The People v. Regalado CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F062666
Plaintiff and Respondent,
(Super. Ct. No. F09907196)
v.
VICTOR TREVINO REGALADO, OPINION
Defendant and Appellant.
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, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J.
Gates, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Victor Trevino Regalado 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); counts 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 conduct 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 pay various fees, fines and assessments, defendant now appeals,
claiming instructional error and related ineffective assistance of counsel. We affirm.
FACTS
I
PROSECUTION EVIDENCE
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 Sanger, with a number of family 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 her, he would buy her ice cream or take her
shopping.
1 All statutory references are to the Penal Code unless otherwise stated.
2 The jury acquitted defendant 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 count 1, the trial court found defendant
not guilty by operation 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.
2.
Tina, defendant’s niece, recalled that in the summer when she was nine and T. six,
T. said her dad (which was how she thought 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, because 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 get into the bed and opened up
the blankets for her. They got under the blankets, and it looked 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 anything to her. Afterward, T. told Tina, “I
told you so.”4
4 Tina was herself molested (not by defendant) beginning when she was around six,
a fact she shared with T. around the time she learned T. was being molested. At some
point during the investigation into T.’s allegations, Detective Cooney began leaving
telephone messages for Tina. It took her months to return his calls, because she was not
ready to talk about her own molestation. When she finally spoke to Cooney around
March 22, 2010, she did not tell him about the entertainment center episode, because she
did not remember it at the time.
T. likewise did not recall the incident until shortly before trial, when she was
talking to Tina and Tina asked if she remembered. 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.
3.
At some point, the house in Sanger burned down. 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 touch 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 orally 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 three 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, where 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. punched 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 occurred 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.
4.
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. said she had been raped before. When Jacquelyn asked who
did it, T. said her stepdad. Jacquelyn did not pursue the conversation at that time, but
later asked T. about it and whether it was true. T. said yes. Over the course of their
conversations, T. revealed she and defendant had had sexual intercourse 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 defendant tried to have sex 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. encouraged her to tell someone or offered to do it for her. T.
refused and said she was scared. P.M. believed T. told her these things a couple of times
before 2006, but repeatedly between 2006 and 2009. At one point, T. said defendant had
taken her to a motel “and had her do it there,” and then he took her home. P.M. could not
remember how old she and T. were at the time of this conversation, but she recalled it
was during the season when the fair comes to Fresno.
Laura Dassori had been friends with defendant and his sister and parents for years.
She subsequently became best friends with L., defendant’s wife, and the couple rented a
house Dassori owned. Dassori became close 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.
5.
In March or April of 2007, during the time 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 not 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 dispatcher at the time, explained that it
was common for victims to recant, and suggested she (Dassori) or someone else should
talk to T., because maybe T. did not feel 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 time to process it.
After that, things went on pretty much normally. Dassori kept her promise. At
one point, L. got defendant out of jail for 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 stay 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 ever 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 ninth grade, she wrote in her journal about
everything that was happening and what defendant was doing to her. When L. asked her
if what was in the journal was true, T. nodded 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.
6.
nodded affirmatively. Dassori called the Corona police, who referred her to the Fresno
police.
On June 20, 2007, Fresno Police Detective 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 aunts, and went to pick up L. As they neared
Anna’s house, Dassori told L. that T. had confided to her that defendant had been
molesting her and had raped her. L. was quiet until Dassori stopped the car, then she got
out and started yelling that Dassori had ruined 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 with the detective.
When L. refused, Dassori called 911 and requested officers at the scene. A patrol officer
who responded to the disturbance call notified 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 protecting her husband instead of her daughter, and
L. was asking why Dassori was 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 did not answer, then admitted she had been
molested by defendant. T. started crying while 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 Kobashi’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 at
7.
T. with her arms crossed. However, she agreed to bring T. to Kobashi’s office the next
day.
Kobashi was ill the next day. When she returned to work the day after that, she
telephoned L. to reschedule the interview, but received 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 returned. 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 Kobashi, but eventually
she let them in. L. said she had not returned 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 Kobashi’s questions. When Kobashi asked T. if it
was true that T. did not want to talk to Kobashi, T. nodded affirmatively. When Kobashi
asked if what T. had told her the other day was a lie, T. just put her head down and
looked at the ground, then nodded affirmatively. Kobashi 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. again shook her head no.9
Kobashi subsequently tried to contact defendant, and was finally able to interview
him on July 24, 2007. Defendant described T., who was 13 at the time, as “a good kid,”
but said he was strict with her. Defendant said he had learned 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 refused 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 feeling T. got; L. never actually gave her any
instructions.
8.
to him and he did not know why she would make such allegations against him. When
Kobashi said T. was making the allegations, not Dassori, defendant just nodded. He said
he would admit to doing it to take away the pain from T., and he offered to plead to the
charges if it would make it easier for T. to not have to go through this. Kobashi said she
did not want him to admit to something if it was not true, and that she wanted him to tell
her the truth. She then asked him if T. was lying. 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 defendant, the case was suspended. There
was not enough evidence to proceed. Meanwhile, T. and L. moved to T.’s great-
grandmother’s house in Pinedale, while defendant and T.’s brother moved to Sanger. At
some point, the family ended up in the same house together, in Sanger, because T.
wanted to see her brother.
T. completed her freshman year in high school in Sanger, but spent as little time as
possible at home. That summer, she got into trouble for getting two tattoos. As a result,
she was grounded for the summer. Not long after, her brother put a live spider in her
hair. She cornered him and pretended to hit him. He was laughing, but L. pulled her
away, yelled at her, and tried to slap her face but missed and hit her arm instead. When
L. followed T. outside and continued yelling at her, T. left.
On August 19, 2009, T. telephoned Dassori. She was very upset after a
disagreement with her mother, and said there had been physical violence and she had left
the house. T. said she could not take it anymore and could not continue to live there. She
asked if she could live with Dassori, and Dassori 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.
9.
In November, Dassori asked T. what really 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 Cooney. 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 with Dassori, she had started 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 these 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 that when she was nine years old, she again resided with
defendant, and the assaults resumed and became 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, fondle 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 activity 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 was 11 to 12 years old.
T. reported that when she was 12 years old, the assaults escalated. She would be
alone with defendant in a room, and he would try to insert his penis into her vagina. She
recalled three to four such incidents occurring within a one-month period during the
summer she was in sixth grade. She said defendant managed to insert the tip of his penis,
and that it caused her pain.
10.
T. related that somewhere around Thanksgiving or Christmas of 2005, defendant
took her to a Motel 6 near Blackstone and Ashlan, in Fresno, and sexually assaulted her.
She said that once they got to the motel room, defendant undressed her and then himself.
She lay on the bed, and he climbed on top and inserted his penis into her vagina. This
caused her pain, and she attempted 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 checkout date of November 18, 2005. The
address provided for defendant was the Whispering 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 stay 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, staying out all night, and drinking. She was also
hanging out with some bad people. When she went to live with 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. ultimately ended up back in
Fresno. T. also admitted that on November 16, 2009, she had a conversation with a
social worker in which she said she recanted her story in 2007 because she did not want
her brother to be taken away and put in a foster home. In 2010, however, she told the
10 Cooney subsequently obtained two other 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, 2006, and April 12, 2006. These receipts did
not list a checkout date. T. never said she had been taken to a Motel 6 three times. She
never told Cooney that Tina was an eyewitness to misconduct by defendant.
11.
district attorney’s investigator that she moved to Sanger in 2008 because she was afraid
defendant was going to start molesting her brother.
Psychologist Randall Robinson testified concerning Child Sexual Abuse
Accommodation Syndrome (CSAAS). Robinson would expect a child who reported
abuse and was met with a great amount of upset 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 would not be unusual for the child
to go to family gatherings or continue to have a relationship with the abuser.
II
DEFENSE EVIDENCE
Anna lived with L. and defendant for a little more than a year in 2008, when they
lived in Sanger. T. told Anna she came to live in Sanger because she did not like the
Fresno schools and was having “girls’ problems.” Anna was aware T. had made
accusations against defendant in 2007, but did not ask her why she was moving in with
defendant. T. said nothing about being afraid defendant would molest his own son. At
no time did T. tell Anna that defendant had 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 during 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 involving defendant and T. T. was always in
L.’s presence.
L. married defendant in 2005, after they had 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 lived with them. Before his arrest in this case, defendant
was always very heavy, perhaps 280 to 300 pounds. During the time they lived at the
12.
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. had 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 the 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 said 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 retract 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 because Dassori kept on her and on
her, and she just wanted Dassori to shut up and leave her alone.
When the time approached for 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, another 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 Fresno 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.
13.
did not want to go there or to Clovis schools, in which district L.’s grandmother lived. T.
said it would be easier for her to go to Sanger High because defendant and L. already had
a house in Sanger. As a result, defendant enrolled 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 brother 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 always taking her brother’s side.
L. did not hit T., but did accidentally scratch her arm when she grabbed it because T. was
trying to leave. T. went outside to cool off, 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 that 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. Howsepian explained there is controversy about the theory
because, in the vast majority of cases, individuals tend to remember traumatic events all
too well. In addition, false memories can be implanted by way of suggestion, by
therapists or by people such as friends or detectives. There are also individuals who,
without anyone suggesting anything to them, claim 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, tends to feel helpless, feels entrapped in the situation,
accommodates the abuser, and discloses information in a delayed or inconsistent way or
14.
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 behavior 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, Jacquelyn, P.M., and Detective Kobashi, concerning
things defendant did to her.12 In addition, evidence was presented 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 believable and, 2, as evidence that the information in
those earlier statements is true.”
Despite his lack of objection to the instruction at trial, defendant now contends
CALCRIM No. 318 incorrectly stated the law concerning evidence admitted under the
fresh complaint doctrine, and says the error violated 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 assault, may be admissible for a limited,
nonhearsay purpose — namely, to establish the fact of, and the circumstances
surrounding, the victim’s disclosure of the assault to others — whenever the fact that the
12 Defendant objected, pursuant to Evidence Code section 352 and on due process
grounds, to the number of fresh complaint witnesses. He also raised a hearsay objection
and argued the admission of explicit detail would go beyond the fresh complaint doctrine.
15.
disclosure was made and the circumstances under 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 admissible only “for the
limited purpose of showing that a complaint was made by the victim, and not for the truth
of the matter stated. [Citation.] Evidence admitted pursuant to this doctrine may be
considered by the trier of fact for the purpose 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 which fresh complaint evidence 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 CALCRIM 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, defendant’s argument went beyond claim challenged instructions
were merely incomplete and instead asserted they were not “‘correct in law’”].)
Moreover, although a defendant “is deemed to have objected to instructions actually
given [citation], generally he cannot claim that limiting instructions were wrongly
13 Indeed, during the jury instruction conference, defense counsel made sure the trial
court was going to include in the instruction both ways in which such statements could be
used.
16.
omitted unless his proffer of such instructions was rejected. [Citations.]” (People v.
Montiel (1993) 5 Cal. 4th 877, 928, fn. 23, italics omitted.)
Here, defendant never sought clarification of CALCRIM No. 318 as it applied to
fresh complaint evidence, nor did he request 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 court had a sua sponte duty to instruct on
the limited purpose of fresh complaint evidence. It is true that “[a] trial court has a duty
to instruct the jury ‘sua sponte on general principles which are closely and openly
connected with the facts before the court.’ [Citation.]” (People v. Abilez (2007) 41
Cal. 4th 472, 517.) However, “[w]hile the court has the obligation to instruct on general
legal principles so central to the determination of guilt or innocence that to ensure a fair
trial they must be explained to the jury [citation], it is not incumbent upon the trial court
to instruct on specific points developed 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.) “Trial courts generally
have no duty to instruct on the limited admissibility of evidence 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 concerns the limited purpose for
which fresh complaint evidence was admitted (People v. Manning (2008) 165
14 The forfeiture rule applies to claimed violations of fundamental constitutional
rights as well as to asserted state law errors. (People v. Mitchell (2008) 164 Cal. App. 4th
442, 465.)
17.
Cal.App.4th 870, 880), as an instruction on this subject has historically been viewed as a
limiting instruction, not an instruction falling within 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 California 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 ‘an 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 request modification of CALCRIM No. 318 (see
People v. Welch (1999) 20 Cal. 4th 701, 757) or conclude 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 part: “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 the 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. 4th 849, 857; accord, People v. Lawrence, supra,
177 Cal.App.4th at pp. 553-554, fn. 11.)
Here, it is not reasonably probable a different result would have been reached had
the trial court given a limiting instruction with respect to the fresh complaint evidence.
18.
(See Watson, supra, 46 Cal.2d at p. 836.) Defendant says that whether T. actually made
the disclosures that were admitted under the fresh complaint 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.] testified 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 her trial testimony. [Citation.]” (People v. Manning,
supra, 165 Cal.App.4th at pp. 880-881.) 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 latter-
day concoction. Under the circumstances, any instructional error was harmless. (Id. at
p. 881.)
Defendant says CALCRIM No. 318 violated 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 erroneous. 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 defense counsel’s part
does not support a claim of ineffective 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.) Were we to analyze defendant’s assertion
19.
DISPOSITION
The judgment is affirmed.
_____________________
DETJEN, J.
WE CONCUR:
_____________________
GOMES, Acting P.J.
_____________________
KANE, J.
of incompetent counsel, we would find no prejudice under the standard applicable to such
a claim. (See People v. Mesa (2006) 144 Cal. App. 4th 1000, 1008-1010 & fn. 3.)
20.