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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

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 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.

______________________________________
2

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, 

 

 

1 All subsequent statutory references are to the Penal Code.
3

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.2

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.” 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.” (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.” (People v. Gutierrez

(2009) 174 Cal.App.4th 515, 527; In re Consiglio (2005) 128 Cal.App.4th 511, 516 [“In 

 

 

2 Appellant did object, unsuccessfully, at sentencing to a probation condition 

prohibiting him from participating on any sharing site on a computer, including 

Facebook.
4

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.]”].) 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 yards”—or 300 feet—“of places minors frequent or congregate” and 

“unless approved by the probation officer and supervised by an approved chaperone.” 

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. 
5

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 reply brief, appellant argues that the 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 child” 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.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.

 

 

3 We also note that failure to timely challenge a trial court’s exercise of its broad 

discretion to set the terms of probation under People v. Lent, supra, 15 Cal.3d 481, 

forfeits the claim on appeal. (People v. Welch (1993) 5 Cal.4th 228.)