P. v. Holquin CA2/1

Filed 4/22/13 P. v. Holquin CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B240389

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA117485) v.

PAUL JOSEPH HOLQUIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles 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.

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SUMMARY Appellant Paul Joseph Holquin was charged with one count of possession of child pornography. (Pen. Code, § 311.11, subd. (a).)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,