The People v. Fontana
| Decision Date | 21 June 2010 |
| Docket Number | No. S170528.,S170528. |
| Citation | 49 Cal.4th 351,111 Cal.Rptr.3d 1,232 P.3d 1187 |
| Court | California Supreme Court |
| Parties | The PEOPLE, Plaintiff and Respondent,v.Danny Alfred FONTANA, Defendant and Appellant. |
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Alan A. Dressler, San Francisco, for Defendant and Appellant.
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, San Francisco, 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.
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, subds. (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).)
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.
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, 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 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 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.
Irene pleaded with defendant to let her go. Defendant replied, 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,
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 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...
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