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Name: People v. Fontana
Case #: S170528
Court: CA Supreme Court
District CalSup
Opinion Date: 06/21/2010

Under Evidence Code section 782, where a defendant in a sexual assault case makes an offer of proof about the complaining witness’s prior sexual conduct based on specific evidence, the trial court shall order a hearing out of the jury’s presence and allow questioning of the witness about that conduct. At appellant’s trial for forcible digital penetration and oral copulation, the defense moved to admit evidence that the victim had consensual sex with her boyfriend on the morning of the alleged sexual assault in order to provide an alternative explanation for her cervical and mouth injuries. But the court excluded the evidence without holding a hearing contemplated by the statute. Notwithstanding the Rape Shield Law (Evid. Code, § 1103, subd. (c)(1)), evidence of the alleged victim’s prior sexual activity may be admissible pursuant to Evidence Code section 782 when offered to attack his or her credibility. When the prosecution tries to link the defendant to physical evidence of sexual activity, “the defendant should … have the opportunity to offer alternative explanations for that evidence, even though it necessarily depends on evidence of other sexual conduct” by the complainant. Under those circumstances, “‘it is not the fact of prior sexual activity as such that is important, but something about the special circumstances under which that prior sexual activity took place that renders it important.'” The Supreme Court agreed with the Court of Appeal that the trial court erred in failing to conduct a hearing under Evidence Code section 782 because the offer of proof was sufficient. The victim told the SART nurse that she had sex with her boyfriend earlier that day, and the expert’s testimony conceded that the injuries to her cervix and mouth could have been caused by consensual sex. But the error was not prejudicial. As to the digital penetration charge, the court actually held a hearing on this point in the context of a motion for new trial. And as to the forced oral copulation charge, appellant’s testimony that he did not commit the crime because he had a lifelong fear of oral sex was contradicted not only by the testimony of his current girlfriend, but also by the victim of an earlier crime for which he had been convicted.