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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

THOMAS JONES,

Defendant and Appellant.

C094439

(Super. Ct. No. PR202100010)

Defendant Thomas Jones’s1 parole was revoked after the trial court found she 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.
2

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.
3

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.