Filed 1/19/16 P. v. Hoskins CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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,
                                                                     A141819
v.
JON CLAYTON HOSKINS,                                                 (Contra Costa County
                                                                     Super. Ct. No. 051217025)
         Defendant and Appellant.


         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.




         1
             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

       2
       Dr. 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

                                              8
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




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