Probation terms requiring that defendant not go to any business where alcohol is the chief item of sale or use or possess “dangerous drugs” are unconstitutionally vague. Gaines was found guilty of theft offenses. He received a split sentence of six years: four years in county prison, and two years on mandatory supervision. The court imposed probation terms, including that Gaines not possess or use any dangerous drugs, not enter a business in which alcohol is the chief item of sale, and not have any weapon which could be concealed on his person. He appealed the probation terms. Held: Affirmed in part and reversed in part. A probation term is constitutional if it spells out with reasonable specificity what is prohibited such that a person of common intelligence need not guess at its meaning. Unconstitutionally vague probation conditions may often be cured by adding a scienter requirement to provide the probationer with adequate notice and prohibit arbitrary enforcement (disagreeing with People v. Patel (2011) 196 Cal.App.4th 956). A probation term need not expressly articulate a mens rea requirement as this fails to provide any additional specificity as to the prohibited conduct (disagreeing with a contrary holding in In re Kevin F. (2015) 239 Cal.App.4th 351). The term prohibiting Gaines from entering a business where alcohol is the chief item of sale is vague because it is difficult to discern whether alcohol is the main item of sale, such as at recreational activities. The “dangerous drug” condition is vague because it can be interpreted in different ways; some drugs could be considered dangerous if used without a prescription (Bus. & Prof. Code, § 4022) while others may be considered dangerous even when prescribed. The conditions are modified to provide that Gaines may not use or possess any controlled substance without a prescription and that he must not go to any establishment where he knows alcohol is the chief item of sale.
The probation condition prohibiting defendant from owning or possessing any weapon that could be concealed on his person provides him fair warning of the conduct prohibited. Gaines claimed the weapons term is vague because it might extend to possession of any concealable object capable of being used as a weapon. He argued the condition should have an express knowledge requirement. However, the condition plainly prohibits his possession of items specifically designed as weapons, in addition to objects he may intend to use to inflict great bodily injury. Because all probation terms contain a mens rea requirement, Gaines’ probation may not be revoked based on violation of this term if he did not know of the object’s presence.