Error and/or relief
A condition of probation must be modified, as it is not sufficiently clear on what exact conduct is proscribed.
First Holding:
Probation condition number 48 provides: “You shall not associate with any person known to you as a gang member, and you shall not frequent any area where gang members are known to congregate, or areas known for gang-related activity.” The defendant argues the terms frequent and areas known for gang-related activity are unconstitutionally vague.
Authority:
In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [probation condition that the minor not frequent any areas of gang related activity was objectionable because the verb ‘frequent’ would be especially challenging to understand; ‘frequent’ should be replaced with “visit”]
In re Victor L. (2010) 182 Cal.App.4th 902, 913–914 [probation condition prohibiting minor from being in areas known for gang-related activity was impermissibly vague in that it does not provide notice of what areas the minor may not frequent or what types of activities he must shun]
Second Holding:
Under the void for vagueness doctrine, based on the due process concept of fair warning, an order 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. The doctrine invalidates a condition of probation so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.
Authority:
In re Victor L. (2010) 182 Cal.App.4th 902, 910
Third Holding:
In Victor L., we considered a similar probation condition that required the minor to stay away from areas known by him for gang-related activity. We found the condition as written, without further specificity, was not sufficiently clear to put the minor on notice of the prohibited conduct.
However, we declined to remand the matter to the trial court to reform the probation condition, observing, that to require the judge in each probation order to specify exactly which areas are forbidden to the individual gang member would impose an undue burden on the judiciary.
Instead, we elected to modify the condition of probation to provide for the probation officer to notify the minor of the areas he must avoid, as this approach was implied in law in order to avoid a claim of unconstitutional vagueness. We modified the probation term to read in relevant part, “The Minor shall not be in areas known by Minor for gang-related activity (or specified by his probation officer as involving gang-related activity).
Similarly here, we will modify the condition to read: “You shall not associate with any person known to you as a gang member, and you shall not visit any area where gang members are known by you to congregate or any area known by you for gang-related activity (or as designated by your probation officer), unless you have prior authorization from your probation officer.”
Authority:
In re Victor L. (2010) 182 Cal.App.4th 902, 913, 916-918, 931-932
In re H.C. (2009) 175 Cal.App.4th 1067