People v. George CA4/2

BACKGROUND

A detailed recitation of facts is not pertinent to the present appeal. On November

19, 2010, Jane Doe, age 13, was taken to an abandoned house, after drinking alcohol with

friends in a park. She was so intoxicated she did not recall anything that happened that

night, but the next morning she woke up vomiting, with her shoes and pants removed,

and barely able to walk. She was eventually taken to a hospital for a sexual assault

examination, where swabs were taken and analyzed. Examination of the swabs taken

from Jane Doe were compared with secretions found in used condoms found in the

abandoned house, and led to the identification of defendant as one of three who had raped

her.

Defendant was charged with rape of an intoxicated person (§ 261, subd. (a)(3),

count 1), lewd acts with a person under the age of 14 (§ 288, subd. (a), count 2), and

active participation in a criminal street gang (§ 186.22, subd. (a), count 3). It was further

alleged that counts 1 and 2 were committed for the benefit of a criminal street gang

(§ 186.22, subd. (b)). Defendant was tried by a jury and convicted on all counts.

At sentencing, the court selected count 2 as the principal…