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Name: People v. Barajas
Case #: H036383
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/23/2011

A “gang area restriction” probation condition containing a knowledge requirement is not impermissibly vague or overbroad. The condition, “You are not to visit or remain in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity” is not vague. In People v. Leon (2010) 181 Cal.App.4th 943, 952, a knowledge condition was added by this same appellate court to avoid a constitutional challenge. In the antithesis of the argument in Leon, it was argued that a knowledge requirement is vague because of the possibility that a probation officer might base a violation on his belief that the probationer must know he is in a gang restricted area even though the probationer has a different opinion about the nature of the area. While reasonable minds may differ about where criminal street gang activities occur, a probationer cannot be found in violation for visiting a restricted area unless there is proof that he knew the nature of the location, possibly by learning it from his probation officer or by some other means that can be proved up at a violation hearing by a preponderance of the evidence.

Modifying a probation condition which prohibits the probationer from being “adjacent” to a school to prohibit presence within 50 feet of a school will avoid a challenge for vagueness. A probation condition must contain some standard for determining what a probationer has to do in order to satisfy the requirements. The term “adjacent” is an abstract concept and a probation officer charged with enforcement would have to interpret the line on a continuum between “adjacent” and “distant” to enforce the condition. The Due Process Clause only requires sufficient notice so that the probationer can conduct himself to avoid violation. The modification, at the Attorney General’s suggestion, to a 50 foot proximity is not a constitutional threshold but provides reasonable specificity.