When will a defendant be impeached for refusing to testify in a sexual assault case?

We also note defendant's refusal to testify contrasts sharply with the conduct of victims and witnesses who, having previously made out-of-court statements concerning a crime, take the stand and then claim a lack of memory. Under those circumstances, if the witness's memory loss is feigned and the record supports the conclusion that the "I don't remember" statements are evasive and untruthful, the witness's out-of-court statements are properly admitted. ( Evid. Code, 770, 1235 ; People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220, 14 Cal.Rptr.2d 702, 842 P.2d 1.) Not so in a situation like this one, where defendant's refusal to testify because "[f]amily is first" did not permit her to be impeached with her prior out-of-court statements.