Filed 8/28/13 P. v. Regalado CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. VICTOR TREVINO REGALADO, Defendant and Appellant. F062666 (Super. Ct. No. F09907196)



### OPINION

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Tiffany J. Gates, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-2. Defendant Victor Trevino Re galado stands convicted, following a jury trial, of continuous sexual abuse of a child (Pen. Code, 1 § 288.5, subd. (a); count 1), commission of a lewd act on a child (§ 288, subd. (a); co unts 3 & 6), aggravated sexual assault (sexual penetration) of a child (§ 269, subd. (a)(5); count 4), and aggravated sexual assault (rape) of a child ( id ., subd. (a)(1); count 7). The jury further found the offenses in counts 3, 4, 6, and 7 involved substantial sexual conduc t with a victim under age 14 (§ 1203.066, subd. (a)(8)). 2 Sentenced to a total unstayed term of 12 years plus 30 years to life in prison and ordered to pa y various fees, fines and assessme nts, defendant now appeals, claiming instructional error and related ineffe ctive assistance of counsel. We affirm. FACTS
I
P ROSECUTION E VIDENCE T. was born in 1993. 3 Defendant, her stepfather, began touching her breasts and private areas when she was six years old. On one occasion during this time period, when she lived on Fairbanks, in Sa nger, with a number of fam ily members, just she and defendant were lying on the bed in the room they all shared. Defendant touched her on
her breast and made her suck his breasts. Defendant touched T. more than three times during this time period. After he touched he r, he would buy her ice cream or take her shopping.

1 All statutory references are to th e Penal Code unless otherwise stated.
2 The jury acquitted defenda nt of committing a lewd act on a child (§ 288, subd. (a)) as charged in count 5. As count 2, which also alleged a violation of section 288, subdivision (a), was charged in the alternative to co unt 1, the trial court found defendant not guilty by opera tion of law.
3 In keeping with rules of protective nondisclosure, we refer to certain persons by their first names or initials. No disrespect is intended.3. Tina, defendant’s niece, recalled that in the summer when she was nine and T. six, T. said her dad (which was how she though t of defendant) made her do things. When Tina asked what kind of things, T. said he would make her touch him and he would do the same thing back to her. T. said these things usually happened when L., her mother,
was not around. Tina did not believe T. at first, becaus e it did not seem to her that defendant was capable of doing something like that. A day or so after their conversation, T. and Tina were in T.’s room, which was part of her parents’ bedroom but with the sleep areas separated by an entertainment center. T. said , “Watch, I’ll show you. ” She told Tina to hide where Tina could see them, so Tina lay on the floor behind the entertainment center. Tina saw T. go up to defendant , who whispered to T. to ge t into the bed and opened up the blankets for her. They got under the blankets, and it look ed to Tina like defendant got on top of T. There was movement that did not seem normal for a father and daughter.
Tina made a noise so defendant knew someone else was in the room. This interrupted the movement under the covers, and defendant told T. to go play. Tina and T. left the room together; defendant saw Tina, but did not say anyt hing to her. Afterward, T. told Tina, “I told you so.” 4

4 Tina was herself molested (not by defe ndant) beginning when she was around six, a fact she shared with T. ar ound the time she learned T. wa s being molested. At some point during the investigation into T.’s allegations, Detective Cooney began leaving telephone messages for Tina. It took her mont hs to return his call s, because she was not ready to talk about her own molestation. When she finally spok e to Cooney around March 22, 2010, she did not tell him about th e entertainment center episode, because she did not remember it at the time. T. likewise did not recall the incident until shortly before tr ial, when she was talking to Tina and Tina asked if she rememb ered. T. said no at the time, but got to thinking about it and it all came back. At the time of the entertainment center incident, T. believed defendant was her biological father.4. At some point, the house in Sanger burned do wn. In second grade, T. went to live with her great-grandmother in Pinedale. She had to repeat second grade, then, when she was in third grade, she moved back in with defendant and her mother because she missed her younger brother. This was in about 2002; they lived in the Whispering Woods apartment complex. During this time, when T.’s mother was not home and her brother was outside, defendant would call T. into the room. He would touc h her vaginal area and breasts and buttocks, rub on her, and suck her fingers to show her how to do it. He would make her touch his penis with her hand and or ally copulate him. He would also try to force his fingers inside her vagina. Sometimes T. would stiffen her legs so that he could not open them, but other times he was able to penetrate her with his fingers. These things happened once or twice a week while they lived at Whispering Woods. The summer before seventh grade, when T. was 13, defendant began to attempt to
have intercourse with her. He would lie on top of her and try to push his penis into her vagina. It hurt “a lot,” and at first he only got the tip in. Later, he was able to fully penetrate her. Defendant did this thre e or four times during the summer.
On one occasion around the holidays, defendant told T. they were going to go shopping for Christmas presents. Instead, they went to a hotel, wher e they stayed for an
hour or two. 5 When they were inside their room, defendant turned on the television and lay on the bed. He called T. over and tried to take off her pants. She tried to get away, but her pants came off. At the same time, he removed his pants and pulled her underwear to the side. He took out his penis and tried to insert it in her vagina . He got on top of her and was able to achieve penetration. T. pun ched him in the chest and was able to get away. She grabbed her clothes and went into the bathroom. When she came out, they

5 T. initially was adamant this occurre d in 2007. After having her memory refreshed concerning when she first spoke to a detective, however, she concluded it happened in 2006. She denied it took place in 2005.5. left and went shopping, and defendant bought T. a wallet. T. believed it was just starting to get dark when they left the hotel. Jacquelyn A. became friends with T. in fifth grade. One day, during the first couple months of their seventh grade school year, they were discussing television shows about young girls, and T. sa id she had been raped before . When Jacquelyn asked who did it, T. said her stepdad. Jacquelyn did not pursue the co nversation at that time, but
later asked T. about it and whet her it was true. T. said yes. Over the course of their conversations, T. revealed she and defendant had had sexual inte rcourse and he would
have her masturbate him. T. said it had been going on for a while. P.M., who was only a few years older than T., was T.’s aunt. She recalled T. and her family living at the Whispering Woods apartment complex in Fresno. During that time, T. related on a couple of occasions that de fendant tried to have se x with her. As T. grew older, she told P.M. that defendant was in fact having sex with her. Over the years,
T. told P.M. 10 to 15 times that defendant was molesting her or having sex with her. Almost every time, P.M. encour aged her to tell someone or offered to do it for her. T.
refused and said she was scared. P.M. believe d T. told her these things a couple of times before 2006, but repeatedly betw een 2006 and 2009. At one point, T. said defendant had
taken her to a motel “and had he r do it there,” and then he took her home. P.M. could not
remember how old she and T. were at the ti me of this conversation, but she recalled it was during the season when the fair comes to Fresno.
Laura Dassori had been friends with defend ant and his sister and parents for years. She subsequently became best fr iends with L., defe ndant’s wife, and the couple rented a
house Dassori owned. Dassori became clos e to T., with whom she developed a big sister/aunt type of relationship. Dassori left the area in November 2006, but continued to
maintain close contact with the family.6. In March or April of 2007, during the tim e defendant was in jail, L. telephoned, crying, and said P.M. had found a journal in the closet. 6 L. read Dassori parts of the journal. In one excerpt, T. wrote about a time defendant forced her to orally copulate him. L. was crying and distraught and did no t know what to do. Dassori advised her to call the police and speak to T. right away. L. called Dassori later that night or the next day, and said she talked to T., who said it did not happen. 7 Dassori, who was a police dispatch er at the time, explained that it was common for victims to recant, and sugges ted she (Dassori) or someone else should talk to T., because maybe T. did not fe el comfortable. L. said that under no
circumstances was Dassori allowed to talk to T. about it. Dassori agreed she would not do so until defendant got out of jail, as L. said T. would need tim e to process it. After that, things went on pretty much normally. Dassori kept her promise. At one point, L. got defendant out of jail fo r the day so he could attend T.’s First
Communion. 8 The ceremony was at a church, followed by a party at the house. Dassori
noticed that T. tried to st ay away from defendant. In June, defendant was released from jail. Dassori invited T. to stay with her in Corona for the summer, and L. agreed. After a few days, when T. had gotten comfortable, Dassori asked T. if defendant ev er touched her. T.’s eyes teared up and she

6 Defendant was arrested on January 25, 2007, for possession of methamphetamine.
7 According to T., when she was in nint h grade, she wrote in her journal about everything that was happening and what defe ndant was doing to her. When L. asked her if what was in the journal was true, T. nodd ed her head yes. L. just hugged her and walked away.
8 According to T., L. asked T. to write a letter to the judge, asking if defendant could come out for her First Communion. T. knew it was not a good idea, but she did it because she knew L. wanted it. The communion took place on April 28, 2007. T. never told Detective Cooney or the prosecutor about the letter because she forgot about it.7. nodded affirmatively. Dassori called the Corona police, who referred her to the Fresno police. On June 20, 2007, Fresno Police Detec tive Kobashi contacted Dassori, and set up an appointment for June 25 to talk to T. Dassori and T. came up to Fresno, and Dassori decided to tell L., thinking she would want to be there for her daughter during a difficult time. Dassori left T. with Anna, one of T.’s a unts, and went to pick up L. As they neared Anna’s house, Dassori told L. that T. ha d confided to her that defendant had been molesting her and had ra ped her. L. was quiet until Dassori stopped the car, then she got out and started yelling that Dassori had ru ined her family and it was not Dassori’s business. L. yelled that T. was lying.
Dassori told L. that she wanted to take T. to the interview w ith the detective. When L. refused, Dassori called 911 and requeste d officers at the scene. A patrol officer who responded to the disturbance call notifie d Kobashi. When she arrived, L. told
Dassori that she did not want T. to talk to Kobashi at Kobashi’s office downtown. L. was upset with Dassori, and the two were arguing about T., who was also upset and crying. Dassori was asking L. why she was protectin g her husband instead of her daughter, and L. was asking why Dassori wa s messing up L.’s life and saying T. was a liar and was making it all up. T. agreed to go down the block a short distance to talk to Kobashi. During the conversation, T. first looked down and di d not answer, then ad mitted she had been molested by defendant. T. started crying wh ile she was talking, and she said defendant
had told her not to tell. She said the last time defendant touched her was in January 2007, just before he went to jail. T. agreed to come to Kobash i’s office to talk, and also said it would be all right to
tell her mother what T. had told Kobashi. Kobashi brought L. to T.’s location and told her what T. had said. L. looked angry and kind of shook her head. She stood staring at8. T. with her arms crossed. Ho wever, she agreed to bring T. to Kobashi’s office the next day. Kobashi was ill the next day. When she returned to work th e day after that, she telephoned L. to reschedule the interview, but r eceived no answer. She left three or four messages before L. called her back. L. said she had taken T. out of town for the Fourth of July weekend, and would call when they re turned. L. did not do so, despite Kobashi leaving two more messages for her. On July 6, Kobashi and Detective Fuentes went to L.’s house. L. said T. was sleeping and did not want to talk to K obashi, but eventually
she let them in. L. said she had not re turned Kobashi’s calls because she was busy looking for new living quarters, as Dassori owned the home and was evicting them. Kobashi and Fuentes went with T. into another room so they could speak in private. Most of the time, T. looked down at the ground rather than at Kobashi, and simply nodded yes or no in answer to Kobash i’s questions. When Kobashi asked T. if it
was true that T. did not want to talk to Ko bashi, T. nodded affirmatively. When Kobashi
asked if what T. had told her the other da y was a lie, T. just put her head down and looked at the ground, th en nodded affirmatively. Kobash i asked if T. would come to her office and talk to her, whereupon T. shook her head no. Kobashi then asked if T. felt she would be safe if defendant (who had left the week before at L.’s request) came back into the house, and T. agai n shook her head no. 9 Kobashi subsequently tried to contact defe ndant, and was finally able to interview him on July 24, 2007. Defenda nt described T., who was 13 at the time, as “a good kid,”
but said he was strict with he r. Defendant said he had lear ned of the allegations against him the day of the disturbance between L. and Dassori; he said Dassori was like a sister

9 According to T., she refuse d to proceed with Kobashi because L. scared her. L. looked at her “evil,” in a way that indicated T. was not supposed to talk and L. would do something if T. did. This was a feeli ng T. got; L. never actually gave her any instructions.9. to him and he did not know why she would make such alle gations against him. When Kobashi said T. was making the allegations, no t Dassori, defendant just nodded. He said he would admit to doing it to take away the pa in from T., and he offe red to plead to the charges if it would make it easier for T. to not have to go through th is. Kobashi said she
did not want him to admit to something if it was not true, a nd that she wanted him to tell her the truth. She then asked him if T. was ly ing. At first, he said he did not know. Kobashi then was specific with him about what T. had said. This time when she asked if T. was lying about that, defendant said yes, she was lying about that. At some point after the interview with de fendant, the case was suspended. There was not enough evidence to proceed. Meanwhile, T. and L. moved to T.’s greatgrandmother’s house in Pinedale, while defend ant and T.’s brother moved to Sanger. At some point, the family ended up in the sa me house together, in Sanger, because T.
wanted to see her brother. T. completed her freshman year in high sc hool in Sanger, but sp ent as little time as possible at home. That summer, she got into trouble for getti ng two tattoos. As a result, she was grounded for the summer. Not long after, her br other put a live spider in her hair. She cornered him and pretended to h it him. He was laughing, but L. pulled her away, yelled at her, and tried to slap her fa ce but missed and hit he r arm instead. When
L. followed T. outside and conti nued yelling at her, T. left. On August 19, 2009, T. telephoned Dassori. She was very upset after a disagreement with her mother, a nd said there had been physical violence and she had left the house. T. said she could not take it anymor e and could not continue to live there. She asked if she could live with Dassori, and Dasso ri agreed and arranged for her to get to Southern California, where Dassori lived. T. was put into foster care while a background check was run on Dassori, then Dassori was named T.’s guardian and T. came to live with her around September 14, 2009.10. In November, Dassori asked T. what rea lly happened, why she recanted, and if she wanted to proceed. T. said she did want to proceed, so Dassori contacted the Fresno Police Department and spoke to Detective Coon ey. Dassori brought T. up to Fresno, and they met with Cooney and gave statements on November 27, 2009. During the interview, Cooney asked T. about the 2007 investigation. T. related that L. had instructed her to lie to the police, and that, since moving in w ith Dassori, she had st arted to build some strength and wanted to make a formal report. T. related to Cooney that her first memories of being sexually assaulted by
defendant occurred when she was six to seven years old. Defendant would come into her
room and start to rub on the outside of her vagina and her breasts and buttocks, and he would have her suck on his fingers. T. said this occurred about once a week from the time she was six or seven, up until about her eighth birthday. T. said defendant would take her out for ice cream and shopping after th ese incidents. T. said that when she was around eight years old, she went to live with her grandmother and the assaults stopped. T. told Cooney th at when she was nine years old, she again resided with defendant, and the assaults resumed and beca me more physical. Defendant would get in
bed with her. He would have her undress and he would also undress. Defendant would lie on top of her, naked, and kiss her neck, fo ndle her breasts, and rub her vagina. She recalled him trying to insert two fingers into her vagina. She would wiggle and squirm in an attempt to prevent the ac tivity from occurring, but she was not always successful and she was digitally penetrated. T. said these incidents were as frequent as one to three times a week, and occurred from when she was nine until she wa s 11 to 12 years old. T. reported that when she was 12 years ol d, the assaults escalated. She would be alone with defendant in a room, and he would tr y to insert his penis into her vagina. She
recalled three to four such incidents occu rring within a one-mon th period during the summer she was in sixth grade. She said defenda nt managed to insert the tip of his penis, and that it caused her pain.11. T. related that somewhere around Thanks giving or Christmas of 2005, defendant
took her to a Motel 6 near Bl ackstone and Ashlan, in Fresno, and sexually assaulted her. She said that once they got to the motel room, defendant undr essed her and then himself. She lay on the bed, and he clim bed on top and inserted his penis into her vagina. This caused her pain, and she attemp ted to scoot away from him. She punched him in the chest, grabbed her clothing, and went into the bathroom. When she came out, he took her to a nearby store and bought her a wallet. Cooney subsequently obtained a receipt from the motel. The receipt showed a check-in date of November 17, 2005, and a ch eckout date of November 18, 2005. The address provided for defendant was the Whispe ring Woods apartment complex in Fresno. The receipt did not give a checkout time, but showed defendant received a full refund. This suggested to Cooney the st ay might have been a short one. 10
T. admitted at trial that the summer of 2009, when she ran away, was a bad time in her life. She was spray-painting graffiti, stay ing out all night, and dr inking. She was also hanging out with some bad peop le. When she went to live w ith Dassori, she straightened out and stopped tagging and drinking. She refused to leave her boyfriend, however,
which was what Dassori wanted because he was controlling and used drugs. In November 2010, she and Dassori argued about him, and T. ultimatel y ended up back in
Fresno. T. also admitted that on November 16, 2009, she had a conversation with a
social worker in which she sa id she recanted her story in 2 007 because she did not want her brother to be taken away and put in a fo ster home. In 2010, however, she told the

10 Cooney subsequently obtained two ot her receipts for stays by defendant at a Motel 6 in Fresno. This Motel 6 was about an eighth of a mile north of the other Motel 6. The dates of the stays were February 19, 20 06, and April 12, 2006. These receipts did not list a checkout date. T. never said she ha d been taken to a Motel 6 three times. She never told Cooney that Tina was an ey ewitness to misconduct by defendant.12. district attorney’s investigator that she move d to Sanger in 2008 because she was afraid defendant was going to start molesting her brother. Psychologist Randall Robinson testif ied concerning Child Sexual Abuse Accommodation Syndrome (CSAAS). Robinson would expect a child who reported abuse and was met with a great amount of upse t from the family to retract. Moreover, CSAAS explains why reporting, if there is any, tend to be inconsistent. Because children want to have a family and to believe they are loved, it woul d not be unusual for the child to go to family gatherings or continue to have a relationship with the abuser.
II
D EFENSE E VIDENCE Anna lived with L. and de fendant for a little more than a year in 2008, when they lived in Sanger. T. told A nna she came to live in Sanger because she did not like the Fresno schools and was having “girls’ pr oblems.” Anna was aware T. had made accusations against defendant in 2007, but di d not ask her why she was moving in with defendant. T. said nothing about being afra id defendant would molest his own son. At
no time did T. tell Anna that defendant ha d been molesting her, although during the disturbance at Anna’s house on June 25, 2007, T. said she had been molested. From what Anna observed, T. was not mistreated duri ng the time they both lived in Sanger. Rosita Regalado was defendant’s mother. When defendant and L. and the children
lived with her in the house on Fairbanks in Sanger, before it burned down, L. did not work. Regalado saw nothing suspicious involv ing defendant and T. T. was always in L.’s presence. L. married defendant in 2005, after they ha d been together for several years. T.’s younger brother was defendant’s son. At a number of places in which they lived, multiple other family members li ved with them. Before his a rrest in this case, defendant was always very heavy, perhaps 280 to 300 pounds. During the tim e they lived at the13. Whispering Woods, L. injected defendant in the stomach twice daily with diabetes medication. This caused defendant always to have lumpy bruises on his stomach. 11 Around the end of 2004 or beginning of 2005, L. learned defendant was using drugs, and she confronted him. During this time, defendant did not sleep at home. T. was present when L. and defendant had heated arguments concerning the situation. In May 2007, P.M. gave L. a piece of paper on which T. ha d written she was being molested. After telephoning Dassori (who did not counsel her to call the police), L. confronted T. and cried and begged to know th e truth, and said that if anybody had done something to her, L. would put them in jail. If it was defendant, who was in jail at the time, L. promised he would stay in there. She asked T. if anything had happened, and T. said no. L. hugged her and sa id she loved her, and left it at that. Later, when T. went to visit Dassori and Dassori called the police, L. was upset with Dassori. L. and Dassori were arguing when Kobashi arrived. L. never told T. to retr act what she told Kobashi or gave her “the evil eye.” It was T. who did not want L. to contact Kobashi. T. said she had told Kobashi originally that she was molested becaus e Dassori kept on her and on her, and she just wanted Dassori to shut up and leave her alone. When the time approached fo r T.’s First Communion, L., T., and T.’s brother were visiting defendant in jail and the subject came up. When they all told defendant they wished he could be there, anot her visitor said that if they wrote letters to the judge, the judge might let defendant out on an eight-hour furlough. L. and T. decided to write the
letters. T. said she wanted defendant to be able to come out, because he made the best
barbecue and she wanted barbecue. In September 2008, T. was attending Fres no High School. She had a problem at
school and did not want to be there anymore. L. suggested a transfer to Bullard, but T.

11 According to Cooney, T. never described defendant as having any sort of unusual condition on his stomach.14. did not want to go there or to Clovis schools, in which distri ct L.’s grandmother lived. T. said it would be easier for her to go to Sang er High because defenda nt and L. already had a house in Sanger. As a result, defendant en rolled her at Sanger High, and T. moved to Sanger. L. was aware Kobashi had said T. and defendant needed to live apart, but T. wanted to go to Sanger, so L. let her. T. never told L. she was worried defendant would molest her brother or why she withdrew the accusations she made in 2007. After T. withdrew the accusations, L. treated her the same as always. During the incident in which T.’s brothe r put a spider on her head, L. heard the commotion and found them fighting. They were not laughing or pretending. L. broke it up and pushed them both back, and T. yelled that L. was al ways taking her brother’s side. L. did not hit T., but did accidentally scratc h her arm when she grabbed it because T. was trying to leave. T. went outside to cool o ff, and L. sent her son to his room. When L. went outside, T. ran away. L. and T.’s uncle looked for her, but did not find her. L. subsequently called the Sanger police. Psychiatrist Avak Howsepian testified concerning recovered memory. Repressed or recovered memory refers to a traumatic or disturbing event th at was witnessed or experienced, which then becomes repressed ( unavailable in some ways to consciousness), and then at some later time is uncovered, either spontaneously or by some triggering experience or therapy. Hows epian explained there is controversy about the theory because, in the vast majority of cases, indivi duals tend to remember traumatic events all too well. In addition, false memories can be implanted by wa y of suggestion, by therapists or by people such as friends or detectives. There are also individuals who, without anyone suggesting anything to them, clai m to believe things that never happened. Howsepian also testified about CSAAS. He explained it is a pattern of behavioral and emotional responses that is sometimes seen in children following sexual abuse. The individual is secretive, te nds to feel helpless, feels entrapped in the situation, accommodates the abuser, and discloses informa tion in a delayed or inconsistent way or15. even denies the abuse took place. The purpose of CSAAS is to help therapists deal with patients, and to demystify children’s behavior in the law enforcement context. CSAAS is not diagnostic; these features of a child’s be havior and emotional expression should not
be used to conclude an individual was or was not sexually abused. DISCUSSION Evidence was admitted at trial, under the fresh complaint doctrine, of out-of-court statements T. made to Dassori, Tina, Jacquel yn, P.M., and Detective Kobashi, concerning things defendant did to her. 12 In addition, evidence was pr esented of prior consistent and inconsistent statements made by T. (for example, to Detective Cooney) and other witnesses. Pursuant to CALCRIM No. 318, jurors subsequently were instructed: “You may have heard evidence of statements that a witness made before the trial. If you decide that the witness made those statements, you may use those statements in two ways. 1, to evaluate whether the witness’ testimony in court is believa ble and, 2, as evidence that the information in those earlier statemen ts is true.” Despite his lack of objection to the inst ruction at trial, defendant now contends CALCRIM No. 318 incorrectly stated the law concerning ev idence admitted under the fresh complaint doctrine, and says the error vi olated his rights to due process and a fair trial. The Attorney General says the claim has been forfeited, and that any error was harmless in any event. We find no cause for reversal. “[U]nder principles generally applicable to the determination of evidentiary relevance and admissibility, proof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assa ult, may be admissible for a limited, nonhearsay purpose — namely, to establis h the fact of, and the circumstances surrounding, the victim’s disclosu re of the assault to others — whenever the fact that the

12 Defendant objected, pursuant to Eviden ce Code section 352 and on due process grounds, to the number of fresh complaint witn esses. He also raised a hearsay objection and argued the admission of exp licit detail would go beyond the fresh complaint doctrine.16. disclosure was made and the circumstances u nder which it was made are relevant to the
trier of fact’s determination as to whether the offense occurred.” ( People v. Brown (1994) 8 Cal.4th 746, 749-750, italics omitted.) The evidence is admi ssible only “for the limited purpose of showing that a complaint was made by the victim, and not for the truth of the matter stated. [Cita tion.] Evidence admitted pursuan t to this doctrine may be considered by the trier of fact for the purpos e of corroborating the victim’s testimony, but not to prove the occurrence of the crime. [Citation.]” ( People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.)
The unmodified version of CALCRIM No. 318 given in the present case did not inform jurors of the limited purpose for wh ich fresh complaint evid ence may be used. Defendant does not contend, however, that the instruction incorrectly stated the law with respect to prior statements in general. 13 (See Evid. Code, §§ 770, 791, 1235, 1236; cf. People v. Friend (2009) 47 Cal.4th 1, 41-42 & fn. 23 [discussing CALJIC No. 2.13, the counterpart of CA LCRIM No. 318].) “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.]” ( People v. Lang (1989) 49 Cal.3d 991, 1024; compare People v. Lawrence (2009) 177 Cal.App. 4th 547, 553-554, fn. 11 [properly read, defend ant’s argument went beyond claim challenged instructions were merely incomplete and instead asserted they were not “‘co rrect in law’”].) Moreover, although a defendant “is deemed to have objected to instructions actually given [citation], generally he cannot clai m that limiting instructions were wrongly

13 Indeed, during the jury instruction confer ence, defense counsel made sure the trial court was going to include in the instruction both ways in which such statements could be used.17. omitted unless his proffer of such instru ctions was rejected. [Citations.]” ( People v.
Montiel (1993) 5 Cal.4th 877, 9 28, fn. 23, italics omitted.) Here, defendant never sought clarifica tion of CALCRIM No. 318 as it applied to fresh complaint evidence, nor did he reque st any sort of limiting instruction. Accordingly, he has forfeited any assignment of error. ( People v. Sully (1991) 53 Cal.3d 1195, 1218.) 14 Defendant appears to contend the trial c ourt had a sua sponte duty to instruct on the limited purpose of fresh compla int evidence. It is true th at “[a] trial court has a duty to instruct the jury ‘sua sponte on general principles which are closely and openly
connected with the f acts before the court.’ [Citation.]” ( People v. Abilez (2007) 41 Cal.4th 472, 517.) However, “[ w]hile the court has the obliga tion to instruct on general legal principles so central to the determinatio n of guilt or innocence th at to ensure a fair trial they must be explained to the jury [c itation], it is not incumbent upon the trial court to instruct on specific points devel oped at trial. [Citation.]” ( People v. Daya (1994) 29 Cal.App.4th 697, 714.)
“When evidence is admissible ... for one purpose and is inadmissible ... for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (Evid. Code, § 355, italics added.) “T rial courts generally have no duty to instruct on the limited admissibility of ev idence in the absence of a request. [Citation.]” ( People v. Lang, supra, 49 Cal.3d at p. 1020; see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1134; People v. Jennings (2000) 81 Cal.App.4th 1301, 1316 & cases cited.) This is so even when the issue con cerns the limited purpose for which fresh complaint ev idence was admitted ( People v. Manning (2008) 165

14 The forfeiture rule app lies to claimed violations of fundamental constitutional rights as well as to assert ed state law errors. ( People v. Mitchell (2008) 164 Cal.App.4th 442, 465.)18. Cal.App.4th 870, 880), as an instruction on this subject has historically been viewed as a limiting instruction, not an instruction falling w ithin a trial court’s duty to give on its own motion (see, e.g., People v. Brown, supra, 8 Cal.4th at p. 757; People v. Clark (1987) 193 Cal.App.3d 178, 182-183, abrogated on another ground in People v. Brown , supra , at pp. 756-757, 762-763). Although the Ca lifornia Supreme Court has left open the possibility a duty to instruct on the limited admissibility of evidence even absent a request “might be found to exist in ‘a n occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose’” ( People v. Lang, supra, 49 Cal.3d at p. 1020), this is manifestly not such a

case. In light of the foregoing, whether we consider the claim of error forfeited by defendant’s failure to object to or reque st modification of CALCRIM No. 318 (see People v. Welch (1999) 20 Cal.4th 701, 757) or conc lude no instructional error occurred
because the trial court violated no sua sponte duty on its part (see People v. Riccardi (2012) 54 Cal.4th 758, 824-825; People v. Boyer (2006) 38 Cal.4th 412, 465; People v. Manning, supra, 165 Cal.App.4th at p. 880), defendant’s contention fails.
Even if we were to find section 1259 applies, the ultimate result would be the same. That statute provides, in pertinent pa rt: “The appellate court may ... review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of th e defendant were affected thereby.” With respect to this statute, “‘[t]he cases equate “substantial rights” with reversible error’
under the test stated in People v. Watson (1956) 46 Cal.2d 818 [( Watson )]. [Citation.]” ( People v. Felix (2008) 160 Cal.App.4t h 849, 857; accord, People v. Lawrence, supra, 177 Cal.App.4th at pp. 553-554, fn. 11.) Here, it is not reasonably probable a diffe rent result would have been reached had the trial court given a limiting instruction with respect to the fresh complaint evidence.19. (See Watson , supra , 46 Cal.2d at p. 836.) Defendant says that whether T. actually made
the disclosures that were admitted under the fresh comp laint doctrine when she was younger, or merely got the various witnesses to say she made those disclosures at an earlier time, “was a significant issue at trial. ” However, “[T.] testif ied at trial, and the jury did not have to rely on her secondhand statements to other people, but was able to hear her directly and judge her credibility . Her fresh complaint statements were
consistent with and cumulative to he r trial testimony. [Citation.]” ( People v. Manning,

supra, 165 Cal.App.4th at pp. 8 80-881.) Likewise, those to whom T. made the
disclosures also testified and were extensively cross-examined on the subject, as well as, in Tina’s case, whether she truly had been a percipient witness to defendant molesting T. when she and T. were young, or whether the entertainment center incident was a latterday concoction. Under the circumstances, any instructional error was harmless. ( Id . at p. 881.) Defendant says CALCRIM No. 318 viol ated his due process rights and so prejudice must be assessed under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. In order for a constitutional violation to be shown, however, it is not enough to establish that an instruction was e rroneous. Rather, the question “is ‘whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.’ [Citations.]” ( Estelle v. McGuire (1991) 502 U.S. 62, 72.) The unmodified version of CALCRIM No. 318 given here did not render defendant’s trial unfair. Any error is properly assessed under the Watson standard. (See People v. Gamache (2010) 48 Cal.4th 347, 376; People v. Prieto (2003) 30 Cal.4th 226, 248-249.) 15

15 Since defendant suffered no prejudice, any omission on defe nse counsel’s part does not support a claim of ineff ective assistance of counsel. ( People v. Coddington (2000) 23 Cal.4th 529, 603, fn. 32 , overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) We re we to analyze defendant’s assertion20. DISPOSITION The judgment is affirmed.

_____________________ DETJEN, J. WE CONCUR:

_____________________ GOMES, Acting P.J.

_____________________ KANE, J.

of incompetent counsel, we would find no prej udice under the standard applicable to such a claim. (See People v. Mesa (2006) 144 Cal.App.4th 10 00, 1008-1010 & fn. 3.)