Filed 3/4/14 P. v. Domingo CA3
                                           NOT TO BE PUBLISHED
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                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C070627

                   Plaintiff and Respondent,                                     (Super. Ct. No. 11F01211)

         v.

FIDEL DELOSSANTO DOMINGO,

                   Defendant and Appellant.




         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.




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