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Impermissibly Vague Probation Condition for Associating

In November 2017, a Fremont Police Officer investigated a report of suspicious activity taking place in a grocery store parking lot.  He went there and found Michael Carlos Gonsalves there in possession of a knife, credit cards in the names of Anna C. and Tracy J., three cell phone and a DoubleTree hotel key card.
Brief Synopsis: A probation condition is improper if it violates the due process requirement of fair notice by being sufficiently clear to prevent arbitrary enforcement and adequate notice to potential offenders.
Gonsalves told the police officer that Anna C. and Tracy J. gave him permission to have their credit cards, but at trial Tracy J. testified that her credit cards had been stolen from her car earlier in the day.  The hotel card contained credit card information for Carl C., who testified he did not know how his credit card information had been transferred onto the hotel key. 

The cell phones contained personal identifying information for numerous people who did not know Mr. Gonsalves and did not give him permission to have such information.

Gonsalves was then arrested and in Alameda Superior Court, a jury found him guilty of misdemeanor grand theft (Penal Code § 484e(d)) and felony fraudulent possession of personal information (Penal Code § 530.5(c)(3)).

At sentencing, the trial court judge denied defendant’s request to reduce the felony to a misdemeanor, noting Gonsalves' “quite lengthy” criminal history and that “he has not performed well in that connection.”  It was “not encouraging.”  He also noted a “pattern of serious and increasingly serious conduct.”

Nonetheless, he placed Gonsalves on three years of felony probation and ordered him not to “associate with any person known to [him] to have a criminal record.”

Gonsalves then filed an appeal with the First Appellate District Court challenging the validity of the probation condition forbidding him from associating with any persons known to him to have a “criminal record.” 

The First Appellate District Court agreed that the probation condition was constitutionally flawed.

It noted from the outset that Gonsalves did not challenge the reasonableness of the association condition under the “longstanding framework” of People v. Lent (1975) 15 Cal.3d 481.  Instead, Gonsalves says the association condition is vague and overbroad.  It should be mentioned that although Gonsalves did not make this objection at sentencing, he can make such a constitutional challenge for the first time on appeal where, as here, it presents a pure question of law that can be resolved without reference to the sentencing record from the trial court.  In re Sheena K. (2007) 40 Cal.4th 875, 888-880.

art_1519_-_court_of_appeal__first_appellate_district__san_francisco_.jpgCourt of Appeal First Appellate District San Francisco

The appellate court then observed that the term “criminal record” has no settled meaning and may include a record of an arrest that resulted in no charge or conviction.

By broadly encompassing a prohibition on association with persons have mere arrest histories without charges or convictions, the probation condition is not carefully tailored to the government’s interests in rehabilitating defendant and protecting the public.

In dicta, the appellate court reminded the reader that the right of association is a constitutional right, but it “may be restricted if reasonably necessary to accomplish the essential needs of the state and public order.” (citation omitted).  Such restrictions are “part of the nature of the criminal process.”  People v. Lopez (1998) 66 Cal. App. 4th 615, 627-628. 

“Trial courts have broad discretion to set conditions of probation in order to ‘foster rehabilitation and to protect public safety pursuant to . . .section 1203.1.  If it serves these dual purposes, a probation condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is ‘not entitled to the same degree of constitutional protection as other citizens.’”  Lopez, supra, at 624.

Turning back to Gonsalves’ challenge, the appellate court stated that the vagueness challenge is based upon a due process concept of fair warning.  “The rule of fair warning consists of the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders.”  In re D.H. (2016) 4 Cal. App. 45h 722, 727 (the term “pornography” was unconstitutionally vague).

To withstand a vagueness challenge, a probation condition must be sufficiently precise for probationers to know what is required of them, and for the court to determine whether the condition has been violated.  Sheena K., supra, 40 Cal. 4th at 890.

Here, because the term “criminal record” is inherently vague, it is overbroad and unconstitutional. 

The case was not remanded to the trial court to remedy the condition.  Instead, since AB 1950 had passed, amending Penal Code § 1203.1, limiting felony probation to two years (with certain exceptions that did not apply here), probation was simply terminated because more than two years of probation had elapsed.

The citation for the First Appellate District Court ruling discussed above is People v. Michael Carlos Gonsalves (1st App. Dist., 2021) 66 Cal. App. 5th 1, 280 Cal. Rptr. 3d 705.

For more information about impermissibly vague or overbroad probation conditions, please click on the following articles:
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