What is the test for admitting a statement by a witness that is inconsistent with their own testimony?

"A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770." (People v. Johnson (1992) 3 Cal.4th 1183, 1219, 14 Cal. Rptr.2d 702, 842 P.2d 1.) Those statutes, as relevant here, provide for the admission against a hearsay challenge of a prior statement by a witness "if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." (Evid.Code, 1235.) Under Evidence Code section 770, prior inconsistent statements are admissible only if: "(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [A] (b) The witness has not been excused from giving further testimony in the action."

Defendant does not deny that the conditions of Evidence Code section 770 were satisfied here. Rather, he asserts that Aplington's trial testimony was not inconsistent with her former statements because she testified that she could not recall either the specific events in 1985 regarding the disappearance of defendant's mother or what she had said about those events at that time. We spoke to this exact issue in People v. Johnson, supra, 3 Cal.4th at page 1219, 14 Cal. Rptr.2d 702, 842 P.2d 1: "Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. `Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness.' [Citation.] When a witness's claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness's `I don't remember' statements are evasive and untruthful, admission of his or her prior statements is proper." (Italics added.)

That is the situation here. Ample evidence supports the trial court's determination that Aplington's lack of memory amounted to deliberate evasion. Thus, there was no state law error. Furthermore, admission of Aplington's prior statements under one of this state's traditional hearsay rule exceptions did not implicate defendant's Sixth Amendment right to confront and cross-examine her because she testified and thus was subject to defendant's cross-examination. (People v. Zapien (1993) 4 Cal.4th 929, 955, 17 Cal. Rptr.2d 122, 846 P.2d 704.) Because there was no confrontation clause violation, we reject on the merits defendant's claim that his trial counsel was ineffective in failing to object to the admission of Aplington's prior inconsistent statements on that ground.