What is the test for limiting the use of evidence in a criminal case?

[178 Cal.App.3d 823] Defendant complains that the court failed to give the jury an instruction limiting the use of the evidence to its use as proof of the victim's state of mind. We agree with the People that the failure to request a limiting instruction precludes defendant from raising this issue on appeal. (See People v. Richards (1976) 17 Cal.3d 614, 618-619, 131 Cal.Rptr. 537, 552 P.2d 97.) We reject defendant's suggestion that it would have been futile to request a limiting instruction. During the original discussion, when the court indicated it would admit the evidence, the court invited counsel to suggest a limiting instruction. The court then changed its ruling and excluded the evidence until later in the case when the state of the evidence supported its admission. When the court allowed the evidence to be presented defendant did not request a limiting instruction. There was no reason for defendant to believe the court would have refused a limiting instruction had he suggested one, as the court had earlier invited him to do.

In any event, we have noted that the evidence was admissible under the spontaneous declaration exception to the hearsay rule. (Evid. Code, 1240.) Statements admitted under that rule are generally admissible and are not limited to a specific purpose. Although the court failed to rule on the People's offer of the evidence under section 1240, our conclusion that the evidence was admissible under that section compels us to conclude that there was no reversible error in failing to limit the use of the evidence when it was admitted to show the victim's state of mind. (See People v. Braeseke (1979) 25 Cal.3d 691, 700-701, 159 Cal.Rptr. 684, 602 P.2d 384.)