Earlier this year, Division Five of the First District Court of Appeal issued an eye-popping decision: The court threw out the rape conviction and 89-year sentence of a serial sex offender, and declared that California’s Rape Shield Law does not apply when the defendant denies having sex with the victim.
What’s that? You say you don’t remember that bombshell of an opinion? Well, People v. Fontana, [.pdf], was issued unpublished, even though there appear to be few California cases on point.
But it didn’t slip by the California Supreme Court, which granted review last week. Legal Pad expects that by the time amicus curiae briefs from victim’s rights and women’s rights groups are filed and Fontana rolls around for oral argument, many more people will have heard of it.
The victim in Fontana was a 19-year-old identified only as Irene S. who worked at a discount store in the South of Market area of San Francisco.
Defendant Danny Fontana, who had prior convictions for rape and assault with intent to commit rape, invited her up to the room he rented above the store to see if she wanted to buy his laptop computer. Irene testified that when she got near his room Fontana grabbed her, pulled her inside, choked her unconscious, penetrated her digitally, forced her to fellate him and then took pictures of her naked body and told her he would post them on the Internet if she reported him to police.
According to the First District’s opinion, medical personnel found bruises on Irene’s shoulder and scalp, lip lacerations, pooling of blood in her eyes, genital injuries and petechiae – small dots caused by capillaries broken from the inside, consistent with strangulation -- on her face, neck, scalp and inside her ears. A nurse practitioner testified she had never seen such severe petechiae from an individual who survived strangulation.
Fontana testified that Irene had tried to seduce him in exchange for the laptop. When she took off her clothes he panicked because he had parole conditions that precluded him from being alone with a woman. He became disgusted when he noticed semen “in her privates” and made her wipe it off. He then took pictures of Irene because he was afraid of false accusations and thought having the pictures would protect him. Only when she tried to forcibly orally copulate him did he grab her by the throat, because he had a phobia about women biting his penis. Or so he testified.
Fontana’s counsel sought to elicit evidence that on the morning of the encounter, Irene had had sex with her boyfriend. That would corroborate Fontana’s account of the semen between her legs and explain the injuries to her genitals. Veteran Superior Court Judge Jerome Benson refused, citing California’s rape shield law, which restricts evidence of a victim’s prior sexual history. He ruled that any such evidence would not corroborate Fontana’s testimony anyway because semen from a morning sexual encounter would likely no longer be present in the late afternoon.
Fontana was convicted and sentenced to 89 years to life pursuant to California’s One Strike and Three Strikes laws.
But the First District, in an opinion by Justice Henry Needham, reversed the convictions. Needham ruled that Benson had erred when invoking the rape shield law. “As a number of cases from other jurisdictions recognize, federal due process requires the admission of such evidence when it would provide an alternative explanation for injuries allegedly inflicted during a sexual assault,” Needham wrote, citing decisions from Virginia and Missouri and two federal decisions involving child victims.
Needham pointed out that California’s rape shield law -- found in Evidence Code Sections 1103 and 782 -- precludes evidence of the victim’s sexual conduct to “in order to prove consent” was given. “Here, appellant completely denied having sexual relations with Irene, so consent was not an issue,” Needham wrote.
Furthermore, he ruled the errors were prejudicial. “Absent the evidence that Irene had consensual sex earlier in the day, a sexual assault by appellant was the only explanation for the non-strangulation injuries,” Needham wrote. Justice Barbara Jones and S.F. Superior Court Judge Robert Dondero, sitting by assignment, concurred.
All seven Supreme Court justices voted to grant review [.pdf] in People v. Fontana.
— Scott Graham