People v. Fortin ( 2017 )

Filed 6/6/17
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B271184
(Super. Ct. No. VA136073)
Plaintiff and Respondent, (Los Angeles County)
v.
PEDRO FORTIN,
Defendant and Appellant.
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
*Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for partial publication. Parts 2, 3
and 4 of the Discussion section of this opinion are not certified for
publication. Those parts are identified as those portions between
double brackets, e.g., [[/]].
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
1 Unlabeled statutory references are to the Penal Code.
2
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
3
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.
4
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
5
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
6
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 by Vanessa and Kimberly,
denied being alone with them, and denied being sexually
attracted to young girls. During an interview at the police
station, the police used a ruse and told Fortin that his DNA was
found on the victims’ underwear. Fortin replied that it could not
be true because he did not do anything.
The Charges, Verdict and Sentence
Fortin was charged by information with seven
felonies. The jury deadlocked on counts 1 (sexual intercourse or
sodomy upon Kimberly, § 288.7, subd. (a)) and 2 (oral copulation
or sexual penetration upon Kimberly, § 288,7, subd. (b)). Those
counts were dismissed.
Fortin was convicted in counts 3 and 4 of committing
lewd acts upon Kimberly, a child under the age of 14. (§ 288,
subd. (a).) In count 7, he was convicted of sexually penetrating
Vanessa, a child under the age of 10. (§ 288.7, subd. (b).) In
count 8, he was convicted of a forcible lewd act upon Vanessa, a
child under the age of 14. (§ 288, subd. (b)(1). In count 9, he was
convicted of falsely imprisoning Vanessa by violence. (§ 236.) As
to counts 3, 4, 7 and 8, the jury found that Fortin had substantial
7
sexual conduct with each child. As to counts 3, 4 and 8, the jury
found that Fortin committed offenses against multiple victims.
Fortin was sentenced to consecutive terms of 15 years
to life on counts 3, 4, 7 and 8. The aggregate sentence was 60
years to life. A three-year term on count 9 was stayed. (§ 654.)
DISCUSSION
1. Exclusion of Abel Test Results
The trial court allowed Dr. Flores to opine that Fortin
lacks sexual interest in prepubescent children, but did not allow
testimony about Fortin’s performance on the Abel test. The court
found that the Abel test has not been adequately peer-reviewed;
is not accepted in the scientific community; is designed to monitor
convicted sex offenders; and is not intended for use in trials to
determine a defendant’s guilt or innocence. Fortin contends that
excluding Abel test results violated his constitutional right to due
process and to confront witnesses. He “forfeited his
constitutional claims by failing to object on these grounds at
trial.” (People v. Carter (2003) 30 Cal.4th 1166, 1196, fn. 6.)
A qualified expert may testify on a subject beyond
common experience if based on material “of a type that
reasonably may be relied upon by an expert in forming an opinion
upon the subject[.]” (Evid. Code, § 801, subd. (b).) The trial court
has broad discretion to determine whether proposed expert
testimony lacks the necessary foundation to be reliable, relevant
and admissible. (People v. Lucas (2014) 60 Cal.4th 153, 226-227,
disapproved on other grounds in People v. Romero and Self (2015)
62 Cal.4th 1, 53, fn. 19.) The court may exclude expert testimony
based on unreliable material. (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 771-
772.)
8
Establishing reliability is the overriding factor when
a party seeks to admit evidence based on a new scientific
technique. (People v. Leahy (1994) 8 Cal.4th 587, 594.) The
courts look to see whether a new technique is “‘sufficiently
established to have gained general acceptance in the particular
field in which it belongs.’” (Ibid; People v. Kelly (1976) 17 Cal.3d
24, 30; People v. McWhorter (2009) 47 Cal.4th 318, 364-365.) To
be “new”—both to science and to the law—“a technique must be
meaningfully distinct from existing techniques. [Citation.]”
(People v. Jackson (2016) 1 Cal.5th 269, 316.) The concern is that
an unproven technique may appear “‘in both name and
description to provide some definitive truth which the expert
need only accurately recognize and relay to the jury.’ [Citation.]”
(Ibid.)
California courts have yet to recognize that the Abel
test may be used in cases involving sex offenses against children.
“Once an appellate court has affirmed in a published opinion a
trial court ruling admitting evidence based on a new scientific
technique, the precedent may control future trials, at least until
new evidence is presented that reflects a change in the scientific
community’s attitude. [Citation.]” (People v. Nelson (2008) 43
Cal.4th 1242, 1257; see e.g., People v. Jackson, supra, 1 Cal.5th at
p. 320 [with a proper foundation, dog scent trailing evidence can
be heard by the jury because it has been admissible in California
courts since 1978]; People v. Huggins (2006) 38 Cal.4th 175, 200
[hair comparison evidence identifying a suspect or victim has
been routinely admitted in California for many years]; People v.
Wilkinson (2004) 33 Cal.4th 821 [barring polygraph evidence
because the scientific community deems it unreliable does not
violate the defendant’s federal constitutional rights].)
9
Dr. Flores appeared at a hearing to determine if
there is an adequate foundation to admit evidence of Abel test
results. (Evid. Code, § 402.) He testified that the Abel test
covertly detects whether someone has persisting sexual interest
in prepubescent children.2 The state Department of Corrections
recommends Abel assessments for parolees convicted of sex
offenses. It has been administered over 170,000 times, has “a
growing legacy,” and Dr. Abel and his associates have published
papers attesting to its validity and reliability. Dr. Flores
conceded that the Abel test is not universally accepted and test
results are not always allowed in court.
Dr. Flores acknowledged several important points, all
of which undermine the evidentiary value of the Abel test. First,
the Abel test assesses “persisting” interests of convicted sex
offenders, and cannot be used to determine whether a person is
(or is not) likely to be a sex offender. The test assumes that the
person has already admitted to sexual misconduct. Second, the
test has not been peer reviewed because Dr. Abel exercises
proprietary rights and refuses to share his formula with other
scientists. Third, the scientific community does not generally
accept the Abel test as a diagnostic test for pedophilia.
2 The test-taker’s left hand is immobilized while the right
hand clicks on a computer through photographs of both genders,
from preschoolers to adults, clad in bathing suits. An index
assesses how much time the test-taker spends on each
photograph; it does not focus on how the test-taker consciously
rates the images as sexually arousing or disgusting. The Abel
test is never used to infer whether someone committed a
particular sex act; rather, it reveals which categories provoke
persisting sexual interest.
10
Dr. Flores is aware that someone facing criminal
charges for molesting children would be motivated to rush
through photos of underage children while the test is being
administered; there is no way to avoid false negatives and false
positives with the Abel test; and “there are a number of ways to
thwart the test.” Dr. Flores cannot interpret the test results
himself. The responses must be sent to Dr. Abel in Atlanta for
analysis; Dr. Flores must assume that there is no computer glitch
in Atlanta and that the results are legitimate.
A defense expert may rely on an interview and his
interpretation of standardized written personality tests to opine
that a defendant does not show signs of “deviance.” (People v.
Stoll (1989) 49 Cal.3d 1136, 1140.) In Stoll, the expert
administered two standardized tests, including the Minnesota
Multiphasic Personality Inventory—the most widely used
psychological test in the nation—as “a springboard for a far more
normative and subjective diagnostic process” leaning heavily
upon patient interviews, case history, and past experience. (Id.
at pp. 1147, 1159.) The expert could proffer an ultimate opinion
about Stoll because the testimony met “traditional standards for
competent expert opinion.” (Id. at p. 1161.)
Unlike the widely accepted standardized tests used
by the expert in the Stoll case, the Abel test is a new scientific
technique, process or theory. The Abel test has been deemed
unreliable by the Supreme Courts of Connecticut, Maine,
Montana, North Dakota and Texas.3 It has also been rejected in
3 State v. Victor O. (Conn. 2011) 20 A.3d 669, 678-679 [Abel
test is “not sufficiently reliable for admission into evidence”
during the guilt phase of a criminal trial because it is designed to
treat known sex offenders and has a 64 percent error rate when
11
federal court. (See United States v. Birdsbill (D. Mont. 2003) 243
F.Supp.2d 1128, 1132-1136, aff’d. (9th Cir. 2004) 97 Fed.Appx.
721 [Abel test is “merely an untested and unproven theory” that
is “highly unreliable” due to its high error rate and susceptibility
to manipulation]; United States v. White Horse (D. S.D. 2001) 177
F.Supp.2d 973, 976, aff’d. (8th Cir. 2003) 316 F.3d 769, 774-775
[Abel test does not satisfy federal admissibility requirements].) A
new theory that has been repeatedly rejected by courts
nationwide cannot be given the imprimatur of a “routine” or
accepted method of testing defendants facing criminal charges.
(People v. Leahy, supra, 8 Cal.4th at p. 605-606.)
The trial court did not abuse its discretion by
excluding testimony about Fortin’s performance on the Abel test.
The courts of sister states have consistently found the Abel test to
be unreliable. It has not gained acceptance as a way to prove or
disprove an accused’s sexual interest in children during the guilt
phase of a criminal trial. Dr. Flores cast doubt on the use of the
used to detect pedophiles]; State v. Ericson (Me. 2011) 13 A.3d
777, 781-782 [Abel test is “unreliable” because it has not been
peer reviewed, is not designed to detect whether a child was
abused, was tested only on admitted sex offenders, and has a
high error rate]; State v. Spencer (Mont. 2007) 169 P.3d 384, 393-
394 [testimony based on Abel test results was properly excluded
because the expert agreed that the test was controversial, could
be thwarted, and had varying success rates]; State v. Austin (N.D.
2007) 727 N.W.2d 790, 795-796 [expert testimony was properly
excluded because the Abel test used to evaluate the defendant is
not designed to determine whether he committed a sex crime
against a child]; and In re M.P.A. (Tex. 2012) 364 S.W.3d 277,
286-289 [Abel test is unreliable and inadmissible]. See also In re
Ready (Mass.App. 2005) 824 N.E.2d 474, 476-480 [Abel test is
seriously flawed and was properly excluded at trial].
12
Abel test by acknowledging that the test assesses “persisting”
sexual interests in convicted offenders, has not been peer
reviewed, is not generally accepted in the scientific community to
diagnose pedophilia, and can be thwarted by the test-taker.
Under the test’s user terms, Dr. Flores is not permitted to
analyze or interpret Abel test results: he must send the results
to Atlanta, then assumes proper analysis by Dr. Abel or trained
staff and assumes the legitimacy of the results.
A proper foundation was not laid to admit Dr.
Flores’s proposed testimony about the Abel test, owing to the
test’s poor reputation for reliability in the scientific community
and the witness’s admitted inability to analyze the test results.
Cross-examination would be thwarted by Dr. Flores’s inability to
explain how Fortin responded to the photo display and what this
signifies. The process of analyzing responses is closely-guarded
proprietary information that Dr. Abel refuses to share.
Admitting the results of Fortin’s Abel test would invite the jury
to infer that Fortin did not molest the victims: despite its
scientific name—the “Sexual Interest Assessment”— the test is
not designed to determine if an accused committed a sex crime
against children.
The Abel test is not the type of “professionally
reasonable ‘matter’” that our Supreme Court has identified as
providing a solid underpinning for expert opinion. (People v.
Stoll, supra, 49 Cal.3d at p. 1140.) In effect and in fact Dr. Flores
would simply be a surrogate for Dr. Abel, instead of providing his
“‘individual interpretation’ of the test.” (Id. at p. 1149.)
California courts have long “deferred to a qualified expert’s
decision to rely on ‘standardized’ psychological tests . . . to reach
an opinion on mental state at the time acts were committed.
13
[Citations.]” (Id. at p. 1154.) Deference is not appropriate when
the expert relies on the Abel test. When expert evidence is
excluded because it fails to meet foundational requirements, no
federal constitutional violation occurs. (People v. Ramos (1997)
15 Cal.4th 1133, 1175-1176.)
[[2. Admissibility of CSAAS Testimony
During Vanessa’s cross-examination, defense counsel
asked why she did not immediately disclose the sexual abuse to
her mother, or report Fortin to a teacher or school counselor,
because she understood that the touching was bad and no one
should do that to her. The defense similarly questioned Kimberly
about her failure to confide in trusted adults about the
molestations.
After the victims testified, the prosecutor asked to
present expert testimony regarding delayed disclosures of child
abuse. Defense counsel objected that the CSAAS applies when
children recant, which did not occur here. The court ruled that
the testimony is relevant to rebut the common misperception that
a delay in reporting abuse signifies fabrication; however, the
expert was not allowed to give an opinion as to the facts or
witnesses in this case.
Fortin acknowledges that CSAAS expert testimony
has been allowed in California criminal trials for three decades.
CSAAS testimony may not be used to determine if a child has
been abused. (People v. McAlpin (1991) 53 Cal.3d 1289, 1300-
1301; People v. Bowker (1988) 203 Cal.App.3d 385, 392; People v.
Patino (1994) 26 Cal.App.4th 1737, 1744.) It may be used to
explain reporting delays owing to a secretive environment
created by an abuser who is known to the child. The testimony
dispels misconceptions the jury may hold about seeming
14
inexplicable—yet common—reactions children have to being
molested. (Bowker at pp. 393-394; People v. Sanchez (1989) 208
Cal.App.3d 721, 734-735.) “It is sufficient if the victim’s
credibility is placed in issue due to the paradoxical behavior,
including a delay in reporting a molestation” or inconsistent
statements. (Patino at pp. 1744-1745; McAlpin at pp. 1300-1301;
People v. Stark (1989) 213 Cal.App.3d 107, 116-117; People v.
Brown (2004) 33 Cal.4th 892, 905-906 [expert testimony about
the behavior of crime victims assists the trier of fact because it is
beyond common experience].)
The predicate for Dr. Jones’s testimony was the
defense’s cross-examination of the complaining witnesses,
questioning their failure to promptly report the molestations to
their parents, teachers or counselors, or give fully detailed
reports to the police. The defense attack on the credibility of the
witnesses opened the door to rebuttal evidence admitted solely
for the purpose of showing that the victims’ behavior was not
inconsistent with the type of reactions children may have to being
molested. Dr. Jones emphasized to the jury that CSAAS “doesn’t
tell us who has been abused.” The point was underscored by an
appropriate jury instruction limiting use of the testimony.4 We
4 “You have heard testimony from Dr. Jayme Jones
regarding child sexual abuse accommodation syndrome. [¶]
Dr. Jones’s testimony about child sexual abuse accommodation
syndrome is not evidence that the defendant committed any of
the crimes charged against him. [¶] You may consider this
evidence only in deciding whether or not Kimberly[’s] and
Vanessa’s conduct was not inconsistent with the conduct of
someone who has been molested in evaluating the believability of
her testimony.” (CALCRIM No. 1193)
15
must presume that the jurors followed the instruction. (People v.
Romero and Self, supra, 62 Cal.4th at p. 28.)
Despite the considerable authority authorizing the
use of CSAAS in California, Fortin argues that expert testimony
about CSAAS should be inadmissible for all purposes. He
contends that the testimony serves to suggest that the victim’s
behavior coincides with that of other sexually abused children,
and can be misconstrued as corroboration. Challenges similar to
the one Fortin makes here have been rejected because use of a
limiting instruction obviates the risk that the jury will believe
that the expert is there to corroborate the child’s claim of abuse.
(People v. Housley (1992) 6 Cal.App.4th 947, 958-959.)
3. Jury Instructions
We apply a de novo standard of review to assess
whether instructions correctly state the law. (People v. Posey
(2004) 32 Cal.4th 193, 218.)
a. CALCRIM No. 1193
Fortin argues that CALCRIM No. 1193 erroneously
instructed the jury that CSAAS expert testimony may be used to
assess the credibility of the complaining witnesses. (See fn. 6,
ante, for the text of the instruction.) The challenged instruction
mirrors language cited with approval by the Supreme Court:
“[E]xpert testimony on the common reactions of child molestation
victims is not admissible to prove that the complaining witness
has in fact been sexually abused; it is admissible to rehabilitate
such witness’s credibility when the defendant suggests that the
child’s conduct after the incident—e.g., a delay in reporting—is
inconsistent with his or her testimony claiming molestation.
[Citations & fn.] ‘Such expert testimony is needed to disabuse
jurors of commonly held misconceptions about child sexual abuse,
16
and to explain the emotional antecedents of abused children’s
seemingly self-impeaching behavior. [¶] The great majority of
courts approve such expert rebuttal testimony.’ [Citation.]”
(People v. McAlpin, supra, 63 Cal.3d at pp. 1300-1301.)
The instruction states that the evidence cannot be
used to determine whether Fortin committed the crimes, only to
assess witness believability and explain their conduct. The jury
was correctly instructed with CALCRIM No. 1193.
b. CALCRIM Nos. 1128 and 250
Fortin was charged in count 7 with the crime of
sexual penetration of Vanessa, a child less than 10 years old.
(§ 288.7, subd. (b).) As to count 7, the jury was instructed with
CALCRIM Nos. 250 and 1128.5 Fortin did not object to the use of
these instructions. He now contends that the jury was not
informed that the offense is a specific intent crime.
Sexual penetration of a child is a specific intent
crime. (People v. Ngo (2014) 225 Cal.App.4th 126, 157.) The
statute “specifies the level of intent required for sexual
5 “For you to find a person guilty of the crime[s] in this case
of sexual penetration with a child ten years of age or younger as
charged in Count 7 . . . that person must not only commit the
prohibited act, but must do so with a wrongful intent. [¶] A
person acts with a wrongful intent when he or she intentionally
does a prohibited act. However, it is not required that he or she
intend to break the law. The act required is explained in the
instruction for that crime or allegation.” (CALCRIM No. 250.)
CALCRIM No. 1128 lists the acts that violate section 288.7,
as charged in count 7: 1. Sexual penetration. 2. When Vanessa
was 10 years old or younger. 3. Defendant was at least 18 years
old. The instruction defines sexual penetration as “penetration,
however slight, of the genital or anal opening of the other person
. . . for the purpose of sexual abuse, arousal, or gratification.”
17
penetration” (ibid) by referencing a definition requiring that the
act of sexual penetration be committed “for the purpose of sexual
arousal, gratification, or abuse.” (§§ 288.7, subd. (b), 289, subd.
(k)(1); People v. McCoy (2013) 215 Cal.App.4th 1510, 1538.)
During closing argument, the prosecutor referenced the elements
of section 288.7 and, with respect to sexual penetration,
emphasized that “[t]he touching was done with the specific intent
to arouse, appeal to, or gratify the lust, passions, or sexual
desires of that person or the child and there was no other intent.”
CALCRIM No. 250 is a general intent instruction
that should not be used for the specific intent crime of sexual
penetration of a child. (People v. Ngo, supra, 225 Cal.App.4th at
p. 162 [the correct instruction is CALCRIM No. 251, for specific
intent crimes].) Although the trial court erred by instructing the
jury with CALCRIM No. 250, the error was harmless because the
sexual penetration instruction told the jury it had to find that
Fortin committed the penetration “for the purpose of sexual
abuse, arousal, or gratification.” Any theoretical possibility of
confusion was diminished by the prosecutor’s closing argument
underscoring the specific intent required. (People v. Hajek and
Vo (2014) 58 Cal.4th 1144, 1220, disapproved on other grounds in
People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
4. Sentencing
The prosecution sought consecutive sentences for
Fortin’s convictions. The court sentenced Fortin to three
consecutive terms of 15 years to life for each section 288 lewd
conduct violation (counts 3, 4 and 8), plus 15 years to life for
sexual penetration in violation of section 288.7 (count 7).
Section 667.61 authorizes consecutive life terms for
serious sex offenses. A defendant convicted of violent acts
18
“against more than one victim” must receive a sentence of 15
years to life for each violation. (§ 667.61, subd. (e)(4); People v.
Andrade (2015) 238 Cal.App.4th 1274, 1305-1308 [defendant
properly sentenced to 13 consecutive terms of 15 years to life
pursuant to section 667.61 after attacking and raping five adult
victims].)
Fortin asks that section 667.61 “be interpreted so
that the multiple-victim circumstance can be imposed only once
for each crime victim, regardless of whether the crimes were
committed on separate occasions. We reject this argument
because it contradicts the statute’s legislative intent as
determined by the usual and ordinary meaning of the words of
the enactment. [Citations.]” (People v. Valdez (2011) 193
Cal.App.4th 1515, 1521-1522.) A qualifying offense committed
against more than one victim is considered as severe as other
aggravating factors (such as kidnapping or use of a weapon),
meriting application of multiple penalties. (Id. at p. 1522; People
v. Stewart (2004) 119 Cal.App.4th 163, 171.)
“[I]n making multiple convictions for violent sex
offenses punishable by multiple life sentences, the Legislature
was expressing the view that multiple violent sex offenses
deserve more severe punishment than a single violent sex offense
because of the predatory nature of the perpetrator.” (People v.
Murphy (1998) 65 Cal.App.4th 35, 41.) As a result, “in
sentencing a defendant convicted of committing violent sex
offenses against different victims on different occasions the one
strike law requires the trial court to impose one indeterminate
life term per victim per occasion.” (Id. at p. 38.)
Consecutive sentences are mandatory if the offenses
involve separate victims or the same victim on different
19
occasions, as listed in section 667.61, subdivision (c)(1)-(7).
(§ 667.61, subd. (i).) Notably, while the mandatory consecutive
sentence clause applies to forcible lewd acts against a child
(§ 288, subd. (b)), it does not apply to lewd acts committed
without force (§ 288, subd. (a)). (§ 667.61, subds. (c)(8), (i).)
Fortin was convicted of two non-forcible lewd acts and one
forcible lewd act.
The trial court had discretion to impose consecutive
sentences for the non-forcible lewd act convictions, but it was not
compelled to do so. (People v. Valdez, supra, 193 Cal.App.4th at
p. 1524.) “[N]othing in subdivision (i) [of section 667.61] purports
to proscribe the imposition of consecutive one strike sentences for
those whose predicate offense was under section 288, subdivision
(a). To the contrary, it merely provides a limitation on the
mandatory imposition of such terms, which by implication leaves
the decision to impose consecutive or concurrent terms to the
sentencing court’s discretion under section 669. [Citation.]”
(Ibid; People v. Valenti (2016) 243 Cal.App.4th 1140, 1178-1179;
People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262-1263.)
In this instance, the sentencing memorandum
advised the trial court that consecutive sentences are
“mandatory” for both convictions under section 288, subdivision
(a).) The court did not give any indication that it was exercising
discretion. By comparison, in People v. Valdez, supra, 193
Cal.App.4th 1515, the prosecutor argued that consecutive
sentences are not mandatory and “the court unambiguously
indicated that it was exercising its discretion” to impose
consecutive terms based on the victims’ youth, the defendant’s
position of trust, and his use of threats and intimidation.
Evidentiary support for these findings led the appellate court to
20
uphold the trial court’s imposition of consecutive sentences for
multiple violations of section 288, subdivision (a). (Valdez at p.
1524.)
Here, “[e]rror occurred because the trial court did not
realize it had discretion to impose a concurrent sentence.
‘Generally, when the record shows that the trial court proceeded
with sentencing on the erroneous assumption it lacked discretion,
remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new
sentencing hearing. [Citations.] Defendants are entitled to
“sentencing decisions made in the exercise of the ‘informed
discretion’ of the sentencing court,” and a court that is unaware
of its discretionary authority cannot exercise its informed
discretion.’ [Citation].” (People v. Woodworth (2016) 245
Cal.App.4th 1473, 1480.)
Finally, Fortin argues that his sentence violates a
proscription barring multiple punishments. (§ 654; People v.
Latimer (1993) 5 Cal.4th 1203, 1207-1208.) Section 654
“prohibits multiple punishment for a single physical act that
violates different provisions of law.” (People v. Jones (2012) 54
Cal.4th 350, 358.) Fortin committed criminal acts on separate
occasions; he is not being subjected to multiple punishments for
committing a single act. “A defendant may not bootstrap himself
into section 654 by claiming that a series of divisible acts, each of
which had been committed with a separate identifiable intent
and objective, composes an ‘indivisible transaction.’” (People v.
Massie (1967) 66 Cal.2d 899, 908.) Multiple offenses are not
subject to section 654 when “they were separated by considerable
periods of time during which reflection was possible.” (People v.
Surdi (1995) 35 Cal.App.4th 685, 689.)]]
21
DISPOSITION
The case is remanded to the trial court to resentence
Pedro Fortin on counts 3 and 4 only, to exercise its discretion to
impose concurrent or consecutive sentences, and to state on the
record the reasons for its sentencing choice. In all other respects,
the judgment is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
PERREN, J.
We concur:
YEGAN, Acting P. J.
TANGEMAN, J.
22
Raul A. Sahagun, Judge
Superior Court County of Los Angeles
____________________________________
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, Senior
Assistant Attorney General, Zee Rodriguez, Acting Supervising
Deputy Attorney General, Corey J. Robins, Deputy Attorney
General, for Plaintiff and Respondent.