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People v. fortin

California Court of Appeals, Second District, Sixth Division

June 6, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
PEDRO FORTIN, Defendant and Appellant

         [CERTIFIED FOR PARTIAL PUBLICATION[*]]

          Superior Court of Los Angeles County, No. VA136073, Raul A. Sahagun, Judge.

Page 525

[Copyrighted Material Omitted]

Page 526

         COUNSEL

         Edward J. Haggerty, 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, Assistant Attorney General, Zee Rodriguez and Corey J. Robins, Deputy Attorneys General, for Plaintiff and Respondent.

         Opinion by Perren, J., with Yegan, Acting P. J., and Tangeman, J., concurring.

          OPINION

          [218 Cal.Rptr.3d 869] PERREN, J.

          Pedro Fortin was charged with molesting two young girls. Through use of the " Abel Assessment for sexual interest" (Abel test), he

Page 527

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, 288.7) [1] 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 the 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.

Page 528

         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 [218 Cal.Rptr.3d 870] 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 ...


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