Opinion
E071953
06-06-2019
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MICHAEL HOULIHAN, Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 18PA001890) OPINION APPEAL from the Superior Court of San Bernardino County. Patrick Christianson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Robert Michael Houlihan was charged by felony complaint with two counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a), counts 1 & 2), failure to register as a sex offender (§ 290, subd. (b), count 3), and failure to register as a sex offender at each residence (§ 290.010, count 4). Pursuant to a plea agreement, defendant pled no contest to count 2 (lewd act upon a child), and the court struck the remaining counts and allegations. In accordance with the plea agreement, the court sentenced him to three years in state prison, followed by three to four years of parole upon release. Subsequently, the court found defendant in violation of his parole after a contested hearing. It then reinstated him on parole and ordered him to serve 180 days in county prison, with 37 days of custody credit.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
Defendant filed a timely notice of appeal. We affirm.
PROCEDURAL BACKGROUND
On January 14, 2014, defendant pled no contest to the charge that, on or about July 10, 2013, he committed the crime of a lewd act upon a child, a felony. (§ 288, subd. (a).) The court sentenced him to three years in state prison, followed by three to four years of parole.
On November 9, 2018, defendant's parole agent filed a petition for revocation, alleging that defendant violated his parole condition which stated: "You shall not enter or loiter within 250 feet of the perimeter of places where children congregate (e.g., day care centers, schools, parks, playgrounds, video arcades, swimming pools, state fairgrounds, county fairgrounds, etc.)"
The court held a hearing on the petition on December 12, 2018. Defendant's parole officer testified that he performed a home visit on November 4, 2018, and defendant told him he had gone to an air show the day before. The officer saw a brochure for the event on the counter in defendant's home and read it. He noted that the brochure listed activities for children. The officer went to the air show that day and obtained a map of the venue. There were areas that were considered kids zones. The officer checked defendant's Global Positioning System (GPS) to track where defendant went at the air show. The GPS revealed that defendant was at the air show from 10:20 a.m. to 4:45 p.m. It showed that he was directly in the kid zone from 2:00 p.m. to 2:20 p.m., and then again from 3:00 p.m. to 3:07 p.m. The officer specifically testified that he could clearly determine that defendant's GPS tracks were within the perimeter of the kid zone, during the 20-minute period and the seven-minute period. The officer also testified that he had discussed this issue of being in places where children congregate with defendant on four or five previous occasions.
Defendant testified that he was in the kid zone area because he and his friend were in line to get a strawberry lemonade. He said the vendors were right next to the kid zone. He went back later to get another strawberry lemonade, and "stood there for a minute and said, wow, this is a long line." Defendant then told his friend there were other vendors on the other side and said they should go there.
The court concluded that defendant's own testimony showed he was within the perimeter of an area where children would congregate. The court further noted that defendant's parole agent had "cut [him] some slack in the past" when he made decisions on his own of what did or did not constitute a violation of his parole condition. Thus, from previous discussions with his parole agent, defendant should have known he needed to check in advance before he went to a location that could be a violation.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and one potential arguable issue: whether the court's finding that defendant violated his parole condition was supported by substantial evidence. Counsel has also requested this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.