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People v. McCann

California Court of Appeals, First District, Second Division

October 16, 2019

THE PEOPLE, Plaintiff and Appellant,
v.
SCOTT McCANN, Defendant and Respondent.

          Superior Court of San Francisco County No. SCN222517 Hon. Christopher C. Hite, Trial Judge

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan and Bridget Billeter, Deputy Attorneys General, for Plaintiff and Appellant

          Karriem Baker, under appointment by the Court of Appeal, for Defendant and Respondent

          Miller, J.

         Defendant Scott McCann was held to answer on a charge of forcible sexual penetration by a foreign object (Pen. Code, [1] § 289, subd. (a)(1)(A); count 1), and other offenses arising from his attack of the victim in McCann's hotel room. Preliminary hearing testimony showed that McCann and the victim had been drinking before the incident, and the victim had no memory of what happened to him. After the attack, the victim appeared “beat up pretty bad”; his injuries included a broken nose, ruptured bladder, and torn rectum, and he was required to use a colostomy bag for months afterward.

         The trial court granted McCann's section 995 motion to dismiss count 1, finding no evidence that the victim's will was overcome by physical force, and the People appeal. We conclude there was sufficient cause to hold McCann to answer to the charge of forcible sexual penetration, and therefore we reverse.

         FACTUAL AND PROCEDURAL BACKGROUND

         Felony Complaint

         The San Francisco County District Attorney filed a six-count felony complaint charging McCann with forcible sexual penetration by a foreign object, and other offenses arising from an incident that occurred on June 13, 2013, at the Arlington Hotel in San Francisco.[2]

         Preliminary Hearing

         The trial court held a preliminary hearing at which two police officers and the victim testified.

         McCann and the victim, Kevin C., both lived at the Arlington Hotel and were “drinking buddies.” On June 13, 2013, Kevin went to McCann's room and they drank vodka and beer. Kevin testified he could “just recall the morning” of that day. The next thing Kevin remembered was regaining consciousness in a hospital. Hotel resident Barbara Jean Polk reported to a police officer that she spent part of the afternoon of June 13 drinking with McCann and Kevin in McCann's room. When Polk left them in the late afternoon, McCann and Kevin were drunk but Kevin had no visible injuries.

         Security camera footage of the second-floor hallway in the Arlington Hotel recorded that day showed Kevin being pushed or thrown out of McCann's room and then lying on the floor in the hallway around 6:45 p.m. Another hotel resident saw Kevin and notified the front desk there was a body in the second-floor hallway. The video footage showed McCann come out of his room and then disappear from camera view as Kevin continued to lie on the hallway floor. Paramedics and police soon arrived at the scene, and Kevin was taken to the hospital. McCann reentered his room about 11 minutes after the paramedics arrived.

         A police officer who saw Kevin in the intensive care unit of the hospital that night testified Kevin “was really beat up pretty bad” with his right eye closed and discolored. Kevin was unaware of his injuries until his doctor told him what happened, and he remained in the hospital until June 26. He sustained a subdural hematoma, a broken nose, bladder perforation and rupture, and a rectal tear, and he had various “significant surgeries” during his hospital stay. He had a colostomy bag and a catheter for about five months, and he was in the hospital again for five days to have the colostomy closed.

         The day after the incident, Brenda Bowman was in McCann's room and saw him mopping up blood.[3] McCann told her he had put a wooden broom stick or handle in Kevin's anus.

         On June 24, San Francisco Police Officer Joseph Clemente found McCann in a room on the third floor of the Arlington Hotel (not his own room). McCann was intoxicated and stumbling, and he looked angry. He volunteered to the officer, “I didn't rape him. I ain't no faggot. I cleaned my room. You're ...


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