People v. Fetterman CA3

Filed 12/10/13 P. v. Fetterman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Amador) ----

THE PEOPLE, C072312

Plaintiff and Respondent, (Super. Ct. No. 12CR19158)

v.

NICHOLAS PAUL FETTERMAN,

Defendant and Appellant.

Defendant Nicholas Paul Fetterman pleaded guilty to furnishing marijuana to a minor older than 14 years of age (Health & Saf. Code, § 11361, subd. (b)) and possession of child pornography (Pen. Code, § 311.11, subd. (a)). Pursuant to the plea agreement, he was given a four-year state prison term with execution suspended and placed on five years’ formal probation. One condition of probation forbade defendant from possessing

1

pornography or various types of media that might be used for the purpose of sexual arousal or stimulation. Defendant was subsequently charged with violating his probation in that he failed to observe good conduct and failed to not possess pornography. The trial court found insufficient evidence to support the allegation in that the photos that were taken were not considered pornographic. The People filed a first amended revocation petition, alleging defendant violated probation by failing to observe good conduct, possessing sexually stimulating photographs, and failing to notify his probation officer of a change in address. Following a contested hearing, the trial court found insufficient evidence regarding the change of address allegation, but sustained the allegation regarding the sexually stimulating photographs. The trial court terminated probation and imposed the suspended four-year state prison term. On appeal, defendant contends the doctrine of collateral estoppel prevented the trial court from finding a probation violation based on evidence that did not sustain the allegations in the first contested hearing. We affirm. BACKGROUND We dispense with the facts of defendant’s crimes as they are unnecessary to resolve his appeal. Among the probation conditions was condition No. 14, which states: “Do not possess any pornography or sexually stimulating or sexually oriented movies or access any prerecorded or live materials in any medium (including, but not limited to photographs, paintings, drawings, literature, documents, television, satellite, cable services, pay-per-view, telephone services, audiotapes, or digitally stored materials on the internet, computers, DVDs, videos, cd-roms, or other sources) that may be used for the purpose of sexual arousal or stimulation, nor shall you frequent any place where such material is available.”