Opinion
A099122.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. DONALD WREN KIMBALL, Defendant and Appellant.
Defendant Donald Wren Kimball appeals from his conviction on two counts of lewd and lascivious conduct. (Pen. Code, § 288, subds. (a) & (b).) Although each of the lewd acts occurred more than 20 years earlier, the jury found that the delayed prosecution was permissible under Penal Code section 803, subdivision (g).
Defendant has filed a motion for summary reversal, arguing that the application of Penal Code section 803, subdivision (g), to the facts of his case violates the ex post facto clause of the United States Constitution. (See Stogner v. California (June 26, 2003, No. 01-1757) ___ U.S. ___ .) By letter dated July 7, 2003, the Office of the Attorney General concedes that the judgment should be reversed, waives oral argument, and stipulates to the immediate issuance of the remittitur.
Prosecution for each of the underlying offenses is, in fact, barred by the ex post facto clause of the United States Constitution, as interpreted by the United States Supreme Court in Stogner. Accordingly, the motion for summary reversal is granted, and the trial courts judgment in Sonoma County Superior Court Case No. SCR30148 is hereby reversed. Pursuant to the stipulation of the parties, this opinion is final for all purposes immediately upon filing, and the Clerk of the Court shall immediately issue the remittitur herein. (See Ng v. Superior Court (1992) 4 Cal.4th 29, 34, fn. 1, 840 P.2d 961.) Because defendant was recently sentenced to state prison on other charges, we express no opinion as to his ongoing custodial status. --------------- Notes: On June 4, 2003, in Sonoma County Superior Court Case No. SCR32135, defendant was sentenced to a three-year term for assault with a deadly weapon and felony vandalism. (Pen. Code, §§ 245, subd. (a)(1), 594, subd. (a).) Those convictions are currently on appeal in Case No. A102987.