People v. Jones CA3

Filed 8/10/22 P. v. Jones CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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Defendant Thomas Jones’s1 parole was revoked after the trial court found she violated a parole condition prohibiting her access to “sexually oriented or sexually stimulating objects, articles, magazines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.

1

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