People v. Jones CA3 ( 2022 )

Filed 8/10/22 P. v. Jones CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
THE PEOPLE, C094439
Plaintiff and Respondent, (Super. Ct. No. PR202100010)
v.
THOMAS JONES,
Defendant and Appellant.
Defendant Thomas Jones’s1 parole was revoked after the trial court found she
violated a parole condition prohibiting her access to “sexually oriented or sexually
stimulating objects, articles, magazines and/or devices” and “pornographic material.”
She contends the condition is unconstitutionally vague and, furthermore, insufficient
evidence supports the revocation. The People dispute both contentions. Agreeing that
the condition is unconstitutionally vague, we reverse and remand with instructions.
1 Defendant identifies as female and uses female pronouns.
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BACKGROUND
In February 2013, defendant was sentenced to eight years eight months in prison
for robbery and using pepper spray as a weapon (Pen. Code, §§ 211, 22810, subd.
(g)(1)).2 In March 2021, she was released from state prison on a two-year term of parole.
As a section 290 registrant for unlawful sexual intercourse with a minor in 2007 and 2005
(§ 261.5, subd. (c)) and committing a lewd and lascivious act, at age 13, against her
younger sister (§ 288, subd. (a)), her conditions of parole included Special Condition 31
(condition 31): “You shall not view, possess, or have access to any sexually oriented or
sexually stimulating objects, articles, magazines and/or devices, or pornographic material
in any format, including electronic communication devices (e.g., movies, photographs,
drawings, literature, websites, texts, etc.).”
In June 2021, defendant’s parole officer filed a revocation petition alleging
defendant violated condition 31. According to the petition, a search of defendant’s cell
phone revealed she had downloaded over 100 photos of children in underwear and
swimsuits, visited an adult pornographic website, and photographed and videoed herself
nude and masturbating alone in her residence, apparently to share with adults in online
video chats.
In the July 2021 revocation hearing, the parole officer conceded there was nothing
unlawful about the website, images, or video. When asked about the difference between
a “sexually oriented or sexually stimulating object, article, magazine and/or device” and
“pornographic material,” the officer stated he relied on his training to identify
“[b]ascially anything that is pornographic or anything that a subject may, you know, have
a certain feeling about a certain object or a certain thing, such as basic pornography, or
maybe if a person is attracted to a vegetable, then if you can prove that they’re attracted
2 Undesignated statutory references are to the Penal Code.
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to that vegetable, then you can substantiate the violation, per se.” Such determinations
were made on a “case-by-case basis,” which his supervisor would then review “to make
sure that it’s actually pornographic in nature.”
Defense counsel argued this testimony demonstrated condition 31 is
unconstitutionally vague because it grants unfettered discretion to the parole officer,
leading to discriminatory outcomes. Counsel further argued there was no basis to
conclude “adult porn” and “sexually stimulating objects” would cause defendant to
reoffend against minors. Such prohibitions, counsel asserted, would frustrate the goal of
“encourag[ing] healthy sexual relationships.” Moreover, “the reality is, in our digital age,
sending . . . sexually oriented material of oneself is part of normal, healthy relationships.
. . . It is not anything that has to do with criminal conduct or something that may lead
someone to think that a person who engages in that behavior might also commit crimes.”
Counsel noted that “[i]f we wanted to keep Ms. Jones from having photographs of
children, then the condition could very well say, ‘Do not have photographs of children on
your phone.’ ”
Rejecting counsel’s vagueness argument, the trial court stated: “I suppose there
are applications where it can be vague, but I don’t think it’s vague on its face. [¶] That is
to say, I know we used the example of being sexually attracted to vegetables, for
instance. I think that these farfetched examples, they set perhaps an outside boundary as
to what might be vague, and we simply don’t have that here. I think a reasonable
interpretation sets reasonable limits on [condition] 31.”
The trial court found that the photographs of children did not violate condition 31
because “it’s difficult to ascertain what would be sexually gratifying for Ms. Jones and
what wouldn’t be with respect to what would otherwise be legal photographs.” But the
trial court found “that the selfies of Ms. Jones masturbating with the photos and videos,
that would be pornography and that would be a violation of [condition] 31.” The court
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also found that defendant had violated condition 31 by visiting the adult pornographic
website.
The trial court granted the revocation petition and sentenced defendant to 104 days
in custody, with credit for 84 days served. Defendant timely appealed; the case was fully
briefed on May 11, 2022, after multiple continuances of briefing by both parties, and was
assigned to this panel soon after.
DISCUSSION
Defendant contends condition 31 is unconstitutionally vague.
As a threshold matter, even though defendant’s revocation term has ended, we
entertain her appeal because she has not been discharged from parole and, in any event,
the issue is likely to recur. (See People v. Austin (2019) 35 Cal.App.5th 778, 786;
People v. Johnson (2020) 58 Cal.App.5th 363, 366, fn. 1.)
Turning to the merits of defendant’s appeal, “ ‘[p]arole conditions, like conditions
of probation, must be reasonable since parolees retain “constitutional protection against
arbitrary and oppressive official action.” [Citation.] Conditions of parole must be
reasonably related to the compelling state interest of fostering a law-abiding lifestyle in
the parolee.’ ” (People v. Navarro (2016) 244 Cal.App.4th 1294, 1299.) “ ‘The validity
and reasonableness of parole conditions is analyzed under the same standard as that
developed for probation conditions.’ ” (People v. Relkin (2016) 6 Cal.App.5th 1188,
1194.) We review vagueness challenges de novo. (Navarro, at p. 1301.)
“[T]he underpinning of a vagueness challenge is the due process concept of ‘fair
warning.’ [Citation.] . . . . A vague law ‘not only fails to provide adequate notice to
those who must observe its strictures, but also “impermissibly delegates basic policy
matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’
[Citation.] In deciding the adequacy of any notice afforded those bound by a legal
restriction, we are guided by the principles that ‘abstract legal commands must be applied
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in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the
language used must have ‘ “reasonable specificity.” ’ ” (In re Sheena K. (2007)
40 Cal.4th 875, 890.) Our high court thus held that a condition forbidding a minor from
associating with “ ‘anyone disapproved of by probation,’ ” was unconstitutionally vague
because the “condition did not notify defendant in advance with whom she might not
associate through any reference to persons whom defendant knew to be disapproved of
by her probation officer.” (Id. at pp. 889, 891-892; see People v. Austin, supra,
35 Cal.App.5th at p. 790 [applying standard to parole conditions].)
In People v. Turner (2007) 155 Cal.App.4th 1432 (Turner), this court held that a
condition prohibiting the defendant from “ ‘possess[ing] any sexually
stimulating/oriented material deemed inappropriate by the probation officer and/or
patroniz[ing] any places where such material or entertainment is available’ ” (id. at
p. 1435) was “an inherently imprecise and subjective standard. It is not materially
distinguishable from the probation condition in Sheena K. forbidding association with
anyone disapproved of by the probation department” (id. at p. 1436). To render the
provision constitutional, we modified it to cover only those materials and places for
which the probationer was informed in advance were prohibited. (Ibid.) People v. Pirali
(2013) 217 Cal.App.4th 1341 similarly modified a probation condition prohibiting the
defendant’s purchase or possession of materials deemed explicit or pornographic by the
probation officer. (Id. at p. 1353.)
In re D.H. (2016) 4 Cal.App.5th 722 (D.H.) took a different approach. There, a
16-year-old minor who admitted to indecent exposure on a public bus was placed on
probation, a condition of which prohibited him from “ ‘access[ing] pornography on any
electronic devices or otherwise.’ ” (Id. at pp. 724, 725.) Finding the “inherently vague”
term “pornography” could not “be made sufficiently precise by modifying it to prohibit
accessing materials that the probationer knows are pornographic because the term itself is
subjective and subject to different interpretations,” the appellate court directed the trial
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court on remand to “define more precisely the material the court intends to prohibit.” (Id.
at p. 729.) Although not confronted with an overbreadth challenge, the appellate court
suggested that “the court carefully consider what purpose this condition is intended to
serve, as it is far from clear to us how restricting D.H.’s access to any materials that
might be considered pornographic will help him avoid the behavior he exhibited in
committing his offense or aid more generally in his rehabilitation.” (Ibid.) Defendant
requests that we take this approach.
The People do not attempt to distinguish D.H. They acknowledge that the parole
officer conceded the definitions of “pornographic” and “sexually oriented or sexually
stimulating” are subjective. Nevertheless, the People cite People v. Olguin (2008)
45 Cal.4th 375 for the proposition that a condition should be given “ ‘the meaning that
would appear to a reasonable, objective reader.’ ” (Id. at p. 382.) They suggest the
dictionary definition of “pornography” meets this standard. In Olguin, our high court
rejected the defendant’s vagueness challenge to a condition requiring him to inform his
probation officer of pets in his household, noting that defendant was attacking the
condition’s breadth, not its clarity. (Id. at p. 386.) Olguin did not address an inherently
vague term like pornography, much less suggest such vagueness can be resolved by
simply referencing a dictionary--a result that would have obviated the aforementioned
precedents and therefore does not aid the People.
We also reject the People’s claim that “sexually oriented or sexually stimulating”
is sufficiently clear. This clause, they argue, is distinct from its counterpart in Turner
because it is not overtly limited to that which is “deemed inappropriate” by the parole
officer. But the record establishes that, in practice, the clause is applied subjectively, as
evidenced by the parole officer’s concession to this effect, his inability to articulate any
parameters delimiting the scope of the clause, and the fact he volunteered it could include
vegetables. Thus, the clause “ ‘ “impermissibly delegates basic policy matters . . . for
resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and
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discriminatory application” ’ ” and so lacks “ ‘ “reasonable specificity.” ’ ” (In re
Sheena K., supra, 40 Cal.4th at p. 890.)
Therefore, condition 31 is unconstitutionally vague. 3
We will follow the approach taken in D.H., supra, 4 Cal.App.5th 722, and remand
the matter to the trial court to define more precisely the prohibited “pornographic
materials” and “sexually oriented or sexually stimulating” items. (See People v. Austin,
supra, 35 Cal.App.5th at p. 791 [similar disposition as to parole condition].) As in D.H.,
we encourage the trial court, on remand, to carefully consider the scope and purpose of
condition 31. Defendant’s sex offenses occurred over 15 years ago and were against
minors. Yet her parole was revoked not for the images of children she downloaded, but
because she visited an adult pornographic website and recorded images of her own body
to share with adults. This observation suggests the condition might not be specifically
tailored to discouraging a recurrence of defendant’s harmful behaviors while aiding in her
rehabilitation. (See People v. Johnson, supra, 58 Cal.App.5th at p. 370 [“maintaining
public safety and ensuring parolees’ rehabilitation are the twin objectives of parole
supervision”].) On remand, the parties may raise any challenges to the modified
condition.4
3 In light of this conclusion, we need not address defendant’s insufficiency of the
evidence claim. (See People v. Austin, supra, 35 Cal.App.5th at p. 791, fn. 4.)
4 We take no position on whether defendant may, as a result of this disposition, be
eligible for early parole under section 3000.01, subdivision (b)(1).
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DISPOSITION
The order revoking defendant’s parole is reversed, and the matter is remanded for
further proceedings to modify condition 31 in a manner consistent with this opinion.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Hoch, J.
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