P. v. Fontana 1/13/09 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A117503

Case Date: 04/17/2009

Preview:Filed 1/13/09 P. v. Fontana CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. DANNY ALFRED FONTANA, Defendant and Appellant. (San Francisco County Super. Ct. No. 192597) A117503

Following a jury trial, appellant Danny Alfred Fontana was convicted of committing sexual offenses against a young woman inside his hotel room and was sentenced to a lengthy prison term under the One Strike and Three Strikes laws. The trial court excluded evidence that the victim had had consensual sexual relations with her boyfriend on the morning of the alleged sexual assault. Because this evidence was relevant and admissible to corroborate appellant's version of events and show that injuries attributable to the assault could have been caused by the earlier consensual encounter, and because the record does not establish that this evidence was harmless beyond a reasonable doubt, we reverse.

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I. FACTS AND PROCEDURAL HISTORY A. Prosecution Evidence At the time of the events in this case, Irene S. was a 19-year-old who had recently immigrated from the Philippines. She lived with her parents in an apartment on Sixth Street in downtown San Francisco and was studying to become a medical assistant. Irene befriended Aslem Shaikh, who owned a discount store on Sixth Street called the Bargain Warehouse. The neighborhood was a rough one, and Sheikh was looking for someone to take over the store. Irene would sometimes help Shaikh by opening and closing the store for him, but because she was so small (five feet one inch tall, 105 pounds), she had a difficult time opening and closing the heavy security gate by herself. Appellant lived in the Winsor Hotel (Winsor) above the Bargain Warehouse, having been paroled from prison as a high risk sex offender in 2002. He was interested in taking over the store from Sheikh so he could sell used clothing. Appellant met Irene when she was working at the store, and at Shaikh's direction, she sometimes called appellant to help her with the security gate. Appellant was nice to Irene and told her she was pretty. He asked her to go to church with him, but she refused. At about 4:00 in the afternoon on March 5, 2003, Irene went to the Bargain Warehouse and spoke to appellant and Shaikh. Irene wanted to buy a laptop computer for school, and appellant told her he had one in his room. Irene asked him to bring it downstairs so she could look at it, but appellant did not want to do that. He left the store and went back to his room at the Winsor. Irene asked Shaikh to accompany her to appellant's room so she could look at the laptop, but he told her he had to watch the store. Irene went to the hotel by herself after calling appellant and arranging to meet him at the front counter outside the hotel manager's office. When Irene arrived at the hotel, she walked upstairs and was buzzed into the reception area where appellant was waiting for her. The manager's son Amit Patel was working at the desk. Appellant told Patel that Irene would only be there for about five to

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ten minutes. Irene said she was only going to be in the hallway. Consistent with the hotel's visitor policy, Patel had Irene leave her keys at the desk as security. Appellant and Irene walked back toward appellant's room, which was about 40 to 50 feet away from the reception area. When they arrived at his door, appellant told Irene, "Oh, that's my room. I'm just gonna grab it." Instead, he grabbed Irene by the neck and pushed her into the room. Irene tried to scream but she felt like she could not breathe and could not hear her own voice. After appellant forced Irene into his room, he pushed her onto the bed and lay on top of her. He picked up a small metal dumbbell and held it over her, threatening to kill her if she kept shouting. Irene became quiet but appellant continued to grab her neck as he started to remove her clothes. Irene lost consciousness because she could not breathe. When she woke up she was at least partially naked and realized that she had urinated on the bed. Appellant was on top of her, naked. He put his fingers inside her vagina. She begged him to stop but he continued to strangle her and she lost consciousness again. When she woke up he was kissing her breasts and body and told her to "blow" him. He forced her to take his penis into her mouth and she sensed something sticky. Appellant told Irene that she had to pose for nude photographs because if she went to the police they would show that she did these things voluntarily. He instructed her to strike provocative poses and took about four or five shots. He put his fingers in her vagina a second time and she begged him to let her go. Appellant told Irene he wanted her to be his girlfriend and would walk her to school every day. He threatened to post the nude photographs on the Internet if she went to the police. Appellant eventually allowed Irene to get dressed and leave the room. Irene went to the hotel reception desk to retrieve her keys. She asked Patel for a glass of water and told him she had been raped. Patel was shocked and did not believe her, although he noticed that her voice was low and scared and her eyes were red and watery. Appellant approached the desk and asked Irene what she was doing. When she told him she was asking for a glass of water, appellant said he would buy her a bottle downstairs. He grabbed her arm and they walked downstairs together.

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When they reached the street, Irene went into the Bargain Warehouse and told Shaikh that appellant had raped her. She was crying and appeared to be "totally messed up" and frightened. Her eyes were red and her face was bruised and red. Appellant looked in through the window and then left. Shaikh called Patel on the telephone and Patel joined them in the store. Shaikh and Patel told Irene to call the police, but she said she wanted to speak to her father first and Shaikh walked her part of the way home. According to Shaikh, Irene told him appellant had "raped" her or "fuck[ed]" her without a condom. Irene arrived at home at about 5:45 in the evening, crying and upset, and told her mother appellant had raped her. Irene's mother called 911 and officers from the San Francisco Police Department responded right away. Irene was traumatized and crying, with red and prickly cheeks and bloodshot eyes. She complained of pain in her neck and was having a difficult time breathing. Irene told the officers appellant had raped her. Officer Yee rode with Irene in an ambulance to the hospital, and she related what had happened during the ride. She described the choking and the forced digital penetration, but was unable to say whether appellant had penetrated her with his penis. Irene's blood pressure was measured at 140, which was high. When Irene arrived at the rape trauma center, she was examined and treated by nurse practitioners Johnson-Gelb and Armstrong. Irene described the attack, stating that appellant had grabbed her neck in the hallway, that he threatened to beat her with a dumbbell, that he squeezed and strangled her until she fell "asleep," that she had urinated, that he had penetrated her vagina twice with his finger, though she was unsure whether he had penetrated her vagina with his penis, that he had forced her to put his penis in her mouth and had ejaculated, and that he had forced her to pose for pictures that he threatened to post on the Internet. A report prepared by Armstrong noted that Irene reported "forced vaginal penetration with ejaculation."1

Johnson-Gelb offered Irene emergency contraception because she was unsure whether appellant had ejaculated insider her. 4

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Irene's face, neck and scalp were covered with petechiae, or small dots that occur when capillaries are broken from the inside because of intense pressure such as that caused by strangulation. Johnson-Gelb had never seen petechiae so severe in a victim who had survived an attack. Irene's other injuries included several abrasions, bruises on her left collarbone, bruises behind the ear, a broken thumbnail with dried blood inside, tenderness to the frenelum (the piece of skin that connects the tongue to the bottom of the mouth) two small lacerations inside the lower lip, blood pooling in both corners of the right eye, erythema (redness) of the right labia minora, generalized erythema and scratch marks at the posterior fourchette near the opening of the vagina, redness of the cervix and an arched-shaped possible laceration of the upper part of the cervix about three millimeters long.2 A laryngoscopy revealed a congestion of blood in the throat and petechiae were discovered inside both ears all the way to the eardrums. According to Johnson-Gelb, the possible vaginal and cervical injuries were consistent with digital penetration, which may cause more damage than penile penetration due to a finger's hardness and the sharpness of fingernails. The erythema was also consistent with non-consensual sex. The injuries to the frenelum and lower lip were consistent with forcible oral copulation. Strangulation can cause involuntary urination. According to Dr. Hart, the chief medical examiner for San Francisco, Irene's injuries were consistent with strangulation, attempted resistance, sexual assault with a finger and forced oral copulation. Swabs taken from Irene's neck showed the presence of amylase, which indicates the presence of saliva. A forensic analysis of one of the swabs showed DNA consistent with two contributors--appellant and Irene. Vaginal and oral swabs were also taken but there were no matches with appellant's DNA profile.

Because Irene had difficulty tolerating the speculum during the pelvic examination, Johnson-Gelb was unable to study the area for long and could not be certain the mark on the cervix was a laceration.

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On March 6, 2003, the day after the sexual assault, appellant called Shaikh early in the morning. Shaikh asked him why he had raped Irene and appellant hung up without saying anything. Police searched appellant's room at the Winsor that same morning and discovered it to be in disarray. Among other things, they recovered a pair of eight-pound dumbbells and an empty camera case. There was no laptop computer. Appellant was arrested at the Greyhound Station in Santa Cruz on March 7, 2003, on a bus that was heading to Reno, Nevada with an intermediate stop in San Francisco. The ticket was in the name of "Dan Heart." In May 2004, police obtained a warrant to search the trailer home of appellant's girlfriend and discovered five nude photographs of Irene. Appellant had been convicted of assault with intent to commit rape against Nina T. in 1992. She was a customer in a mechanic's shop where he was working, and after giving her rides to and from work while her car was being repaired, he invited her into a loft above the shop. Once there, he held a knife to her throat and tried to penetrate her vagina with his penis several times. He also demanded that she give him oral sex, though he did not follow through. Eventually he started crying and let her go. B. Defense Case Appellant testified on his own behalf. He admitted that he had a propensity to commit sexual offenses. Everything Nina T. testified to in describing his 1992 offense was true. In addition to that 1992 conviction for assault with intent to commit rape, he was convicted of rape in 1975. At the time of the events in this case, he was on parole as a high risk sex offender and was subject to many conditions and restrictions. One such condition precluded him from being alone with a woman. Shaikh introduced appellant to Irene and he sometimes helped her open and close the metal security gate at the Bargain Warehouse. Appellant thought Irene was pretty but he was not attracted to Asian women. He began speaking to her about working for him if he took the store over from Shaikh because she seemed to be very good at selling things. He told her about his criminal history because he thought she needed to know about it

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before she decided to work for him. Irene owed him $20 for a hands-free phone headset and told him she was looking for a laptop computer and could pay $300 to $400. On the morning of March 5, 2003, appellant visited a man named Rosie who had a laptop computer for sale. Rosie wanted $400 in cash for the computer and a World War II flag appellant wanted to buy. Appellant left his wallet as security and agreed to return the laptop by 6:00 p.m. if he did not have the cash. After taking the laptop to his room at the Winsor, he went to the Bargain Warehouse and spoke to Shaikh and Irene. Irene asked appellant to bring the laptop down to the store so she could look at it, but appellant did not want to do so because he thought it might be stolen and he did not want anyone to see him with property that would be a violation of his parole conditions. He told Irene she could come to his room to see it, and though she initially declined, she called him twice after he returned to his room and said she would come upstairs. Irene met appellant in the reception area of the Winsor and they went to his room. She looked at the laptop and determined that it worked. Appellant told her $400 was a good deal, but Irene said she didn't have any money. She said she was hoping to get it as a commission when they opened the store together. Appellant said he was disappointed in her and complained that she had not yet paid him the $20 she owed him for the headset. In response, Irene said nothing but started to take off her clothes. Appellant panicked because he was not supposed to be alone with a woman. When she leaned back naked on the bed he took off his shirt and sat beside her, but then noticed some semen "between her legs in her privates." Disgusted, he handed her a wad of toilet paper and made her wipe herself off. He then took the toilet paper to the bathroom down the hall where he disposed of it. He returned to his room, hoping Irene had left. Irene was still in the room. Appellant took off his shirt and washed his hands because he was "grossed out." He retrieved a camera from his dresser and took pictures of Irene naked because he didn't want her to falsely accuse him of anything and he thought that having pictures would show he didn't do anything to her. She posed for the pictures without being asked to do so. Appellant walked to the corner of the bed with his 7

camera and Irene starting coming toward him on her hands and knees. She began to undo his belt and asked if she could have the computer now. Appellant thought she was offering to perform oral copulation and backed away. Irene moved toward appellant again in a second attempt to orally copulate him. This time she opened his pants and pulled out his penis. He then panicked because he had a phobia of a woman biting his penis and had been terrified his whole life that it would happen. Thinking Irene was going to bite him, he took a picture and then realized that hadn't stopped her. He dropped the camera, grabbed Irene by the throat, and strangled her with both hands. He was only thinking about getting her away from his penis. He held her throat for five to six seconds and then grabbed her by the neck and threw her down hard enough to make her urinate. Irene starting dressing and told appellant, "You're on parole. I'm gonna get you." He walked with her down to the street and asked her not to tell lies about him. Appellant returned to his room, retrieved some belongings and went downtown. He walked to Baker Beach and slept on the dunes. The next morning he telephoned Shaikh, who asked why he had raped Irene. Appellant thinks that before hanging up the phone he told Shaikh he had not raped her. He took the train to San Jose, walked along Highway 17 and ended up in Santa Cruz, where he received a call on his cell phone from the San Francisco Police Department telling him to surrender to his parole agent. He did some work for a priest in Santa Cruz so the priest would buy him a bus ticket to San Francisco, but then he panicked and exchanged the ticket for one that went on to Reno. He wanted to surrender in San Francisco and did not want to be arrested first, so he used a false name on the ticket. He was arrested while waiting for the bus to leave. Reginald Ford, another resident of the Winsor, recalled passing appellant and Irene in the hallway of the hotel on his way to the bathroom. He saw them talking in a low conversational tone and never heard any screaming. When he returned from the bathroom about a minute later they were no longer in the hallway. Dr. Snyder, the medical director at the emergency room at St. Luke's hospital, examined the photograph from the speculum examination of Irene and did not see an arc 8

lesion or possible laceration of the cervix. He believed the redness of the cervix could have been the result of an infection or the way the cervix looked in its normal condition. Similarly, the areas of redness shown in vaginal photographs were not "that impressive as an irregularity or as trauma" and were equally consistent with someone who had not been sexually assaulted. Dr. Snyder agreed that Irene had been strangled. C. Convictions and Sentence Appellant was tried before a jury and convicted of forcible digital penetration (Pen. Code,

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