People v. Clark CA3

Filed 9/26/14 P. v. Clark CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C073263

Plaintiff and Respondent, (Super. Ct. No. SF115048A)

v.

CHARLOTTE CLARK,

Defendant and Appellant.

A jury convicted defendant Charlotte Clark of two counts of lewd conduct upon a child under the age of 14 years (Pen. Code, § 288, subd. (a);1 counts one and two) and one count of contacting a minor with the intent to commit an enumerated sex crime

1 Undesignated statutory references are to the Penal Code.

1

(§ 288.3, subd. (a); count three). The court sentenced defendant to state prison for the midterm of six years on count one; a consecutive one-third the midterm, or two years, on count two; and a concurrent term of three years for count three. Defendant appeals. She contends, and the People concede, that her conviction for violating section 288.3 must be reversed on ex post facto grounds. Since the evidence does not show beyond a reasonable doubt that the conduct occurred after the effective date of section 288.3 (November 8, 2006), we agree and will reverse defendant’s conviction on count three. Adopted by the voters (People v. Keister (2011) 198 Cal.App.4th 442, 451) and effective November 8, 2006, section 288.3 provides, in relevant part, as follows: “(a) Every person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in Section 207, 209, 261, 264.1, 273a, 286, 288, 288a, 288.2, 289, 311.1, 311.2, 311.4 or 311.11 involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense. “(b) As used in this section, ‘contacts or communicates with’ shall include direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system.” Defendant was charged in the language of section 288.3, subdivision (a) with acts that occurred “on and between June 1, 2006, and September 1, 2008.” At trial, the victim testified that she lived in California until 2005 and then moved with her mother to Oregon. In the summer of 2006, after the victim finished second grade and when she turned eight years of age (her birthday is in July), the victim visited defendant (the victim’s grandmother) in Stockton. While there that summer, the victim