People v. Robinson CA5

Filed 7/14/21 P. v. Robinson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081762
Plaintiff and Respondent,
(Tulare Super. Ct. No. VCF392656)
v.
JOHN ALLEN ROBINSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Ricky Tripp,
Nathan G. Leedy, and Jennifer Conn Shirk, Judges.†
Andrea L. McCann, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
†
Judge Tripp presided over the arraignment; Judge Leedy presided over the
preliminary hearing setting; Judge Shirk presided over the change of plea and sentencing
hearings.
INTRODUCTION
Appellant and defendant John Allen Robinson pleaded no contest to felony
possession of child pornography and was placed on probation. On appeal, his appellate
counsel has filed a brief that summarizes the facts with citations to the record, raises no
issues, and asks this court to independently review the record. (People v. Wende (1979)
25 Cal.3d 436 (Wende).) We affirm.
FACTS1
In February 2019, federal law enforcement authorities began an investigation of
defendant because he purchased child pornography from a particular website that was
also being investigated.
On February 6, 2020, federal and state officers executed a search warrant at
defendant’s residence. They seized laptop computer that contained images and videos of
child pornography. Defendant admitted that he possessed and purchased child
pornography, and “he had spent a couple thousand dollars on child pornography from
various websites over the past seven years.”
PROCEDURAL BACKGROUND
On February 10, 2020, a complaint was filed in the Superior Court of Tulare
County that charged defendant with one count of felony possession of child pornography
(Pen. Code, § 311.11, subd. (a)).2
On June 5, 2020, defendant pleaded no contest to the charge. The parties
stipulated to a factual basis for the plea, based on the law enforcement reports in the
court’s file.
On September 10, 2020, the court conducted the sentencing hearing. Defense
counsel requested the court treat the offense as a misdemeanor because defendant had no
1 The facts are from the law enforcement reports, as summarized in the probation
report, which the parties stipulated to as the factual basis for defendant’s no contest plea.
2 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
prior record, he was 51 years old, he had family support, and he was employed for 30
years before losing his job as a result of this case.
The court denied defendant’s motion to treat the offense as a misdemeanor. The
court stated the offense was either a “serious mistake or choice,” and it did not know
whether it was “something he did before and didn’t get caught or if this is a midlife crisis
that he did something stupid. But we have an obligation as a community to protect
children, and this clearly crossed the line so there needs to be a consequence. I’m not
going to send him to prison, which I clearly have the right to do, but I’m also not going to
reduce it to a misdemeanor or give him a slap on the wrist.”
The prosecutor argued defendant should be sentenced to one year because the
offense was not “just a mistake. The defendant was viewing pornography for seven
years, was paying thousands and thousands of dollars repeatedly for pornography” and
continued to do so until he was “caught.” Defense counsel replied defendant had been a
model citizen for years and should not be sentenced to custodial time.
Defendant addressed the court and stated he had “never taken pictures with
anybody, had contact with anybody, never frequented parks or schools or anything like
that.”
The court placed defendant on formal probation for five years subject to certain
terms and conditions, including serving 365 days in county jail with credit for time
served, and suspended 95 days of that sentence pending successful completion of
probation.
The court also ordered defendant to register as a sex offender for life (§ 290), not
to contact anyone under 18 without a chaperone present; not to go anywhere children
congregate except with an approved chaperone; not to live within a 500-foot radius of a
school; not to take employment that involves unsupervised contact with children; not to
possess any pornographic material; not to communicate over the Internet with minors; not
to communicate with anyone regarding child pornography; to provide all computer,
3.
electronic device, and social media passwords to probation on a monthly basis, and
subject his devices to being searched; not to subscribe to electronic communication
services with false identifying information; and not to possess encryption software.
The court ordered defendant to pay a sexual offender conviction fine of $300
(§ 290.3), a restitution fine of $500 (§ 1202.4, subd. (b)), and suspended the probation
revocation fine in the same amount (§ 1202.44). It also imposed a court operations
assessment of $40 (§ 1465.8), a criminal conviction assessment of $30 (Gov. Code,
§ 70373), a presentence report preparation fee of $250 (§ 1203.1b), and an administrative
screening fee of $25 (Gov. Code, § 29550, subd. (f)). The court granted the public
defender’s request for reimbursement of $450 in attorney fees (§ 987.8), without defense
objection.
On September 17, 2020, defendant filed a timely notice of appeal.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on December 23, 2020, we
invited defendant to submit additional briefing. To date, he has not done so.3
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
3The court’s orders regarding defendant’s electronic devices are consistent with
the provisions of In re Ricardo P. (2019) 7 Cal.5th 1113, 1128–1129, because defendant
used an electronic device to commit the offense in this case – he viewed, purchased, and
downloaded child pornography from the Internet to his computer. (In re Q.R. (2020) 44
Cal.App.5th 696, 698, 702–704.)
4.