People v. Domingo CA3

Filed 3/4/14 P. v. Domingo CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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.

1

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.