People v. McCarter CA3

Filed 5/10/21 P. v. McCarter CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C085161

Plaintiff and Respondent, (Super. Ct. No. 16FE002313)

v.

STEVEN ANTHONY MCCARTER,

Defendant and Appellant.

SUMMARY OF THE APPEAL A jury convicted defendant Steven Anthony McCarter of two counts of rape of Gina Doe and one count of attempted rape of Rita Doe, and various assault charges arising from the same, including two counts of assault with a deadly weapon, to wit a belt on Gina and a bottle on Rita. The jury also found true that defendant used a deadly weapon when he raped Gina. At a bifurcated hearing, the trial court found true that

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defendant had two prior serious felonies (strikes) and two prison priors. The trial court sentenced defendant to an indeterminate term of 115 years to life, with an additional consecutive term of 36 years to life for the prior strikes and prison priors. In his opening brief, defendant makes five arguments. Arguments one and two, which we consider together, claim the trial court violated defendant’s rights to due process and a fair trial by instructing the jury with a legally invalid theory that it could consider a belt or a bottle inherently dangerous weapons for purposes of determining if the rapes of Gina and the assault with a deadly weapon offenses were committed with deadly weapons. In his third argument, defendant argues the trial court violated his right to due process when it failed to instruct on the lesser included offense of simple assault along with the assault with a deadly weapon instruction for Rita. In his fourth argument, defendant argues that the trial court violated his right to due process when it allowed the jury to consider the Gina Doe rapes to find defendant was predisposed and inclined to commit sexual offenses when it considered whether he attempted to rape Rita. In his fifth argument, defendant argues we ought to order a limited sentencing remand to allow the trial court to determine if it wants to exercise its discretion to strike defendant’s prior serious felonies under changes to the Penal Code that became effective after the judgment was entered by the trial court. In a sixth argument, raised in a supplement brief, which we consider in the same section we address defendant’s fifth argument, defendant argues that we should strike six years from his sentence that were imposed due to the prison prior findings, because changes to the law made subsequent to the sentencing in this matter have eliminated the ability of courts to impose those sentencing enhancements. We agree with defendant’s sixth argument and strike the six-year portion of his sentence that are due to the prison prior enhancements. Otherwise, we affirm the judgment.