Filed 9/22/15 P. v. Torres CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



THE PEOPLE,                                                                B258496

         Plaintiff and Respondent,                                         (Los Angeles County
                                                                           Super. Ct. No. VA127288)
         v.

ISMAEL TORRES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Thomas I. McKnew, Jr., Judge. Affirmed.
         David H. Goodwin, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephen D. Matthews
and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.


                            _______________________________________
                                    INTRODUCTION
       A jury convicted defendant Ismael Torres of three counts of engaging in sexual
intercourse with a ten-year-old child. Torres’s sole contention on appeal is that the trial
court erred in admitting statements the victim made during the investigation that were
inconsistent with her testimony at trial. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1.     The Investigation
       In 2012, Torres lived in an apartment with his girlfriend J., their three children,
and J.’s then ten-year-old daughter from a previous relationship, Dana. On October 27,
2012, Dana told J. that Torres had forced her to have sex with him two weeks earlier
while J. was out of the apartment. J. immediately reported the incident to the South
Gate Police Department.
       The night J. called the police, Dana was interviewed by South Gate Police
Officer Jason Camacho. Dana told Camacho that Torres would “touch” her every time
J. left her alone with him. She described an incident that occurred about two weeks
earlier in the family’s apartment. After J. left the apartment, Torres told Dana’s siblings
to leave the living room and not come out until he told them to. He then grabbed Dana,
laid her on her back, removed her pants, and got on top of her. Dana tried to close her
legs and pull herself away from Torres, but he pinned her down and forced her legs
open with his own. Dana told Torres to stop, saying “ ‘it’s mine and not yours,’ ”
referring to her vagina. He then told Dana to be quiet and placed his penis inside her
vagina. Dana said that Torres kept his penis inside her for about seven seconds. After
he stopped, Torres gave Dana five dollars.
       While describing that incident, Dana told Camacho that it no longer hurt when
Torres put his penis inside her, and that now it only felt nasty. Camacho then asked
Dana if Torres had forced her to have sex with him before. She said that since she was
six or seven years old, Torres had forced her to have sex with him about six or seven
times a year. In recalling those incidents, Dana said that Torres would do the same
things to her that he did during the first incident she described.


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       Immediately after speaking to Camacho, Dana was taken to the hospital where
she underwent a sexual assault examination. Nurse Practitioner Nune Abraamyan
interviewed Dana before the examination. Dana told Abraamyan much of the same
details about Torres’s assaults that she told Camacho. She said that Torres started
forcing her to have sex with him when she was around seven years old. Dana also said
that she did not say anything earlier about the assaults because Torres had told her not to
tell anyone, and she was afraid that she would get in trouble if she did.
       Dana’s physical examination revealed no evidence of a sexual assault. Although
she had no bruises or other marks on her body, Abraamyan stated the lack of such
marks did not confirm that Torres did not assault Dana since more than two weeks had
passed since the last alleged incident. Although Dana’s hymen showed no signs of
having been previously injured, Abraamyan opined that a penis can penetrate the outer
portion of a vagina without injuring the hymen, and even a slight penetration can create
pain or discomfort for a young child like Dana.
       On October 28, 2012, J. was interviewed by Detective Edgar Gomez. J. told
Gomez that she believed Torres had sexually assaulted Dana. She also said that when
she confronted Torres the day before, he denied having sex with Dana, pushed her to the
ground, and ran out of their apartment.
       On November 1, 2012, Dana was interviewed by Susana Flores, a forensic
interviewer with the Children’s Advocacy Center. Dana recounted the incident that
occurred approximately two weeks earlier. She also told Flores that Torres had started
assaulting her when she was around seven years old, and she described two other
incidents when Torres forced her to have sex with him: once while she was in the third
grade and once on a date she could not recall. Dana said that during each incident
Torres would undress her, touch her vagina with his penis, and move up and down for
several seconds.
       Also on November 1, 2012, Torres was interviewed by Gomez. Torres admitted
to “experiment[ing]” sexually with Dana because he was lonely. He said that about two
weeks earlier, he and Dana were using the computer when they started “playing


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around.” While Dana was sitting on his lap, she took off her own shorts and grabbed
Torres’s penis. He then took off his shorts and put his penis inside Dana’s vagina. He
removed it after only a few seconds because he became scared. Although Torres said
that he had sex with Dana on only one occasion, when Gomez asked him how that
incident occurred, Torres responded, “which one are you--?” When Gomez asked
Torres if he had been forced into admitting anything during the interview, Torres
responded, “[n]o, you just helped me.”
       On April 30, 2013, Dana met with Camacho and a prosecutor to discuss her
allegations against Torres. During that meeting, Dana said she lied when she previously
claimed that Torres sexually abused her.
       2.     The Charges, Trial, and Sentencing
       In an information filed on May 14, 2013, Torres was charged with three counts
of engaging in sexual intercourse with a child 10 years of age or younger (Pen. Code,
§ 288.7). Dana was named as the victim in all three counts. After numerous
continuances, the trial began on June 11, 2014.
       During the June 2014 trial, Dana testified that she lied about the allegations that
Torres sexually assaulted her. Dana explained that the day before J. called the police,
she overheard Torres tell another woman he loved her while he was on the telephone.
Dana told J. about the conversation, and J. told her to make up a story about Torres
sexually assaulting her so that they could report him to the police. When asked about
the statements she made to Camacho, Abraamyan, and Flores, Dana testified that she
either lied when making those statements or could not remember making them.
       J. also testified at trial. She denied noticing anything unusual about the way
Torres treated Dana before she called the police. She confirmed she called the police
because Dana told her that Torres had inappropriately touched her, but she denied
reporting to the police that Torres had forced Dana to have sex with him. She also
acknowledged speaking to Gomez shortly after she called the police, but she denied
telling him that Torres had pushed her when she confronted him about Dana’s
allegations. When asked why she told investigators that Dana would frequently


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complain about pain in her groin, J. responded that Dana participated in an after-school
cheerleading program, and that the stretches and exercises Dana was required to
perform often made her groin sore. She claimed that Gomez forced her to make
incriminating statements about Torres so that Gomez could make an arrest. J. testified
that she married Torres about a year before trial began, after she reported him to the
police.
          The prosecution called Gomez, Camacho, Abraamyan, and Flores to testify about
the statements Dana and J. made during South Gate’s investigation.1 The court
overruled Torres’s hearsay objections to each witness’s testimony about Dana’s and J.’s
out-of-court statements.
          Torres testified on his own behalf. He denied sexually abusing Dana and
claimed that she made up the allegations after she caught him cheating on J. According
to Torres, in October 2012, he was having an affair with a woman named Sandra. Dana
caught him telling Sandra he loved her over the telephone the day before J. called the
police.
          When questioned about his interview with Gomez, Torres claimed that he falsely
admitted to having sex with Dana because he felt so guilty about cheating on J. that he
was willing to say anything Gomez wanted to hear. He also claimed that he “spac[ed]
out” during the interview and was confused by most of Gomez’s questions.
          The jury convicted Torres of all three counts of engaging in sexual intercourse
with a child 10 years of age or younger. The trial court sentenced him to 50 years to life
in state prison, consisting of two consecutive 25-years-to-life terms for counts one and
two, and a concurrent 25-years-to-life term for count three. Torres timely appealed.
                                         DISCUSSION
          The only issue Torres raises in this appeal is that the trial court erred in admitting
the out-of-court statements Dana made during the investigation. He argues the court
should have excluded those statements because they were irrelevant in light of Dana’s

1
      Each witness’s testimony is summarized above in the section describing
South Gate’s investigation.

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testimony that she had lied about Torres sexually assaulting her. Alternatively, Torres
argues that even if the statements were relevant to the issue of guilt, they were unduly
cumulative under Evidence Code section 352.
       We review a trial court’s ruling on the admission of evidence for abuse of
discretion. (People v. Cowan (2010) 50 Cal.4th 401, 462 (Cowan).) Under Evidence
Code section 1235, prior inconsistent statements are admissible to establish the truth of
the matter asserted as well as to impeach the declarant. (Cowan, supra, 50 Cal.4th at
p. 462.) That statute allows a party to introduce a witness’s out-of-court statement if
that statement is inconsistent with the witness’s testimony at trial and the requirements
of Evidence Code section 770 have been met. (Evid. Code, § 1235.) Evidence Code
section 770 provides: “Unless the interests of justice otherwise require, extrinsic
evidence of a statement made by a witness that is inconsistent with any part of his
testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined
while testifying as to give him an opportunity to explain or to deny the statement; or
[¶] (b) The witness has not been excused from giving further testimony in the action.”
       The trial court properly admitted Dana’s out-of-court statements because they
clearly fall within the scope of Evidence Code section 1235. Dana’s statements to
Camacho, Abraamyan, and Flores were inconsistent with her testimony at trial.
Throughout South Gate’s investigation, Dana provided Camacho, Abraamyan, and
Flores largely identical accounts of Torres’s assaults. At trial, Dana either claimed that
she could not remember telling Camacho, Abraamyan, and Flores that Torres had
sexually assaulted her, or she testified that she had lied to those individuals about
Torres’s conduct, claiming that Torres never sexually assaulted her. (See People v.
Brown (1995) 35 Cal.App.4th 1585, 1597 (Brown) [witness’s testimony that she had
lied about the defendant assaulting her was “clearly” inconsistent with her statements
during the investigation that the defendant had assaulted her].)
       While a witness’s testimony that she cannot remember making an out-of-court
statement is not an inconsistency in the strictest sense, it is “inconsistent” with the
out-of-court statement for purposes of Evidence Code section 1235 if there is evidence


                                              6
that the witness is being deliberately evasive in failing to recall the prior statement.
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 416; People v. Hovarter
(2008) 44 Cal.4th 983, 1008-1009 [inconsistency in effect, rather than express
contradiction, is the test under Evidence Code section 1235].) Here, there was sufficient
evidence for the court to conclude Dana deliberately feigned a lack of memory about the
statements she made during Torres’s 2012 investigation. By the time of trial in 2014, J.
appeared to have reconciled her relationship with Torres, as she testified that she and
Torres got married in 2013, which could have given Dana and J. reason to refuse to
testify against Torres.
       Torres argues Dana’s out-of-court statements were inadmissible regardless of
Evidence Code section 1235’s application because they should have been excluded
under Evidence Code section 352. Specifically, he asserts once Dana admitted making
the statements, but claimed that they were lies, the court was required to accept her trial
testimony as true and exclude her out-of-court statements as false and irrelevant. Torres
also asserts that once Dana admitted making the out-of-court statements, the fact of
those statements having been made was established, and the extrinsic evidence of Dana
making the statements introduced through Camacho, Abraamyan, and Flores was
unduly cumulative.
       “To preserve a claim that a trial court abused its discretion in not excluding
evidence under Evidence Code section 352, ‘a party must make a timely and specific
objection when the evidence is offered.’ [Citation.]” (People v. Harrison (2005)
35 Cal.4th 208, 230.) Here, Torres did not object under Evidence Code section 352 to
the prosecution’s introduction of Dana’s statements. Accordingly, he forfeited this
argument on appeal.
       In any event, Torres’s argument fails on the merits. Indeed, a nearly identical
argument was rejected by the Fourth District Court of Appeal in Brown. There, the
defendant argued the trial court should have excluded evidence of the victim’s prior
statements to police, friends, family members, and doctors that the defendant had
physically assaulted her after she testified that she had made the statements, but asserted


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that they were false. (Brown, supra, 35 Cal.App.4th at pp. 1595-1597.) The Fourth
District held the extrinsic evidence of the victim’s statements was properly admitted
because the issue of guilt turned primarily on whether the victim’s out-of-court
statements were true. (Id. at p. 1597.) The court reasoned the jury would not have been
able to evaluate and weigh the probative value of the statements by hearing only the
victim’s testimony about the statements. (Ibid.)
       For the same reason, the trial court here properly admitted evidence of Dana’s
out-of-court statements. Whether Torres was guilty of sexually assaulting Dana turned
almost entirely on whether the jury believed Dana’s trial testimony or her out-of-court
statements during the investigation. Without Camacho, Abraamyan, and Flores
testifying about the details of Dana’s pretrial statements, and the contexts in which they
were made, the jury would not have been adequately equipped to compare her testimony
and out-of-court statements and determine which were true. (See Brown, supra,
35 Cal.App.4th at p. 1597 [the context and manner in which the out-of-court statements
were made is a relevant factor to jury’s credibility determination].) Put another way,
Dana’s out-of-court statements were directly relevant to two critical issues at trial:
whether Torres committed the charged crimes and Dana’s credibility.




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                                DISPOSITION
    The judgment is affirmed.



    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  LAVIN, J.

WE CONCUR:




    EDMON, P. J.




    ALDRICH, J.




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