Filed 8/21/14 P. v. Amaya 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                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                            B245905

         Plaintiff and Respondent,                                     (Los Angeles County
                                                                       Super. Ct. No. BA392980)
         v.

ALFREDO JOSE AMAYA,                                                    ORDER MODIFYING OPINION
                                                                       [NO CHANGE IN JUDGMENT]
         Defendant and Appellant.



THE COURT:
         It is ordered the opinion filed herein on August 15, 2014, be modified as follows:
1. On page 7, in the second full paragraph, the first sentence, beginning “Moreover,
appellant’s argument” is deleted and the following is inserted in its place:
                   Moreover, appellant’s argument the evidence as to counts 3 and 4 was
         insufficient because the jury convicted appellant on those counts but not on counts
         1 and 2 is akin to an argument the evidence on counts 3 and 4 was insufficient
         because of inconsistent verdicts.
There is no change in the judgment.
Filed 8/15/14 (unmodified version)
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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,                                                              B245905

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. BA392980)
         v.

ALFREDO JOSE AMAYA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Gail Ruderman Feuer, Judge. Affirmed.
         Eduardo Paredes, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.

                                           _________________________
         Appellant Alfredo J. Amaya appeals from the judgment entered following his
convictions by jury on count 3 – lewd act upon a child (Pen. Code, § 288, subd. (a)) and
count 4 – sexual penetration with a child 10 years old or younger (Pen. Code, § 288.7, subd.
(b)). The court sentenced appellant to prison for 15 years to life, plus six years. We affirm.
                                             FACTUAL SUMMARY
1. People’s Evidence.
         Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)
6 Cal.4th 1199, 1206 (Ochoa)), the evidence established in about October 2010, appellant and
nine-year-old J.L. (J.), his niece, lived in different apartments in an apartment building in Los
Angeles. Appellant would pick up J. and his son Jo. from school and bring them to
appellant’s apartment until J.’s mother came home from work.
         J. testified that on each of three days during a week in October 2010, she and appellant
were in appellant’s apartment after school. On the first day, appellant was playing on a
computer. Appellant had J. sit on his lap. He put his hand on J.’s genital area over her
clothes. On the second day, appellant again had her sit on his lap. Appellant put his hand
inside J.’s pants and over her underwear (count 3).1 He left his hand there, causing her to feel
uncomfortable, scared, and sad. On the third day, appellant put his hand under J.’s
underwear, moved his hand around, and put his finger inside her vagina (count 4), touching
her “skin to skin.”2 When these acts occurred, Jo., who was about 10 years old, was
elsewhere in the apartment.
         After appellant began taking J. home from school, J. told her 16-year-old sister A.L.
(A.) that appellant had been touching J. J. and A. cried. The next day, A. called their mother,
S.L. (S.) at work, and told her what appellant had done. S. cried. S. came home from work,




1
         The jury convicted appellant on count 3 of “lewd act upon a child under the age of 14 years, to wit: touching the
child’s vaginal area over her underwear and under her pants by the defendant’s hand upon J.L., on or between June 1,
2010, and June 1, 2011.” (Some capitalization omitted.)
2
         The jury convicted appellant on count 4 based on his sexual penetration of J. on or between June 1, 2010, and
June 1, 2011.
                                                            2
questioned J., and J. began crying. S. embraced J., reassured her, and J. told S. what
appellant had done to her.
         S. made arrangements to prevent appellant from picking up J. from school, and told J.
not to tell appellant that J. had told S. about the abuse. S. did not call the police because she
was concerned about her husband’s health and appellant’s children. The next day, when J.
did not come home with appellant, he asked her why she was not coming home with him and
if she had “told anybody.” J. denied she had told anyone.3
         After J. told S. what appellant had done, J. told her grandmother. In 2011, when J. was
in the fourth grade, she told her best friend about appellant’s abuse of J. In November 2011,
J. told her teacher about the abuse and police were notified. On November 22, 2011, Nicole
Farrell, a child interview specialist at the University of California Medical Center,
interviewed J. J. recounted appellant’s previously discussed abuse and told Farrell that Jo.
was not present when it occurred.
         Los Angeles Police Detective Alma Mercado was assigned to the present case on
November 18, 2011, and testified on October 10, 2012, as follows. Children commonly
delayed reporting sexual abuse, especially when the abuser was a family member. Because
“it happened two years after,” Mercado did not remember if a medical examination occurred
in this case. Because “it happened two years after,” the family was supposed to make any




3
         About two months later, A. told S. that appellant had sexually abused A. The abuse occurred when she was
between about five years old and 10 years old. During the abuse, appellant told A. her parents did not love her and, if she
reported what was happening, they would not believe her and would not care. At the time, A. did not tell her parents
about the abuse because she was afraid she would get into trouble. A. did not report the abuse to S. when J. told S. that
appellant was abusing J., because A. saw how upset S. had been that appellant had abused J. After A. told S. about
appellant’s abuse of A., A. and S. agreed not to call the police because they were concerned about the health of A.’s
father. The information alleged appellant committed two crimes against A., i.e., continuous sexual abuse (Pen. Code,
§ 288.5, subd. (a); count 1) on or between July 28, 1999, and July 28, 2002, and lewd act upon a child (Pen. Code, § 288,
subd. (a); count 2) on or between July 29, 2002, and July 28, 2003. After the jury deadlocked on counts 1 and 2, the court
declared a mistrial as to those counts and later dismissed them pursuant to Penal Code section 1385.
                                                            3
appointment, not Mercado. The family had wanted a medical examination. At time of trial,
J. and appellant still lived in their respective apartments in the apartment building.
2. Defense Evidence.
       In defense, relatives of appellant testified to the effect he had not acted inappropriately
with J. or A. Jo. acknowledged that when J. was at appellant’s apartment after school, Jo.
was not always in the room with J.
                                            ISSUES
       Appellant claims (1) the trial court erroneously admitted into evidence J.’s hearsay
statements to A., and (2) insufficient evidence supports his convictions.
                                         DISCUSSION
1. The Trial Court Did Not Erroneously Admit Hearsay Into Evidence.
       a. Pertinent Facts.
       During direct examination by the People, A. testified that on one occasion after J.
started coming home with Jo., A. and J. were in their room when J. told A. that “[J.] was
scared.” The prosecutor asked A. if J. said what frightened her, and A. replied, “Yes, [J.]
started crying, and I sort of instantly knew why because she said ‘I don’t want to go back
there tomorrow.’ ” Appellant objected and moved to strike the testimony on the ground it
was hearsay. The court sustained the objection.
       Fairly read, the record reflects that later at sidebar, and following discussions between
the parties and the court, the court ruled J.’s statements to A. were admissible under the fresh
complaint doctrine. The court later stated in the presence of the jury, “So the objection is
overruled, so the testimony comes in with respect to what [A.] just testified about what [J.]
told her. However, it’s coming in for a limited purpose, so it’s not coming in for the purpose
of what the truth of whether or not [J.] was scared, but rather I’m allowing it in to explain the
sequence of events, events of either talking to her mother about what happened. So it’s not
coming in for the truth of the statement, which is whether or not [J.] was scared.” (Sic.)
       b. Analysis.
       Appellant claims the trial court allowed A. to relate inadmissible hearsay from J. He
argues J.’s statements “[J.] was scared” and “I don’t want to go back there tomorrow”

                                                4
(hereafter, the challenged statements) were inadmissible hearsay. We reject appellant’s
claim.
         Under the fresh complaint doctrine, evidence of a testifying sexual offense victim’s
extrajudicial complaint the sexual offense occurred may be considered by the jury for the
purpose of corroborating the victim’s testimony. (People v. Brown (1994) 8 Cal.4th 746,
758-763 (Brown); People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.) Brown observed,
“evidence of the fact of, and the circumstances surrounding, an alleged victim’s disclosure of
the offense may be admitted in a criminal trial for nonhearsay purposes . . . .” (Brown,
p. 763.) The nature of the crime(s) and the victim’s identification of the assailant are properly
included in the fresh complaint. (People v. Burton (1961) 55 Cal.2d 328, 351.) We review
for abuse of discretion a trial court’s ruling on the admissibility of evidence, including a
ruling on a hearsay objection. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
         As indicated, the trial court admitted the challenged statements under the fresh
complaint doctrine. Fairly read, the record reflects the trial court ruled it was not admitting
the challenged statements for their truth that J. was scared, but to explain the events of “either
talking to her mother,” i.e., either A. or J. talking to S., about what happened. The challenged
statements were part of “the circumstances surrounding[] an alleged victim’s disclosure of the
offense” (Brown, supra, 8 Cal.4th at p. 763), i.e., the challenged statements were part of the
circumstances leading A. to call S., which in turn led J. to tell S. about the offenses.
Appellant concedes the trial court relied on the fresh complaint doctrine. We hold the
challenged statements were nonhearsay properly proffered and admitted into evidence under
that doctrine. (Cf. id. at pp. 763-764.)
         Appellant argues the fresh complaint doctrine is inapplicable to J.’s statement she was
scared. Appellant reasons J.’s statement she was scared was hearsay because it was offered
to explain A.’s later report to S. about appellant’s alleged sexual abuse of J., and if A. had not
believed J.’s statement was true, A. would not have called S. We reject the argument. It
confuses the nonhearsay purpose for which the People offered J.’s statement with A.’s
subsequent alleged belief the statement was true, a matter irrelevant to whether the statement
was or was not hearsay. Moreover, the fact A. reported the matter to S. does not demonstrate

                                                 5
A. believed J. was scared; A. could have believed it was important to relate J.’s claim of fear
to S. whether or not A. believed that claim.
       Appellant argues the fresh complaint doctrine is inapplicable because J. was available
to testify. The argument is without merit. Appellant cites no case holding unavailability at
trial of the declarant of a fresh complaint is a condition of its admissibility. In Brown, the
fresh complaint declarant testified. (Brown, supra, 8 Cal.4th at pp. 750-753, 763-764.)
       Appellant argues the fresh complaint doctrine is inapplicable because J.’s testimony
she complained to her teacher about appellant’s misconduct preceded A.’s testimony relating
the challenged statements. The argument is without merit. J. testified after A. testified.
Moreover, appellant cites no authority for the proposition a statement otherwise admissible
under the fresh complaint doctrine is inadmissible merely because evidence of another
complaint by the declarant was admitted into evidence.
       Appellant argues the fresh complaint doctrine is inapplicable because the challenged
statements do not allege appellant’s sexual acts. We reject the argument. The doctrine
permits introduction of evidence of the circumstances of an alleged victim’s disclosure, not
merely the fact of disclosure or the nature of the crime.
       Even if the challenged statements were hearsay, it does not follow the judgment must
be reversed. J.’s statement she “was scared” was admissible under the Evidence Code section
1250 state of mind hearsay exception (cf. People v. Riccardi (2012) 54 Cal.4th 758, 822
[declarant’s statement she was “afraid” of defendant admissible]) as was J.’s statement she
did not “want” to go back there tomorrow. J. made other complaints (i.e., to her
grandmother, best friend, teacher, and Farrell) the admissibility of which is undisputed.
There was ample evidence of appellant’s guilt of the present offenses even absent the
challenged statements. Any error in admitting the challenged statements into evidence as
nonhearsay was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
       Appellant argues if the challenged statements were hearsay, the fact they were
prejudicial is demonstrated by the facts they corroborated J.’s testimony and the jury
convicted appellant on counts 3 and 4, but there was no such corroboration as to A.’s
testimony concerning appellant’s abuse of A., and the jury did not convict appellant on counts

                                                6
1 and 2. However, appellant’s acts against J. and A. were so factually different (see fns. 1 –
3, ante) it is not reasonably probable the differences in the outcomes as to counts 1 through 4
was attributable to any corroborative effect of the challenged statements on the evidence as to
counts 3 and 4.
         Moreover, appellant’s argument the evidence as to counts 3 and 4 was insufficient
because the jury convicted appellant on those counts but not on counts 1 and 2 is akin to an
argument the evidence on counts 1 and 2 was insufficient because of inconsistent verdicts.
However, inconsistent verdicts are allowed to stand (People v. Santamaria (1994) 8 Cal.4th
903, 911); therefore, the verdicts on counts 3 and 4 are allowed to stand notwithstanding their
alleged inconsistency with the outcome as to counts 1 and 2.4
2. Sufficient Evidence Supported Appellant’s Convictions.
         Appellant claims insufficient evidence supported his convictions. We disagree. The
jury convicted appellant of lewd act upon a child (count 3) based on appellant’s using his
hand to touch J.’s vaginal area under her pants and over her underwear on or between June 1,
2010, and June 1, 2011. As to this count, J. testified that on the second of three days during a
week in October 2010, appellant had her sit on his lap, put his hand inside her pants and over
her underwear, and left his hand there, causing her to feel uncomfortable, scared, and sad.
She made corroborating complaints to her grandmother, best friend, teacher, and Farrell.
Appellant engaged in similar lewd conduct on the first and third days; this was evidence he
committed the offense (count 3) on the second day. (See People v. Ewoldt (1994) 7 Cal.4th
380, 393, 394 & fn. 2, 402-404.) We hold there was sufficient evidence supporting
appellant’s conviction on count 3. (Cf. Ochoa, supra, 6 Cal.4th at p. 1206.)
         The jury also convicted appellant of sexual penetration of a child (count 4). As to this
count, J. testified that, on the third day, appellant put his hand under her underwear, moved
his hand around, and put his finger inside her vagina. As mentioned, she made corroborating

4
         Appellant argues the trial court’s instruction to the jury was flawed because it told the jury to accept as true that
J. was scared. We disagree; the instruction expressly stated her statement was “not coming in for the truth of the
statement, which is whether or not [J.] was scared.” Appellant also argues the challenged statements were not relevant
because it was only after J. reported the abuse to her teacher that a criminal investigation began. We reject the argument
because appellant misperceives the relevance of a fresh complaint at the time it was made, and because appellant raises
the relevance issue for the first time in his reply brief. (Cf. People v. Thomas (1995) 38 Cal.App.4th 1331, 1334; People
v. Jackson (1981) 121 Cal.App.3d 862, 873.)
                                                               7
complaints. He engaged in similar lewd conduct on the first and second days; this was
evidence he committed the offense (count 4) on the third day. We hold there was sufficient
evidence supporting appellant’s conviction on count 4. (Cf. Ochoa, supra, 6 Cal.4th at p.
1206.)
         Appellant argues his conviction based on the “skin to skin” touching must have been
based on the inadmissible hearsay of the challenged statements, because if, absent those
statements, there was sufficient evidence he committed that offense, the jury should have
convicted A. on counts 1 and 2. This argument, referring to “skin to skin” touching,
necessarily pertains only to his conviction on count 4. Moreover, we have already rejected
appellant’s hearsay and inconsistent verdict arguments.
         Appellant argues there is insufficient evidence because of an alleged evidentiary
conflict. He notes J. testified when appellant touched her skin to skin, his hand would “just
move around and in [her] private part” and she testified she did not remember if “his finger
[went] inside [her] private part one time or more than one time.” Appellant also notes Farrell
asked J. how many times did appellant’s “fingers go in your private parts,” and J. replied,
“One time because I had told my sister,” and when Farrell later asked J. how many times
appellant’s “fingers [went] inside of [her] private parts,” J. replied twice.
         However, this argument necessarily pertains to count 4. The court instructed the jury
pursuant to CALCRIM No. 226 that a jury should not automatically reject testimony because
of inconsistencies or conflicts, the jury was to consider whether the differences were
important, and people sometimes honestly forget things or make mistakes about what they
remember. There is no dispute this is a correct statement of law and it applies here. We
presume the jury resolved any factual conflict in favor of conviction. (Ochoa, supra,
6 Cal.4th at p. 1206.) We reject appellant’s argument.
         Appellant argues the evidence was insufficient because Mercado’s testimony she did
not know if a medical examination was done was “unreasonable.” The incident involving J.
occurred in about October 2010. Mercado was first assigned to this case in November 2011.
Mercado testified in October 2012. Under these circumstances, the fact Mercado did not



                                                 8
remember whether J. underwent a medical examination did not render insubstantial the
otherwise substantial evidence in this case.
       The real issue is not whether Mercado remembered whether J. underwent such an
examination but whether J. underwent one. To the extent appellant suggests Mercado should
have scheduled such an examination for J., appellant has failed to demonstrate Mercado was
obligated to schedule such an examination, that an examination conducted a year after the
present incident would have produced any useful information, or that any resulting
information would have diminished the otherwise substantial evidence in this case.
       Appellant finally argues the evidence was insufficient because there was “no
testimony of Johnathan [sic]” as to whether he was at home during J.’s visits. We reject the
argument. J. told Farrell that Jo. was not present when the abuse occurred. J. testified when
the acts occurred, Jo. was elsewhere in the apartment. Jo., a defense witness, acknowledged
that when J. was at appellant’s apartment after school, Jo. was not always in the room with J.




                                               9
                                 DISPOSITION
     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KITCHING, J.

We concur:




                  KLEIN, P. J.




                  ALDRICH, J.




                                     10
