Filed 6/21/10

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S170528
v.
Ct.App. 1/5 A117503
DANNY ALFRED FONTANA,
San Francisco County
Defendant and Appellant.
Super. Ct. No. 192597

Under California‘s rape shield law, specific instances of a complaining
witness‘s sexual conduct are not admissible to prove consent by the complaining
witness in a prosecution for specified sex offenses. (Evid. Code, § 1103, subd.
(c)(1).) Such evidence may be admissible, though, when offered to attack the
credibility of the complaining witness, provided that its probative value outweighs
the danger of undue prejudice and the defendant otherwise complies with the
procedures set forth in Evidence Code section 782. First, the defendant must file a
written motion and an offer of proof detailing the relevancy of the evidence. (Id.,
§ 782, subd. (a)(1), (2).) If the court finds the offer sufficient, it shall order a
hearing out of the presence of the jury to allow questioning of the complaining
witness regarding the offer of proof. (Id., § 782, subd. (a)(3).) If the court finds
the evidence relevant under section 780 and admissible under section 352, the
court may make an order stating what evidence may be introduced by the
defendant and what questions are permitted. (Id., § 782, subd. (a)(4).)
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In this case, defendant Danny Fontana filed a written motion with an offer
of proof seeking to introduce evidence of the complaining witness‘s sexual
conduct on the morning of March 5, 2003, the day on which the acts charged
against him occurred, but the trial court denied the motion without a hearing. We
find (1) that the trial court erred in failing to conduct a hearing concerning the
relevancy of the complaining witness‘s sexual conduct earlier that day as an
alternative explanation for her oral and vaginal injuries; (2) that defendant could
not have been prejudiced by the error with respect to the forcible digital
penetration count, inasmuch as the trial court eventually held a hearing in
connection with defendant‘s motion for new trial which established that the
complaining witness‘s earlier sexual conduct could not have caused her vaginal
injuries; (3) that defendant was not prejudiced by the error with respect to the oral
copulation count, inasmuch as the omission of an alternate explanation (assuming
one existed) for her oral injuries was harmless beyond a reasonable doubt; and (4)
that the trial court did not abuse its discretion in excluding evidence of the
complaining witness‘s sexual conduct earlier that day, to the extent it was offered
to corroborate defendant‘s testimony. We therefore reverse the judgment of the
Court of Appeal, which had reversed the judgment of conviction without
considering defendant‘s other appellate contentions, and remand the matter for
further proceedings.
BACKGROUND
The crimes of which defendant stands convicted occurred in his room at the
Winsor Hotel, a single-room-occupancy hotel in San Francisco, on March 5, 2003.
Irene S., who was then 19 years old and had immigrated from the Philippines two
years earlier, testified that defendant pulled her into his room, strangled her until
she lost consciousness, threatened to kill her, and forcibly penetrated her digitally
and forced her to orally copulate him. Defendant, a registered sex offender,
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admitted that he had attempted to strangle Irene but denied any sexual contact or
attempted sexual contact with her.
At the time of the charged crimes, Irene lived with her father in an
apartment on Sixth Street and was studying to be a medical assistant. On her way
to school, she regularly passed by a discount store and over time became friendly
with Aslem Shaikh, the store manager. Shaikh, who had three small children at
home, asked Irene whether she would be interested in opening and closing the
store on those occasions when he could not be there. She agreed to do so.
Because she was so small, defendant, who lived upstairs from the discount store at
the Winsor Hotel, assisted her in closing the heavy metal gate and sometimes in
opening it. Defendant behaved nicely to her and told her she was pretty.
Around 4:00 p.m. on March 5, 2003, Irene went to the discount store to
look for a cheap laptop computer for school. Defendant, who was talking with
Shaikh, claimed that he had a laptop in his room to sell but did not want to bring it
downstairs. He left the store and invited Irene to come upstairs to the hotel to see
it. Irene asked Shaikh to accompany her upstairs, but he could not leave the store
unattended. About 10 minutes after defendant left, Irene telephoned him to
inquire about the laptop, but defendant reiterated, ―[Y]ou have to get it in here.‖
Irene walked upstairs to the hotel and told the hotel manager‘s son, Amit
Patel, that she was ―just gonna be in the hallway . . . . I just want to let you
know.‖ She left her keys at the desk as security, in accordance with the hotel‘s
policy. She did not want to go into defendant‘s room and had arranged to meet
defendant at the front counter of the hotel. Defendant met her in the hallway,
pointed to his room, and said, ―I‘m just gonna grab it.‖ As Irene stood waiting,
defendant suddenly pulled her by the neck into his room and pushed her onto the
bed. Irene tried to shout, but her voice could not make a sound. Defendant picked
up a dumbbell and warned her, ―I will kill you if you scream more.‖ His hands
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continued to constrict her throat, making it difficult for her to breathe, and she
passed out.
When she woke up, she was completely naked and defendant was on top of
her. She had urinated on herself and was scared. Defendant digitally penetrated
her. She begged him not to do this, but he kept choking her and telling her he
would kill her if she did not cooperate. As he continued to choke her, she lost
consciousness a second time. She testified, ―I thought I was dead already,‖ but
she awoke to the sound of his voice. He was kissing her all over her body. He
told her to ―blow‖ him, but she had to ask him ―what it is.‖ Once he explained
what he wanted, she said ―no,‖ but he forced her to do it anyway. ―So I took a
chance that if I did it, I will still live. That‘s why I‘m still here.‖
Irene pleaded with defendant to let her go. Defendant replied, ―I don‘t
know if you‘re going to go to the police or not. But you have to do some nude
picture for me so you won‘t go to the police.‖ Irene complied because she was
afraid for her life. He took four or five pictures, and penetrated her digitally one
more time. Defendant told her he wanted her to be his girlfriend. He said he
would walk her to school every day. He told her he knew she would not go to the
police, because he would post the pictures on the Internet if she did. As Irene got
dressed, she promised herself that if she ever got out of the room, ―he will pay for
this. So he wouldn‘t do that to somebody else.‖
As defendant walked her outside the room, he repeated that he wanted her
to be his girlfriend. Irene went to the hotel manager‘s son and asked for some
water, in a very quiet voice. She whispered to him that she had been raped and
asked him to call the police. Defendant, who was about five feet away, said,
―Let‘s go,‖ and walked down the stairs with her.
When they were outside, Irene spotted Shaikh and ran to him, locking the
store door behind her. She told him defendant had raped her. Shaikh told her to
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call the police, but Irene wanted to talk to her father first, because she did not
know how soon the police would arrive or where defendant was. Her father was
not at his office when she telephoned, however, so Shaikh walked her part of the
way home, which was less than 100 yards from the store. She ran the rest of the
way to her apartment and told her father what had happened. He noticed that her
eyes were red and that there were marks on her face, and called the police.
Irene described these events to the police at her apartment, to the nurses at
the rape treatment center, and to a police inspector who interviewed her at the
hospital. Nurse Practitioner Gretchen Johnson-Gelb testified that Irene had
petechiae (broken capillaries) all over her face and scalp, a throat that was sore
inside and out, a hoarse voice, and difficulty swallowing. Irene also had an
abrasion and a bruise on her neck as well as additional petechiae and swelling
there. There was hemorrhaging in the sclera of both eyes. A laryngologist found
petechiae inside both ears all the way to her eardrums, an engorgement of blood in
her throat, and congestion of blood in her nose. Johnson-Gelb testified that these
injuries were consistent with strangulation, which can also cause involuntary
urination, and that the petechiae injuries were the worst she had ever seen in a live
person.
Johnson-Gelb observed injuries that were consistent with forcible oral
copulation: an injury to Irene‘s frenulum, which connects the tongue to the
bottom of the mouth, and two lacerations on the interior of her lower lip. There
were also injuries that were consistent with forcible digital penetration—a possible
laceration on her cervix, which was consistent with a fingernail injury, and
erythema on the cervix and right labia minora—but Johnson-Gelb was unable to
study these injuries for any length of time because Irene could not tolerate the use
of a speculum.
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Dr. Amy Hart, a forensic pathologist, confirmed that Irene‘s injuries were
consistent with strangulation, which could cause a loss of consciousness and
bladder control. Dr. Hart also stated that the condition of Irene‘s cervix was
consistent with forcible digital penetration and that her mouth injuries were
consistent with forcible oral copulation. In Dr. Hart‘s opinion, the injuries
appeared to have been created within the same three-to-five-hour window.
Amit Patel confirmed that Irene had come to the Winsor Hotel that
afternoon and that she had left her keys at the desk as collateral. At the time she
entered the hotel, defendant said that ―she‘ll only be in about five or ten minutes.‖
Patel testified that Irene actually returned between 30 and 60 minutes later and had
sunglasses on. When she asked for a glass of water, Patel could see that her eyes
were watery and her face was red. She then told him, in a low and scared voice,
that she had just been raped. Patel was shocked and did not say anything, other
than to reply that he did not have a water glass. Defendant told her, ―I‘ll buy you
some water from downstairs. Let‘s go.‖ Defendant seemed to act in a demanding
manner; he took her by the arm and led her downstairs.
About five or 10 minutes later, defendant came back to the hotel but exited
again a short time later. Patel then got a call from Shaikh to come down to the
discount store, where Irene was crying uncontrollably. She said defendant had
raped and choked her and that he had also taken photographs of her. Patel testified
that he had not heard any sounds of a struggle at the hotel.
Aslem Shaikh testified that Irene had appeared ―nice‖ and ―perfect‖ when
she left the store to go upstairs to defendant‘s room but was scared and ―totally
messed up‖ when she returned. Her eyes were red, and she was bruised. The next
morning, when Shaikh received a call from defendant, Shaikh asked why he had
raped her. Defendant said nothing and hung up. Shaikh told police that Irene had
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said defendant ―fucked her without a condom,‖ threatened to hurt her with a rock,
and put drugs in her mouth.
A swab from Irene‘s neck tested positive for the presence of saliva and
indicated the presence of DNA that was consistent with two individuals: Irene and
defendant. Vaginal swabs were also taken, but there was no match with
defendant‘s DNA profile. Urine was detected in a stain on the comforter in
defendant‘s room.
A pair of eight-pound dumbbells as well as an empty camera case were
found in defendant‘s room when it was searched by police on March 6. No
computer or laptop was found. Five nude photographs of Irene were found at the
home of defendant‘s girlfriend.
Defendant was arrested on a bus at the Greyhound station in Santa Cruz on
March 7, 2003. He had a one-way ticket in the name of ―Dan Heart‖ from Santa
Cruz to Reno, Nevada, with an intermediate stop in San Francisco.
Defendant had been convicted of rape in 1975, as well as false
imprisonment, assault with intent to commit rape, and attempting to dissuade a
witness in 1992. The prosecution offered the testimony of Nina T., who had been
the victim of the 1992 crimes. Nina testified that defendant, an employee in a
mechanic‘s shop where her car was being repaired, volunteered to give her a ride
to and from work. One day, on the pretext that her car was ready, he told her to
come to the shop and invited her up to the loft. He quickly moved on top of her
and placed a knife at her throat. He ordered her to undress and tried to penetrate
her with his partially erect penis. He asked her whether she had ever given
―head.‖ She said she had not. He said, ―Well, there‘s a first time for everything,
isn‘t there?‖ but did not follow through. He also asked whether she would prefer
it ―in your butt‖; she said no. At that point, defendant started crying. He said he
liked her and did not want to hurt her.
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Defendant, who admitted he had a propensity to commit sex offenses and
had been classified as a high-risk sex offender, testified at trial. He said that he
had been interested in opening a used-goods store after his release from prison in
2002 and had talked with Shaikh about taking over the site of the discount store.
He met Irene shortly thereafter and thought she was good at sales work and would
be helpful in the store he was planning to open. He told Irene that he had been
convicted of rape and attempted rape and had been to prison.
Defendant had been searching for a cheap laptop because Irene expressed
interest in buying one. Defendant testified that a ―guy named Rosie‖ was selling a
laptop that appeared new for only $350, so defendant made an arrangement
whereby he left his wallet and other property as collateral with Rosie in exchange
for the laptop, as well as a military flag that had caught his eye. Defendant was to
return by 6:00 p.m. on March 5, 2003, with either the merchandise or $400.
That afternoon, defendant was at the discount store talking with Shaikh
about taking over the discount store. When Irene stopped in, defendant told her
that he had found a laptop for her, but he did not want to bring it down to the store,
inasmuch as he was on parole and ―I didn‘t want to bring something that might
have been hot where other people would see me with it.‖ Defendant told Irene to
come up to his room to see it, but he had the impression she was not interested at
the time he left the store.
Irene telephoned defendant around 4:15 p.m. and asked him to bring the
laptop downstairs. He refused to do so, even though being alone in a room or
residence with a woman would also be a violation of his parole. When Irene
called again and said she was still interested in the laptop, he told her it would cost
$400 in cash. He met her at the entrance gate and they walked towards his room.
She said his room ―stunk‖ but went inside anyway. He took the laptop out of his
backpack and placed it on the bed. She turned it on and announced that she did
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not have any money; she hoped she could have the computer as an advance on
―her pay or commission when we opened the store.‖ Defendant said he did not
have money to buy the computer, either, and told her he was disappointed that she
had said she had the money and then showed up without it or the $20 she already
owed him for a hands-free headset he had obtained for her cell phone.
In response, Irene started to take off her clothes. Defendant said he
panicked and did not know what to do. When she was fully undressed and slid
back towards the head of the bed and spread her legs, though, he took off his shirt
and sat on the side of the bed next to her. He claimed he saw semen ―between her
legs in her privates‖ at that point and was ―disgusted,‖ so he got some toilet paper
and told her, ―You need to wipe yourself off.‖ He took the toilet paper into the
hall bathroom and flushed it down the toilet, claiming that he put his shirt on
before he left and removed it when he came back. He did not know why he did so.
Irene, who had put her panties back on at this point, came to the edge of the
bed, started undoing defendant‘s belt, and asked whether she could have the
computer now. Defendant believed it was obvious she was offering him sex, so he
backed away and took his camera out of a drawer to take pictures of her.
Defendant claimed he did this to prevent any false accusations and to prove that he
did not do anything to her. While he was taking pictures, Irene unfastened his
trousers, pulled out his penis, and moved her mouth close to it. Because defendant
has had a lifelong fear of his penis being bitten off, though, he dropped the camera
and grabbed her by the neck around her throat.
After he let go, Irene complained, ―You made me pee myself,‖ got dressed,
and vowed that ―she was going to get me, she was going to make me pay.‖ He
pulled up his pants, put on a shirt, and followed her out of the room. He told her
he would get her some water at the store downstairs and walked outside with her.
He urged her not to tell any lies about him: ―If you‘re going to tell somebody I
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grabbed you by the neck, do that, but don‘t lie.‖ He denied having intercourse (or
attempting to) and also denied digitally penetrating her. Irene went to the discount
store while defendant went to a liquor store to buy cigarettes and water, but Irene
shook her head when he walked back to the discount store and offered her the
bottled water. Defendant returned to his room, panicked, and looked for his
camera, which he believed was proof he had done nothing wrong. He put the
camera and laptop in his backpack, returned the computer and flag to Rosie, and
headed out to the beach, where he spent the night. He called Shaikh the next
morning and denied raping Irene.
Defendant went downtown to the Caltrain station and bought a ticket to San
Jose. He got off in Sunnyvale, though, walked along Highway 17, and ended up
in Santa Cruz, where he gathered his thoughts and decided to try to get back to
San Francisco. To do that, he needed money, so he stopped at a church and
offered to perform some labor to earn the money for a return bus ticket. The priest
gave him a ride to the bus station, where defendant bought a ticket to San
Francisco. Later, however, defendant ―started getting panicky again‖ and
exchanged it for a ticket to Reno. Defendant used his mother‘s maiden name on
the ticket. He received a phone call from a member of the San Francisco Police
Department telling him to turn himself in, but defendant hung up and removed his
cell phone battery. In the meantime, he picked up $40 his father had wired to him
at his request. Defendant was arrested on the bus before it left Santa Cruz.
Reginald Ford, who was also a resident at the Winsor Hotel, testified that
he saw defendant and a young, short, Asian woman talking outside defendant‘s
room on March 5. The door to the room was open. When Ford came back from
the bathroom less than a minute later, they were gone. He did not know whether
they went inside, and he did not hear any noises coming from the room as he
passed by.
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Father Philip Vincent Massetti testified that he paid defendant $20 for
helping weed a flower bed on March 7 and gave defendant a ride to the bus station
in Santa Cruz.
Dr. Marc Snyder, medical director of the emergency department at St.
Luke‘s Hospital, examined a photograph from the speculum examination of Irene.
He did not observe a laceration of the cervix and opined that the cervix‘s condition
could be a normal variant or the result of an infection. He agreed that Irene‘s
other injuries indicated she had been strangled.
At the time of these events, Irene was five feet and one inches tall and
weighed a little over 100 pounds; defendant was six feet tall and weighed 190
pounds.
Following a jury trial, defendant was convicted of forcible digital
penetration (Pen. Code, § 289, subd. (a)), forcible oral copulation (id., § 288a,
subd. (c)(2)), and assault with intent to commit rape, digital penetration, and oral
copulation (id., § 220), all by use of a deadly weapon (id., § 12022.3, subd. (a)).
The jury determined that defendant had previously been convicted of a sex offense
within the meaning of the One Strike law (Pen. Code, § 667.61, subds. (d)(1) &
(e)(4)) and, in a bifurcated proceeding, found that defendant had suffered two prior
serious felony convictions. (Id., §§ 667, subd. (a), 1170.12.) The court sentenced
defendant to a prison term of 75 years to life plus a determinate term of 14 years
for forcible oral copulation.
The Court of Appeal reversed, finding that the trial court had erred in
excluding evidence of Irene‘s consensual sexual encounter earlier that day, which
could have provided an alternative explanation for injuries to Irene allegedly
inflicted during the sexual assault and which could have corroborated defendant‘s
testimony that he saw semen between her legs. The court determined that
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evidence of Irene‘s sexual conduct earlier that day was not barred by Evidence
Code section 1103, subdivision (c)(1) or by Evidence Code section 352.
We granted the People‘s petition for review.
DISCUSSION
Defendant claims error from the exclusion of evidence that the victim, Irene
S., had consensual sex earlier in the day of March 5, 2003. The relevance of this
evidence, he asserts, is twofold: (1) evidence of the victim‘s sexual conduct
earlier that day would have provided an alternative explanation for the injuries to
her mouth and cervix, and (2) evidence of the victim‘s sexual conduct earlier that
day would have corroborated his testimony that he saw semen ―between her legs
in her privates‖ when she spread her legs on his bed. The trial court excluded this
evidence in its entirety. The Court of Appeal found that the evidence was
admissible on both grounds, that the exclusion of this evidence deprived defendant
of due process and of his federal constitutional right to present a defense, and that
the error was prejudicial.
Evidence of the sexual conduct of a complaining witness is admissible in a
prosecution for a sex-related offense only under very strict conditions. A
defendant may not introduce evidence of specific instances of the complaining
witness‘s sexual conduct, for example, in order to prove consent by the
complaining witness. (Evid. Code, § 1103, subd. (c)(1).) Such evidence may be
admissible, though, when offered to attack the credibility of the complaining
witness and when presented in accordance with the following procedures under
section 782: (1) the defendant submits a written motion ―stating that the defense
has an offer of proof of the relevancy of evidence of the sexual conduct of the
complaining witness proposed to be presented and its relevancy in attacking the
credibility of the complaining witness‖ (id., § 782, subd. (a)(1)); (2) the motion is
accompanied by an affidavit, filed under seal, that contains the offer of proof (id.,
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subd. (a)(2)); (3) ―[i]f the court finds that the offer of proof is sufficient, the court
shall order a hearing out of the presence of the jury, if any, and at the hearing
allow the questioning of the complaining witness regarding the offer of proof
made by the defendant‖ (id., subd. (a)(3)); and (4) if the court, following the
hearing, finds that the evidence is relevant under Evidence Code section 780 and is
not inadmissible under section 352, then it may make an order stating what
evidence may be introduced by the defendant and the nature of the questions to be
permitted. (Id., § 782, subd. (a)(4).)
The Legislature‘s purpose in crafting these limitations is manifest and
represents a valid determination that victims of sex-related offenses deserve
heightened protection against surprise, harassment, and unnecessary invasions of
privacy. (People v. Rioz (1984) 161 Cal.App.3d 905, 916-917; accord, Michigan
v. Lucas (1991) 500 U.S. 145, 149-150.) By affording victims protection in most
instances, these provisions also encourage victims of sex-related offenses to
participate in legal proceedings against alleged offenders. (Letwin, ―Unchaste
Character‖: Ideology, and the California Rape Evidence Laws (1980) 54 So.Cal.
L.Rev. 35, 40 (Letwin); accord, Advisory Com. Note to Fed. Rules Evid., rule
412, 28 U.S.C.) Accordingly, our courts have properly exercised the discretion
afforded by Evidence Code section 782 ―narrowly‖ (People v. Chandler (1997) 56
Cal.App.4th 703, 708), and we emphasize that ―[g]reat care must be taken to
insure that this exception to the general rule barring evidence of a complaining
witness‘ prior sexual conduct . . . does not impermissibly encroach upon the rule
itself and become a ‗back door‘ for admitting otherwise inadmissible evidence.‖
(People v. Rioz, supra, 161 Cal.App.3d at pp. 918-919.)
The parties agree that Evidence Code section 1103, subdivision (c)(1) does
not bar evidence of the complaining witness‘s prior sexual conduct when offered
to explain injuries the prosecution alleges were the result of the defendant‘s
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conduct. The parties further agree that such evidence may be admissible under
section 782, provided that the evidence of the complaining witness‘s prior sexual
conduct is relevant under section 780 and is not barred by section 352. We
concur. In such circumstances, ―it is not the fact of prior sexual activity as such
that is important, but something about the special circumstances under which that
prior sexual activity took place that renders it important.‖ (Letwin, supra, 54 So.
Cal. L.Rev. at p. 71.) Where the prosecution has attempted to link the defendant
to physical evidence of sexual activity on the complainant‘s part, ―the defendant
should unquestionably have the opportunity to offer alternative explanations for
that evidence, even though it necessarily depends on evidence of other sexual
conduct.‖ (Id. at p. 81, fn. omitted.) Indeed, this is the rule not only in the federal
courts (Fed. Rules Evid., rule 412(b)(1)(A), 28 U.S.C.), but is generally the rule in
those states that have enacted rape shield statutes. (Colo. Rev. Stat. § 18-3-
407(1)(b); Conn. Gen. Stat. § 54-86f; D.C. Code § 22-3022(a)(2)(A); Fla. Stat.
§ 794.022(2); Haw. Rev. Stat. § 412(b)(2)(A); 735 Ill. Comp. Stat. 5/8-
2801(b)(1)(A); Ind. Rules Evid., rule 412(a)(2); Iowa Rules Evid., rule
5.412(b)(2)(A); Ky. Rules Evid., rule 412(b)(1)(A); La. Code Evid., art.
412(B)(1); Me. Rules Evid., rule 412(b)(1); Md. Code Ann., Crim. Law § 3-
319(b)(4)(ii); Mass. Gen. Laws, ch. 233, § 21B; Mich. Comp. Laws
§ 750.520j(1)(b); Minn. Rules Evid., rule 412(1)(B); Miss. Rules Evid., rule
412(b)(2)(A); Mo. Rev. Stat. § 491.015(1); Mont. Code Ann. § 45-5-511(2); Neb.
Rev. Stat. § 28-321(2)(A); N.J. Stat. Ann. § 2C:14-7(c); N.Y. Crim. Proc. Law §
60.42(4); N.D. Rules Evid., rule 412(b)(1); Ohio Rev. Code Ann. § 2907.02(D);
Okla. Stat. tit. 12, § 2412(B)(1); Or. Rev. Stat. § 40.210(2)(b)(B); S.C. Code Ann.
§ 16-3-659.1(1); Tenn. Rules Evid., rule 412(c)(4)(i), (ii); Tex. Rules Evid., rule
412(b)(2)(A); Utah Rules Evid., rule 412(b)(1); Vt. Stat. Ann. Tit. 13,
§ 3255(a)(3)(B); Va. Code Ann. § 18.2-67.7(A)(1); Wis. Stat. § 972.11(2)(b)(2);
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see also Oswald v. State (Alaska Ct.App. 1986) 715 P.2d 276, 278, overruled on
other grounds as noted in Yearty v. State (Alaska Ct.App. 1991) 805 P.2d 987,
995, fn. 3; State ex rel. Pope v. Superior Court (Ariz. 1976) 545 P.2d 946, 953;
State v. Cunningham (Idaho 1976) 551 P.2d 605, 609; Johnson v. State (Nev.
1997) 942 P.2d 167, 171; State v. LaClair (N.H. 1981) 433 A.2d 1326, 1329;
Com. v. Majorana (Pa. 1983) 470 A.2d 80, 84-85); State v. Cosden (Wn.Ct.App.
1977) 568 P.2d 802, 806; Pack v. State (Wyo. 1977) 571 P.2d 241, 245.)
The Court of Appeal determined that defendant‘s offer of proof was
sufficient to warrant a hearing, that the trial court erred in failing to conduct a
hearing to investigate Irene‘s sexual conduct on March 5, that the trial court
abused its discretion in excluding evidence of Irene‘s sexual conduct, and that the
exclusion of this evidence was prejudicial under Chapman v. California (1967)
386 U.S. 18. We find that the Court of Appeal was mistaken in part and reverse.
A. Proceedings Below
Prior to jury selection, the district attorney filed a motion to exclude any
reference to ―Irene‘s consensual sexual activities with her boyfriend earlier in the
day of the incident, and the presence of semen in Irene‘s vagina.‖ The court
agreed that evidence of Irene‘s sexual conduct was barred by the rape shield law
but told the defense, ―If you think at some point you‘ve amassed sufficient
evidence for me to change my ruling on the rape shield law, just approach and I
will take a look at it and be able to evaluate what the actual testimony is at the
time and see where we‘re going to go.‖
In opening statement, defense counsel announced that defendant was not
going to contest Irene‘s testimony that he strangled her or that he took
photographs of her that day.
Nurse Practitioner Johnson-Gelb opined that Irene‘s injuries, taken as a
whole, were consistent with a sexual assault and that the strangulation led her to
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believe the sexual acts were not consensual. However, she also testified that the
arc-shaped laceration on Irene‘s cervix could have been caused by consensual
digital penetration. Dr. Hart, the forensic pathologist, testified that Irene‘s injuries
were consistent with a sexual assault and had the appearance of having been
inflicted around the same time or within a three-to-five-hour timeframe, but said
on cross-examination that the injuries to Irene‘s mouth and cervix could also be
consistent with voluntary sexual activity.
After these witnesses testified, defendant filed a written motion and
declaration under Evidence Code section 782 renewing his request to admit
Irene‘s statements that she had had ―sexual contact‖ with a third party on the day
of the alleged attack. The motion noted the expert testimony of Dr. Hart that the
victim‘s injuries were inflicted ―within the same day,‖ posited that ―the sexual and
oral injuries could have happened several hours before the incident with
[defendant],‖ and argued that evidence of Irene‘s sexual conduct earlier that day
was therefore relevant as to whether ―each alleged sexual assault in fact occurred‖
and whether ―an individual other than the defendant was responsible for the sexual
injuries to the victim.‖ The motion argued that evidence of Irene‘s sexual conduct
that day ―supports a circumstantial inference that a person other than defendant
digitally penetrated and copulated her prior to meeting the defendant [sic], and that
her testimony that the defendant digitally penetrated and orally copulated her is
not believable.‖
At the hearing on this motion, defense counsel reiterated that ―[w]e‘re
talking about, first of all, whether acts occurred, we‘re talking about when acts
occurred, and we‘re talking about the identity or possible identity of a person who
inflicted what had been testified to as injuries that were observed in a medical
examination and from photographs in this case,‖ since ―[e]ither[]or both of those
[mouth and cervical injuries] could have happened a period of hours before Miss
16

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Irene came in contact with [defendant] that day, and that‘s totally parallel with her
statement at the hospital that she had two sexual encounters the very same day that
she has testified that she was abused by [defendant].‖ Counsel contended that
excluding the evidence of Irene‘s sexual conduct would violate Evidence Code
section 782 as well as his federal rights to cross-examine witnesses, due process,
and a fair trial.
The trial court denied the motion. It admitted that ―the most persuasive‖
part of the motion was the tendency of this evidence to provide an ―innocent
explanation‖ for the injuries to Irene‘s vagina and cervix, which ―might have
compelling force in this motion, if that was the only evidence of force.‖ But in
this case, the court went on, evidence of these injuries was on its own ―not very
strong against your client‖ with respect to the issue of force, nor was it a
―substantial part‖ of the People‘s case, in light of ―all the rest of the evidence
regarding . . . the tremendous application of force causing her lack of
consciousness.‖ Accordingly, ―the need to go into this and establish that yes,
indeed, she did have consensual sexual relations, diminishes quite a bit.‖
B. The Asserted Error Relating to the Exclusion of Evidence of Irene’s
Prior Sexual Conduct as an Alternative Explanation for Her Injuries
The Attorney General‘s principal argument against the admission of Irene‘s
prior sexual conduct as an alternative explanation for the injuries to her mouth and
cervix is that defendant forfeited the claim by failing to alert the trial court of the
precise theory for admission of the evidence. (Evid. Code, § 354, subd. (a).) The
record, however, reveals that the substance, purpose, and relevance of the
excluded evidence were made known to the court. As set forth above, defendant‘s
motion argued that Irene‘s nonstrangulation injuries could have been the product
of her sexual activity earlier that day. Indeed, the trial court recognized that the
defense sought to offer Irene‘s sexual activity as ―an innocent explanation‖ for her
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vaginal injuries and characterized that as ―the most persuasive point‖ in the
motion.
The real reason the trial court excluded the evidence was, as the Attorney
General acknowledges, because it believed ―the defense had no compelling need
to provide an innocent explanation for the condition of Irene‘s genitalia because
such an explanation would not negate the more powerful evidence of sexual
assault—the strangulation.‖ The Attorney General concedes that this reasoning
was ―flawed,‖ but assigns the blame for any confusion to defendant himself, who,
he argues, ―did not assert that appellant would admit to strangling Irene and,
therefore, that the defense could distinguish between (1) Irene‘s injuries caused by
an assault that appellant would admit and (2) Irene‘s injuries caused by a sexual
assault that appellant would deny.‖ We disagree. At the time of the motion,
defense counsel had already announced in opening statement that the defense
would not be contesting the strangulation. We therefore conclude that defendant
adequately informed the court of the substance, purpose, and relevance of the
evidence of Irene‘s prior sexual activity.
Defendant argues, and the Court of Appeal found, that the trial court erred
in failing to conduct a hearing to investigate Irene‘s sexual conduct that day.
Evidence Code section 782, subdivision (a)(3) provides that a court ―shall order a
hearing out of the presence of the jury‖ and ―allow the questioning of the
complaining witness‖ concerning the witness‘s prior sexual conduct ―[i]f the court
finds that the offer of proof is sufficient.‖ We find that the offer of proof was
sufficient. There was expert testimony that the injuries to Irene‘s cervix and to her
mouth could have been caused by consensual sex and that these injuries could
have been inflicted three to five hours before the strangulation injuries. The
testimony of other witnesses indicated that the strangulation injuries must have
been inflicted sometime between 4:30 and 5:30 p.m.—meaning that Irene could
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have suffered the injuries to her mouth and cervix through consensual sex that
occurred as early as 11:30 a.m. Irene had reportedly told a nurse at the rape
treatment center that she had had consensual sex earlier that day, and she had
apparently explained to the prosecutor that this had occurred with her boyfriend
sometime that morning.
Taken together, this evidence offered the possibility that the condition of
Irene‘s cervix and mouth could have been explained by her consensual activity
with her boyfriend that morning. If credited, this chain of reasoning could have
created a reasonable doubt as to defendant‘s guilt of the sex-related offenses. The
trial court should have conducted a hearing to permit defendant to establish the
truth of the hearsay reports of Irene‘s sexual activity that day and the timing of
that activity, and to explore the possible connection between that activity and the
condition of Irene‘s mouth and cervix as viewed at the hospital that evening.
The failure to conduct the hearing was assuredly harmless as to the cervical
injuries, however, inasmuch as the trial court did ultimately conduct a hearing as
to those injuries after defendant filed a motion for new trial based on the exclusion
of the evidence of Irene‘s sexual activity earlier that day. Although the court had
already determined that the exclusion of this evidence was not error with respect
to the digital penetration count, it decided to allow the victim to be examined ―to
reduce the scope of speculation by this court or others or any other court regarding
the issue of prejudice, and to complete the record thereon.‖ This hearing, which
was closed to all but counsel and court staff, was limited to exploring the
relationship between ―the morning consensual sex‖ and Irene‘s vaginal injuries.
At the hearing, Irene testified that she and her boyfriend had had sex that morning
twice between 9:00 a.m. and noon, that he did not insert any foreign object inside
her, and that he did not do anything that might have cut or injured her cervix.
Because the evidence at the posttrial hearing rebutted the defense theory of
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relevance, we can conclude that the failure to conduct the hearing during the trial
was harmless, in that the record now shows that the trial court did not abuse its
discretion at trial in excluding the evidence of Irene‘s sexual conduct. (United
States v. Azure (8th Cir. 1988) 845 F.2d 1503, 1505-1506.) The Court of Appeal
erred in ruling otherwise.
No hearing was ever held to determine whether Irene‘s earlier sexual
activity could have accounted for her oral injuries, however. The Attorney
General contends that defendant‘s offer was insufficient to justify a hearing with
respect to the oral injuries because the offer did not itself contain evidence that the
earlier sexual activity had encompassed oral copulation. We do not believe that
this was fatal to defendant‘s claim. The offer of proof was not a fishing
expedition. Rather, defendant identified a specific basis, consisting of hearsay
recorded in hospital records and statements relayed by the prosecutor, for
believing that Irene had engaged in sexual activity during the relevant time period.
The record does not contain Irene‘s original statements, but both parties variously
referred to Irene‘s sexual ―activities,‖ ―experience,‖ ―encounters,‖ and
―intercourse.‖ These terms are broad enough to encompass oral sex. Even if they
were not, there is no indication in the record that Irene‘s statement at the hospital
was intended to be an exhaustive catalog of her sexual activity that day.
Accordingly, we agree with the Court of Appeal that the trial court erred in failing
to conduct a hearing under Evidence Code section 782 to investigate whether
Irene‘s prior sexual activity could have provided an alternative explanation for her
oral injuries.1

1
The Attorney General‘s reliance on United States v. Payne (9th Cir. 1991)
944 F.2d 1458 as contrary authority is misplaced. The victim in Payne had been
found in a state of partial undress engaged in heavy petting in a trailer, and the

(footnote continued on next page)
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However, even if one were to assume that a hearing would have established
the existence and relevance of oral sexual conduct by the victim earlier that day,
the exclusion of such evidence was harmless under any standard. The jury found
beyond a reasonable doubt that defendant digitally penetrated the victim, as the
victim had testified and contrary to defendant‘s testimony that he had no sexual
contact with the victim at all. In making this finding, the jury necessarily rejected
defendant‘s claim that he had lashed out violently (but not sexually) at the victim
because of his lifelong fear of having his penis bitten off during oral sex.
Moreover, defendant‘s testimony about his lifelong fear of oral sex was
thoroughly rebutted by his admissions that he had demanded oral sex from Nina T.
in 1992 and that he engaged in oral sex with his current girlfriend. Because
defendant has offered no other basis on which the jury could have credited Irene‘s
testimony that defendant forcibly penetrated her digitally but would have
disbelieved her testimony that defendant forced her to orally copulate him, any
error in excluding evidence of her prior sexual conduct was harmless beyond a
reasonable doubt.

(footnote continued from previous page)

defense sought to admit the incident as an alternate explanation for the condition
of the victim‘s hymen and vagina. (Id. at pp. 1468-1469.) In finding that Payne
had ―failed to establish any likelihood that the activity alleged to have taken place
during the trailer incident could provide an alternative explanation of the medical
evidence,‖ the court noted (1) that Payne had offered no expert testimony that
digital penetration could explain the condition of the victim‘s hymen and vagina,
and (2) that ―[n]obody, including Payne, allege[d] that [the victim] engaged in
sexual intercourse in the trailer.‖ (Id. at p. 1469.) Here, by contrast, defendant did
offer expert testimony that consensual oral copulation could explain the victim‘s
oral injuries and did identify a specific, articulable basis for inquiring whether
Irene had engaged in such conduct that morning.
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C. The Asserted Error Relating to the Exclusion of Evidence of Irene’s
Prior Sexual Conduct as Corroboration for Defendant’s Testimony
Defendant contends that the trial court erred also in excluding evidence that
Irene had engaged in intercourse earlier that day, which could have corroborated
his testimony that he saw semen ―between her legs in her privates‖ when she was
in his room. In excluding this evidence, the trial court remarked that the alleged
conduct ―was earlier in the day. As such, it‘s not specifically corroborative of the
defendant‘s claim of visible semen in the afternoon at 4:00. . . . [¶] . . . [¶]
Furthermore, it‘s offered to apparently corroborate the defendant‘s utterly fantastic
and inherently unbelievable and incredible claim that the complaining witness on
her own initiative, despite refusing to come up before, on her own initiative came
up to the defendant‘s room after recent sex with [her] boyfriend and without
drying herself in a condition where she would be uncomfortable, wet and
unappealing, where her object was apparently to trade sex for a laptop because she
didn‘t have any money, and in achieving that object, she was to present herself to
the defendant. In that condition, she would be presenting herself to the defendant
in an obviously unappealing and unattractive condition, which would have the
direct effect of defeating the very object of her visit. [¶] On this record, the court
does not feel that there has been a sufficient showing that would require the court
to exercise its discretion to allow in the testimony regarding her consensual sexual
activities that day. [¶] So, this is sort of equivalent to a man essentially walking
around with damp jockey shorts with the object of being desirable to a woman
with whom he didn‘t have a close relationship.‖ The Court of Appeal, on the
other hand, found that the evidence was relevant to corroborate defendant‘s
testimony that he saw semen ―in her privates‖ and concluded that the trial court
had abused its discretion in rejecting defendant‘s version of events as incredible
and unworthy of belief. We find no abuse of discretion by the trial court.
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The probative value of the corroborating evidence was slight at best. Even
if a fact finder were to fully credit defendant‘s testimony that he saw semen ―in
her privates,‖ that fact would not have shed much light one way or the other as to
whose version of the events, defendant‘s or Irene‘s, was the true one. Under either
version of what occurred, Irene was naked, thus affording defendant the
opportunity to see ―her privates.‖ Yet the presence of semen would have tended
to undermine defendant‘s account since, as the trial court stated, if Irene had
plotted to entice defendant into giving her the laptop in exchange for sex, one
would expect that she would have taken at least the most minimal steps to make
herself desirable. Likewise, defendant testified that he took off his shirt and
approached Irene even after he had observed her condition—which is presumably
the opposite of how one would have acted if he had seen semen ―in her privates‖
and had become disgusted.
Moreover, as the trial court also found, defendant‘s claim that there was
visible semen ―in her privates‖ several hours after Irene had intercourse and
despite her having worn panties in the interim defies gravity and common sense,
and defendant offered no medical foundation that could link his observations to
her prior conduct. (Smith v. State (Md.Ct.Spec.App. 1987) 524 A.2d 117, 128.)
The trial court thus rejected the offer not because it found defendant to be a
witness who was not credible, but because the link defendant was attempting to
draw between Irene‘s conduct and the visible condition of ―her privates‖ several
hours later was unbelievable. (See Wilson v. State Personnel Bd. (1976) 58
Cal.App.3d 865, 877-878.) The probative value of evidence that is inherently so
improbable as to be unworthy of belief—or evidence that is very close to that
level—is obviously quite low. (People v. Casas (1986) 181 Cal.App.3d 889, 897.)
The potential prejudice of this evidence, on the other hand, was substantial.
(United States v. One Feather (8th Cir. 1983) 702 F.2d 736, 739 [the policy of the
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rape shield law ―to guard against unwarranted intrusion into the victim‘s private
life[] may be taken into account in determining the amount of unfair prejudice‖].)
For some jurors, the fact that the victim has engaged in sexual conduct outside of
marriage automatically suggests a receptivity to the activity or is proof that the
victim got what she deserved—neither of which is a rational or permissible
inference. (United States v. Kasto (8th Cir. 1978) 584 F.2d 268, 271-272.) In
addition, the Legislature has determined that victims of sexual assault require
greater protections beyond those afforded other witnesses against surprise,
harassment, and unnecessary invasion of privacy (see generally Government of
Virgin Islands v. Scuito (3d Cir. 1980) 623 F.2d 869, 875-876), and defendant‘s
inquiry would have violated those interests, particularly the state interest ―to
encourage reporting by limiting embarrassing trial inquiry into past sexual
conduct.‖ (Wood v. Alaska (9th Cir. 1992) 957 F.2d 1544, 1552.)
Finally, defendant had little need to establish that Irene had actually
engaged in sex that day in order to support his contention that he was disgusted by
the appearance of ―her privates,‖ since it can be difficult to distinguish visually
between seminal fluid and cervical mucus, which is a normal discharge that
increases around the time of ovulation. (Carlson et al., The New Harvard Guide to
Women‘s Health (2004) p. 403.) Defendant‘s testimony depended on his belief
that what he saw was seminal fluid, and counsel made precisely that point in
argument: ―Maybe it wasn‘t. He didn‘t have a microscope. It might not have
been. It might have been a normal female secretion that gave that appearance . . . .
[¶] . . . [¶] He did testify that that‘s what it was, and that‘s what he thought it
was.‖ Hence, he had little need for proof that what he observed was actually
semen.
Under these circumstances, we cannot say that the trial court abused its
discretion in excluding the evidence that Irene had engaged in sexual intercourse
24

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earlier that day. We likewise reject defendant‘s claim that this ruling deprived him
of his right to confront witnesses or his right to present a defense. (People v.
Fudge (1994) 7 Cal.4th 1075, 1103.)

DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is
remanded for further proceedings consistent with this opinion.
BAXTER, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J

25

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Fontana
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 1/13/09 – 1st Dist., Div. 5
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S170528
Date Filed: June 21, 2010
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Jerome T. Benson

__________________________________________________________________________________

Attorneys for Appellant:

Alan A. Dressler for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A.
Engler, Assistant Attorney General, Rene A. Chacon, Laurence K. Sullivan and Jeremy Friedlander,
Deputy Attorneys General, for Plaintiff and Respondent.

K&L Gates, Jeffrey L. Bornstein, Holly Hogan, Alice Y. Ahn and Megan F. Cesare-Eastman for Bay Area
Women Against Rape, San Francisco Women Against Rape, Community Violence Solutions, Cooperative
Restraining Order Clinic and National Crime Victim Law Institute as Amici Curiae on behalf of Plaintiff
and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Alan A. Dressler
400 Montgomery Street, Suite 200
San Francisco, CA 94104
(415) 421-7980

Jeremy Friedlander
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5974

---

Petition for review after the Court of Appeal reversed a judgment of conviction of criminal offenses. This case presents the following issue: Did the CA correctly hold (a) that the protections of the rape shield law (Evid. Code, ?? 782, 1103) did not apply in this case due to defendant's denial that he had sexual intercourse with the victim and (b) that the trial court thus committed reversible error when it excluded evidence that the victim had engaged in consensual sexual intercourse with her boyfriend on the morning of the alleged sexual assault?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Mon, 06/21/2010	49 Cal. 4th 351, 232 P.3d 1187, 111 Cal. Rptr. 3d 1	S170528	Review - Criminal Appeal	opinion issued

Opinion Authors
Opinion	Justice Marvin R. Baxter

Disposition
Jun 21 2010	Opinion: Reversed

Dockets
Feb 13 2009	Petition for review filed   The People, respondent by Jeremy Friedlander, Deputy Attorney General
Feb 17 2009	Record requested
Feb 19 2009	Received Court of Appeal record   one file folder/briefs/seal/one full box
Mar 25 2009	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including May 14, 2009, or the date upon which review is either granted or denied.
Apr 15 2009	Petition for review granted   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
May 14 2009	Opening brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Jeremy Friedlander
Jun 9 2009	Request for extension of time filed   appellant is requesting a 30 day extension of time, until July 14, 2009, to file the answer brief on the merits, by Alan Dressler, Counsel
Jun 16 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the appellant's Answer Brief on the Merits is hereby extended to and including July 14, 2009.
Jun 16 2009	Motion filed   to expand issues on review. by Danny Alfred Fontana, appellant by Alan Dressler, counsel
Jul 8 2009	Request for extension of time filed   Appellant requesting extension until august 13, 2009 to file answer brief on the Merits. by Alan A. Dressler
Jul 10 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 13, 2009.
Jul 29 2009	Request for extension of time filed   Appellant - Danny Alfred Fontant requesting extension until September 14, 2009 to file answer brief on the merits. by Alan Dressler, counsel
Jul 31 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 14, 2009.
Aug 12 2009	Order filed   Appellant's motion to expand the issues on review, filed on June 16, 2009, is denied. Moreno and Corrigan, JJ., were absent and did not participate.
Sep 14 2009	Answer brief on the merits filed Defendant and Appellant: Fontana, Danny AlfredAttorney: Alan A. Dressler
Oct 2 2009	Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Jeremy Friedlander
Nov 2 2009	Application to file amicus curiae brief filed   Bay Area Women Against Rape, San Francisco Women Against Rape, Community Violence Solutions, Cooperative Restraining Order Clinic and National Crime Victim Law Institute in support of appellent. by Jeffrey L. Bornstein, counsel
Nov 5 2009	Permission to file amicus curiae brief granted   Bay Area Women Against Rape, San Francisco Women Against Rape, Community Violence Solutions, Cooperative Restraining Order Clinic and National Crime Law Institute in support of appellant. by Jeffrey Bornstein, counsel
Nov 5 2009	Amicus curiae brief filed Amicus curiae: Bay Area Women Against RapeAttorney: Jeffrey L. Bornstein   The application of Bay Area Women Against Rape, San Francisco Women Against Rape, Community Violence Solutions, Cooperative Restraining Order Clinic and National Crime Law Institute for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Nov 9 2009	Received:
Nov 13 2009	Note: Mail returned (unable to forward)   Jeffrey L. Bornstein - envelope indicated undeliverable address
Nov 24 2009	Response to amicus curiae brief filed Defendant and Appellant: Fontana, Danny AlfredAttorney: Alan A. Dressler
Mar 30 2010	Case ordered on calendar   to be argued on Tuesday, May 4, 2010, at 1:30 p.m., in San Francisco
Apr 28 2010	Letter sent to:   each non-amicus party counsel appearing at oral argument, from the Clerk of the Court: "The court has asked me to inform counsel in cases that will be argued at the May 3-6, 2010, oral argument calendar in San Francisco that Justice Joyce L. Kennard will be unable to be present at argument due to unexpected surgery. Upon stipulation of all parties in a case, Justice Kennard will participate in the deliberations and decision in this matter by reviewing the complete videotape recording of the argument and considering all of the written materials in each case. In the absence of the court's receipt of a written stipulation by all parties in a case, the court will decide whether to continue the matter to a future oral argument calendar or to ask the Chief Justice to assign a justice pro tempore who will participate in place of Justice Kennard at the May 3-6, 2010, sessions. "Please telephonically inform Steve Rockwell, Senior Deputy Clerk, at (415) 865-7011 as soon as possible whether the party(ies) you represent will or will not stipulate to Justice Kennard's participation in the case, even though she will not be present at oral argument. Please execute the attached written stipulation and returning it by fax on or before Friday, April 30, 2010. Submit the original signed stipulation to the court either by overnight mail or by bringing the document to the court on the day of argument."
Apr 29 2010	Stipulation filed   Stipulation by counsel Alan A. Dressler, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
Apr 29 2010	Stipulation filed   Stipulation by counsel Jeremy Friedlander, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 4 2010	Cause argued and submitted
Jun 18 2010	Notice of forthcoming opinion posted   To be filed Monday, June 21, 2010 at 10 a.m.
Jun 21 2010	Opinion filed: Judgment reversed   The judgment of the Court of Appeal is reversed, and the matter is remanded for further proceedings consistent with this opinion. Opinion by Baxter, J. -----joined by George, C.J., Kennard, J., Werdegar, J., Chin, J., Moreno, J., Corrigan, JJ

Briefs
May 14 2009	Opening brief on the merits filed Plaintiff and Respondent: The PeopleAttorney: Jeremy Friedlander
Sep 14 2009	Answer brief on the merits filed Defendant and Appellant: Fontana, Danny AlfredAttorney: Alan A. Dressler
Oct 2 2009	Reply brief filed (case fully briefed) Plaintiff and Respondent: The PeopleAttorney: Jeremy Friedlander
Nov 5 2009	Amicus curiae brief filed Amicus curiae: Bay Area Women Against RapeAttorney: Jeffrey L. Bornstein
Nov 24 2009	Response to amicus curiae brief filed Defendant and Appellant: Fontana, Danny AlfredAttorney: Alan A. Dressler

Brief Downloads
Opening Brief on the Merits.pdf (239238 bytes)
Reply Brief on the Merits.pdf (217972 bytes)
Amicus Curiae Brief.pdf (1284915 bytes)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jul 5, 2011 Annotated by colin mcdonell

Facts Defendant Danny Fontana invited Irene S. to his hotel room to sell her a laptop computer. She met him in the hallway outside of his room, where he forcibly pulled her into the room, threatened her with a dumbbell, strangled her, digitally penetrated her, and forced her to orally copulate him. He then took nude pictures of her and threatened to post them online if she went to the police. According to Defendant’s testimony at trial, Irene went willingly into his room, informed him that she did not have enough money to purchase the computer, and then began to undress and attempt to seduce him. He claimed that he saw semen “between her legs” and was “disgusted.” Defendant then took pictures of her to prevent false accusations that he did anything with her. After Irene partially undressed him and attempted to orally copulate him, he grabbed her by the neck because of a lifelong fear of his penis being bitten off. He denied digitally penetrating her. Medical professionals who later examined Irene testified that she had injuries consistent with sexual assault and strangulation, but that the injuries to her mouth and cervix could also be consistent with voluntary sexual activity. Irene had reportedly told the nurse that she had consensual sex with someone else earlier in the day, and later told the prosecutor that it had occurred with her boyfriend. Defendant was later arrested on a bus, with a one-way ticket out of the state. He had previously been convicted of several crimes, including rape and assault with intent to commit rape. Procedural History Prior to jury selection at trial, the court ruled that references to Irene’s consensual sexual activities with her boyfriend were barred by California Evidence Code section 1103(c). Defendant later moved under Evidence Code section 782 to admit Irene’s statements that she had sexual contact with her boyfriend the day of the alleged attack, to support the inference that her injuries were caused by someone other than the Defendant. The trial court denied the motion. The jury convicted defendant of forcible digital penetration, forcible oral copulation, assault with intent to commit rape, digital penetration, and oral copulation, and use of a deadly weapon in the commission of these crimes. Defendant appealed, and the Court of Appeal reversed. It found that the trial court had erred in excluding evidence of Irene’s consensual sexual encounter, which could have provided an alternative explanation for her injuries and also could have corroborated Defendant’s testimony that he saw semen around her genitalia. The People appealed, and the Supreme Court reversed and remanded to the Court of Appeal. Issues Was Defendant entitled to a hearing under California Evidence Code section 782 to determine the admissibility of evidence concerning complaining witness’s sexual conduct earlier that day? Did the trial court err in excluding the evidence? Holding Defendant was entitled to a hearing under California Evidence Code section 782 to investigate whether prior consensual sexual activity could have provided an alternative explanation for Irene’s oral and cervical injuries. But the trial court’s failure to conduct the hearing, and its exclusion of the evidence, was harmless. Analysis California Evidence Code section 1103(c)(1) prohibits defendants from introducing evidence of specific instances of a witness's sexual conduct for purposes such as proving consent by the complaining witness. But it does not prevent the introduction of such evidence for other purposes, such as explaining injuries that the prosecution alleges were the result of defendant’s conduct, when presented in accordance the procedures of Evidence Code section 782. Under section 782, the defendant must make an offer of proof of the relevancy of the evidence in attacking the credibility of the complaining witness. If the court finds the offer of proof sufficient, it must order a hearing outside the presence of the jury to allow questioning of the complaining witness regarding the offer of proof. If the court then finds the evidence relevant and not unduly prejudicial, it may make an order stating the conditions under which the evidence may be introduced. Here, the Defendant produced a sufficient offer of proof under section 782. The expert testimony that Irene’s injuries could have been caused by consensual sex, and that Irene had reportedly admitted having consensual sex earlier that day, together offered the possibility that Irene’s oral and cervical injuries could have been explained by consensual activity. Thus the trial court should have conducted a hearing to allow the defendant to establish the truth of the hearsay regarding Irene’s sexual activity earlier in the day. But the failure to conduct the hearing was harmless. Regarding the cervical injuries, the trial court later did conduct a hearing after defendant filed a motion for a new trial based on the exclusion of evidence. Because Irene testified at that posttrial hearing that her boyfriend did not do anything that might have injured her cervix in their sexual encounter earlier that day, the trial court did not abuse its discretion in excluding the evidence on grounds of relevance. The trial court did not ever hold a hearing to determine whether her earlier sexual activity could have accounted for her oral injuries. But the jury found beyond a reasonable doubt that Defendant had digitally penetrated the victim, contrary to Defendant’s testimony, and Defendant offered no theory under which the jury could have credited Irene’s testimony that Defendant forcibly digitally penetrated her but disbelieved her testimony that Defendant forced her to orally copulate him. Thus any error from failure to conduct a hearing regarding the oral injuries was harmless. Defendant also argued that the trial court erred in excluding the evidence of earlier consensual sex because it corroborated his testimony that he saw semen between Irene’s legs. But such corroboration would have been of little probative value. Under either Irene’s or Defendant’s version of events, Irene was naked and thus Defendant could have seen any semen that might have been present. And the claim that Irene had visible semen on her genitalia several hours after intercourse was highly improbable. Thus the probative value of the evidence was low, while the potential prejudice was substantial—jurors may take the fact that the victim engaged in sexual conduct outside of marriage as evidence of receptivity to the disputed sexual encounter. Thus, the trial court did not abuse its discretion in excluding the evidence. The Court also rejected Defendant’s claim that the ruling deprived him of his right to confront witnesses or his right to present a defense, citing People v. Fudge (1994) 7 Cal. 4th 1075, 1103, 31 Cal. Rptr. 2d 321, 875 P.2d 36. Tags Rape shield law, California Evidence Code section 1103, California Evidence Code section 782, rape, sexual assault, evidentiary hearing, harmless error Annotation by Colin McDonell

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