P. v. Carter CA6
Defendant Greg Eugene Carter was convicted by jury of assault with a deadly weapon, a knife (Pen. Code, § 245, subd. (a)(1)), and was sentenced to the upper term of four years in prison. On appeal, defendant contends that the trial court committed prejudicial error by instructing the jury that a knife may be an inherently deadly weapon. He also argues that his conviction must be reversed because the prosecutor committed misconduct in rebuttal argument and violated his constitutional rights to counsel and due process. Lastly, defendant contends that Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill No. 567), which amended Penal Code section 1170, subdivision (b) (section 1170(b)) effective January 1, 2022, to make the middle term the presumptive sentence unless certain circumstances exist, applies retroactively to him and requires remand for resentencing.
For reasons that we will explain, we will remand the matter for resentencing under amended section 1170(b).
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