State high court rules on rape shield law exception but upholds conviction 

The California Supreme Court on Monday clarified when evidence of a rape victim’s previous sexual activity can be allowed in an exception to the state’s rape shield law.

The court issued its unanimous decision in the San Francisco case of Danny Fontana, who was sentenced to 89 years to life in prison for crimes including forced oral copulation, digital penetration and assault of a 19-year-old woman.

Fontana, who had a previous rape conviction, allegedly choked the victim, identified as Irene S., until she passed out before he sexually attacked her in his South of Market hotel room March 5, 2003.

He claimed she had offered to engage in sex in exchange for a stolen laptop computer he was seeking to sell her.

The state’s rape shield law bars defendants from using evidence of a victim’s previous sexual activity to try to prove that the victim consented to having sex.

But Fontana, who claimed that Irene S. had had sex with her boyfriend that morning, sought to use the alleged evidence for a different reason. He said the supposed evidence could have given an alternative explanation for injuries she suffered.

In Monday’s ruling, the state high court said such evidence can sometimes be used for the purpose of providing an alternative explanation.

The panel upheld a state appeals court’s conclusion that Fontana should have been given a hearing before the judge in his San Francisco Superior Court trial on whether allowing the alleged evidence was warranted.

But the panel also said the trial court error was legally harmless and that Fontana’s convictions should not be overturned on that basis.

The high court said the lack of a hearing didn’t make any difference in Fontana’s case because the alleged evidence of Irene S.’s previous sexual activity would not have caused the jury to question his guilt on the charges in his case beyond a reasonable doubt.

“The exclusion of such evidence was harmless under any standard,” Justice Marvin Baxter wrote.

The court sent the case back to the Court of Appeal for further proceedings on additional appeal arguments Fontana had raised.

Fontana’s attorney in the appeal, Alan Dressler, said his client will pursue the additional arguments. But Dressler said that if Fontana loses those claims, he will go to the federal court system to argue that the exclusion of the evidence violated his constitutional rights.

Dressler said the case is the first time the state high court has ruled on such an exception to the rape shield law and said the decision could benefit other defendants in future cases.

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