P. v. Ormsby

Filed 7/10/06 P. v. Ormsby CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A110726

v. (Solano County Super.

Ct. No. FCR209655)

ROBERT JAY ORMSBY,

Defendant and Appellant.

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Robert Jay Ormsby appeals from order granting him probation. He contends (1) a probation revocation restitution fine that was imposed must be reversed on ex post facto grounds, and (2) two of his probation conditions are constitutionally invalid. We will strike the probation revocation restitution fine but otherwise affirm the probation order.

I FACTUAL AND PROCEDURAL BACKGROUND

On July 24, 2003, Lindsey R., who was 14 years old, was spending the night with her cousin Cory Soto at his apartment in Solano County

. Other persons were also at the apartment that evening including appellant, who was Soto's best friend. Appellant was in his early 30's at the time.

The group at the apartment watched television and played video games. By midnight, everyone except Lindsey and appellant had gone to sleep. Lindsey had taken some medication that made her tired. She lay down on a couch and covered herself with a sheet.

Appellant offered to give Lindsey a massage. She declined. Appellant insisted. He began to rub Lindsey's arm, and then moved to her chest. He rubbed Lindsey's breasts and then her vagina. Lindsey told appellant to stop and she tried to push him away. She was unsuccessful.

After about half an hour, appellant got up to leave. He kissed Lindsey and told her to â€