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How specific must probation terms be to avoid the overly-broad-and-vague judicial kiss of death?
California’s Sixth Appellate District Court ruled this week that a probationer may be restricted from hanging out in a location which he knows to be, or which the probation officer informs him to be, an area of criminal, street-gang-related activity. The court also found that a restriction from loitering in areas “adjacent to any school campus” was not overly vague.
Esequiel Barajas attacked and seriously cut a man with a beer bottle on a San Jose street in March 2010. Pursuant to his November 2010 plea agreement, Barajas pleaded no contest to assault with a deadly weapon and admitted that he used the beer bottle to inflict bodily harm on the victim.
He was released the same month with credit for time served, and in December 2010, Barajas was placed on probation for three years subject to a number of conditions.
Most of Barajas's probation terms related to avoiding gang culture. Because Barajas was with gang members at the time of the attack, he was ordered to avoid locations and situations where he knew, or had been informed, that he would encounter gang culture.
Barajas challenged the term on the grounds that the prohibition was vague due to the knowledge standard. The court, however, upheld the knowledge standard, noting that Barajas "cannot be found in violation of this condition for visiting an area of gang-related activity unless there is proof that he knew the nature of the location."
Barajas also challenged the condition that he could not be adjacent to a school during school hours without permission from his probation officer or a school administrator. While the court noted that there was no precedent to suggest that the term "adjacent to" was overly broad, the court and the Attorney General agreed to modify the term to replace "adjacent to" with "within 50 feet of a school."
Barajas, clearly a conscientious probationer, also raised the point that the 50-foot zone could be accidentally violated simply by driving or walking past a school en route to another location.The court, however, said that law and reason do not require probation terms restricting constitutional rights to be stated so exactingly so as to preclude any possibility of misinterpretation or misapplication.
"Gangstas" are not often known for formal linguistic precision, so it's amusing when a probationer who has been prohibited from associating with gangs demands probation terms stated with such particularity as to prompt a multi-page court discussion whether the term "adjacent to" is too vague to be enforced.
If you're a lawyer representing a persnickety probationer like Esequiel Barajas, it seems like the court is open to the idea of specificity in probation terms. Avoid the appellate hassle by asking the court for clarification at sentencing.