P. v. Fontana

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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 appellants 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.

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 Shaikhs 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 appellants 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 managers office.

When Irene arrived at the hotel, she walked upstairs and was buzzed into the reception area where appellant was waiting for her. The managers son Amit Patel was working at the desk. Appellant told Patel that Irene would only be there for about five to ten minutes. Irene said she was only going to be in the hallway. Consistent with the hotels visitor policy, Patel had Irene leave her keys at the desk as security.

Appellant and Irene walked back toward appellants room, which was about 40 to 50 feet away from the reception area. When they arrived at his door, appellant told Irene, Oh, thats my room. Im 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.

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. Irenes 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. Irenes 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]

Irenes 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. Irenes 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 fingers 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, Irenes injuries were consistent with strangulation, attempted resistance, sexual assault with a finger and forced oral copulation.

Swabs taken from Irenes 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 contributorsappellant and Irene. Vaginal and oral swabs were also taken but there were no matches with appellants DNA profile.

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 appellants 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 appellants 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 mechanics 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 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 didnt 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 didnt want her to falsely accuse him of anything and he thought that having pictures would show he didnt 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 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 hadnt 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, Youre on parole. Im 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. Lukes hospital, examined the photograph from the speculum examination of Irene and did not see an arc 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,  289, subd. (a)),[3] forcible oral copulation ( 288a, subd. (c)(2)) and assault with intent to commit rape, digital penetration and oral copulation ( 220).[4] The jury determined that a deadly weapon was used in the commission of each count within the meaning of section 12022.3, subdivision (a), and that appellant had used a deadly weapon and been previously convicted of a sexual offense within the meaning of the one strike law ( 667.61, subds. (d)(1) & (e)(4)). In a bifurcated proceeding, the court determined that appellant had suffered two prior felony convictions within the meaning of the five-year serious felony enhancement under section 667, subdivision (a) and the Three Strikes law ( 1170.12).

The court imposed a prison sentence of 75 years to life plus 14 years on the oral copulation count: 25 years to life pursuant to the One Strike law, tripled under the Three Strikes law, a ten-year determinate term for the two five-year serious felony enhancements and a four-year determinate term for the deadly weapon enhancement. Sentences on the other counts were ordered to run concurrently.

II. DISCUSSION

Appellant contends the trial court committed prejudicial error when it prevented the defense from eliciting evidence that on the morning of the alleged sexual assault, Irene had consensual sexual relations with another man. We agree. Although the evidence did not, in and of itself, affect Irenes general veracity, it did provide an alternative explanation for injuries identified during the sexual assault examination and relied upon by the prosecution as proof that a sexual assault occurred. It also tended to corroborate defense testimony that might otherwise have been unbelievable to the jury. Because the evidence was crucial to appellants defense, we cannot conclude its exclusion was harmless beyond a reasonable doubt.

A. Trial Courts Rulings

As the jury learned at trial, no DNA matching appellants was found on the vaginal swabs taken from Irene during the sexual assault examination. The defense filed a written motion seeking to introduce evidence that DNA from another man had been found on the vaginal swabs, and that Irene had told the examining nurse practitioner she had consensual sex that morning with someone other than appellant. Counsel argued in the motion that the evidence was relevant to Irenes credibility because it tended to show why she initially claimed to have been raped but later stated she was unsure whether appellant had penetrated her with his penis. Counsel also argued that the evidence established an alternative explanation for Irenes vaginal and cervical injuries.

The prosecutor opposed the motion, representing that the person with whom Irene had had consensual sex was her boyfriend. He objected to introducing any evidence concerning Irenes earlier consensual sexual encounter on the grounds that it was irrelevant and violated the public policy behind the rape shield law. (See, e.g., Evid. Code,  782, 1103, subd. (c).) The court agreed with the prosecutor and excluded the evidence.

During the trial, defense counsel renewed the motion to introduce evidence of Irenes sexual conduct on the date of the alleged attack. In addition to the grounds stated in the written motion, counsel argued that the evidence was relevant to Irenes credibility because it tended to corroborate appellants testimony that when she voluntarily removed her clothing in his room, he saw semen between her legs. The court denied the renewed motion, concluding that Irenes prior sexual conduct was not specifically corroborative of [appellants] claim when the consensual encounter occurred in the morning and appellant supposedly saw the semen late in the afternoon. When explaining its ruling, the court noted it was inherently unbelievable Irene would on her own initiative, despite refusing to come up before . . . came up to [appellants] room after recent sex with [her] boyfriend and without drying herself in a condition where she would be uncomfortable, wet and unappealing, where her object was apparently to trade sex for a laptop because she didnt have any money, and in achieving that object, she was to present herself to [appellant]. In that condition, she would be presenting herself to [appellant] in an obviously unappealing and unattractive condition, which would have the direct effect of defeating the very object of her visit. . . . So this is sort of equivalent to a man essentially walking around with damp jockey shorts with the object of being desirable to a woman with whom he didnt have a close relationship. . . . Most people, when they engage in voluntary sexual relations, do at some convenient time clean themselves up if it is necessary, whether its males or females.

After the jury returned its verdict, appellant filed a motion for a new trial arguing, among other things, that the exclusion of the evidence concerning Irenes consensual sexual encounter had been erroneous and had violated his constitutional right to confront witnesses and present a defense. The trial court ordered an in camera hearing to determine whether Irene had consensual sex once or twice on the day of the attack.[5] The motion for new trial was denied.

B. Evidence of the Irenes Prior Sexual Conduct Was Relevant to Provide an Alternative Explanation for Her Injuries

Appellant argues that Irenes prior consensual sexual conduct was relevant because it established another possible source of injuries to her vagina, cervix and mouth. We agree. As a number of cases from other jurisdictions recognize, federal due process requires the admission of such evidence when it would provide an alternative explanation for injuries allegedly inflicted during a sexual assault: Neeley v. Commonwealth (1993) 17 Va.App. 349, 358-359, 437 S.E.2d 721, 726-727 [victims prior sexual conduct with boyfriend relevant to explain presence of hair fragment taken from cervical swab]; United States v. Begay (10th Cir. 1991) 937 F.2d 515, 519, 523 [evidence that child victim has been sexually abused by another person relevant to explain enlarged hymen and cervical abrasion]; United States v. Bear Stops (8th Cir. 1993) 997 F.2d 451, 457-458 [separate incident of sexual abuse of victim occurring during same general time period as alleged assault by defendant was relevant to explain victims manifestation of behaviors consistent with sexual abuse and to provide alternative explanation for blood on victims underwear]; Statev.Douglas (Mo.App. 1990) 797 S.W.2d 532, 534-536 [fact that teenage victim had sexual intercourse with her boyfriend was relevant to explain absence of hymen in sexual assault case].

When a defendant denies a sexual assault, but the victim exhibits physical symptoms or injuries consistent with such an assault, evidence that the symptoms or injuries could have been inflicted by some event other than the charged crime is obviously relevant to the issue of guilt. (Evid. Code,  210 [relevant evidence is that having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action].) In this case, appellant admitted that he strangled Irene, but denied committing the sexual acts she described. The sexual assault examination revealed injuries to Irenes mouth, genital region and cervix that, according to the experts, were consistent with a forced sexual assault. But the experts also allowed that the injuries could have been the result of consensual conduct. Evidence that Irene had in fact engaged in such consensual conduct supported the defense version of events and was relevant to determining whether appellant committed the acts she described.

C. The Proffered Evidence Did Not Violate the Rape Shield Law

The trial court excluded the evidence of Irenes prior act of consensual sex because it believed the introduction of that evidence would violate Californias rape-shield law, embodied in Evidence Code sections 1103 and 782. (See People v. Chandler (1997) 56 Cal.App.4th 703, 707 (Chandler).) We agree with appellant that the rape shield law did not preclude the evidence in this case.

Under Evidence Code section 1103, subdivision (c)(1), a defendant charged with a sex offense cannot introduce opinion evidence, reputation evidence or specific instances of the complaining witnesss sexual conduct with persons other than the defendant in order to prove consent by the complaining witness. In adopting this section the Legislature recognized that evidence of the alleged victims consensual sexual activities with others has little relevance to whether consent was given in a particular instance. (Chandler, supra, 56 Cal.App.4th at p. 707.) Here, appellant completely denied having sexual relations with Irene, so consent was not an issue. Section 1103, subdivision (c) did not render the evidence of Irenes prior consensual sex inadmissible.

Evidence Code section 1103, subdivision (c)(5) specifically states that the rule barring evidence of the victims sexual conduct with others to prove consent shall not be construed to make inadmissible any evidence offered to attack the credibility of the complaining witness as provided in Section 782. Evidence Code section 782 establishes a procedure for in camera review and allows the defendant to offer evidence of the victims sexual conduct to attack his or her credibility when that evidence is relevant to the victims credibility under Evidence Code section 780 and its admission does not contravene the policies of Evidence Code section 352. (See Chandler, supra, 56 Cal.App.4th at pp. 707-708.)

Although the court did not hold an in camera hearing to allow the defense to develop facts about the details of Irenes prior sexual encounter, we assume for purposes of this discussion that it involved, as the prosecution represented, consensual acts of sex between Irene and her boyfriend. This evidence was not relevant to her credibility in general, as having sex with ones boyfriend does not make one more or less likely to lie on the witness stand. (See Chandler, supra, 56 Cal.App.4th at pp. 708-709 [noting that victims sexual history has been admitted sparingly on issue of credibility, most often in cases where sexual history involved prostitution, a crime of moral turpitude].) But the evidence was not offered to show that because Irene had had sex with her boyfriend she was more likely to lie; it was offered to establish an alternative source of the injuries attributed by prosecution experts to a sexual assault. Though such evidence would not have directly contradicted Irenes testimony or proved a character trait of dishonesty, it corroborated appellants testimony that he had not committed the sexual acts described by Irene and that he saw semen between her legs. In a he said, she said case such as this, evidence tending to support one partys version of events tends to disprove that put forward by the other party. The evidence was properly offered under Evidence Code section 780, subdivision (i), which allows the jury to consider the existence or nonexistence of any fact testified to by the witness when assessing that witnesss credibility.

The evidence of Irenes prior sexual conduct on the day of the attack was relevant to both her credibility and appellants, and it fell outside the purpose of and policy behind the rape shield law. It should not have been excluded on that basis.

D. Evidence Code Section 352

Evidence Code section 352 allows the exclusion of otherwise relevant evidence when its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. While it is unclear whether the trial court actually engaged in an Evidence Code section 352 analysis, it noted that in light of Irenes strangulation injuries and the equivocal nature of the vaginal and cervical injuries, the evidence of her prior sexual conduct with her boyfriend was not very probative. As to the defense claim that the evidence tended to corroborate appellants testimony about seeing semen in Irenes vagina, the court essentially concluded that no reasonable woman would act in the manner described by appellant, and therefore the defense version of events was not credible. In excluding the proffered evidence about Irenes prior sexual conduct, the trial court did not appear to rely on its prejudicial nature or the possibility that it would confuse the issues or consume an undue amount of time.[6]

Although rulings regarding the relevancy of evidence and the applicability of Evidence Code section 352 are entrusted to the discretion of the trial court (People v. Cain (1995) 10 Cal.4th 1, 32-33), these determinations cannot be based on the courts assessment of a witnesss credibility. (Chandler, supra, 56 Cal.App.4th at p. 711.) The fact that evidence is subject to contradiction or impeachment does not render it irrelevant or unduly prejudicial. (People v. Alcala (1992) 4 Cal.4th 742, 790-791.) Though the trial court here stated that it was not judging witness credibility, its rulings were ultimately based on a determination that appellants version of events was incredible and unworthy of belief. This was a matter for the jury to decide, and the trial court abused its discretion in allowing its own assessment of witness credibility to affect its rulings. (See Chandler, supra, at p. 711.)

E. The Error Was Prejudicial

Having concluded that the trial court abused its discretion when it excluded evidence of Irenes prior consensual sexual conduct as an alternative explanation for her injuries, we must decide whether the error was prejudicial. Appellant argues that the trial courts ruling violated the federal due process clause and deprived him of his federal constitutional right to present a defense. He therefore urges us to apply the harmless-beyond-a reasonable-doubt standard for federal constitutional error articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), under which reversal is required unless we can say there is no reasonable possibility the error contributed to the convictions in this case. (People v. Lewis (2006) 139 Cal.App.4th 874, 887 (Lewis).) The People, on the other hand, suggest we apply to less stringent standard for ordinary trial error articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson), which requires reversal only when it is reasonably probable the defendant would have obtained a more favorable result if the excluded evidence had been presented to the jury.

A criminal defendant has a federal constitutional right to confront witnesses and present evidence in his favor. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 674; Chambers v. Mississippi (1973) 410 U.S. 284, 302.) The exclusion of evidence critical to the defense may violate due process and deprive the defendant of his right to a fair trial. (Chambers, supra, at pp. 302-303; see People v. Hawthorne (1992) 4 Cal.4th 43, 58.) A trial courts limitation on cross-examination will violate the confrontation clause when a reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted. (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680; People v. Belmontes (1988) 45 Cal.3d 744, 781, disapproved on other grounds in People v. Doolin (2009) ___ Cal.4th ___ [2009 WL 18142, *16, fn. 22].) On the other hand, when the exclusion of evidence does not impair an accuseds due process right to present a defense, but represents only the exclusion of some evidence concerning that defense, it is ordinary trial error subject to review under Watson. (People v. Fudge (1994) 7 Cal.4th 1075, 1103.)

We conclude that Chapman, supra, 386 U.S. 18, is the appropriate standard in this case. The trial court excluded all evidence concerning Irenes prior sexual conduct with her boyfriend on the date of the alleged attack. Had the jurors heard this evidence, they might have had a significantly different impression of the case. Absent the evidence that Irene had consensual sex earlier in the day, a sexual assault by appellant was the only explanation for the non-strangulation injuries.[7] Moreover, appellants claim that he saw semen between Irenes legs would have likely been viewed as untruthful absent the evidence that she had engaged in sexual relations earlier in the day.[8] We do not view this as a case in which the trial courts ruling was a rejection of merely some evidence concerning the defense, such that the lesser standard of Watson should apply. (Compare Fudge, supra, 7 Cal.4th at p. 1103.)

The People argue that appellants story was so inherently improbable as to make any error harmless. They focus on his explanation for strangling Irene, namely, the utterly fantastic notion that he feared she would bite his penis and overreacted. We are not persuaded.

Our task on appeal is to determine whether the error actually contributed to the jurys verdict at hand. The test is not whether a hypothetical jury, no matter how reasonable or rational, would render the same verdict in the absence of the error, but whether there is any reasonable possibility that the error might have contributed to the conviction in this case. (Lewis, supra, 139 Cal.App.4th at p. 887.) Whatever the likelihood of jurors believing appellants explanation for strangling Irene, he was convicted of specific forcible sex crimes in the face of equivocal physical evidence. The evidence excluded by the trial court would have provided an alternative explanation for the injuries to Irenes vagina, cervix and mouth, and could have raised a reasonable doubt as to the specific elements of the digital penetration and oral copulation counts. If the jury had a reasonable doubt as to these counts, it might also have had a reasonable doubt as to the assault with intent count, because absent proof of the underlying sexual acts, the jury might not have been convinced of appellants sexual intent. We cannot say, beyond a reasonable doubt, that the error was harmless.

Our conclusion makes it unnecessary to address appellants other contentions on appeal.

III. DISPOSITION

The judgment is reversed.

NEEDHAM, J.

We concur.

JONES, P. J.

DONDERO, J.*

* Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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

[2] 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.

[3] Further statutory references are to the Penal Code unless otherwise stated.

[4] The jury could not reach a verdict as to a second count of forcible digital penetration and a mistrial was declared on that count.

[5] A sealed transcript of this in camera hearing is part of the record on appeal but no party has filed a motion requesting that it be unsealed. (See Cal. Rules of Court, rule 8.160(f).) We have reviewed the sealed record and conclude that it contains nothing that would change our analysis of the issues presented on appeal.

[6] A consideration of these factors under Evidence Code section 352 would weigh in favor of admitting the evidence in this case. The sexual conduct at issue was not unduly prejudicial, involving consensual sex between an adult and her boyfriend. It would have most likely been elicited through additional questions during the cross-examination of Irene and the experts who testified about her injuries and it would not, therefore, have consumed an inordinate amount of time. Nor would the evidence have been unduly confusing when the jury could have been instructed on the purpose for which it was offered.

[7] Because the court failed to hold an in camera hearing under Evidence Code section 782, the defense was unable to present a complete record of the nature of the prior sexual conduct. Because the fault was not appellants, and because the medical experts acknowledged that in general, Irenes non-strangulation injuries could have been the result of consensual or voluntary activities, we assume the specific sexual conduct between Irene and her boyfriend included acts that could have accounted for each of her injuries.

[8] One juror submitted a note to the court following appellants direct testimony that questioned his testimony on this point: Cervical fluid is the female equivalent of semen. It is clear/cloudy. How does [appellant] know the difference? Cervical fluid is the sign when a woman is most fertile. Given her age it is totally normal.