P. v. Lesner

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Filed 5/13/03 P. v. Lesner CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROY LEE LESNER,
Defendant and Appellant.
E032241
(Super.Ct.No. INF036026)
OPINION
APPEAL from the Superior Court of Riverside County. Robert Gregory Taylor,
Judge. Affirmed.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Raquel Gonzalez,
Supervising Deputy Attorney General, and Roberta L. Davis, Deputy Attorney General,
for Plaintiff and Respondent.

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In 2001, an information was filed charging defendant with, among other things,
two counts of lewd acts on a child under 14 (Pen. Code, § 288, subd. (a)). In 2002, a jury
convicted him on these two counts. It specifically found that these counts were not time-
barred. Defendant was sentenced to six years in prison.
In 1986 and 1987, when these crimes were committed, they were subject to a six-
year statute of limitations. (Pen. Code, § 800; see also Pen. Code, §§ 288, 805.) In 1993,
however, the Legislature enacted what is now Penal Code section 803, subdivision (g)
(section 803(g)). (Stats. 1993, ch. 390, § 1, p. 2226.) It became effective on January 1,
1994. Generally speaking, section 803(g) allows the People to charge specified sexual
offenses within one year after the victim reports the crime to police, even though the
statute of limitations has otherwise expired, provided (1) the crime involved “substantial
sexual conduct,” and (2) the victim’s report is “convincingly” corroborated by
independent admissible evidence. It is undisputed that all of section 803(g)’s criteria
were satisfied and that, by its terms, it applied to the charges in this case.
Defendant’s sole appellate contention is that section 803(g), as applied to him,
violates ex post facto principles and due process. Although he did not raise this
particular contention below, he is entitled to raise it for the first time on appeal. (See
People v. Williams (1999) 21 Cal.4th 335, 339 [“a defendant may assert the statute of
limitations at any time”].)
As defendant acknowledges, in People v. Frazer (1999) 21 Cal.4th 737, cert. den.
(2000) 529 U.S. 1108 [120 S.Ct. 1960, 146 L.Ed.2d 792], the California Supreme Court
held that section 803(g) is not an unconstitutional ex post facto law (id. at pp. 754-765); it

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also held that section 803(g) does not violate due process. (Id. at pp. 765-775.) He
argues, however, that Frazer has been “undermined” by the opinion of the United States
Supreme Court in Carmell v. Texas (2000) 529 U.S. 513 [120 S.Ct. 1620, 146 L.Ed.2d
577]. Recently, in People v. Zandrino (2002) 100 Cal.App.4th 74, a sister court of ours
rejected this precise contention. (Id. at pp. 82-84.) We find Zandrino persuasive, and we
adopt its reasoning. Accordingly, we affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
KING
J.

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