P. v. Yogerst
A jury convicted Mark Anthony Yogerst of one count of rape of an unconscious person, in violation of Penal Code section 261, subdivision (a)(4) (hereafter section 261(a)(4) (count 1), and one count of rape of an intoxicated person in violation of section 261, subdivision (a)(3) (hereafter section 261(a)(3) (count 2). The court sentenced him to the upper prison term of eight years on each count, but stayed the sentence on count 2 under section 654.
On appeal, Yogerst contends (1) the court prejudicially erred by not allowing the defense to present 11 photos taken at a party three months before the incident to impeach the victim, Lindsay F.; (2) the court prejudicially erred in instructing the jury with CALJIC No. 2.03 (consciousness of guilt), lightening the prosecution's burden of proof; (3) the court's reprimand of a group of Yogerst's supporters in the jury's presence impugned the defense and deprived him of a fair trial; (4) the evidence was insufficient to support a conviction of rape of an intoxicated person, and thus the court improperly denied Yogerst's section 1118.1 motion for acquittal on count 2; alternatively, conviction on count 1 ( 261(a)(4)) can stand, but conviction on count 2 ( 261(a)(3)) must be vacated because rape can be committed in various ways; (5) the court committed Blakely[2]error by sentencing Yogerst to the upper terms in both counts in violation of his right to a jury trial and proof beyond a reasonable doubt; and (6) the court abused its discretion by sentencing Yogerst to the aggravated upper term in both counts.
Court reverse Yogerst's conviction of count 2 (rape of an intoxicated person) because he cannot be lawfully convicted of both count 1 (rape of an unconscious person) and count 2 based on the single act of sexual intercourse for which he was prosecuted. We also reverse the sentence on the ground the court's imposition of the eight-year upper term sentence on each of the two counts based on judicial fact finding denied Yogerst his federal constitutional rights to a jury trial and proof beyond a reasonable doubt. Court otherwise affirm the judgment and remand the matter for further proceedings.
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