she wrote, proving “this is exactly the victim and the defendant talking to each other . . . .” The prosecutor noted Anderson admitted he was attempting to manipulate Y. in his e-mails and argued: “He need[ed] to control her. He desperately need[ed] to keep her quiet, desperately need[ed] to keep his dirty secret.”

The prosecutor described Anderson’s conduct after Y. terminated their sexual relationship as that of “a man who is obsessed with his lover.” The prosecutor referred to the recorded conversation as a “taped confession” in which Anderson admitted “in clear language that he molested her.” When Y. asked Anderson why he weighed her when she was in middle school, Anderson said he was “seeing how fast you were growing.” Thus, although Anderson denied at trial that he ever weighed Y, in the recorded conversation he admitted he did.

The prosecutor claimed Anderson did not leave the library confrontation because he was “desperate ... to control her and to continue to have that secret kept secret.” Although Anderson testified he just wanted to leave, “we know that the reason he didn’t want to walk away is because he wanted to continue to control her, try to appease her, tell her he is sorry and hope she would not go to the police. He could not afford her going to the police.”

b. The defense.

Defense counsel argued, “Everything that she does can be explained by a troubled young woman who decided at some point the way to have fnend[s] was to be a victim. And gradually, as she spun her various versions of this, tried it out on various people, that is what happened. Her life changed.” She did not want to go to court “but events and activities . . . caught up with her, and that is what we are doing here in court today.”

Defense counsel asserted Y.’s testimony was not credible, noting she told A.L. she was molested in a car. Y. also gave conflicting reports as to the duration of the abuse, she claimed she was molested for more than five years but she never saw Anderson’s penis and she manipulated the system to terminate the dependency investigation of her father. Also, her father’s physical abuse could have caused the cutting behavior. When she told Waldron about the abuse, she was continuing to socialize with Anderson.

Regarding the library confrontation, defense counsel argued Anderson was confronted by a “damaged” person who had been complaining about the pressure he put on her to do well. “[H]e is trying not to make the situation worse.”

4. Verdicts and sentencing.

Anderson was convicted of continuous sexual abuse in violation of section 288.5 between March 1, 1999, and September 30, 1999, and three counts of lewd act in violation of section 288, subdivision (a) committed between October 1, 1999, and December 31, 1999, between January 1, 2000, and December 31, 2000, and between January 1, 2001, and December 31, 2001, respectively.

The trial court sentenced Anderson to 14 years in state prison, consisting of the middle term of 12 years for continuous sexual abuse and a consecutive term of two years for one of the counts of lewd act.

DISCUSSION

1. The trial court committed, no reversible error in excluding evidence of Anderson’s conduct after the library confrontation.

a. The letter to Chief Farris and Anderson’s cooperation with authorities.

After the library confrontation on July 1, 2004, Anderson went home and spoke to his wife. Together, they wrote a four-page letter to Anderson’s friend, San Marino Police Chief Arl Farris, dated July 4, 2004, “to obtain advice” about “a very disturbing meeting that took place between ... the 17-year-old daughter of our friend, Dr. [Y.Z.] . . . and [Anderson] on the front lawn of the South Pasadena Library . . . .”

The letter summarized the history of Anderson’s relationship with Y. and her family and described the November 2003 e-mail in which Y accused Anderson of sexual molestation as an “aberrant event” that occurred after no communication with Y. for the previous five months. The Andersons asserted the November 2003 e-mail “was full of sociological jargon (apparently learned at Teen Line) and stated that [Y] wanted [Anderson] to communicate with her because he had sexually abused her as a child and she wanted an apology. [Anderson] immediately called her and demanded to know why she had falsely accused him of sexual abuse. She agreed the claim was groundless, but said that she was trying to get his attention.”

The Andersons wrote they believed Y. was deeply “disturbed to be making such false accusations.” However, “occasional emails over the winter and spring suggested that she was doing better and, therefore, the call on June 30 for a meeting on July 1 came as no surprise. . . . [W]e had no idea that [Y.’s] life had spun out-of-control.”

Regarding the library confrontation, the letter stated Y. met Anderson’s greeting with a glare and said, “ ‘You ruined my life!’ . . . Whereupon she related how she had nearly flunked out of school, . . . was seeing a therapist, was on several anti-depression drugs that, she said, were doing no good, was unable to control her emotions, was cutting herself with razor blades, and found her fife growing increasingly out of control. ... All [Anderson] could do was apologize for any problem we had caused her, but said that there was nothing helpful he could think of to say. . . . Then she made the strange statement: 1 hear that you have been hitting on other people.’ It is true that [Anderson’s] laboratory has gone through a major budget cut, but our personal finances are fine so that we have no idea why [Y] would make such a statement. She then asked again for help. [Anderson] said he would do whatever he could to help her, but did not know what else to say. [Y.] said that [Anderson] was no help and that she had to go, and left. . . . [Anderson] was absolutely stunned at [Y.]’s ferocity, and was very frightened for her. . . . We were both caught totally unaware by her disturbed appearance and behavior.”

The letter closed as follows: “Our concern is that [Y.]’s bizarre statement about ‘hitting on’ people might have been an indication that she is thinking about hitting on us. If she has also descended into street drug use, then she may need money. What if [Y] says that she will destroy our reputations by telling her school that she was sexually abused by [Anderson] unless we give her money? How do we protect ourselves from an extortion attempt? What should we do?”

Anderson delivered the letter to Chief Farris on July 6, 2004. Chief Farris felt he had a conflict of interest because of Anderson’s contacts with the San Marino Police Department and referred the matter to the Los Angeles County Sheriff’s Department, which already was investigating Y.’s allegations.

On July 9, 2004, deputy sheriffs interviewed Anderson at his home and Anderson gave the deputies copies of e-mails. After service of a search warrant at his home on July 30, 2004, a detective secretly recorded a 45-minute interview with Anderson and then arrested him.

b. Legal proceedings below.

The People filed a pretrial motion asking the trial court to exclude evidence of the letter to Chief Farris as hearsay. The defense sought admission of the letter for nonhearsay purposes, under exceptions to the hearsay rule, to impeach the statements Anderson made during the library confrontation under Evidence Code section 1202 and as circumstantial evidence of his innocence.

The trial court ruled the letter was inadmissible hearsay, finding it did “not satisfy the trustworthiness component.” The trial court stated: “There is way too much potential for fabrication, for motivation, for covering oneself, for any number of factors aside from the fact that it may be true.” The trial court also determined the letter was inadmissible under Evidence Code section 1202, and it was substantially more prejudicial than probative under Evidence Code section 352. The trial court indicated it would reconsider its ruling if Anderson testified.

During trial, the defense renewed its request to present evidence of Anderson’s conduct after the library confrontation. The trial court again ruled the content of the letter constituted hearsay and did not fall within any exception. The trial court found the fact the letter had been written and the subsequent actions taken by Anderson were irrelevant and inadmissible under Evidence Code section 352. The trial court ruled: “This is the type of evidence that just leads nowhere except to confusion, speculation, sur[m]ise and supposition. It confounds the jury and diverts and distracts their attention.”

After Anderson testified about the library meeting, the defense argued Anderson should be permitted to testify about “what he did . . . after this.” The trial court found Anderson’s statements to law enforcement inadmissible, stating: “They certainly do not fulfill the requirements of any so-called prior consistent statements under Evidence Code Sections 791 and 1236 because of the timing of any such statements and the very real motive or opportunity to fabricate.”

The trial court also found the evidence was “substantially more prejudicial than probative. I have evaluated it. It is confusing. It opens up all sorts of issues which I do not think should be opened up and is, in essence, an end run around the hearsay rule in much the same way that absence of flight is an end run around the flight instruction under . . . People [v.] Williams [(1997) 55 Cal.App.4th 648, 651 [64 Cal.Rptr.2d 203]].” The trial court ruled the proffered evidence “causes the jury to be distracted from the real issues in this case. If the content were admissible, it would be different. The content is inadmissible and the actions, therefore, are inadmissible as well, as I weigh and balance and evaluate them under 352 of the Evidence Code.” The trial court indicated it had considered Anderson’s requests on federal and state grounds.

c. Anderson’s contentions.

Anderson contends (1) the letter to Chief Farris was not hearsay as it was not offered for the truth of the matter asserted and the hearsay rule was inapplicable because Anderson testified and was subject to cross-examination; (2) the trial court’s ruling under Evidence Code section 352 was inadequate; (3) the trial court applied evidentiary rules in a manner that was arbitrary and disproportionate to the state’s legitimate interests, thereby denying him the right to testify in his own words and to present critical defense evidence; (4) Anderson’s conduct after the library confrontation was admissible as part of his adoptive admissions in response to Y.’s accusations during the library confrontation; (5) the content of the letter to Chief Farris was admissible under Evidence Code section 1202 to attack Anderson’s credibility as a hearsay declarant; and (6) in addition to the infringement of Anderson’s right to testify in his own defense, the exclusion of the proffered evidence requires reversal because the prosecutor took unfair advantage of the trial court’s ruling in argument to the jury.

We address these contentions below.

d. Letter to Chief Farris properly excluded as hearsay.

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay evidence is inadmissible.” (Evid. Code, § 1200, subd. (b).)

“Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, memory, clarity of expression, and veracity, and because the jury (or other trier of fact) is unable to observe the declarant’s demeanor. [Citations.] Because the rule excluding hearsay is based on these particular difficulties in assessing the credibility of statements made outside the jury’s presence, the focus of the rule’s several exceptions is also on the reliability of the out-of-court declaration. Thus, the various hearsay exceptions generally reflect situations in which circumstances affording some assurance of trustworthiness compensate for the absence of the oath, cross-examination, and jury observation. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 608 [25 Cal.Rptr.2d 390, 863 P.2d 635], citing Chambers v. Mississippi (1973) 410 U.S. 284, 298 [35 L.Ed.2d 297, 93 S.Ct. 1038].)

Anderson asserts the letter to Chief Farris was not offered for the truth but to show that he delivered the letter to the police and invited an investigation of his relationship with Y. However, unless the content of the letter is considered, the fact Anderson and his wife wrote a letter which Anderson thereafter delivered to Chief Farris was meaningless. Anderson also claims the letter was admissible to show his state of mind and to provide circumstantial support for his claim he was alarmed by Y.’s behavior and it caused him to fear extortion. However, Anderson’s state of mind days after the library confrontation was marginally relevant and the trial court did not prevent Anderson from testifying about his perception of Y.’s behavior during the library confrontation.

Anderson further claims the trial court erroneously compared his conduct after the library confrontation to the absence of flight, citing People v. Williams, supra, 55 Cal.App.4th 648, which held “the absence of flight” is “ ‘so laden with conflicting interpretations, that its probative value on the issue of innocence is slight.’ ” (Id. at p. 652.) Anderson seizes on the observation in Williams that “flight is significantly different than the absence of flight” because “[f]light is by its nature an active, conscious activity . . . .” (Ibid.) Based on this statement, Anderson asserts he did not respond to a police request for cooperation but deliberately invited police inquiry into his conduct, which constitutes conscious activity, not its absence. Therefore, his conduct after the library confrontation was not equivalent to the absence of flight.

Although the trial court’s analogy may have been flawed, the trial court did not exclude the proffered evidence based on its similarity to the absence of flight. The trial court merely noted admission of the letter into evidence was “in essence, an end run around the hearsay rule in much the same way that absence of flight is an end run around the flight instruction . ...” In sum, the trial court properly excluded the letter to Chief Farris as hearsay.

The fact Anderson testified does not alter the result.

In claiming this factor is determinative, Anderson focuses on the sentence that completes the above quoted paragraph from Cudjo which states, “Neither the hearsay rule nor its exceptions are concerned with the credibility of witnesses who testify directly to the jury.” (People v. Cudjo, supra, 6 Cal.4th at p. 608.) Anderson asserts he was not attempting to offer hearsay in lieu of testifying (see People v. Gurule (2002) 28 Cal.4th 557, 605-606 [123 Cal.Rptr.2d 345, 51 P.3d 224]) and, because he testified at trial and subjected himself to cross-examination, the hearsay rule was inapplicable.

However, the quotation cannot be read to stand for the proposition a testifying defendant may relate all manner of hearsay without restriction. In fact, the law appears to be settled to the contrary. In People v. Williams (2006) 40 Cal.4th 287 [52 Cal.Rptr.3d 268, 148 P.3d 47], the trial court excluded evidence of a videotaped police interview in which the defendant cried and minimized his culpability. (Id. at pp. 317-318.) In upholding this ruling, Williams cited People v. Jurado (2006) 38 Cal.4th 72 [41 Cal.Rptr.3d 319, 131 P.3d 400], which held “the circumstance that defendant made his statements during a postarrest police interrogation, when he had a compelling motive to minimize his culpability for the murder and to play on the sympathies of his interrogators, indicated a lack of trustworthiness. In past decisions, we have upheld the exclusion of self-serving postcrime statements made under similar circumstances. [Citations.]” (Id. at p. 130.)

Anderson claims People v. Williams, supra, 40 Cal.4th 287, and People v. Jurado are inapposite because neither defendant testified. Although this observation is correct with respect to Jurado, the defendant in Williams pleaded guilty to murder and other offenses and admitted two special circumstance allegations and thereafter testified at the penalty phase of the trial. (People v. Williams, supra, at pp. 297-299.) Like the right to testify in one’s own defense, the right to present mitigating evidence at the penalty phase of a capital case is constitutionally guaranteed. (See Green v. Georgia (1979) 442 U.S. 95, 97 [60 L.Ed.2d 738, 99 S.Ct. 2150]; Lockett v. Ohio (1978) 438 U.S. 586, 604 [57 L.Ed.2d 973, 98 S.Ct. 2954].) Thus, Williams provides strong support for the trial court’s ruling here.

Moreover, even if the hearsay rule did not prevent Anderson from testifying about his conduct after the library confrontation, as discussed below, the trial court properly could limit Anderson’s testimony in this regard under Evidence Code section 352 and, even if the trial court’s ruling on this point were incorrect, the error was harmless.

Anderson also argues Williams and Jurado are distinguishable because there was no arrest in this case at the time Anderson wrote the letter and Anderson did not know Y. was going to the police. Thus, the content of the letter was more trustworthy than the statements at issue in those cases. However, Anderson knew Y. told a school counselor about the abuse in 2003, although she minimized it, and she had been interviewed about the abuse by police officers. Also, Y.’s e-mails to Anderson frequently mentioned the turmoil she was experiencing in deciding whether to report him. After the library confrontation, Anderson reasonably could conclude Y. had resolved to take some action with respect to the abuse. Thus, Anderson’s letter to Chief Farris must be seen as a statement Anderson made after having been accused of sexually molesting Y. and therefore at a time when he had motive to fabricate, rendering it untrustworthy.

For the foregoing reasons, the trial court properly excluded evidence of the Andersons’ letter to Chief Farris as hearsay.

e. Evidence Code section 352.

Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

Anderson argues the trial court merely recited the factors set forth in the statute without specifying the circumstances on which it was relying. Anderson claims the excluded evidence was not inflammatory, there was no danger it would have consumed more than a few minutes of court time, it would not have distracted the jurors from the central issue and the evidence was highly relevant and was likely to avoid juror confusion about Anderson’s conduct after the library confrontation.

A trial court’s decision to exclude evidence under Evidence Code section 352 is reviewed for an abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 578 [43 Cal.Rptr.3d 1, 133 P.3d 1076]; People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [82 Cal.Rptr.2d 413, 971 P.2d 618].)

Here, the record reflects the trial court balanced the required factors, considered the proffered evidence in context, found its probative value was outweighed by the probability its admission would confuse, distract or mislead the jury and exercised its discretion to exclude it. Anderson complains the trial court’s findings were vague and undetailed. However, the trial court repeatedly made express findings related to the admissibility of the evidence. Notably, the trial court found: “This is the type of evidence that just leads nowhere except to confusion, speculation, sur[m]ise and supposition. It confounds the jury and diverts and distracts their attention.”

In any event, a trial court is not required to make detailed factual findings when excluding evidence under Evidence Code section 352. “All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352.” (People v. Williams (1997) 16 Cal.4th 153, 213 [66 Cal.Rptr.2d 123, 940 P.2d 710].) Unquestionably, the trial court’s findings met that standard.

In sum, the trial court made a reasonable decision to exclude the evidence based on the circumstances presented. No abuse of the trial court’s discretion appears.

f. The trial court’s ruling did not infringe Anderson’s right to present a defense.

Anderson argues that, as a result of the trial court’s exclusion of evidence of his conduct after the library confrontation, he was denied the right to testify in his own words and to present critical defense evidence. (Rock v. Arkansas (1987) 483 U.S. 44, 51-53 [97 L.Ed.2d 37, 107 S.Ct. 2704]; Chambers v. Mississippi, supra, 410 U.S. at p. 302.) He claims the trial court’s exclusion of the evidence violated the rule that “restrictions of a defendant’s right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve.” (Rock v. Arkansas, supra, at pp. 55-56.) Anderson asserts no legitimate state interest outweighed his right to explain his actions in response to the library confrontation.

The right to testify in one’s own behalf is “fundamental.” (People v. Lancaster (2007) 41 Cal.4th 50, 100 [58 Cal.Rptr.3d 608, 158 P.3d 157].) However, the right is “not unlimited, but rather is subject to reasonable restrictions.” (United States v. Scheffer (1998) 523 U.S. 303, 308 [140 L.Ed.2d 413, 118 S.Ct. 1261]; People v. Boyette (2002) 29 Cal.4th 381, 427-428 [127 Cal.Rptr.2d 544, 58 P.3d 391] [application of the ordinary rules of evidence does not impermissibly infringe a defendant’s right to present a defense].) These restrictions include “ ‘rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” (Rock v. Arkansas, supra, 483 U.S. at pp. 55-56, fn. 11, quoting Chambers v. Mississippi, supra, 410 U.S. at p. 302.)

An appellate court must evaluate whether the interests served by application of an evidentiary rule “justify the limitation imposed on the defendant’s constitutional right to testify.” (Rock v. Arkansas, supra, 483 U.S. at p. 56.) An arbitrary restriction on a defendant’s right to testify is one that “exclude[s] important defense evidence but that [does] not serve any legitimate interests.” (Holmes v. South Carolina (2006) 547 U.S. 319, 325 [164 L.Ed.2d 503, 126 S.Ct. 1727].) Application of ordinary rules of evidence to exclude “ ‘defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense. [Citation.]’ ” (People v. Boyette, supra, 29 Cal.4th at p. 428.) For a defendant’s constitutional rights to override the application of ordinary rules of evidence, “ ‘the proffered evidence must have more than “slight-relevancy” to the issues presented. [Citation.] . . . [Citation.] The proffered evidence must be of some competent, substantial and significant value. [Citations.]’ [Citation.]” (People v. Tidwell (2008) 163 Cal.App.4th 1447, 1457 [78 Cal.Rptr.3d 474].)

Evidence Code section 352 is part of a trial court’s “traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]” (People v. Hall (1986) 41 Cal.3d 826, 834 [226 Cal.Rptr. 112, 718 P.2d 99].) Thus, Evidence Code section 352 “incorporates a compelling state interest, i.e., the policy in favor of an orderly trial on the merits.” (People v. Hall, supra, at p. 835.) The United States Supreme Court has found statutes similar to Evidence Code section 352 constitutional. (Holmes v. South Carolina, supra, 547 U.S. at pp. 326-327.) Holmes noted the Constitution is not offended by “well-established rules of evidence [that] permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. [Citations.]” (Holmes, at p. 326.) The hearsay rule similarly is a well-established rule of evidence designed to prevent the admission of untrustworthy evidence.

Moreover, contrary to Anderson’s assertion, the excluded evidence was not critical to his defense and was only marginally relevant. Anderson claims reasonable jurors would have assumed he did more than go home and chat with his wife after this meeting, which he testified felt like an extortion attempt. He claims the inability to produce evidence of his conduct in the wake of the “confession” had great potential adversely to affect his credibility in the eyes of the jury.

At the outset, we note the trial court found the content of the lett