People v. Cura CA1/3

Filed 5/6/14 P. v. Cura CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. A135567 FELIX CURA, JR., (Solano County Defendant and Appellant. Super. Ct. No. FCR287062)

Defendant Felix Cura, Jr. appeals from a judgment after a conviction for the felony offense of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a).1) The court suspended imposition of sentence of the middle term of six years in state prison and placed Cura on formal probation for four years. As a result of his conviction, Cura is required to register as a sex offender. (§ 290, subd. (c).) As part of “the terms and conditions” of probation, the court issued a “no contact” order requiring Cura “not to reside within 2000 feet of any public or private school, or park where children regularly gather,” pursuant to section 3003.5, subdivision (b) (§ 3003.5(b), hereinafter also referred to as the statutory residency restriction). Cura argues, and the Attorney General concurs, that the statutory residency restriction should be stricken because section 3003.5(b) applies only to parolees, and not probationers. We agree with the parties, and shall remand the matter to the trial court with directions to strike the statutory residency restriction as a term of probation.

1 All further unspecified statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND On November 28, 2011, the district attorney filed an information charging Cura with one count of committing a lewd act on a child under the age of fourteen in violation of section 288, subdivision (a). After a jury trial, Cura was convicted of the sole count in the information. Because the underlying facts and trial proceedings are not necessary to resolve the sentencing issue raised on appeal, we do not recount them. On May 15, 2012, the trial court suspended imposition of sentence of the middle term of six years in state prison and placed Cura on formal probation for four years. As a result of his conviction, Cura was required to register as a sex offender pursuant to section 290. He was also ordered to serve 210 days in county jail and granted 45 days credit for time served. In addition to various other “terms and conditions” of probation, the court orally announced at sentencing that “[t]here is a requirement not to reside within 2000 feet of any public or private school.” In the court’s written minute order and order of probation, it issued a “no contact” order directing that Cura was “not to reside within 2000 feet of any public or private school, or park where children regularly gather. (PC3003.5(b)) Compliance within 30 days of hearing or release from custody, whichever is later, or as otherwise directed by Probation.” Cura filed a timely notice of appeal. DISCUSSION Cura argues, and the Attorney General agrees, that the probationary term directing compliance with the section 3003.5(b) residency restriction must be stricken because the statute applies only to parolees, not probationers. As we now discuss, we agree with the parties that the statutory residency restriction should be stricken as a term of probation.2 Proposition 83, known as the Sexual Predator Punishment and Control Act, enacted on November 7, 2006, was a “wide-ranging initiative intended to ‘help 2 Cura’s “acceptance of the conditions of probation does not preclude him from challenging them on appeal: ‘ “[I]t is established that if a defendant accepts probation, he may seek relief from the restraint of an allegedly invalid condition of probation on appeal from the order granting probation.” ’ ” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, fn. 1.)