Metropolitan News-Enterprise


Tuesday, June 22, 2010


Page 1


S.C. Revives Conviction in Case Citing Rape Shield Law




A San Francisco Superior Court judge properly excluded evidence of an alleged rape victim’s consensual sexual encounter hours prior to the alleged crime, the California Supreme Court unanimously ruled yesterday.

With Justice Marvin Baxter writing the opinion, the court reinstated Danny Fontana’s conviction and 89-year-to-life sentence. A First District Court of Appeal had reversed, saying the evidence was admissible under an exception to the rape shield law.

The victim, a 19-year-old student identified only as Irene S., said she knew Fontana because he sometimes helped her open or close a heavy metal gate in front of the store where she occasionally worked. She said he had been nice to her, and she trusted him when he asked her to come to his room to look at a laptop she might buy for school.

When she went to the room, she said, he strangled her to the point of unconsciousness, threatened to kill her, and forcibly penetrated her digitally and forced her to orally copulate him. Prosecutors offered medical testimony to bolster that of the victim, and also presented evidence that Fontana, who was on parole when Irene S. was attacked in 2003, had a past history of sex crimes.


Sexual Contact Denied

Fontana admitted strangling the woman, who was a foot shorter than him and weighed 90 pounds less, but denied any sexual contact or attempted sexual contact with her.

Prior to trial, the defense moved to admit evidence that Irene S. had consensual sex with another man earlier on the day of the attack. The purpose of the evidence, the defense argued, was to provide an alternative explanation of the cervical and mouth injuries testified to by the prosecution witnesses, one of the limited purposes for which evidence of prior sexual conduct may be offered under the rape shield law in California and many other jurisdictions.

 San Francisco Superior Court Judge Jerome Benson denied the motion without a hearing, at which the testimony would have been heard under Evidence Code Sec. 782. He reasoned that since there was a great deal of evidence of force, apart from whatever caused the mouth and cervical injuries, the issue was not a “substantial part” of the prosecution’s case and “the need to go into this and establish that yes, indeed, she did have consensual sexual relations, diminishes quite a bit.” 

The jury ultimately found the defendant guilty of forcible digital penetration, forcible oral copulation, and sexual assault, and found that he had been convicted of a prior sex crime and of two serious felonies, making him subject to the One-Strike and Three-Strikes Laws.

In reversing, the Court of Appeal cited Evidence Code Sec. 782(a)(3), which says that if the written proffer accompanying the motion to admit the evidence is sufficient, the court must hear the evidence outside of the presence of the jury and determine whether it tends to disprove the credibility of the complaining witness, and if so, whether its probative value outweighs the prejudice that might result.


Evidentiary Hearing

Baxter, writing for the high court, said the trial judge was wrong as to the sufficiency of the proffer, and should have held an evidentiary hearing. The proffered testimony “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” and thus “could have created a reasonable doubt as to defendant’s guilt of the sex-related offenses,” the justice said.

The exclusion of the evidence was harmless, however, Baxter concluded.

As to the cervical injuries, the justice explained, Benson held a hearing on the defendant’s motion for new trial, which raised the issue. The judge heard testimony from the victim in closed court and concluded that evidence of consensual sex with her boyfriend hours earlier would not have been relevant at trial because it would not explain the severe injuries, and that ruling was not an abuse of discretion, Baxter said.

Exclusion of the evidence as to Irene S.’s oral injuries, the justice went on to say, was harmless under any standard, since the jury’s verdict establishes that it disbelieved the defendant’s testimony that he did not have sex with the victim at all, and that he had a lifelong fear of oral sex—testimony that was “thoroughly rebutted” by the contrary testimony of his girlfriend and of the victim of the crime for which he had recently served a prison term.

The case is People v. Fontana, S170528.


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