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Filed 3/4/14 P. v. Domingo CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

FIDEL DELOSSANTO DOMINGO,

Defendant and Appellant.

C070627

(Super. Ct. No. 11F01211)

A jury found defendant Fidel Delossanto Domingo guilty of committing numerous 

sex offenses, the victim being his minor foster daughter. On appeal, he contends all 

counts must be reversed because the trial court erroneously instructed the jury with 

CALCRIM No. 318, even though “fresh complaint” evidence was introduced for a 

limited, nonhearsay purpose. We affirm the judgment.
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FACTS AND PROCEEDINGS

We dispense with a recitation of the facts underlying defendant’s offenses and, 

instead, recite only those facts necessary to the resolution of this appeal.

Defendant was charged with four counts of sexual intercourse with a child 10 

years old or younger, alleging sexual intercourse with the minor when she was seven, 

eight, nine, and 10 years old (Pen. Code, § 288.7, subd. (a)) and three counts of 

aggravated sexual assault on a child under the age of 14, for when the minor was 10 and 

11 years old (Pen. Code, § 269, subd. (a)(1)). 

Prior to trial, defendant moved to exclude evidence of the victim’s extrajudicial 

statements about the offenses that she made to her friends and school administrator. 

Defense counsel acknowledged that the statements would be admissible as “fresh 

complaint” evidence but objected to their use as “excited utterances.” The prosecutor 

represented that she intended to elicit only that the victim told them that defendant was 

engaging in sexual contact with her, and that the school administrator, as a mandated 

reporter, reported the matter to law enforcement officers. The prosecutor said she would 

not ask for “more detailed . . . descriptions as to what . . . the actual acts were.” Defense 

counsel agreed to this limitation and the trial court denied the motion in limine seeking to 

exclude the victim’s extrajudicial statements. 

In the prosecutor’s case-in-chief, the victim’s friend testified that the victim told 

her defendant had been touching her inappropriately and that it had been happening for a 

long time. She also testified that the victim was crying and acted sad and worried when 

telling her this information. Later, the friend elaborated that it was “more than just 

touching.” The school administrator testified that the victim told her something of a 

sexual nature had been going on, specifically, that defendant had raped her, and it had 

been going on since she was seven years old. 
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The victim testified that defendant began touching her sexually when she was 

seven years old and that it happened approximately 10 times when she was seven, 15 

times when she was eight, and 20 times each year when she was nine years old. She 

further testified that defendant began having intercourse with her when she was 10 years 

old and that this happened several times when she was 10 and 11 years old. 

After she reported the molestation, the victim made two pretext calls to defendant, 

wherein defendant admitted to inappropriate sexual contact with the victim on multiple 

occasions. The parties disputed the clarity of his admissions as to what type of contact 

occurred (touching versus intercourse) and when they occurred. 

Defense counsel’s theory at trial was that defendant had inappropriately touched 

the victim but only after she reached the age of 10 and, even then, he never had 

intercourse with her. This theory, if accepted by the jury, would have resulted in an 

acquittal of all the offenses as charged by the prosecution. 

During cross examination, defense counsel elicited evidence that the victim had 

told the SAFE officer shortly after her initial disclosure of the molestation that the 

number of times defendant inappropriately touched her was about four or five and that 

she did not tell the officer that it was intercourse. In closing, defense counsel argued that

the police officer who conducted the victim’s pretext call to defendant was essentially 

“feeding” the victim accusations to wage against defendant during the call. 

Defense counsel also suggested a motive behind the theory that the victim was 

exaggerating what had occurred. The victim had testified on direct examination that she 

moved in with her grandparents several days after she was interviewed by the police 

about the molestation. Her younger sister, however, remained in defendant’s home. On 

cross examination, defense counsel elicited testimony that she has visits with her sister 

every other weekend and that she is sad she does not live with her anymore. Cross 

examination continued as follows:
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“[Defense Counsel]: Okay. And the reason you two are no longer together is 

because of [defendant]; correct?

“A: Yes.

“[Defense Counsel]: So it’s fair to say you’re probably pretty angry at him. Isn’t 

that true?

“A: No.

“[Defense Counsel]: In fact isn’t it true that [defendant] never had sex with you 

before the age -- well, he never had sex with you at all in fact. Isn’t that true? He never 

had sex with you; did he? [¶] . . . [¶]

“[A]: He did.

“[Defense Counsel]: He had inappropriate sexual contact with you by placing his 

penis on your vagina. But he never put it inside; did he?

“A: No. He did put it inside.

“[Defense Counsel]: You’re actually making this all up because you’re angry at 

him because of what has happened to you -- you’re split from your sister -- you have to 

testify in front of a jury -- you are angry at him and you are making up parts of your 

story; is that correct?

“A: I just said I wasn’t angry at him.” 

At the close of evidence, the prosecution amended the information according to 

proof. The information, as amended, charged defendant with three counts of lewd and 

lascivious acts on a child under the age of 14, alleging dates for when the minor was 

seven, eight, and nine years old (Pen. Code, § 288, subd. (a)); two counts of sexual 

intercourse with a child 10 years old or younger, for when the minor was 10 years old 

(Pen. Code, § 288.7, subd. (a)); and two counts of aggravated sexual assault on a child 

under the age of 14, for when the minor was 11 years old (Pen. Code, § 269, subd. 

(a)(1)). The jury found defendant guilty on all counts. 
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DISCUSSION

Defendant contends the trial court erroneously instructed the jury with CALCRIM

No. 318, without a limitation. Essentially, he claims that the instruction, although 

generally legally correct, is improper here because “fresh complaint” evidence was 

introduced for a limited, nonhearsay purpose. We find no error.

The fresh complaint doctrine permits the admission of evidence of the victim’s 

complaints disclosing the alleged sexual offense, not to prove the truth of the statement, 

but to establish the fact of, and the circumstances surrounding, the victim’s complaint. 

(People v. Brown (1994) 8 Cal.4th 746, 749-750.) In the absence of such evidence, the 

jury may be left with the impression that the victim did not complain and, therefore, tend 

to doubt the veracity of the victim’s testimony at trial. (Id. at p. 755.) On request, the 

trial court must instruct the jury as to the limited purpose for which the fresh complaint 

evidence was admitted. (Id. at p. 757.)

However, “[a] prior consistent statement is admissible as an exception to the 

hearsay rule if it is offered after admission into evidence of an inconsistent statement 

used to attack the witness’s credibility and the consistent statement was made before the 

inconsistent statement, or when there is an express or implied charge that the witness’s 

testimony was recently fabricated or influenced by bias or improper motive, and the 

statement was made before the fabrication, bias, or improper motive. (Evid. Code, 

§§ 791, 1236.)” (People v. Kennedy (2005) 36 Cal.4th 595, 614.)

Thus, CALCRIM No. 318 (as read to the jury herein) informs the jury: “You 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’s testimony in court is believable; [¶] And, 2. As evidence 

that the information in those earlier statements is true.” 
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Here, the victim’s extrajudicial statements made to her friend and school 

administrator were initially admitted in limine as fresh complaint evidence. However, 

after defense counsel’s cross examination of the victim, in which he asked a series of 

questions designed to suggest her trial testimony was fabricated or exaggerated because 

she was angry at defendant for having to testify and live apart from her sister, the 

evidence became admissible as prior consistent statements and could be used by the jury 

for the truth asserted therein. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1209 [mere 

asking of questions may raise implied charge of improper motive invoking Evidence 

Code section 791].)

In limine rulings are necessarily tentative, as the court retains discretion to make 

different rulings as the evidence unfolds. (People v. Rodrigues (1994) 8 Cal.4th 1060, 

1174.) In this case, the basis for the admissibility of the extrajudicial statements changed 

during cross examination. Thus, under the circumstances herein, the trial court did not 

err by giving CALCRIM No. 318, without limitation. 

In any event, if, arguably, the instruction needed limitation in any way to account 

for the limited admissibility of fresh complaint evidence, defense counsel was required to 

request it. (People v. Manning (2008) 165 Cal.App.4th 870, 880.) He did not do so and 

the trial court has no duty to give a limiting instruction for fresh complaint evidence 

unless it is requested. (Ibid.) 
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DISPOSITION

The judgment is affirmed.

 HULL , Acting P. J.

We concur:

 ROBIE , J.

 HOCH , J.