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Filed 1/19/16 P. v. Hoskins CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JON CLAYTON HOSKINS,

Defendant and Appellant.

 A141819

 (Contra Costa County

 Super. Ct. No. 051217025)

Defendant Jon Clayton Hoskins appeals from an order terminating his probation 

and placing into execution a previously suspended sentence of eight years in state prison 

associated with a conviction for committing lewd acts on a child under 14 years of age. 

(Pen. Code,1§ 288, subd. (a).) Defendant argues that the evidence was insufficient to 

establish that he possessed pornography in violation of a term of his probation, even 

though the court below stated it was “fairly obvious” that DVD’s and other materials 

found in defendant’s possession were pornographic. Defendant’s claim on appeal turns 

on the absence of evidence that his probation officer or a sex-offender treatment program 

had ever provided him with a definition of what constitutes pornographic material. He 

also contends the court abused its discretion in refusing to reinstate probation. We reject 

these contentions and affirm.

 

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Further statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND

In July 2011, the Shasta County District Attorney filed a first amended 

information charging defendant with four counts of lewd acts on a child under 14 years of 

age (§ 288, subd. (a)), with a special allegation that the crimes were committed against 

more than one victim (§ 667.61, subd. (b)). The district attorney also charged defendant 

with two misdemeanors committed against one of the minor victims—annoying or 

molesting children (§ 647.6, subd. (a)) and sexual battery (§ 243.4, subd. (e)(1)). 

Pursuant to a plea agreement, defendant pleaded guilty to one count of committing lewd

acts on a child under 14 years of age (§ 288, subd. (a)). The remaining charges were 

dismissed upon the prosecutor’s motion. 

In September 2011, the Shasta County Superior Court sentenced defendant to the 

upper term of eight years in state prison, suspended execution of the sentence, and placed 

defendant on probation for a period of seven years subject to various terms and 

conditions, including that he serve 270 days in county jail. One of the conditions of 

probation was that “[t]he defendant shall not possess, view or listen to any pornographic 

material as defined by a sex offender treatment program or the Probation Officer.” 

Defendant’s case was transferred from Shasta County to Contra Costa County in 2012.

In November 2013, defendant’s probation officer in Contra Costa County filed a 

petition to revoke defendant’s probation. According to the petition, defendant violated 

the terms of his probation as a result of being “in possession of pornographic material 

including a DVD and sexual toys.” The court revoked defendant’s probation and issued a 

bench warrant for his arrest. 

At a contested hearing on the petition to revoke defendant’s probation, a Santa 

Clara County sheriff’s deputy testified that on the morning of November 18, 2013, he 

responded to assist a fellow officer in a remote area near Lexington Reservoir in 

unincorporated Santa Clara County. The deputy described the area as rural and isolated. 

A pickup truck that was later determined to belong to defendant was parked just off the 

roadway. The deputy observed that the rear windows behind the driver’s and passenger’s

seats were blocked with towels or blankets. Defendant was alone in the pickup and told 
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the deputy’s partner that he had been napping. Upon inspecting the interior of the 

pickup, the deputy found a total of five DVD’s that the deputy described as pornographic. 

He also found two anatomically correct female blowup dolls as well as “sex toys in a 

shoebox.” Among the materials presented to the court as exhibits were photos of the 

DVD’s as well as photos of various magazines confiscated from defendant, including at 

least one described as using the word “teens” on its cover. 

After the deputy concluded his testimony, the court heard argument from counsel. 

Defendant’s trial counsel argued that the probation condition prohibiting the possession 

of pornographic materials is unconstitutionally vague. Counsel proposed modifying the 

condition to specify that defendant is prohibited from possessing pornographic materials 

“having been informed” by his probation officer that such items are pornographic. 

Counsel also argued that there was no evidence defendant was ever informed what was 

considered pornographic for purposes of the probation condition. 

The court found that defendant violated the term of his probation prohibiting the 

possession of pornography. The court rejected the argument that the challenged 

probation condition is unconstitutionally vague, noting that the clarifying language 

concerning whether certain material has been defined in advance to be pornographic only 

comes into play when there is a close question about whether the material is actually 

pornographic. The court found that the five DVD’s are “on their face pornographic,” and 

it is “fairly obvious” that certain magazines found in defendant’s pickup constituted 

pornography. The court later clarified that the pornographic materials consisted solely of 

the commercially-made videos and magazines. The court did not find that items such as 

the anatomically correct dolls were pornographic because the court was “afraid of 

treading on . . . the constitutiona[l] argument” and did not feel a need to “reach those 

potentially vague issues.” 

After the court found that defendant had violated his probation, the hearing 

proceeded for the purpose of sentencing, with the prosecutor urging the court to place 

defendant’s suspended sentence into execution. Defendant, a defense psychologist, and 
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defendant’s probation officer testified. The court terminated defendant’s probation and 

imposed the previously suspended eight-year prison sentence. This appeal followed. 

DISCUSSION

1. Sufficiency of the evidence 

The trial court found that defendant violated the term of his probation prohibiting 

him from “possess[ing], view[ing] or listen[ing] to any pornographic material as defined 

by a sex offender treatment program or the Probation Officer.” (Italics added.) On 

appeal, defendant claims the evidence was insufficient to support the court’s finding 

because there was nothing to indicate that the phrase “pornographic material” had ever 

been defined for him.

Although defendant’s claim turns on the sufficiency of the evidence, he also 

asserts in his reply brief on appeal that the constitutionality of the probation condition is 

properly before this court. Because defendant did not raise his constitutional challenge in 

the opening brief on appeal, we would be justified in treating the issue as forfeited. (See 

Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Nevertheless, we will 

briefly address principles governing whether a probation condition is unconstitutionally 

vague, as well as how those principles are applied in a circumstance such as this one, 

where a condition is not challenged as unconstitutional until after the court has found a 

violation.

“A probation condition ‘must be sufficiently precise for the probationer to know 

what is required of him, and for the court to determine whether the condition has been 

violated,’ if it is to withstand a [constitutional] challenge on the ground of vagueness.” 

(In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.)) “[T]he underpinning of a 

vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of 

fair warning consists of ‘the due process concepts of preventing arbitrary law 

enforcement and providing adequate notice to potential offenders’ [citation], protections 

that are ‘embodied in the due process clauses of the federal and California constitutions.” 

(Ibid.) In Sheena K., the Supreme Court held that a probation condition prohibiting a 

juvenile probationer from associating “with anyone ‘disapproved of by probation’ was 
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both vague and overbroad because the juvenile court did not require that in order to be in 

violation, defendant must know which persons were disapproved of by the probation 

officer.” (Ibid.)

The principles discussed in Sheena K. have been applied to probation conditions 

prohibiting the possession of pornography. In People v. Pirali (2013) 217 Cal.App.4th 

1341 (Pirali), the court held that a probation condition prohibiting the defendant from 

“purchasing or possessing pornographic or sexually explicit materials as defined by the 

probation officer” was vague without a requirement that defendant have advance 

knowledge of what was required of him. (Id. at p. 1352.) According to the court, “[t]he 

fact that the probation officer may deem material sexually explicit or pornographic after 

defendant already possesses the material would produce a situation where defendant 

could violate his probation without adequate notice.” (Ibid.) The court modified the 

condition to prohibit the purchase or possession of materials “having been informed by 

the probation officer that such items are pornographic or sexually explicit.” 

(Id. at p. 1353.) Similarly, in People v. Turner (2007) 155 Cal.App.4th 1432 (Turner), 

the court modified a probation condition prohibiting the possession of sexually 

stimulating material “deemed inappropriate by the probation officer” to specify that the 

defendant could not possess any sexually explicit material “ ‘having been informed by 

the probation officer that such material is inappropriate . . . .’ ” (Id. at pp. 1434–1436.)

Here, unlike in Sheena K., Pirali, and Turner, defendant is not challenging the 

probation condition as invalid or unconstitutional on its face, nor is he seeking to modify 

the condition to include a knowledge requirement. Indeed, there is no indication that 

defendant objected to the condition until he was charged with violating it. Instead, he 

asserts, in effect, that the condition as applied to him violated his due process rights 

because there was no showing that he had advance notice of what materials were defined 

as pornographic. 

The court was faced with a somewhat analogous situation in People v. Urke 

(2011) 197 Cal.App.4th 766 (Urke), where a defendant who had not previously 

challenged the constitutionality of a probation condition prohibiting him from being in 
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the “presence” of minors raised a vagueness and overbreadth challenge after a court 

found that he violated the condition. (Id. at p. 773.) The court held that it was 

unnecessary to reach the constitutional question because “(1) the subject matter of the 

condition is one upon which a properly tailored condition may be imposed, and 

(2) defendant’s conduct was such that it would breach the condition regardless of how 

narrowly or precisely worded.” (Id. at p. 774.) Thus, the appellate court found any error 

harmless beyond a reasonable doubt because the trial court would have found a violation 

even if the condition were worded to avoid any constitutional infirmity. (Id. at p. 775.)

It is unnecessary to address the constitutional question here because, just as in 

Urke, any error either in the drafting or construing the probation condition at issue is 

harmless beyond a reasonable doubt. First, as Pirali and Turner demonstrate, a probation 

condition prohibiting the possession of pornography passes constitutional muster as long 

as the defendant has fair warning of what is prohibited. Second, as explained in more 

detail below, the evidence was more than sufficient to demonstrate that defendant would 

have breached a condition prohibiting pornography no matter how narrowly worded.

“We review a probation revocation decision pursuant to the substantial evidence 

standard of review [citation], and great deference is accorded the trial court’s decision, 

bearing in mind that ‘[p]robation is not a matter of right but an act of clemency, the 

granting and revocation of which are entirely within the sound discretion of the trial 

court.’ ” (Urke, supra, 197 Cal.App.4th at p. 773.) Under the substantial evidence 

standard, we “resolve all inferences and intendments in favor of the judgment.” (People 

v. Kurey (2001) 88 Cal.App.4th 840, 848.) Our review is limited to a determination of 

whether substantial evidence, whether contradicted or uncontradicted, supports the trial 

court’s decision. (Id. at pp. 848–849.) “Substantial evidence includes circumstantial 

evidence and any reasonable inferences flowing therefrom.” (People v. Cole (1994) 

23 Cal.App.4th 1672, 1678.) “ ‘More lenient rules of evidence apply [at probation 

revocation hearings] than at criminal trials [citations], and the facts supporting revocation 

need only be proved by a preponderance of the evidence.’ ” (People v. McGavock (1999) 

69 Cal.App.4th 332, 337.) 
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In this case, the court found that the DVD’s and magazines possessed by 

defendant clearly constituted pornography. As the prosecutor stated, “by anyone’s test,” 

the X-rated videos defendant possessed were pornographic. Defendant did not dispute 

below that the materials were pornography as that term is commonly understood, nor 

does he argue here that they would not be considered pornography by an average person. 

Indeed, in his reply brief, he seems to concede that the trial court could have validly 

found a probation violation if defendant had been prohibited from possessing 

pornographic material that the “average person . . . would find, taken as a whole, appeals 

to the prurient interest.” Nowhere does he suggest that the materials have some artistic 

value or are anything other than pornography.

Instead, defendant rests his claim on the lack of direct evidence that his probation 

officer or a sex-offender treatment program ever provided him with a definition of 

pornography. But commercially-produced, X-rated videos and magazines would have fit 

any definition of pornography that a sex-offender treatment program might employ, no 

matter how narrowly defined the term might be. Defendant does not suggest this is a 

close case where an average person might question whether the confiscated materials 

constitute pornography.

The facts of this case do not raise a concern that defendant somehow lacked fair 

notice of what was expected of him. “ ‘Fair notice’ requires only that a violation be 

described with a ‘ “reasonable degree of certainty” ’ . . . so that ‘ordinary people can 

understand what conduct is prohibited.’ ” (Burg v. Municipal Court (1983) 35 Cal.3d 

257, 270–271.) It strains credulity to suggest defendant was unaware that the materials 

he possessed would be considered pornographic. There is no dispute that he knowingly 

possessed them. And, given the circumstances under which he was found with the 

pornographic materials—in a remote area, with windows covered—it is not unreasonable 

to infer that he knew he was not supposed to possess or view the materials.

Accordingly, we conclude that substantial evidence supports the trial court’s 

finding of a probation violation. To the extent the probation condition is 

unconstitutionally vague on its face, any such error is harmless beyond a reasonable 
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doubt because the evidence would have established a knowing violation even under a 

properly modified condition.

2. Refusal to reinstate probation

Defendant next contends the court abused its discretion when it declined to 

reinstate probation. We disagree.

The standard governing our review is well settled. “ ‘The discretion of the court to 

revoke probation is analogous to its power to grant the probation, and the court’s 

discretion will not be disturbed in the absence of a showing of abusive or arbitrary action. 

[Citations].’ [Citation.] . . . ‘ “[O]nly in a very extreme case should an appellate court 

interfere with the discretion of the trial court in the matter of denying or revoking 

probation. . . .” ’ [Citation.] And the burden of demonstrating an abuse of the trial 

court’s discretion rests squarely on the defendant.” (Urke, supra, 197 Cal.App.4th at 

p. 773.)

Defendant’s primary argument is that the trial court failed to give proper weight to 

the testimony of the defense expert in psychology, Dr. Christopher Fisher. Dr. Fisher 

testified that defendant scored a “zero” on the “Static-99” test, and that as a result his 

probability of reoffending was below 5 percent. Defendant also cites a letter from his 

wife urging the court to reinstate him on probation so that he could continue to provide 

income for his family. His contentions are unavailing.

The trial court was not obligated to accept Dr. Fisher’s recommendations. (See 

People v. Downey (2000) 82 Cal.App.4th 899, 910 [in assessing whether to reinstate 

probation, court not required to follow expert recommendations].) The court expressed 

difficulty accepting the opinions of Dr. Fisher for two separate and independent reasons. 

First, in light of the fact that defendant’s use of pornography and sex toys risked the 

imposition of his lengthy suspended sentence, the court believed that Dr. Fisher 

“ignore[d] reality” by suggesting those behaviors were “low risk.”2 Second, the court 

 

2Dr. Fisher did not hesitate to describe the materials confiscated from defendant as 

pornography. Nor did defendant dispute the characterization of the videos as 

pornographic when he testified. Although this testimony was offered after the court had 
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believed that defendant had not fully engaged in a treatment program in light of evidence 

that he had not been candid with his therapist. 

The court also took into account the hardships that defendant’s family might 

suffer, and acknowledged that the probation violation was not the “most egregious.” 

Nonetheless, the court reasoned that possession of pornography was a material and not 

simply a technical violation of probation. And, the court acknowledged its duty to 

protect society and recognized that defendant had been convicted of a serious crime for 

which he had received an aggravated sentence. 

The trial court’s ruling was thoughtful, reflected consideration of the evidence 

presented to it, and took into account the nature of the defendant’s conviction and his 

individual circumstances. On this record, we discern no abuse of discretion in 

terminating defendant’s probation and imposing the suspended prison sentence.

DISPOSITION

The judgment is affirmed.

 

already found a probation violation, it is nonetheless hard to reconcile with defendant’s 

contention on appeal that he did not have fair notice of what materials might be 

considered pornographic.
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_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

_________________________

Jenkins, J.

A141819, People v. Hoskins