Is Section 702.3 of the California Criminal Code retroactively retroactively applied to a defendant in a sexual assault case?

Section 702.3 was intended to and does change this procedure, clarifying at least prospectively the murky situation which here confronted the trial court. If, however, its effect on real party is essentially penal, its retroactive application would in our view be illegal. As [95 Cal.App.3d 393] said in People v. Sobiek (1973) 30 Cal.App.3d 458, 472, 106 Cal.Rptr. 519, 528 (cert. den. 414 U.S. 855, 94 S.Ct. 155, 38 L.Ed.2d 104): "A statute has an ex post facto effect when it alters the situation of an accused to his disadvantage by: (a) making criminal an action innocent when done; (b) making more serious an act already criminal when done; (c) inflicting greater punishment than that attending the act at the time it was committed;

Page 165