People v. Lynch

Filed 8/4/16 Certified for Publication 8/15/16 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A146704 v. RICHARD LYNCH, (Solano County Super. Ct. No. FCR309321) Defendant and Appellant.

INTRODUCTION This is an appeal from a sentence imposed by the trial court. Appellant focuses on a condition of probation forbidding appellant from “resid[ing] within 2000 feet of any public or private school, or park where children regularly gather.” (Pen. Code, § 3003.5, subd. (b).1 Appellant contends the condition is not mandatory, as the trial court believed. Respondent agrees the condition is not mandatory, and also concurs with appellant the condition should be stricken. We agree with the parties and strike the condition under the facts of this case. We otherwise affirm the judgment. STATEMENT OF THE CASE The District Attorney of Solano County filed a felony complaint against appellant on August 8, 2014. The document charged him with one count of possession or control of child pornography, a violation of section 311.11, subdivision (a). Appellant entered a plea of not guilty. On June 25, 2015, a plea agreement was reached between appellant

1 Unless otherwise stated, all statutory references herein are to the Penal Code.

and the prosecution, with a felony plea to possession of child pornography. Appellant would receive a probation sentence. After being advised of his rights and waiving them, appellant entered a no contest plea. On September 29, 2015, appellant was sentenced. The court suspended the imposition of sentence, placing appellant on probation for a period of three years. One of the conditions of probation was he could not “reside within 2000 feet of any public or private school, or park where children regularly gather.” Because of the court‟s concerns regarding this probation condition, it stayed the condition pending this appeal. Appellant filed a timely appeal on September 29, 2015. DISCUSSION Appellant argues section 3003.5, subdivision (b) and its residency restriction was improperly imposed here because the section only applies to registered sex offenders who are on parole. Because appellant is on probation, the condition is improper and should be stricken. Respondent agrees with appellant‟s position. Section 3003.5, subdivision (b) is part of the Sexual Predator Punishment and Control Act: Jessica‟s Law, approved by our voters on November 7, 2006 as Proposition 83. In this case, as part of plea colloquy, appellant affirmed he would be required to register under section 290. Yet appellant contended he should not be subject to the residency restriction because the statute only applied to parolees. He also claimed the condition had no relationship to his crime or future criminality. Appellant noted he lived very close to a park, perhaps “on the absolute 2,000 foot edge.” At the time of sentencing, the district attorney objected to appellant‟s contention the condition did not apply to him. Instead, the prosecutor claimed section 3003.5, subdivision (b), applied to all section 290 registrants, not just parolees. The trial court indicated it would not impose a residency restriction in this case if it had the discretion to do so, because appellant was being sentenced to probation. However, the court believed the condition was mandatory and imposed the restriction,