Ct.App. 1/5 A117503. San Francisco County Super. Ct. No. 192597. Judge: Jerome T. Benson.
The opinion of the court was delivered by: Baxter, J.
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).)
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 "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 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 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.
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 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 ...