People v. Clark

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Opinion

FRANSON, Acting P. J.

Statement of the Case

Appellant was charged with lewd and lascivious conduct with a child under the age of 14 (Pen. Code, § 288, subd. (a)), with having made friends with the victim for the purpose of committing a violation of Penal Code section 288 (Pen. Code, § 1203.066, subd. (a)(3)), and with having substantial sexual conduct with the victim, a child under the age of 11 (Pen. Code, § 1203.066, subd. (a)(8)). It was also alleged that appellant had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a).

A jury found appellant guilty of lewd and lascivious conduct as charged and found true the allegations that he made friends with the victim and had substantial sexual conduct with the victim. The prior conviction allegation was tried separately.

Appellant moved to strike the prior conviction on constitutional grounds. The trial court denied this motion. The parties waived a jury trial, and the court found that the allegation of a prior serious felony conviction was true.

Appellant was sentenced to 13 years in state prison.

Statement of Facts

Appellant, age 43 at time of sentencing, was hired to hang wallpaper in one-half of a duplex during the last week of April and the first week of May in 1983. Mrs. D. and her five-year-old daughter, Michelle, lived in the other half of the duplex.

Mrs. D. found Michelle watching appellant working several times. Mrs. D. took Michelle out of the apartment and told her not to bother the man who was working. However, Michelle continued to visit appellant.

In December 1983, Michelle attended a class on molestation in kindergarten. The class instructor, Linda Mauren, talked about touching that is appropriate and touching that is not. The children were also instructed that if they had been inappropriately touched or told to keep the touching a secret, they should tell someone about it.

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