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People v. Garner5/31/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted appellant David Leon Garner of two counts of rape by use of drugs or intoxicants and two counts of lewd and lascivious conduct with a child. Four sentence enhancement allegations were also found to be true. Garner was sentenced to 66 years to life in state prison. (See Pen. Code, §§ 261, subd. (a)(3), 288, subd. (c), 667, subds. (a), (d), (e), 667.5, subd. (b), 667.6, subd. (a), 667.61, subd. (a), 667.71.) He appeals, contending that the trial court erred when it (1) admitted evidence of prior sexual offenses as evidence of his propensity to commit the charged crimes in violation of his federal constitutional rights to due process and equal protection; (2) abused its discretion in admitting this propensity evidence. He also contends that the trial court committed instructional error when it (3) misinstructed the jury on the effect of uncharged evidence of child abuse as propensity evidence; (4) failed to instruct the jury that unlawful intercourse was a lesser included offense of the charged rapes; and (5) allowed the jury to consider his flight as evidence of a consciousness of guilt. We affirm the judgment.
I. FACTS
In the late afternoon hours of June 17, 2000, 14-year-old Rachael R. told her friend Loren-who was 16-that she wanted to go to a friend's house in Eureka and get a drink. They went to their friend's house and met their friend's uncle, appellant David Leon Garner. Loren did not see him drinking but he smelled of alcohol and staggered a bit when he walked. He told them that he had just been released from prison and that he had hepatitis C, which is transmitted by sexual contact. He encouraged Loren and Rachael to think of him as their uncle, telling them that he wanted to protect them. There was no flirting or "anything sexual" going on.
In the living room, Loren, Rachael and Garner began drinking from a fifth bottle of Jack Daniels that he provided them. Garner told them that he stole the alcohol from a store. Rachael poured herself a mixture of whiskey and cola. While she argued with her boyfriend on the telephone, she was upset and distracted. Rachael did not seem to notice that Garner added to her drink from the bottle of Jack Daniels so often that Loren thought she was drinking straight whiskey. Rachael had no sense of how much alcohol she was consuming.
They ran out of cola, so Loren went to a store across the street to get more. When she returned to the house 15 minutes later, she found Garner and Rachael engaging in sexual intercourse on the floor of one of the bedrooms. Rachael was just laying there, drunk. Garner asked Loren to watch the door and the telephone. If anyone called, she was to say he was asleep. Shocked, Loren retreated to the living room.
At first, Loren thought Rachael was a willing participant. Rachael staggered into the living room a few minutes later wearing only a long shirt. Her language was slurred, but Loren understood her to say that she did not want to leave. Rachael appeared confused. She asked if Loren was mad at her. Loren said that what Rachael was doing was wrong-that Garner was old enough to be her father. She asked what happened and Rachael said she did not know-all of a sudden, it just happened. Gradually, Loren realized that Rachael was too intoxicated to consent to sexual intercourse.
After a few minutes, Rachae
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