People v. Smith CA1/1

Filed 11/9/15 P. v. Smith CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A143882 v. RICHARD J. SMITH, (Sonoma County Super. Ct. No. MCR249927) Defendant and Appellant.

MEMORANDUM OPINION1

In 1995, defendant Richard J. Smith pleaded no contest to four counts of a 14- count complaint: (1) lewd and lascivious acts upon a child of 14 or 15 by a person at least 10 years older (Pen. Code,2 § 288, subd. (c)); (2) oral copulation with a person under the age of 16 by a person over the age of 21 (§ 288a, subd. (b)(2)); (3) sexual penetration of a person under age 16 by a person over age 21 (§ 289, subd. (i)); and (4) sexual intercourse between a person under the age of 16 and a person over the age of 21 (§ 261.5, subd. (d)). The remaining counts were dismissed pursuant to a negotiated disposition. Defendant was 34 years old at the time of the offenses; the victim was 14 years old. (People v. Smith (2014) 227 Cal.App.4th 717, 721–722.) Execution of a three-year state prison sentence was suspended, and defendant was placed on formal

1 We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(1) and (2). 2 Unless otherwise indicated, all further statutory references are to the Penal Code.

probation for 48 months. Defendant successfully completed probation in 1999. (Id. at p. 723.) In February 2013, defendant brought a motion to dismiss pre-1997 sex offenses under section 1203.4, which was denied. A motion to reconsider the court’s ruling was also denied, and defendant timely appealed. (Ibid.) While defendant was still on probation, the Legislature amended section 1203.4 to prohibit the dismissal of convictions for violation of section 288. (Stats. 1997, ch. 61, § 1, p. 405.) That amendment has been held to apply retroactively to those persons convicted and sentenced prior to January 1998, the effective date of the statute. (People v. Ansell (2001) 25 Cal.4th 868, 880–893.) Subsequently, in 2000—after defendant had successfully completed his probationary term—the Legislature amended section 1203.4 to prohibit dismissal of convictions for felony violations of section 261.5, subdivision (d). (Stats. 2000, ch. 226, § 1, p. 2315.) The retroactivity of that amendment has not been judicially determined. Convictions under section 289, subdivision (i) and section 288a, subdivision (b)(2) were not excluded under those amendments, or any other. (People v. Smith, supra, 227 Cal.App.4th at pp. 723–724.) On June 30, 2014, this court held the trial court should have dismissed defendant’s convictions under section 289, subdivision (i) and 288a, subdivision (b)(2). (People v. Smith, supra, 227 Cal.App.4th at p. 724.) We reversed the trial court’s order denying dismissal as to those two convictions and remanded the matter to the trial court for further proceedings in compliance with section 1203.4. (Id. at p. 732.) On remand, the trial court dismissed these two convictions. With respect to his section 261.5, subdivision (d) conviction, defendant argued for the first time on appeal that the 2000 amendment to section 1203.4 was “not retroactive on its face, has not been judicially construed to apply retroactively, and cannot be constitutionally applied retroactively to him because to do so would impair a substantive vested right. (Cal. Const., art. I, § 7 [due process]; In re Marriage of Buol (1985) 39 Cal.3d 751, 756; Yoshioka v. Superior Court (1997) 58 Cal.App.4th 972, 981; INS v.