P. v. Moore
This case involves sexual conduct that began as a consensual encounter, but then became non-consensual when Earl Kevin Moore wanted the victim to engage in sexual conduct with another woman. The victim did not want to do this, and appellant forced her to do so, despite her resistance. The defense consisted of appellant’s testimony that the entire encounter was consensual.
Moore was charged with two counts of forcible oral copulation in concert (Pen. Code, § 288a, subd. (d)(1)), [1] penetration with a foreign object (§ 289, subd. (a)(1)(A)), and attempted rape by a foreign object in concert (§ 264.1, subd. (a)). A jury found Moore guilty on all four counts and Moore was sentenced to a prison term of 60 years to life.
On appeal, Moore alleges the following errors: (1) the court improperly allowed testimony concerning prior instances of non-consensual sexual activity; (2) the court improperly responded to a question by the jury during deliberation, removing an element of the count of attempted rape by a foreign object in concert from the jury’s consideration; (3) the court erred by failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when Moore requested a continuance, at sentencing, so that retained counsel could replace his appointed counsel; and (4) the sentence included two five-year enhancements for prior convictions, pursuant to section 667, subdivision (a)(1), even though only one enhancement was authorized, because the prior convictions were not brought and tried separately.
The People concede the sentencing error that Moore alleges and we strike one of the two five-year enhancements.
We conclude that in responding to the jury’s query concerning the count of attempted rape with a foreign object in concert, the court erred and removed an element of that count from the jury’s consideration. Because we are unable to conclude that, absent the error, the jury would have convicted Moore on this count beyond a reasonable doubt, we must reverse Moore’s conviction on the count of attempted rape with a foreign object in concert. Because the sentence for that count was concurrent with the sentence on another count, our decision does not affect Moore’s aggregate sentence.
We find no merit in Moore’s other assertions of error.
Moore has also filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel. Because Moore fails to make a prima facie showing of prejudice, we have denied his petition in a separate order.
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