P. v. Carter
Michael David Carter III appeals from the judgment entered following his conviction, by a jury, of kidnapping to commit a sex offense (Pen Code, 209, subd. (b)(1); count 1)[1]; three counts of forcible rape ( 261, subd. (a)(2); counts 2, 3, & 8); sodomy by force ( 286, subd. (c)(2); count 4); forcible oral copulation ( 288a, subd. (c)(2); count 5); and sexual penetration by a foreign object ( 289, subd. (a)(1); count 6). The jury deadlocked on count 7.
With respect to counts 2 through 6 and 8, the jury also found true several enhancement allegations under section 667.61, also known as the One Strike law: the jury determined that Carter had (1) moved the victims, which increased her risk of harm during the commission of the crimes ( 667.61, subds. (d)(2)); (2) kidnapped the victims during the commission of the crimes ( 667.61, subd. (e)(1)); and (3) used a knife during the commission of the crimes ( 667.61, subd. (e)(4)). The court sentenced Carter to life with the possibility of parole for count 1, plus six indeterminate terms of 25 years to life for counts 2, 3, 4, 5, 6, and 8.
On appeal, Carter claims the judgment should be reversed because (1) the prosecutor committed misconduct, (2) his attorney performed inadequately, (3) the trial court gave erroneous jury instructions, and (4) the court violated the ex post facto provision of our state and federal Constitutions by sentencing him under a version of section 667.61 that was not in effect at the time he committed the crimes. We agree with Carters final argument and remand to the trial court to conduct another sentencing hearing using the correct test. However, judgment is affirmed in all other respects.
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