P. v. Holquin
Filed 4/22/13 P. v. Holquin CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL JOSEPH HOLQUIN,
Defendant and Appellant.
B240389
(Los Angeles
County
Super. Ct.
No. VA117485)
APPEAL from
a judgment of the Superior Court
of
County. Patrick T.
Meyers, Judge. Affirmed.
Vanessa
Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Linda C. Johnson and Toni R. Johns Estaville, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________________
SUMMARY
Appellant Paul Joseph Holquin was charged with one count
of possession of child pornography. (Pen. Code, §
311.11, subd. (a).)
name="_ftnref1" title="">[1] A jury convicted appellant after trial and he
was placed on three years probation, the conditions of which included a prohibition
against residing near, visiting or being within 100 yards of places where
minors frequent or congregate. On
appeal, appellant challenges the imposition of this condition arguing that the
registered sexual offenders residency restriction requirement in section
3003.5, subdivision (b) applies only to parolees, and does not apply to
probationers such as appellant, and that the trial court was under the mistaken
belief that section 3003.5’s residency restriction applied and was mandatory. Appellant further argues that the residency
requirements of section 3003.5, subdivision (b), constitute cruel and unusual
punishment.
Respondent agrees that the residency
requirements of section 3003.5, subdivision (b), apply only to parolees, argues
that the trial court recognized and properly exercised its discretion, and
contends that appellant lacks standing to challenge the alleged
unconstitutionality of the residency requirement.
We affirm.
PROCEDURAL
BACKGROUND
It is unnecessary to recite the
facts of appellant’s trial in order to resolve his contentions on appeal.
Appellant was convicted by a jury
of one count of possession of matter depicting a minor engaging in sexual
conduct in violation of section 311.11, subdivision (a).
At sentencing, the trial court granted
formal probation to appellant for a period of three years, on condition, among
others, that he serve 365 days in county jail, register as a convicted sex
offender, “stay 100 yards away from and have no contact with all minor
children†and not “reside near, visit, or be within 100 yards of places minors
frequent or congregate, including, but not limited to, school yards, amusement
parks, concerts, theaters, playgrounds, beaches, swimming pools and arcades
unless approved by the probation officer and supervised by an approved
chaperone.†Appellant did not object to
any of these conditions at sentencing.
DISCUSSION
On appeal, appellant contends that
in imposing the 100-yard residency restriction, “the trial court apparently
believed appellant was subject to the residency restrictions authorized by
Penal Code section 3003.5 . . .†which requires the imposition of a 2,000 feet
residency restriction and also argues that the sentencing was “purely
formulaic, indicating [the trial court’s] belief that such restrictions were
mandatory upon a grant of probation.â€
Because, appellant argues, section 3003.5 applies only to parolees and
not probationers like appellant, the trial court failed to exercise “informed
discretion†in its sentencing decision because it was “unaware of the scope of
its discretionary powers.†Appellant
then argues at length that the “automatic imposition†of section 3003.5’s
mandatory residency requirements “constitutes cruel and unusual punishment in
each and every case.†Appellant also
asks this Court to excuse any forfeiture of the argument based on his failure
to raise the issue to the trial court.
We disagree and affirm.
“A reviewing court is entitled to
presume the sentencing court properly exercised its discretion in imposing
sentence absent evidence to the contrary.â€
(People v. Montano (1992) 6
Cal.App.4th 118, 121; People v. Mosley
(1997) 53 Cal.App.4th 489, 496-497 [trial court is “presumed to have been aware
of and followed the applicable law†including its sentencing discretion].) “[I]n light of the presumption on a silent
record that the trial court is aware of the applicable law, including statutory
discretion at sentencing, [the reviewing court] cannot presume error where the
record does not establish on its face that the trial court misunderstood the
scope of [its] discretion.†(
Cal.App.4th 515, 527; In re Consiglio
(2005) 128 Cal.App.4th 511, 516 [“In the absence of any evidence to the
contrary, we must presume the judge was aware of his discretion and chose not
to exercise it. [Citation.]â€].) Here, the record does not establish that the
trial court was unaware of its discretion or failed to exercise it.
While appellant contends that the
trial court mistakenly believed that appellant was subject to section 3003.5,
subdivision (b)’s mandatory residency restriction, we believe it is apparent
from the face of the trial court’s order that it was not imposing a residency
restriction based on that section. Section
3003.5 states: “(a) Notwithstanding any other provision of law,
when a person is released on parole after having served a term of imprisonment
in state prison for any offense for which registration is required pursuant to
Section 290, that person may not, during the period of parole, reside in any
single family dwelling with any other person also required to register pursuant
to Section 290, unless those persons are legally related by blood, marriage, or
adoption. . . . [¶]
(b) Notwithstanding any other provision of law, it is unlawful for
any person for whom registration is required pursuant to Section 290 to reside
within 2000 feet of any public or private school, or park where children
regularly gather.†(§ 3003.5, subds. (a)
& (b).) Thus, under section 3003.5’s
residency restriction, appellant would have been prohibited without exception
from residing within 2,000 feet of a school or park; in contrast, the trial
court here imposed a condition of probation ordering appellant not “reside
near, visit or be within 100 yardsâ€â€”or 300 feet—“of places minors frequent or
congregate†and “unless approved by the probation officer and supervised by an
approved chaperone.â€
Accordingly,
the record does not establish on its face that the trial court misunderstood
the scope of its discretion by mistakenly believing it was bound by section
3003.5. Under appellant’s argument, this
court should presume that the trial court not only incorrectly concluded that
section 3003.5 applied to appellant, despite appellant being on probation and
not parole, but then incorrectly imposed conditions that were inconsistent with
the terms of section 3003.5’s residency restriction of 2,000 feet. Appellant’s probationary sentence does not
support such an argument. Indeed, it is
clear that the trial court fashioned a condition of probation that was at odds
with section 3003.5’s explicit requirements.
Because we do not agree with
appellant’s assertion that he was sentenced under section 3003.5, we do not
reach his challenge to the constitutionality of that section.
Finally, in his
Attorney General has failed to articulate a relationship between “appellant’s
offense (possession of lewd images of children) and a condition of probation
that would prohibit him from residing or otherwise being near all children†as
“appellant was not convicted of touching or physically disturbing any childâ€
and cites People v. Lent (1975) 15
Cal.3d 481, 486. To the extent appellant
is contending that the trial court abused its discretion in setting the
probation conditions, we do not consider arguments raised for the first time in
a reply brief.
title="">[3] (Reichardt
v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
DISPOSITION
The
judgment of the trial court is affirmed.
NOT TO BE PUBLISHED.
CHANEY,
J.
We concur:
MALLANO, P. J.
JOHNSON, J.
Code.
to a probation condition prohibiting him from participating on any sharing site
on a computer, including Facebook.
