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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


                             ______________________________________
                                         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.

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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

  2Appellant did object, unsuccessfully, at sentencing to a probation condition
prohibiting him from participating on any sharing site on a computer, including
Facebook.

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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.

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       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.)

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