People v. Torres CA2/3

Filed 9/22/15 P. v. Torres CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.