People v. Fortin

• Decision Date: 06 June 2017
• Docket Number: 2d Crim. No. B271184
• Citation: 12 Cal.App.5th 524,218 Cal.Rptr.3d 867
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Pedro FORTIN, Defendant and Appellant.

12 Cal.App.5th 524

218 Cal.Rptr.3d 867

The PEOPLE, Plaintiff and Respondent,

v.Pedro FORTIN, Defendant and Appellant.

2d Crim. No. B271184

Court of Appeal, Second District, Division 6, California.

Filed June 6, 2017

Certified for Partial Publication.^*

Edward J. Haggerty, Rowland Heights, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant

Attorney General, Zee Rodriguez, Acting Supervising Deputy Attorney General, Corey J. Robins, Deputy Attorney General, for Plaintiff and Respondent.

PERREN, J.

Pedro Fortin was charged with molesting two young girls. Through use of the "Abel Assessment for Sexual Interest" (Abel test), he sought to prove that he does not have a sexual interest in children. He was rebuffed. The prosecution, however, was permitted to introduce evidence of the Child Sexual Abuse Accommodation Syndrome (CSAAS) to explain why child victims of sexual abuse may delay in making a report. Fortin was convicted of child molestation (Pen. Code, §§ 288, 288.7¹ ) and false imprisonment by violence (§§ 236, 237). As we shall explain, the trial court did not err in either ruling.

The Abel test results were properly excluded in the guilt phase of this criminal prosecution for want of acceptance by the relevant scientific community. Appellant's objection to the CSAAS was properly overruled once the victims' credibility was placed in issue, and its use was circumscribed by a limiting instruction. We affirm the convictions. We reverse the sentence and remand to the trial court to make a satisfactory record of the basis for its exercise of its discretion to order consecutive sentences. (§§ 667.61, 669.)

FACTS

Testimony About the Molestations

Fortin and his family lived in an apartment house in Bell Gardens. Residing in same building were Kimberly Doe and Vanessa Roe, both born in 1999 and close in age to Fortin's two daughters. The four children were friends and frequently met in Fortin's apartment, over a two-year period. Fortin sat in the living room as the children played or watched television, and was friendly with them.

Vanessa testified that when she was around seven years old, Fortin suggested that they "play doctor" while his wife was out shopping. He pretended to be a doctor and had the girls enter a bedroom to see him, one at a time. When Vanessa entered the bedroom, Fortin locked the door, pushed her onto the bed, lifted her shirt, and licked her stomach. Vanessa pushed him away and left the room. She was scared and did not know how to tell her mother what happened. Vanessa continued to visit Fortin's apartment to see his daughters, but was cautious around him.

When Vanessa was still around seven years old, Fortin scooted over to sit next to her on the sofa during a visit. His wife was in the kitchen. Fortin placed a throw pillow over Vanessa's lap, then put his hand inside of her pants and digitally penetrated her. She removed his hand; he tried to touch her again but she prevented him. Vanessa was very scared but did not tell her parents about the incident, out of concern that they would see her in a different light.

Fortin complimented Vanessa but also said inappropriate things on occasion, including, "I want to make love to you." He did not try to touch her again. Vanessa remained friends with Fortin's daughters until he and his family moved away. Vanessa's mother noticed that Vanessa "was a bit scared" when she went to play with Fortin's daughters, but when asked, Vanessa said everything was okay.

Kimberly testified that when she visited Fortin's apartment at age six or seven, he approached her three or four times and said "dirty words" in her ear, meaning sexual talk. He told her that she "was old enough" and simulated fellatio. While his daughters were in the kitchen, he leaned over Kimberly as she played with dolls, put his hands on her shoulders then slowly slid them down her chest and squeezed her breasts. He touched her breasts, over her clothing, on more than one occasion.

After Fortin touched her breasts, Kimberly did not feel comfortable with him. At age seven, she went to visit Fortin's daughters. When she saw her friends depart to go shopping, Kimberly began to pick up her dolls to leave. Fortin grabbed her arm forcefully, pulled her into his bedroom, and closed the door. No one else was home. He removed her shorts. When she tried to stop him, he pushed her and would not allow her to leave. Fortin unbuckled his belt, unzipped his pants, and told her to put his penis in her mouth. She said, "no." He pulled her onto the floor and forced his penis into her mouth by grasping her shoulders and jerking her head onto him. Kimberly was crying and tried to escape. Fortin warned her not to tell her mother or else he would keep doing it, which she interpreted to mean molesting her and making sexual talk. As soon as she was able to pull away, she dressed, ran home, and brushed her teeth.

Kimberly believed Fortin's threats and was scared. She did not tell her mother or her older brother. She continued to visit Fortin's apartment to play with his daughters after the oral copulation incident because she did not think that it would happen again.

A few weeks later, while his daughters were in the yard, Fortin again grabbed Kimberly's arm, took her to his bedroom, and closed the door. When she objected, he said "be quiet," and pushed her down as she tried to leave. He removed her shorts, spread her legs, and put his penis in her vagina. She was crying, scared and in pain.

As Kimberly pulled her shorts on, Fortin told her not to inform her mother what happened. Kimberly ran home and bathed because she did not want to smell Fortin's "musk" on her. Kimberly did not say anything because she was scared. Her vagina hurt for the rest of the night. After that incident, she played outside with Fortin's daughters, but never again entered his apartment.

Kimberly's mother testified that Kimberly was between six and seven years old when she began playing at Fortin's apartment. One day, Kimberly came home crying, but would not say what happened. She is not a child who cries easily. After that day, her daughter did not reenter the Fortin residence.

Around the time of the molestations, Vanessa and Kimberly shared what happened with each other, but did not tell other people. After Kimberly moved away, the two girls stayed in touch through social media.

Kimberly did not want to speak to anyone about the molestations. Time had passed and she had, in her words, "already moved on." In July 2014, when Kimberly was 13, her mother chastised her for playing outside with boys (as Kimberly recalled) or because she was having problems at school (as her mother recalled). Kimberly began to cry and told her mother what Fortin had done. Kimberly explained that she was too fearful to disclose the misconduct sooner; she thought Fortin might harm her mother because he made threats.

In tears, Kimberly and her mother went to inform Vanessa's parents about the molestations. Vanessa was questioned, began crying, and admitted that Fortin had touched her. Both families reported the molestations to the police.

Expert Testimony

Clinical psychologist Jayme Jones testified for the prosecution about CSAAS and its application to situations in which the child knows the abuser. Dr. Jones listed the elements of CSAAS: (1) secrecy due to the lack of witnesses to the abuse; (2) helplessness because children are dependent and physically small; (3) accommodation to cope with ongoing abuse because children are typically taught to obey adults; (4) delayed disclosure; and (5) recanting, particularly if child welfare authorities get involved. In most cases children never disclose abuse, or disclose belatedly, or disclose in bits and pieces to see if it provokes a negative reaction in people hearing about it. The longer children hide the abuse, the guiltier they feel, making disclosure increasingly difficult. Children do not generally fabricate stories about abuse. Dr. Jones testified that CSAAS "doesn't tell us who has been abused."

A defense psychologist, Mitchell Eisen, confirmed the five elements of CSAAS, but noted that it is based on clinical observations in incest cases, not on a scientific study. He described the first three elements of CSAAS as "commonsensical." He disputed the delayed disclosure element because there is no "typical" child victim who discloses in the "typical" way suggested by CSAAS, and no evidence to support the idea that children generally delay disclosure of abuse.

Clinical psychologist Roberto Flores de Apodaca, a defense expert, reviewed Fortin's personal history, sexual history, criminal history, mental health and substance abuse history, marital history, and occupational history. Dr. Flores opined that the information he collected suggested that Fortin does not have a propensity to engage in sexual acts with children.

Testimony From Fortin and His Relatives

Fortin's wife insisted that she was always present when Vanessa and Kimberly came to play, though she was sometimes busy cooking or doing laundry. Fortin was home twice a week during the day, but did not interact with the children, and typically went to visit his brother, who lived in the same complex. She opined that her husband is a hard-working, respectable man. She has never seen him act inappropriately with children. A brother-in-law similarly testified that Fortin is responsible, loving and respectful.

Fortin's daughters confirmed that their friends Kimberly and Vanessa came, two to three times per week, to play dolls and watch television in the living room of the Fortin apartment. Fortin was sometimes there, but was never alone with the girls. The children got along well and did not argue, but one day Kimberly stopped coming over to play, and, thereafter, neither did Vanessa.

Testifying on his own behalf, Fortin denied committing all of the acts described...