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Filed 3/4/14 P. v. Domingo CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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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

.2 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 t he 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 reporte r , 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.” D efense 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 be en touching her inappropriate ly 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 s he was seven years old.3

The victim testified that de fendant began t ouching her sexual ly when she was seven years old and that it happened approximately 10 times when she was seven, 15 times when she was eight, and 2 0 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 s he reported the molestation, the victim made two pretext call s to defendant,
wherein defendant admitted to inappropriate sexu al 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 inappro priately touched the victim but only after she reached the age of 10 and, even then, he never had
intercourse w ith 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 no t tell the officer that it was intercourse. In closing, d efense counsel argued that the police officer who conducted the victim’s pret e xt call to defendant was essentially “feeding” the victim accusations to wage against defendant during the call.
Defe nse counsel also suggested a motive behind the theory that the victim was exaggerating what had occurred. The v ictim 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:4

“[Defense Counsel]: Okay. And the reason you two are no longer together is
becau se 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 you r 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 sa id 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 thre e 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 m inor 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

.5 DISCU SSION
Defendant contends the trial court erroneously i nstructed 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

t rial court must instruct the jury as to the li m ited 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 consi stent statement was made be fore 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) inform s 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 beli evable; [¶] And, 2. As evidence that the information in those earlier statements is true.”6

Here, the victim’s extrajudicial statements made to her fri end 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 i nvoking 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 admis sibility 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) 16 5 Cal. App.4th 870, 880.) He did not do so and

t he t rial court has no duty to give a limiting instructio n for fresh complaint evidence unless it is requested. ( Ibid .)7 DISPOSITION The judgment is affirmed.

HULL , Acting P. J.

We concur:

ROBIE , J.

HOCH , J.